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Friday, July 31, 2020

Preparing for Fall Teaching – Community-Based Learning in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  This post and other recent posts focus on the second step, which is designing assessment & engagement techniques for these new learning environments. 

One of the best parts of teaching in a law school is creating opportunities for students to take their learning out into the world.  We can bring speakers into our class, we can take students to visit a court or administrative agency to see the law in practice, and we can have our students meet up with real clients who may need their help. I even have a colleague who has her Criminal Procedure students do a ride along with the local police department.  Yet none of this will be possible this fall, at least not the way we’ve done it in the past—we certainly can’t put students on a bus and drive up to the Supreme Court, for example.  We could just scrap community-based learning entirely, but I’d love to explore ways to bring the community to our students, even if they are on Zoom.

Bring in speakers remotely.  This option is obvious, but I want to encourage professors to dream big on the speakers they invite into their remote courses.  Pre-COVID, it was hard to get big name speakers into our courses – virtual presentations were rare, and people often didn’t want to travel to talk to a handful of law students.  Now that we all work over Zoom, it’s so much easier to get someone to participate in a 30 minute virtual visit with a class.  So make a list of your dream speakers and invite them to your class.

Record a brief interview with a practicing lawyer about the material.  As asynchronous videos become more common, we might explore using them to introduce practicing lawyers’ views about the material we cover in class.  I’ll give one example here.  As any business law professor knows, the law on corporate boards’ oversight liability is in flux right now.  Rather than just letting my students hear from me on how the law is changing, I’m considering calling up 2-3 lawyers and asking them to record a brief interview with me on the impact of recent cases on traditional doctrine. These interviews will give my students a broader perspective on the law, while also letting them know that the cases they are reading in class actually matter to lawyers out in the world.

Ask lawyers to record their thoughts on assigned problems.  Like many professors, I often assign problem sets at the end of course units, and we go over the problems in class.  This year, I’m contemplating a new approach.  We’ll still talk about the problems as a class, but then I’ll show a video of a practicing lawyers working through the same problem.  I’ve never tried this approach, but my guess is that the lawyer will have a broader perspective on the problems than our in-class discussion, looking beyond the formal rules to the practicalities of pursuing various claims. 

Show law working remotely.  The legal profession has experienced tremendous upheaval over the last few months as hearings, trials, and mediations have all moved online.  It’s worth exploring whether our students can witness this upheaval for themselves.  If you’ve previously required students to visit your local court and attend a hearing, maybe they can attend a virtual hearing this semester.  The great thing about this option is that you don’t need to limit your class to local hearings.  Even if the courts around you are operating in-person, you may be able to find a locality somewhere in the country where courts are still virtual.

Use podcasts to provide broader context.  I’ve oriented my entire Business Associations course around podcasts.  At the start of each unit, I require students to listen to a podcast describing a business.  I then feature this business in all of the hypotheticals for this business, and then we end each unit with a lengthier case study relating to that business.  If you want my podcast list, just email me!  Sometimes I even reach out to the business to ask the founders for their thoughts on what they wanted from their lawyers in starting the business.  This approach helps students see the human side of business law, but a similar approach could work in other classes as well.  I won’t pretend that I know the podcasts options in all of the different areas of law, but there are enough out there that I’m sure we can all find some interesting options.    

Try a Community Interest Journal.  This idea comes from the Cross Academy, and they have more information about it here.  The basic idea is simple.  You have students create a journal or even just a single essay in which they connect real-world events to material from class.  I could imagine asking students to find an example of fiduciary duties in the news for my Business Associations course or class actions in the news for my Civil Procedure class.  I like the idea because it gives students some choice in how they engage with the material, which we know is important in fostering motivation.

My plan is to have one more post on assessment & engagement, focusing on metacognition strategies in the new learning environments.  I’ll then turn to ideas for building community and connection in our courses.

 

Posted by Jessica Erickson on July 31, 2020 at 10:55 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (0)

Sponsored content: Seizing the Opportunity to Focus on Students of Color

The following post is by Russell A. McClain (Maryland) and is sponsored by West Academic

In the last few weeks and months, we all have become more acutely aware of the struggles students of color—particularly Black students—face on a daily basis. These students feel marginalized in ways that affect every aspect of their lives. At the core of this feeling is a tacit question: Do I belong here? The question of belonging is felt not only by Black students; it affects many students who feel oppressed or overlooked because of their race, gender, gender identity, sexual orientation, ethnicity, religion, socio-economic status, other identity characteristics, and intersections of these.

When an American Indian is the only student of her background in a class or school, she has to wonder if she belongs there. When Black law partners are referred to as “unicorns,” our Black students have to wonder if there is a place for them in the practice of law. When students see that women lawyers earn substantially less than their male counterparts, they must question whether they really fit within the profession. When a transgender student must search far and wide for a restroom in which they will feel welcome, they surely ask if they are just an afterthought in a world not designed for them.

This should matter to us for many reasons, but given that teaching is one of the three core aspects (along with scholarship and service) of our chosen profession as law faculty, we should care because the question of belonging undermines our students’ ability to learn. Studies of stereotype threat by Claude Steele and others show that the academic performance of students from marginalized backgrounds is encumbered when they are faced with the prospect of proving that they belong. Women going to graduate school in mathematics perform worse academically when told that tests tend to show differences between men and women. Blacks perform worse on exams when primed to focus on their racial identity. In other words, when minorities are confronted with negative, intelligence-based, group stereotypes, it takes a toll on their academic performance.

Nowhere is this dynamic worse than in higher education, where one’s intelligence is evaluated constantly, and the need to prove oneself is paramount. Law school, in particular, is the perfect breeding ground for stereotype threat, given the following conditions: (i) dramatic underrepresentation of people of color among students and faculty, (ii) pervasive, negative group stereotypes within the legal profession, (iii) a lack of meaningful feedback during the semester, and (iv) the ever-present need to validate one’s own intelligence when dealing with rigorous Socratic dialogue, voluminous and challenging readings, and one-chance, high-stakes final exams. If we do nothing to help our marginalized students deal with these dynamics, we leave (or, rather, erect) barriers in their paths to success.

Among the things we can do to help students develop a sense of belonging in law school is to demystify the law school academic experience. Law school is full of mystery and difficulty, and that can cause any student to wonder if they made the right decision in pursuing a law degree. Uncertainty about one’s place in the profession is exacerbated when students have no frame of reference to which they can compare the crucible that is the law school experience. To counter this, we should ensure that students should have a solid understanding of what law school is like before they enter the (physical or virtual) doors of our institutions. Then, when they face the normal, albeit substantial, challenges law school presents, they will not question their own fitness for the moment.

For this reason, I wrote The Guide to Belonging in Law School (West Academic Publishing 2020). Through the book and its companion website, I try to provide students with an immersive law school experience while also helping them recognize and manage the invisible influences that, if unchecked, could undermine their performance. While this book will not solve every problem our marginalized students face, it can start by laying a foundation for success upon which we law teachers can build by creating more inclusive learning spaces within our communities.

I hope that we all can commit to improving our academic environments so that our Black and brown students, women, racial and ethnic minorities, LGBTQIA community members, and others can reach their full academic potential and know that they belong.

Posted by Howard Wasserman on July 31, 2020 at 10:21 AM in Sponsored Announcements | Permalink | Comments (0)

Thursday, July 30, 2020

What If There Were No En Bancs?

I was rereading Gerald Gunther's biography of Learned Hand. Hand was famous for his disdain of en banc sittings, which lives on in the practice of the Second Circuit to call relatively few en bancs. One basic question this raises is whether en bancs serve any useful purpose. What would the world look like if there were none called or permitted?

One answer, of course, is that the Supreme Court would have to hear more cases. En banc hearings sometimes clean up bad mistakes by panels or resolve circuit splits. The Justices would have to do more of that. Litigation would (in some instances) also proceed faster, as one potential state of review would be eliminated.

Would panels "go rogue" more often without the threat of en banc review? Maybe, but for each panel that goes one way another panel could go a different way. That possibility may deter rogue actions. Panels might also take a narrower view of precedent if they concluded that there was no option of en banc review and no implicit validation of the precedent from the lack of en banc review. 

 

Posted by Gerard Magliocca on July 30, 2020 at 09:08 PM | Permalink | Comments (11)

Delaying the election

I expect the election to happen, if Steve Calabresi and Ari Fleischer are calling the President out for today's tweet and Kevin McCarthy insists on going forward. Nevertheless, some light reading if.

Posted by Howard Wasserman on July 30, 2020 at 05:37 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Biskupic, Part IV

All about the Chief cobbling together the largest possible majority in the subpoena cases. They were a contested 5-4 after conference, with Roberts assigning himself the opinion but no guarantee which of G/B/S/K would join his opinion and Gorsuch and Kavanaugh on the other side.

Posted by Howard Wasserman on July 30, 2020 at 05:21 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, July 29, 2020

Biskupic, Part III

Focuses on Justice Kavanaugh in June Medical, in which he tried to get people to go along with a remand for more fact-finding, and the subpoena cases, in which he raises the political-question issue. It also describes his efforts to adopt a softer tone towards the parties he rules against, such as DREAMERS or "gritty" LGTBQ individuals.

I think the spin on his moves in June is a bit disingenuous. Remanding for factfinding in these cases is often a delay tactic, a way to decide without deciding, when the trial court's fact-finding is clear and a remand serves no real purpose other than allowing the Justices to keep their hands clear (and make life less difficult for Susan Collins). The remand proposal recalls his dissent on the D.C. Circuit in the pregnant-unaccompanied-minors case, in which he called for giving the government more time to find a sponsor, as the 20-week state-law clock ran down.

Posted by Howard Wasserman on July 29, 2020 at 04:56 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

Preparing for Fall Teaching – Group Work in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  Recent posts have focused on the second step, which is designing assessment & engagement techniques for these new learning environments. 

One of the biggest challenges in law school classrooms this fall will be figuring out how to have our students do collaborative work in class.  No matter what your teaching situation is, it will be difficult.  If you are teaching in a physically distanced classroom with students in masks and 6 feet away from each other, you will need to figure out how to get students to work together without shouting from across the room.  If you are teaching remotely, you need to figure out how to use breakout groups effectively.  These are very different challenges, but I know they are on people’s minds these days.  Here are some tips for doing group work in these two classroom settings.

Group Work in a Physically Distanced Classroom

Group work will definitely be challenging in physically distanced classes.  There aren’t any easy ways to allow five students to work together in class when they can’t get within six feet of each other.  Yet, it would be a shame if we abandoned group work entirely this fall.  With all of the new health requirements, we already feel more distant from each other, so we need to find ways to connect in our classes, and group work is a good way to do that.

So how do we do it?  I’ve been in a fair number of physically distanced classrooms lately (one of the “perks” of being an associate dean…), and I think think-pair-share will still work.  Even at six feet apart, students can still talk to the person next to them fairly easily and then share their thoughts with the whole class.  If the groups get bigger than two students though, it gets harder, especially as everyone raises their voices to be heard across the six foot distances.  So we can do group work in class as long as we limit the groups to two or perhaps three people. 

Alternatively, we can try group annotation.  I was skeptical of this option at first – I’ve seen too many online learning books that suggest having students “talk” to each other in a chat box or google doc, which just seems weird, at least if the expectation is that they will engage in complex work through these techniques.  But I think it feels less forced if students are working collaboratively to edit or comment on a single document.  So, for example, you might give groups of three or four students a copy of an operating agreement or complaint and let them edit it together, through comment boxes or redlining.  I wouldn’t overuse this technique, but I could see it being helpful for a 10-15 minute exercise. 

Finally, we can move the group work outside of class.  This approach is admittedly contrary to the idea of in-person classes, but it also reflects the reality that physically distanced classrooms are just different from traditional classrooms and we need to adapt to that.  Perhaps you lecture a bit more in class and then move the group exercise to a set time out of class.  Or you put students in assigned groups and let them come up with their own time to meet.  If you do that, you need to adjust the other work they are supposed to do outside of class so you’re not overwhelming them, but it could work for those group exercises where you really want them to talk with each other.

Now what may not work -- I don’t think we can do Zoom breakout groups while everyone is in the same physical classroom.  I originally thought this was the perfect solution.  Just have everyone log into Zoom while in class (perhaps wearing headphones) and then you can send them all into breakout groups to talk to each before resuming an in-person discussion with the full class.  But we tried it in our classrooms here, and the feedback from all of the mics on all of the computers was loud and drowned out everything else.  That said, I’ve heard from professors at other schools who have been told by their tech team that this option can work.  If you’ve tried it successfully, let me know your secret -- I'd love to try it in my classes!  Either way, though, if this is your plan, you definitely want to test it ahead of time.

Group Work in Remote Courses

This is one area where remote courses are definitely superior to physically distanced ones.  Group work is just a lot easier on Zoom or a similar platform where you can send the students into breakout rooms.  But as many of us learned this year, it is hard to keep students on task in breakout rooms.  It’s easy for them to start talking about their weekend rather than the assignment.  So how can we design breakout groups to enhance student learning? 

Discuss shared norms.  Breakout rooms are new for all of us, so students may not know how to work in them productively.  It’s worth having a discussion about the group’s shared norms at the start of the semester.  Discuss ways that groups can get off track and how to address them.

Clear deliverables.  This one is key.  Don’t send students into breakout groups to “discuss” a topic.  Instead give them an assignment with a clear deliverable that they have to turn in at the end.  For example, you might have a specific question they need to answer when they return to the full discussion.  Or you can have ask them for their top three thoughts on a given topic.  I have used Google Forms in the past where students need to fill in their takeaways and then submit it in the assigned time. 

Assign students different roles.  Another way to add structure to the breakout groups is to assign students to play specific roles in the breakout groups.  One student is the moderator who is tasked with getting the discussion going and keeping it on task.  Another student is the reporter who will have to share the group’s output with the rest of the class.  I also assign students to be the devil’s advocate to ask hard questions and push the discussion deeper. 

Make the prompts visible.  I’ve been in too many breakout groups where the first five minutes are consumed with questions about what exactly we are supposed to be doing.  Make the task clear, and give them a written summary that they can refer back to when they are in the breakout rooms.  The easiest way to do this is to cut and paste the prompt into the chat.  I’ll often have a word document ready to go with the specific text I plan to paste into the chat.  Alternatively, if you want them to refer to slides in their groups, you can have an email to the class set to go with just the relevant slides or you can post them in your learning management system perhaps in a section called “Materials for Today’s Class.”  Either way, remember that any slides you have screenshared before sending students into breakout groups won’t be visible in the groups, so you can’t just rely on screen sharing to share the prompt.

Monitor group progress.  Zoom allows you to visit breakout groups, but I personally think it is disruptive when the professor suddenly appears in the room.  A different approach is to have students document their work in a Google Doc that they share with you.  You might send them a link to a single google doc in the chat that includes links to other google docs named for each group (i.e., “click here to go to group 1’s workspace.”).  That’s a bit tricky to set up logistically, but once you get into a rhythm, I don’t think it will be that hard, and you can then monitor the group’s work in real time. 

Name the Groups.  Consider naming the breakout groups, as laid out here.  This name will show up in the left hand corner of the groups’ screen, so they can easily see it.  Naming the groups has a few clear benefits.  First, if the groups have different tasks, it will let them know which tasks they are responsible for, preventing a “wait, are we the plaintiffs or the defendants in this exercise?” moment.  Second, if you are using google docs to direct them to a group workspace as explained above, it will tell them which workspace is theirs.  Third, it will allow you to direct questions to specific groups when the class gets back together again. 

Pre-Assign Groups.  Zoom lets you assign students to groups manually or randomly.  I used random assignment in the spring, but this fall, I plan to put students into assigned groups that they stick with for a few class sessions, mostly to let them get to know each other a bit better.  Rather than assigning groups on the fly during class, which always feels stressful, I will use the pre-assign feature in Zoom.  Full disclosure – I’ve been using this feature this summer, and it’s really glitchy, bringing maybe 50 percent of the students into the assigned rooms – but it’s still easier to start with pre-named rooms and some of the students already assigned than to do everything during class while the students are waiting. 

Use a Timer:  Zoom has the option to set a timer for the breakout rooms that shows students how much time is left in the groups.  It is easy to enable, and it helps focus the conversation as time is running out. 

In my next post, I will talk about how to incorporate community-based learning into physically distanced, hybrid, and remote courses.

Posted by Jessica Erickson on July 29, 2020 at 12:32 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (3)

Tuesday, July 28, 2020

Will My Law School Perish?

Higher education is facing an economically challenging time due to lost revenues brought upon by the COVID-19 pandemic. And as we saw with the closure of Concordia Law School this summer, law schools are no exception. NYU advertising professor Scott Galloway has crunched the numbers for “the immunities and comorbidities of 436 universities included in US News and World Report’s Top National College Rankings.” And he predicts about 20% of these institutions entered the pandemic on such shaky ground that COVID-19 will be the death blow to them. In short, one in five of these universities or colleges will perish.

To calculate this, he looked at a series of variables to create the following scores:

  • Credential score (US News ranking, undergrad admit rate, average monthly Google search volume)
  • Experience score (student life grade and score)
  • Education score (various return on investment measures)
  • Average undergrad tuition & fees score
  • Value-to-cost ratio
  • Vulnerability score (endowment per full time student and percentage of international students)

From these he created two main measures: Value and Vulnerability. And based on whether one was high or low on these measures, he created four quadrants of schools: Thrive, Survive, Struggle, or Perish. Thus, a university with low value and high vulnerability falls into the perish quadrant, whereas a university with high value and low vulnerability falls in the thrive quadrant. The data can be found here.

I took these institutional assessments and matched them up with the U.S. News Law School Rankings (see below). Based on Professor Galloway’s predictions, 18 law schools will perish in the near future (because their university will perish). That is 1 school in the top 50, 5 in the 51-100, 5 in the 101-147, and 7 in the unranked law schools. I have listed them below in order of ranking:

27

Fordham

53

Cardozo (Yeshiva)

62

Seton Hall

70

Loyola (Chicago)

83

Chicago-Kent

93

Drexel

102

Hofstra

111

Chapman

118

DePaul

136

Pace

141

Willamette

148-194

Campbell

148-194

Elon

148-194

New England

148-194

Nova Southeastern

148-194

Detroit Mercy

148-194

Massachusetts-Dartmouth

148-194

Pacific

Another 28 schools are predicted to struggle:

50

Baylor

93

Lewis & Clark

105

Drake

111

Catholic

111

Tulsa

118

U. St. Thomas (MN)

122

Quinnipiac

122

Maine

122

Montana

126

Loyola-New Orleans

126

Mercer

129

Belmont

129

Seattle

141

Dayton

Now, before too much panic sets in, Professor Galloway doesn’t think this is all set in stone. Things can be done to save these universities.

What is more, as the old saying goes, all models are wrong, some are useful. Just how wrong is his model? From anecdotal evidence, quite wrong at times it would seem. Take my institution, for example. Chapman is designated to perish under Prof. Galloway’s calculations. Yet Chapman is doing quite well right now--so well, that not only has it not had to lay off faculty, it hasn’t even had to cut their pay. Hardly the stuff of an institution that is about to perish. Chapman isn't even struggling, so it seems it would be better to put it in at least the Survive, if not the Thrive category. That shows how far off Galloway's model is, at least in that once instance. And there are a host of questions regarding whether these are the correct measures to include in the model, whether they have been given the right weight, and whether anything important is missing? So these predictions must be taken with a gallon of salt. Further, just because a university perishes doesn't necessarily mean that its law school will.

Still, there is no doubt the pandemic may thin the herd, so to speak, of American law schools. Just how much thinning, and which schools, remains to be seen.

US News Ranking

Law School

Galloway Categorization

1

Yale

Thrive

2

Stanford

Thrive

3

Harvard

Thrive

4

Columbia

Survive

4

Chicago

Survive

6

NYU

Survive

7

U. Penn.

Thrive

8

Virginia

Thrive

9

Northwestern

Thrive

9

UC-Berkeley

Survive

9

Michigan

Thrive

12

Duke

Thrive

13

Cornell

Thrive

14

Georgetown

Survive

15

UCLA

Survive

16

UT-Austin

Thrive

17

Wash. U.

Thrive

18

USC

Survive

18

Vanderbilt

Survive

20

Boston University

Survive

21

Minnesota

Survive

22

Notre Dame

Thrive

23

George Washington

Survive

24

Arizona State

Survive

24

Emory

Survive

24

Florida

Survive

27

Fordham

Perish

27

UC-Irvine

Survive

27

Iowa

Survive

27

North Carolina

Thrive

31

Boston College

Thrive

31

Alabama

Survive

31

Georiga

Thrive

31

Illinois

Survive

31

Washington & Lee

Thrive

31

William & Mary

Survive

37

BYU

Thrive

38

Indiana

Survive

38

Ohio State

Survive

38

UC-Davis

Survive

38

Wisconsin

Survive

42

George Mason

Survive

42

U. Washington

Survive

42

Wake Forest

Survive

45

Utah

Survive

46

Colorado

Survive

47

Pepperdine

Survive

47

Arizona 

Survive

47

Maryland

Survive

50

Baylor

Struggle

50

Florida State

Survive

50

Connecticut

Survive

53

Cardozo (Yeshiva)

Perish

54

Tulane

Thrive

54

Richmond

Thrive

56

Southern Methodist

Thrive

56

Temple

Survive

56

Houston

Survive

59

UC-Hastings

n/a

60

Penn State-University Park

Survive

60

Texas A&M

Thrive

62

Loyola Marymount

Survive

62

Penn State-Carlisle

n/a

62

Seton Hall

Perish

62

UNLV

n/a

62

Villanova

Thrive

67

Northeastern

Survive

67

Miami

Survive

67

Missouri (Columbia)

Thrive

70

Loyola (Chicago)

Perish

70

Kansas

Thrive

70

Kentucky

Thrive

70

Tennessee

n/a

74

St. Johns

n/a

74

Denver

Survive

76

American

Thrive

76

Case Western

Survive

76

Georgia State

Survive

76

Rutgers

Survive

76

Nebraska

Survive

76

Oklahoma

Survive

76

Pittsburgh

Thrive

83

Brooklyn

n/a

83

Chicago-Kent

Perish

83

Cincinnati

Thrive

83

San Diego

Thrive

83

Wayne State

Thrive

88

New Hampshire

Thrive

88

Oregon

Survive

90

Florida International

Survive

90

St. Louis

Thrive

90

Arkansas-Fayetteville

Thrive

93

Drexel

Perish

93

Lewis & Clark

Struggle

93

Michigan State

Survive

96

LSU-Baton Rouge

Thrive

96

Hawaii

Survive

96

South Carolina

Thrive

99

Buffalo-SUNY

Survive

99

Louisville

Thrive

99

New Mexico

Survive

102

Cleveland State

n/a

102

Hofstra

Perish

102

Marquette

Thrive

105

Drake

Struggle

105

Stetson

n/a

107

CUNY

Survive

107

Howard

Thrive

107

Santa Clara

Survive

107

Washburn

n/a

111

Chapman

Perish

111

Syracuse

Survive

111

Texas Tech

Survive

111

Catholic

Struggle

111

Mississippi

Thrive

111

Tulsa

Struggle

111

West Virginia

Survive

118

Albany

Survive

118

DePaul

Perish

118

Gonzaga

Survive

118

U. St. Thomas (MN)

Struggle

122

Indiana-Indianapolis

Thrive

122

Quinnipiac

Struggle

122

Maine

Struggle

122

Montana

Struggle

126

Loyola-New Orleans

Struggle

126

Mercer

Struggle

126

Baltimore

n/a

129

Belmont

Struggle

129

Duquesne

Thrive

129

New York Law School

n/a

129

Seattle

Struggle

133

Creighton

Thrive

133

Missouri-Kansas City

Survive

133

Wyoming

Thrive

136

Pace

Perish

136

Suffolk

n/a

136

Idaho

Thrive

136

Toledo

n/a

140

Illinois-Chicago

Survive

141

Mitchell Hamline

n/a

141

Akron

n/a

141

Dayton

Struggle

141

Memphis

Survive

141

South Dakota

Thrive

141

Vermont

Thrive

141

Willamette

Perish

148-194

Appalachian

n/a

148-194

Atlanta's John Marshall

n/a

148-194

Ave Maria

n/a

148-194

Barry

n/a

148-194

California Western

n/a

148-194

Campbell

Perish

148-194

Capital

n/a

148-194

Charleston

n/a

148-194

Elon

Perish

148-194

Faulkner

n/a

148-194

Florida A&M

n/a

148-194

Florida Coastal

n/a

148-194

Golden Gate

n/a

148-194

Liberty

n/a

148-194

Lincoln Memorial

Struggle

148-194

Mississippi College

n/a

148-194

New England

Perish

148-194

North Carolina Central

n/a

148-194

Northern Kentucky

n/a

148-194

Nova Southeastern

Perish

148-194

Ohio Northern

n/a

148-194

Oklahoma City

Struggle

148-194

Regent

Struggle

148-194

Roger Williams

n/a

148-194

Samford

Struggle

148-194

Southern Illinois

Struggle

148-194

Southern University

n/a

148-194

South Texas

n/a

148-194

Southwestern

Struggle

148-194

St. Mary's

n/a

148-194

St. Thomas (FL)

n/a

148-194

Texas Southern

n/a

148-194

Touro College

n/a

148-194

Arkansas-Little Rock

n/a

148-194

Detroit Mercy

Perish

148-194

Massachusetts-Dartmouth

Perish

148-194

North Dakota

Survive

148-194

San Francisco

Survive

148-194

University of DC

n/a

148-194

Pacific

Perish

148-194

Western Michigan

Survive

148-194

Western New England

Struggle

148-194

Western State

n/a

148-194

Widener-Delaware

Struggle

148-194

Widener-Pennsylvania

Struggle

148-194

Inter-American

n/a

148-194

Pontifical Catholic

n/a

148-194

North Texas-Dallas

Survive

148-194

Puerto Rico

n/a

Posted by James Phillips on July 28, 2020 at 04:59 PM in Entry Level Hiring Report, Life of Law Schools, Teaching Law | Permalink | Comments (8)

Biskupic, Part II

Here. The focus is on Bostock and its internal deliberations. The reveals include that the 6-3 breakdown was clear from the beginning (so Roberts, not Ginsburg, assigned the opinion to Gorsuch; that Kagan joined Gorsuch's draft immediately and Ginsburg, Breyer, and Sotomayor followed soon after; and that Alito was angry. There also was a leak in November about how conference had gone, which prompted some op-eds directed to moving Gorsuch away from Kagan.

Posted by Howard Wasserman on July 28, 2020 at 02:14 PM in Howard Wasserman, Judicial Process | Permalink | Comments (0)

JOTWELL: Singer on Reichman, Sagy, & Balaban on machines and judges

The new Courts Law essay comes from guest reviewer Jordan Singer (New England Law-Boston), reviewing Amnon Reichman, Yair Sagy, & Shlomi Balaban, From a Panacea to a Panopticon: The Use and Misuse of Technology in the Regulation of Judges, 71 Hastings L.J. 589 (2020).

Posted by Howard Wasserman on July 28, 2020 at 10:32 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, July 27, 2020

Biskupic on the internal workings of the Roberts Court

At CNN, Joan Biskupic has the first of a series of pieces on the internal workings of the Court and the Chief's place in control, both as the Court's median vote--allowing him to piss off or appease both sides--and as the one who runs proceedings. Tidbits in the piece include: Roberts not providing an obvious fifth vote with the conservative wing on the Second Amendment; Roberts agreeing that DACA rescission was procedurally unlawful from the outside, while refusing to find any equal protection problems (thus losing Sotomayor from a complete majority); some negotiations with the liberal wing over the COVID-voting petitions; and pushing through the remote-argument process (including resisting the push from some to do it by Zoom). She also reports that Roberts began in the dissent in the Georgia copyright case, with Thomas assigning the original opinion and someone (she does not say who) switching during the drafting process.

I hope the coverage describing Roberts as the "swing" vote does not conflate that with him being a "moderate" or ideologically varied--he is not White, Powell, or O'Connor.

And a question: When was the last time the Chief was also the median Justice whose position defined the winner in most 5-4 decisions? Maybe Hughes, but Owen Roberts often moved with him.

Posted by Howard Wasserman on July 27, 2020 at 03:44 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Saturday, July 25, 2020

Submission Angsting Fall 2020

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them, but please be patient.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the July 2020 version). The article now also includes hyperlinks to law review websites.

Posted by Sarah Lawsky on July 25, 2020 at 02:48 PM in Law Review Review | Permalink | Comments (296)

Friday, July 24, 2020

Preparing for Fall Teaching: Guest Post on Combining Asynchronous and Live Online Teaching--Reasons and Strategies

This guest post is by Nina A. Kohn, David M. Levy Professor of Law and Faculty Director of Online Education, Syracuse University College of Law.  For the other posts in the series on preparing for fall teaching, see here.

My last post explored why faculty transitioning to online teaching should make live (or “synchronous”) teaching their default option.  Today’s post follows up with an explanation of why law faculty should nevertheless consider incorporating self-paced (or “asynchronous”) elements into their courses.  It also provides practical tips for faculty looking to add self-paced content to courses that are mere weeks away.

As I see it, there are three primary benefits to incorporating asynchronous elements into law courses.

Incorporating asynchronous lessons enhances live class.  Pairing live and asynchronous learning increases the likelihood that students come to live class sessions ready to engage with the material.  Students who have the opportunity to work through asynchronous lessons will tend to have a better understanding of material than they would have if they had only done assigned reading.  This is especially likely when asynchronous lessons include formative assessments that enable students to determine whether they understand the underlying material.  When students have tested their own understanding of foundational information before they join live class, faculty can use live class time more efficiently and engage in discussion of more nuanced and complex issues.

Incorporating asynchronous lessons expands formative assessment opportunities.  Law students tend to crave feedback and opportunities to assess how they are doing.  In part this is because many law school courses rely primarily on a single final exam to provide feedback, and this increases students’ anxiety about their performance and decreases their self-awareness as to their own competencies.  Asynchronous education is well-suited to addressing students’ need for feedback.  By incorporating questions or exercises into the asynchronous class—and providing students with either direct feedback or the ability to compare their answers to a model answer—faculty can help students understand their strengths and weaknesses.  Faculty who review the resulting student work—as should be the norm—can also identify students who may need extra help.

Incorporating asynchronous lessons increases flexibility for students.  Asynchronous instruction allows students to pace their learning according to their own needs and abilities.  In addition, students who would benefit from reviewing a lesson can readily do so.  The ability to review may be especially helpful during the Covid-19 pandemic as students struggle with physical and emotional health and caregiving responsibilities. 

But how can faculty capture these benefits of asynchronous education for their fall 2020 classes?  After all, as I discuss in-depth in a forthcoming article in the Journal of Legal Education, creating high-quality asynchronous courses requires incorporating substantial interactive elements—and that takes a major up-front investment of time and resources.  The answer, I believe, is to: (1) keep asynchronous instruction short, and (2) use it primarily to convey information that can serve as a springboard for live class discussions. 

As a practical matter, in most subjects, this will mean using the asynchronous class time to cover foundational doctrines or frameworks (i.e., the “black letter law”) to be explored in greater depth in live class sessions.  One way to do this is to record a short lecture on a key doctrine or concrete skill, and pair that lecture with a question, problem, or exercise.  For example, faculty members might post a video of themselves explaining a particular doctrine to their school’s learning management system, and then ask students to analyze a problem, draft a reflection, or prepare an analysis using that doctrine.  That resulting work could be shared with the professor for review, with classmates on a discussion board, or during a live class session in which the professor calls on students to share their answers.    

Asynchronous lessons built this way need not—and typically should not—be long.  As Debora Threedy and Aaron Dewald observed in a 2016 article, even a ten minute asynchronous lesson can help faculty make better use of live class time.  And, especially for faculty who lack the time or resources to create lessons with embedded questions and exercises, keeping lessons short helps reduces the likelihood that students will lose focus or stop paying attention.

In sum, law faculty teaching online in the fall should consider conducting a (short but sweet) portion of each week’s class in an asynchronous manner.  This can not only support student learning, but make teaching more satisfying for faculty.  At least in my experience, the better prepared students are to engage in lively discussion, the more fun it is to teach.

Posted by Jessica Erickson on July 24, 2020 at 01:40 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (2)

Lawyers and judicial departmentalism

One thing keeping judicial departmentalism from diverging too far from judicial supremacy is DOJ and the role of government attorneys in the judicial process. Obligations to respect judicial authority, of candor to the court, and of being the government face in court compel attorneys to comply with judicial processes and not yield to the lesser impulses of the executive (which does not have a similar legal or ethical obligation of candor).

Yesterday's letter from the US attorney for SDNY to Judge Furman offers an example.

The attorneys acknowledged and apologized for inaccurate and misleading statements in the litigation (over New York's exclusion from the Trusted Traveler Program), which supported the (erroneous) litigation position that the AUSA was required to take on behalf of DHS. Irina Manta simplifies it. DHS made false statements in furtherance of its policy positions (restricting immigration), which it can do. But its power runs out when things enter court. DOJ attorneys serve as the go-between, the persons and institutions who must counsel the executive to change conduct when confronted with the judicial process. And they do that because they bear the brunt of the judicial wrath when the executive pulls stunts such as this.

Posted by Howard Wasserman on July 24, 2020 at 09:30 AM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

(Update) Grab your fedora, we are all journalists now and other thoughts on the Portland TRO

A federal judges issued a TRO preventing federal paramilitary force in Portland from targeting journalists and legal observers. An existing preliminary injunction, to which the City stipulated, does the same as to Portland police. Some thoughts and questions.

First, the TRO requires journalists and legal observers to identify themselves through badges or distinctive clothing (hats, press passes, etc.). Some concerns and questions.

Vintage-reporter-fedora-hat-camera-picture-id510580998First, it is about time we revived this look from His Girl Friday or The Brady Bunch.

Second, this seems to run afoul of the principle that the press does not have special status from other speakers when it comes to what they can say and their access to spaces. The key access cases speak of information-gathering by the press and the public. I expect that some non-press people in the mix of these protests are there to observe and record. And they possess or can possess the same equipment that allows a reporter to do her job--a device that takes photographs, moving pictures, and audio recordings. And I assume fedoras can be purchased online. Maybe the point should be to not have paramilitary forces using force and effecting arrests indiscriminately against anyone who happens to be in a crowd but is not engaging in unlawful activity, not only those with J.D.s or an institutional affiliation.

Second, the government tried to defeat the plaintiffs' standing with a string of cases making it difficult to challenge practices within the criminal-justice system (choke holds during arrests, discriminatory bail or sentencing); the cases rest on the refusal to speculate that the plaintiff will break the law and thus come in contact with the criminal-justice system and be subject to those policies. The court rejected that because threat to plaintiff arose not from breaking laws, but from engaging in protected First Amendment activity--"It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference." Good call.

Third, the court orders wide dissemination of the order, including to Bill Barr and Ken Cuccinelli and those with supervisory authority over agents in Portland. The reason is that "the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity" in any Bivens action. This is odd. The violation of the order is not necessarily the same as a violation of the underlying constitutional rights protected by the order, but only the latter would be the basis for a Bivens action. The court seems to be couching its power to enforce its order with its power to award damages should an injury occur. That is, it will use its equitable power to enforce its equitable order by imposing a legal remedy. Equity cannot enjoin a crime, but can it enjoin a constitutional tort? Any way, I am troubled by the practice--made necessary by unwise qualified-immunity doctrine--of courts announcing that "henceforth, some right is clearly established.

Update: From a conversation with a Remedies colleague: A court can enforce an injunction through civil contempt, which can be compensatory. A court could order the violating defendant to pay money to the plaintiff in the amount of the injury suffered. And if that injury were physical (e.g., medical expenses from being shot), the remedy would look like compensatory damages. But Bivens and qualified immunity still have nothing to do with this. A plaintiff need not bring a Bivens claim if the remedy is contempt for an existing court order in an ongoing case. And qualified immunity should have no role to play in the court enforcing an existing order.

Posted by Howard Wasserman on July 24, 2020 at 08:26 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Thursday, July 23, 2020

Watching on-screen, working on paper

The posts from Jessica and our other guests on teaching remotely/online have been great. But here is a question on integrating tech learning with non-tech work (this arose during our remote 1L orientation session today):

I ordinarily limit students' sue of technology in class-no laptops, hand-written notes, hard-cover books. I do it out of a believe, backed by much if not unanimous science, that this is the best way to learn. Obviously, I cannot prohibit them from taking notes on a computer when they are home. But how hard should I advise (or push) them in that direction? And should I require them to purchase hard-cover books so they at least have to do that part by hand?

Posted by Howard Wasserman on July 23, 2020 at 07:18 PM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Rethinking Preemption

In my work on Bushrod Washington, I came across an interesting nugget regarding statutory preemption claims. Back then, if a federal statute was in conflict with an Act of Congress, the courts would declare the state statute unconstitutional. Why was that? Because of the Supremacy Clause, they said. Today we do not say that a state statute like that is unconstitutional--we just say it's preempted.

Does this classification make a difference? Maybe. One thing this shows is that there is sometimes no clear line between a constitutional and a statutory claim. Thus, saying things like "in statutory cases we should do this but in constitutional cases we should do that" is imprecise. Second, if we think of preemption claims as constitutional, then that would suggest that some sort of avoidance canon might be used, either by state courts construing state law, federal courts certifying state law questions to state courts, or federal courts construing federal law. I can't say that I know what the practice is in preemption cases: My impression is that courts take a fairly straightforward approach without avoidance. Third, implied preemption might be disfavored as creating constitutional violations when they are not necessary.

Would all of this be better than current preemption doctrine? I have no idea. 

Posted by Gerard Magliocca on July 23, 2020 at 09:23 AM | Permalink | Comments (2)

Wednesday, July 22, 2020

Preparing for Fall Teaching -- Guest Post on Law School Online: Choosing Between Live and Asynchronous Teaching

This guest post is by Nina A. Kohn, David M. Levy Professor of Law and Faculty Director of Online Education, Syracuse University College of Law.  For the other posts in the series on preparing for fall teaching, see here.

Law faculty nationwide are grappling with how best to teach courses that are online for all or part of the semester.  The single most important decision most will make is what format to use. 

Should they teach synchronous (or “live”) classes, using a videoconferencing platform such as Zoom?  Should they teach asynchronous (or “self-paced”) classes, recording lectures or other content that students can interact with on a more flexible schedule?  Should they combine the two formats?

As someone who led the design and implementation of an online JD program, spent the past several months training faculty transitioning to online teaching, and has taught both a traditional, doctrinal course (Torts) and a seminar (Aging and the Law) online, my recommendation is actually very simple:  law faculty should make synchronous (live) teaching their default. 

As I explore in depth in my new article “Teaching Law Online: A Guide for Faculty” (forthcoming in the Journal of Legal Education), there are three primary reasons for making live law teaching the default even when classes are online.

Ease.  With training, reasonable class sizes, and the right technology, law professors teaching live online can employ the same teaching techniques that honed in their residential classrooms.  By comparison, unless faculty use exclusively a lecture format in their courses—and plan simply to record lectures for students to watch in lieu of live class (not recommended!)—moving to an asynchronous format requires faculty to fundamentally rethink how they teach. 

Resources.  Excellent live teaching can be accomplished with less up-front investment by schools and faculty than can excellent asynchronous teaching.  With some training and an appropriate videoconferencing application (e.g., Zoom), faculty can readily conduct high-quality live online classes without other new resources. 

By comparison, creating high-quality, self-paced lessons requires a substantial investment of time and resources.  This is because, as education experts have long agreed, high-quality education involves active learning so that students retain skills or knowledge conveyed during instruction.  In an asynchronous environment, active learning can be facilitated by incorporating questions and exercises that require students to apply what they are learning. Such integration, however, is resource-intensive. 

Faculty who do wish to develop asynchronous instruction that follows good practices, including sufficient interactivity, cannot simply rely on old teaching notes.  Rather, they must deliberately design lessons that strategically build in questions and exercises that can be completed asynchronously.  Moreover, since (as Michael Hunter Schwartz explained in a recent article) best practice is to intersperse interactivity at least every ten minutes, fully asynchronous classes should have embedded applied learning exercises.  They should not simply rely on long videos with exercises for students to do at the end.  But building this type of asynchronous classroom experience requires faculty to collaborate with professional online course builders or learn how to build interactive courses themselves.  And faculty may find that their schools lack the staff or technology resources to support either.

Quality.  The relative ease of live teaching, combined with the limited required investment of resources, means that faculty—especially those seeking to rapidly pivot their courses into an online format—are more likely to teach well live than to teach well asynchronously.  In addition, live teaching lends itself to dialogue and discussion-based teaching, which helps students build and practice the analytical, argumentative, and real-time processing skills that are core to the successful practice of law. 

Unfortunately, although best practice is to treat live teaching as the default even when online, many universities continue to treat asynchronous education as the default form of online education.  This tendency reflects the historical roots of online education.  When online education arrived on the higher education scene, it was largely asynchronous with limited interactivity.  This approach reflected the limitations of videoconferencing software and the role that online education played at the time.  Online education was not seen as a substitute for elite education, or central to the mission most universities.  Rather, especially among elite universities, online education was used to provide bulk training and enrichment opportunities, and new revenue streams that would support core programming.  Having tenure and tenure-track faculty record lectures, but otherwise limit their involvement in the online education space, was a way to leverage faculty resources without unduly diverting faculty attention away from more central endeavors. 

As universities move core degree programs online in response to the Covid-19 pandemic, it is important not to blindly accept the assumption that asynchronous education should be the default mode of online education – an assumption that is based on largely outdated considerations. 

Law faculty, in particular, should make live online teaching their default because live teaching is well-suited to teaching analytical and communication skills that lawyers need.  Asynchronous education should only be used in law courses when faculty are willing and able to build asynchronous content that fosters active learning.  Stay tuned for my next post where I break down some ways that faculty can build asynchronous lessons that do just that.

Posted by Jessica Erickson on July 22, 2020 at 03:27 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (4)

Shifting Rationales for Anti-Lynching Legislation

A federal anti-lynching bill is pending in Congress. A federal anti-lynching bill has been pending in Congress for over 100 years. What I find interesting in looking those proposals is how their constitutional rationale changes.

The first federal bill, which was introduced in the 1910s, said that private individuals who engaged in lynching violated the equal protection of the laws. Thus, the bill was grounded on Section Five of the Fourteenth Amendment. This was so notwithstanding the Supreme Court's state action cases (such as the Civil Rights Cases). The bill passed the House but died in the Senate.

In the 1930s, another major legislative effort was made. Again the bill rested on Section 5 (this time referring to equal protection and due process), but this time Congress focused on state and local officials who failed to stop a lynching. They were state officials, but the "inaction" theory of state action is one that the Supreme Court subsequently rejected in cases such as DeShaney. The bill passed the House but died in the Senate.

Fast forward to the current bill. As far as I can tell, the constitutional basis for the legislation is the Thirteenth Amendment. The preamble talks about lynching as a direct legacy of slavery and criminalizes private action, though the bill also refers to civil rights. It is hard to see how the bill could be authorized on any other ground. The Fourteenth Amendment state action cases are still there (many of them are incorrectly decided, but there we are), and lynching probably does not fall within the Commerce Clause authority as defined by cases such as Lopez and Morrison.

If this bill is enacted and ever used in a protection, then it will be interesting to see how a constitutional challenge will play out. I can't imagine that the Supreme Court would strike down such a law, but a Thirteenth Amendment explanation would open some new doors.

Posted by Gerard Magliocca on July 22, 2020 at 09:28 AM | Permalink | Comments (3)

Tuesday, July 21, 2020

Nondelegation Doctrine--How or To Whom?

I've never been interested in the non-delegation doctrine. I suppose that's because I am not an administrative law scholar. Or it could just be that the doctrine was (until recently) moribund. 

But here's a thought that (for all I know) is not original. Much of the discussion of non-delegation is about the standard Congress must use in delegating. Is a statute too vague? Does the importance of the delegated issue change what "too vague" is? The trouble with these formulations is that they are . . . well . . . too vague for courts to implement well.

I wonder if a sounder non-delegation doctrine is that Congress may not delegate certain powers to certain parties at all. Suppose Congress delegates regulatory authority to a private firm or individual. We would probably think that deeply wrong even if Congress offered clear guidelines for the exercise of that discretion. ("Deeply wrong" may not mean "unconstitutional." That's why I'm thinking this through). You can find language in Andrew Jackson's Bank Veto and later commentary on that decision that says something like this. Or what about Congress delegating certain powers to the Executive Branch or to the states that in some sense are seen as core congressional powers. This could be described as a separation of powers problem, but maybe it's really a non-delegation problem.

Posted by Gerard Magliocca on July 21, 2020 at 08:15 PM | Permalink | Comments (9)

Preparing for Fall Teaching – Discussion Boards in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here and for the  five step approach that I am using, see here.  Posts this week will focus on the second step, which is designing assessment & engagement techniques for these new learning environments. 

Most assessment and engagement tools that people are talking about now are relatively familiar for most law professors.  We know how to check individual students’ comprehension in class, oversee discussions, and facilitate group work.  We just need help adapting these familiar techniques for physically distanced or remote courses.  Discussion boards, however, are different. Most law faculty have never used discussion boards, and my guess is that most of us have a pretty negative view of them.  And yet they seem quite prevalent in online courses, so I think many of us might be wondering if we should use them this fall and, if so, how we can use them effectively.

Should we use discussion boards?

I don’t claim to be an expert here, and I’ll invite anyone who has been teaching remotely for a long time to correct me, but my sense is that discussion boards are most helpful for asynchronous courses.  In asynchronous courses, it can be much more difficult to have students interact with the material and each other.  Done well (see tips below), discussion boards can be a great tool to help with these pedagogical challenges.   

I’ve been a little more skeptical of them in primarily synchronous courses, but I’m starting to wonder if they might have a role.  As I’ve mentioned in prior posts, I often have students complete a brief assignment before class to make sure that they understand the reading.  Usually these assignments are in Blackboard with a short quiz or in a Google Doc that only I can see, but perhaps there is value in having the class be able to see each other’s answers, especially once they have submitted their own answers.   Alternatively, building off an earlier tip to build in time for pre-discussion reflection, I can also imagine using discussion boards to get the students thinking about more complex issues from the reading.  Their comments in the discussion board could then serve as the foundation for later (hopefully more robust) discussions in a synchronous class session. 

How can we use discussion boards effectively?

I took an online course this summer that used discussion boards pretty effectively.  Here are some tips from that experience.

Determine the objective of each discussion thread.  Not all discussion threads are created equal.  Be thoughtful about the purpose of each thread.   There are at least four different types of discussion board threads:

  1. Introduction Do you want students to introduce themselves to each other or get to know each other better?
  2. Initial Engagement. Do you want students to engage with the material before class to ensure that they show up to class prepared?
  3. Application. Do you want students to apply what they have learned to new situations, perhaps after an initial class session or video on the material?
  4. Extension. Do you want students to take what they have learned and extend it into new areas or integrate it with other learning?

Once you know the goal of the thread, you can craft your prompt with this goal in mind.  Of course, you can switch between goals from week to week, but it’s important not to try to have a single thread do too much.

Craft prompts that require engagement.  Unless you are only looking for a short answer response, try to use prompts that require your students to engage with the material.  Avoid prompts that call for objective responses or open-ended questions that ask students “What do you think about….”  Instead try prompts that start with action verbs such as “compare,” “explain,” “identify,” or “describe.”  You can also use prompts that require students to contribute information that hasn’t been contributed yet, so they have to dig into their classmates’ posts.  For example, in a Civil Procedure class, the prompt might say, “Choose a discovery tool that has not previously been used by one of your classmates and explain how the plaintiffs could use this tool to find evidence to support their claims.”  This only works if the groups are relatively small (see below).

Be clear about your expectations.  Many of our students have not used discussions boards in their classes, so you will have to be clear about what a good discussion post looks like.  Do you expect them to include citations to the reading?  Do they need to do outside research?  If you give them credit simply for posting or hitting the required number of words, you probably won’t get the thoughtful posts you want.  Similarly, if they are responding to another student’s post, let them know what a good response looks like.  For example, let students know that simply restating and/or affirming another student’s post isn’t enough to get credit.  Instead, tell them that they will be graded on whether they advance the discussion.  If students know up front that they have to move the discussion forward to get credit for their post, they will engage more with the material.  You can also use the 3CQ approach, which requires students to include two of the following elements in their response--compliment, comment, connection, and question--with each element including supporting details.

Use separate threads.  If you have a big class, consider creating separate threads for different groups of students.  In a 70 person class, you wouldn’t expect all of the students to be able to have a single in-person discussion that includes everyone, so you probably shouldn’t expect them to have a conversation on a discussion board that includes everyone either.  Instead, create 10 different threads and assign groups of 7 students to each one.  Most learning management systems allow you to place students into groups for discussion threads pretty easily.

Stagger initial and response posts.  Professors often ask students to make an initial post and then respond to at least one other student’s post, but this can lead to a flood of posts right before the deadline.  Instead set up two different deadlines – one for the initial posts and one for the response posts.  This is such a simple switch, but it makes a real difference in the quality of the posts. 

Consider whether to allow students to view others’ responses.  Most learning management systems allow you to decide whether students can see each other’s responses before they post.  The right approach likely depends on your objective.  If you want students to get to an objectively right or wrong answer, then you probably want to hide other responses, so they can’t see how other students approached the problem before they try it.  On the other hand, if your goal is to start a discussion, you need to allow them to see each other’s responses. 

Participate, but not too much.  A discussion board is one place where the professor can interact and build connections with students, so it is important for the professor to participate by responding to student posts and pushing the discussion in new directions.  On the other hand, if the professor participates too much, they can chill the discussion and keep students from talking to each other.  So carefully consider how much engagement you want to have with students in the discussion threads. 

Advanced Tips:  If you want to get fancy, here are a few advanced tips:

  1. Use the fishbowl approach to allow a small number of students to have a discussion while other students observe the discussion, similar to what you might do in class. Most learning management systems facilitate this technique.
  2. Consider alternative forms of responding. Rather than having students write out their responses, let them get creative.  Encourage them to post video responses or create a concept map or PowerPoint.
  3. Have them respond in role. Ask them to craft a discussion post from the perspective of a client or a judge or opposing counsel. 

In my next post, I’ll talk about group work in physically distanced and remote courses.    

Posted by Jessica Erickson on July 21, 2020 at 02:58 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (4)

Monday, July 20, 2020

Has the submission window moved?

Scholastica sends daily announcements about article submissions, including which journals have reopened for submissions. I have seen several such announcements the past few days, including from some top journals.

 I had thought that the already-narrow August window opened around August 10. Has it moved up? Are journals actively accepting and reviewing articles? Are scholars submitting? Would love to hear from authors and journal editors.

Posted by Howard Wasserman on July 20, 2020 at 10:04 PM in Howard Wasserman, Teaching Law | Permalink | Comments (19)

Some thoughts on gay rights, religious liberty, and baseline hell

I wrote this response as part of Balkinization's symposium on Andy Koppelman's new book, Gay Rights versus Religious Liberty. As readers of this blog might already know, I tend to think that many areas of law are so afflicted by what I call "baseline hell" that it is a waste of time to ask whether or not some action is "harmful" to other people rather than a protection against other people's "harmful" actions.

There is a corollary to baseline hell: Rather than talk about whether or not some actor is playing offense or defense, it is more profitable to address frankly and squarely the moral merits of the action. We can better tolerate actions based on erroneous beliefs when that error is not too great -- for instance, when that error does not offend the deepest commitments of a liberal democracy. There are, after all, a lot of erroneous and harmful ideas out there -- anti-vaxxer conspiracy theories, flat-earth physics, Holocaust denial, white supremacy, heterosexism, etc. -- and we ought to assess, and distinguish between, degrees of those ideas' harmfulness and wrongfulness in deciding how much to accommodate them as the basis for anyone's action. Our constant habit of asking whether or not an action "harms" another person rather than asking whether or not the idea is right or wrong, good or bad, prevents us from making that (IMHO) necessary assessment.

To be a bit more precise, there are ideas that are (1) obviously, plainly wrong but probably harmless (e.g., flat-earthism), (2) both mistaken and harmful (anti-vaxxer conspiracy theories), and (3) not only wrong and harmful but also inimical to democratic cooperation. White supremacy is in that third category, which is why, I think, we not only appropriately refuse to accommodate shop owners' racist refusals to serve but also rightfully shame racists in social interactions outside of commercial interactions. Whether or not heterosexist disapproval of same-sex marriage falls into this distinctively and appropriately stigmatized category of beliefs is, I think, a much closer question. But whether or not you agree with me on that score, I think that it is a more useful question to ask than to ask whether or not the owner of a small business in a competitive market for flowers or cakes "harms" customers by refusing to serve them or instead engages in self-protection from the "harm" of violating the owner's religious beliefs. As I argue in my symposium contribution, the answer to that latter question is lost in a futile circularity of baseline hell.

Posted by Rick Hills on July 20, 2020 at 11:37 AM | Permalink | Comments (12)

Sunday, July 19, 2020

Relationship as Product

In a new article posted on ssrn Samuel Becher and Sarah Dadush argue that today companies are selling not only products and services but also the promise of long-term relationships and emotional connectedness. As part of this trend, businesses frequently pretend that their relationships with consumers are more profound and intimate than they actually are - A business emails its clients, saying “Hello to this beautiful community of people we love!”; a telecom company greets a customer returning from a trip overseas, with a text that reads “Welcome home! We hope you had a safe trip”; A petrol company e-mails a customer, congratulating him on being “a great customer” and informing him that “we thought we’d return the favor” by offering a few cents discount on fuel; an airlines is “friendly reminding” a traveler to “grab her umbrella and coat”; or an investing banking company contacts a client, saying “Friendly note: [Name of client,] We want to reward you with up to $500 offer.”

The article links the practice of humanizing and selling business-to-consumer relationships with the loneliness epidemic, the decline in social trust and the importance of relationships to our wellbeing and physical and mental health. Against this interdisciplinary background, the article argues that B2C relational practices are opportunistic and can be harmful to consumers and society. It suggests scrutinizing what it dubs “emotional and love promises” by rethinking the puffery doctrine and by considering whether such practices “can amount to a deceptive or unfair trade practice”.

I found this article relevant to our strange and unusual times, when, as someone tweeted recently "who needs a boyfriend when my university cares about my wellbeing so much that it sends me a daily email saying how much it cares about my safety and physical and emotional health." Same with my (former) gym, yoga studios, hair salons, restaurants, airline, and shopping mall.

 

Posted by Orly Lobel on July 19, 2020 at 12:26 PM | Permalink | Comments (4)

Saturday, July 18, 2020

Andrew Mellon's Tax Trial

Continuing with "Article Ideas for Anyone Who Wants Them," I give you the tax trial of former Treasury Secretary Andrew Mellon in the mid-1930s.

Andrew Mellon was one of America's leading bankers. In 1921, he became the Treasury Secretary and held that post for 11 years under three different Republican Presidents. Mellon was the most influential Treasury Secretary other than Hamilton, and became identified with the policies that led to the Crash of 1929 and the Great Depression. (He was also a prolific art collector and created the National Gallery).

After he left office, the DOJ sought to indict Mellon on tax fraud charges. A grand jury refused to return a true bill (by an 11-10 vote). Then a civil tax trial ensued, with Robert Jackson (in his first big government post) making the government's case. This was a big media event at the time, which ended with Mellon's estate paying several hundred thousand dollars in back taxes.

I highlight the case for a few reasons. First, there's a great story here. Andrew Mellon! Robert Jackson! And grand jurors doing something pretty unusual. Second, I've thought of this example in the past few years when people say that in America we don't use law enforcement to go after political enemies. While that's generally true, there are some notable counterexamples. Mellon's case may be one, as there is some evidence that he was targeted by the Roosevelt Administration because he was a high-profile Republican Cabinet officer.

I suspect that nobody has given a good account of the case because . . . well . . . it's about taxes. Mellon's biographer did tell that story but in a way that may have been too favorable to his subject. A tax scholar and a con law scholar should get together and write this paper.   

Posted by Gerard Magliocca on July 18, 2020 at 10:26 PM | Permalink | Comments (3)

Law schools still in denial

I predicted several weeks ago that law schools committed to some jury-rigged hybrid schemes would retreat from that as the summer continued, and as more evidence accumulated both of the folly of pursuing in-residence learning and also as faculty became more adept at remote/online learning modalities.  It appears I was wrong.  Through some combination of hubris and predicament (and maybe the lack of autonomy in bureaucratic university structures), most law schools are plowing ahead with these ventures.  A big virtual conference on "law school logistics in the time of COVID-19" indicated that law schools are determined to try these schemes; it also revealed enormous unease with these choices.

The unease is warranted.  This strategy continues to be folly.  And the ambient denial is both remarkable and dispiriting.  Our students and faculty deserve better.

Scott Galloway has a big picture essay that lays at the dilemma at the university-wide level.

And law professor Tim Duane, an expert in environmental science, inter alia, gives some grim information about this hybrid world in our law schools.

 

Posted by Dan Rodriguez on July 18, 2020 at 03:26 PM in Daniel Rodriguez | Permalink | Comments (9)

Friday, July 17, 2020

Trump, Twitter, Facebook, and the Future of Online Speech

The New Yorker, it turns out, reads law review articles. This article, worth a read, covers a lot of ground and draws on the scholarship of Jeff Koseff, Danielle Citron, Eric Goldman, Kate Klonick, Daphne Keller, and also my own work on The Law of the Platform.

 

Posted by Orly Lobel on July 17, 2020 at 04:36 PM | Permalink | Comments (2)

Preparing for Fall Teaching – Discussion and Socratic Dialogue in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here, and for the  five step approach that I am using, see here.  Over the next two weeks, I will focus on the second step, which is designing assessment & engagement techniques for these new learning environments. 

One of the biggest challenges professors face this fall is how to spark discussion and conduct Socratic dialogue in their courses.  Anyone who taught this spring knows that it is so much harder to get students talking over Zoom than in a traditional classroom.  There’s something about staring at a bunch of faces on a screen that makes people more hesitant to join in.  I’ve never tried to hold a discussion in a physically distanced classroom with everyone in masks and six feet apart, but I can’t imagine it will be any easier.  So how can we generate meaningful discussions, especially around difficult topics, when we are distanced from one another?

I don’t have any techniques that will magically erase these challenges.  It will be hard.  But I do have some tips that may help.  The key, I think, is setting the stage for the discussion in more deliberate ways. Consider the following strategies:

Reflect on your implicit norms.  As you look to build more opportunities for discussion into your courses, you might start by reflecting on the implicit norms of discussion in your courses. This article from the Chronicle is great on fostering discussions more generally, but it also unpacks the social norms around discussions in higher ed classrooms.  The article discusses two specific norms that you may recognize from your own classes:

  1. “Civil attention. In a typical classroom, students aren’t required to ‘pay attention,’ only to pay ‘civil attention.’ What that means: So long as students appear to be listening, they can expect that the professor won’t call on them unless they signal a willingness to participate. How do students demonstrate civil attention? By nodding their heads, taking notes, chuckling at the instructor’s attempts at humor, or making brief eye contact. And by the things they don’t do: sleeping, texting, whispering to classmates. Students who are paying civil attention aren’t necessarily listening: They may, in fact, be daydreaming or deciding on their lunch plans. They may be writing a paper for another course when they appear to be taking notes. But by paying civil attention, students perceive that they have met their obligation to the course and to you, the instructor. Engage in discussion? They see that as optional.
  1. Consolidation of responsibility. Regardless of class size, only a small number of students — typically five to eight — will account for 75 to 95 percent of the comments made in a discussion. It’s easy to be deceived into thinking that you helped facilitate a great discussion when, in reality, you had a great discussion with five students, while the majority were spectators. The ‘consolidation of responsibility’ norm means that a few students assume responsibility for most of the discussion.”

If you want to foster discussion in these new learning environments, you might start by analyzing whether these norms are present in your classes and whether you are willing to disrupt them.  If you are open to new norms, think specifically about the goals for your discussions.  What percentage of the class do you want to participate each class?  What types of participation count? 

Acknowledge the challenges.  Be candid about the difficulties with your students and discuss strategies to address them as a group. For topics that might be controversial or difficult, use class time to develop shared norms for these conversations. 

Direct the conversation more than you normally would.  In a physically distanced or remote classroom, you may need to use more direct prompts and follow-up questions.  For example, you might assign a discussion leader for each case or class.  Alternatively, you can assign panels so a group of students is officially on call for each class.  Practice active moderation by interrupting interrupters and making space for those who have not participated.  You might also try to amplify voices that may not otherwise be heard.  Professor Tiffany Atkins has a short article that provides some helpful tips on amplification in the classroom. 

Allow more pre-discussion reflection.  Give students time to think about the topic before starting the discussion.  You can do this in a number of ways.  In the simplest form, just give students a minute or two to think through their answer before asking for volunteers.  Or have them write down a few notes about the prompt first.   For deeper questions, you might give them more time to reflect on their thoughts.  For example, if you know the discussion will center on one or two specific questions, ask the students to reflect on these questions and write 1-2 paragraphs about them before class.  They can turn in these questions through Blackboard or a Google Doc.  In remote courses, you can send students into breakout groups and have them discuss the question on their own first, so they are then more comfortable then discussing the issue with the larger group.  In physically distanced courses, you might ask the students to discuss the issue with the person next to them first. 

Many professors are also worried about how to conduct Socratic dialogue in these new learning environments.  Socratic dialogue is more difficult in a physically distanced or remote classroom, although the reasons may have more to do with us than our students.  Socratic questioning can feel awkward for professors in the best of times, but it feels even more awkward when the students are behind screens or masks.  Personally, I am just more hesitant to call on students in these circumstances.  I don’t think I’m alone.  I’ve had several professors tell me that Socratic questioning “just doesn’t work” in these new settings.

But I think it can work.  We had professors here at Richmond Law who carried on their classes remotely just like they had before, calling on students and engaging in Socratic discussion over Zoom.  And in general, the students really liked it.  In evaluations, several students remarked at how much they liked the fact that class felt “normal.”  It may feel awkward to us to call on students who appear on a screen while in their apartments, but if we push through that awkwardness, we can recapture some of what we’re used to in traditional classrooms.  So I don’t think we need write off Socratic discussion entirely.

That said, we might want to think about how to use this method more effectively.  During this semester especially, we may want to soften our Socratic questioning.  Consider acknowledging the initial awkwardness, discussing with the class that it can feel a bit weird for everyone when they are called on but also explaining why you think it has pedagogical value.  You can also give students times when they know they are not on call, perhaps by assigning panels or providing clear rules on how and when students can opt out. 

I’ll end by saying that this discussion assumes that Socratic dialogue is a good thing.  As I’ve written elsewhere, I’m not sure it has as much pedagogical value as we assume.  Done right, it can lead to active learning, but we need to put in a lot of work to make sure that we are actually engaging all students using this approach.  I’ll leave that debate for another day though! 

In my next post, I will delve more into the topic of discussions in remote courses by providing some ideas on how to use discussion boards more effectively. 

Posted by Jessica Erickson on July 17, 2020 at 02:56 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

"Big Mountain Jesus" statue vandalized

I have blogged a few times, over the years, about the "Big Mountain Jesus" statue at Whitefish ski resort (a great place, BTW) in Montana.  I'm very sorry to share the news that the statue was vandalized last weekend.   Here's a little bit, from a short essay I did a while back, about the statue (and an earlier round of a different sort of iconoclasm):

Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier ­National Park. And, of course, for “Big Mountain Jesus.”

Big Mountain Jesus is a kitschy but beloved dashboard-ornament-style six-foot-tall statue standing on a six-foot-tall stone pedestal near the summit of one of Whitefish’s peaks. It was erected in 1955 by some local Knights of Columbus who had served in Italy during World War II with the 10th Mountain Division and remembered fondly the statues and shrines that were ubiquitous in the Apennines and Alps. Because Whitefish and the statue are on leased public lands, and the Knights’ permit has to be ­reauthorized by the United States Forest Service every ten years, the enterprising secularizers at the Freedom from Religion Foundation eventually, and predictably, made a federal case out of Big Mountain Jesus, claiming among other things that it “excludes all the brave Jews and atheists that fought in World War II.”

The statue survives, for now, notwithstanding the lack of any accompanying, equal-time-supplying idols or icons. The federal judge assigned to the case noted that “[t]o some, Big Mountain Jesus is offensive and to others it represents only a religious symbol. But the court suspects that for most who happen to encounter Big Mountain Jesus, it neither offends nor inspires.” Instead, the memorial “serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots, and 210 cm skis.” The relevant U.S. Court of ­Appeals took the auspices and then agreed, duly reporting that Big Mountain Jesus has a “secular purpose” andbecause “the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in Mardi Gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures”the statue does not “endorse” Christianity.

According to the news report, "the forest service learned of the vandalism on Monday, but did not yet have information on whether the incident is being investigated."

Posted by Rick Garnett on July 17, 2020 at 10:41 AM in Rick Garnett | Permalink | Comments (0)

The History of the Bluebook

I learned something interesting the other day. The first edition of the Bluebook was created in the 1920s, mainly by Henry J. Friendly and Herbert Brownell. Finally we may have found a flaw in Friendly's otherwise stellar reputation!

Or so I first thought. But then came my next question: What did the first edition of the Bluebook look like? Maybe the problem is not with the Bluebook itself, but how the Bluebook has evolved over the past century. I'm sure folks at the Harvard Law Review or Yale Law Journal have a first-edition Bluebook sitting around in the office somewhere. It would be fun to see how that compares to the current version.

Posted by Gerard Magliocca on July 17, 2020 at 09:24 AM | Permalink | Comments (5)

Thursday, July 16, 2020

Why bulls and bears?

Question for anyone who might know: Why are bulls and bears the animal metaphors for the financial markets and why is an up market "bull" and a down market "bad"? My father was an over-the-counter stock trader and I had a t-shirt showing a bull beating up a bear, but I never thought to ask.

A colleague says it is because a fighting bull gores up when it is winning, while a fighting bear swipes down when it is winning.

Looking for other theories.

Posted by Howard Wasserman on July 16, 2020 at 07:18 PM in Howard Wasserman | Permalink | Comments (2)

2020 Law Journal Meta Rankings

From Bryce Newell.

Posted by Howard Wasserman on July 16, 2020 at 03:36 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Wednesday, July 15, 2020

Anti-SLAPP law does not apply in Second Circuit

The Second Circuit has joined the chorus holding that state anti-SLAPP laws (in that case, California's) do not apply in federal court. The case arises out of a lawsuit against Joy Reid over two tweets with a photo of a woman in a MAGA hat interacting with a Latinx teen at a city council meeting; one tweet described the plaintiff as shouting epithets at the teen (who said their interaction was civil), while the other juxtaposed the infamous 1957 photograph of the screaming white teen in Little Rock.

The Second Circuit joins the Fifth, Eleventh, and D.C. Circuits in not applying them, compared with the Ninth and First that. The court followed the prevailing approach--FRCP 12 and 56 provide the standards for pre-trial resolution, leaving no room for state law. The court rejected the amici argument that the SLAPP law serves a "distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech," supplementing rather than conflicting with the FRCP. But this is a policy argument, one that contradicts the policies underlying the FRCP themselves. The court also rejected the defendant's argument that she can recover attorney's fees under the statute for a 12(b)(6) dismissal; the statute allows fees when the defendant prevails on the statutory motion to strike, not on some other basis.

Tellingly, the four most recent cases have gone this way, while the First Circuit decision is from 2010 and the seminal Ninth Circuit cases is from 1999, with several Ninth Circuit judges calling for its reconsideration in 2013. The courts of appeals are congealing around the correct Erie answer and may not require SCOTUS resolution, one point of percolation.

But that might not be the correct answer as a matter of the First Amendment and the need to protect speakers, especially media, against frivolous lawsuits by powerful individuals designed to chill public criticism. (Query whether this is such a case, but bracket that for a moment). Many First Amendment advocates want a full federal anti-SLAPP statute. For the moment, I think a fee-shifting statute, combined with vigorous use of Twiqbal would be sufficient to get rid of cases early in the process and to protect defendants from the intentional imposition of litigation costs. But I need to look in greater detail at how federal courts have looked at defamation claims under that pleading standard.

SLAPP and Erie aside, this case may be more troubling for Reid going forward. The court held that the plaintiff (who spoke and was photographed at city council meetings advocating against sanctuary-city laws) was not a limited-purpose public figure; she lacked media access, did not thrust herself into a public controversy, and stepped forward for interviews only after the first alleged defamation. Thus, the plaintiff had to allege negligence, not actual malice. The court also rejected Reid's argument that the second tweet (juxtaposing the photos) was not an actionable assertion of fact, because a reasonable reader could understand it as equating the plaintiff's conduct with "archetypal racist conduct."

It is interesting that this case came to litigation. When the plaintiff's lawyer asked Reid to delete the posts, Reid did so and apologized, which would seem to suggest the absence of negligence. But the plaintiff sued anyway. And we continue forward.

Posted by Howard Wasserman on July 15, 2020 at 07:01 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Preparing for Fall Teaching – Assessment Through Comprehension Checks in Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here.

In an earlier post, I laid out a five step approach to redesigning your courses for a physically distanced, hybrid, or remote semester.  Over the next two weeks, I will be focusing on the second step, which is designing assessment & engagement techniques for these new learning environments.  I covered the basics of assessment theory as it relates to these new learning environments in my last post.  In this post, I will begin to talk about specific assessment techniques.

Aside from all of the other challenges of teaching in a distanced classroom, we will all have to figure out whether and how to change the ways in which we engage and assess our students.  The techniques that we’ve used in the past may not work in these new learning environments.  As we have seen, it can be much harder to get students to participate in discussions when they are participating remotely.  You can’t just put people on Zoom or in a room with masks and trust that conversation will naturally develop.  Group work is similarly a lot harder in a physically distanced classroom, as is peer editing.  You have to thoughtfully and deliberately re-engineer interaction from the traditional classroom to fit the physically distanced, hybrid, or remote space. 

Over the next two weeks, I’ll talk about six different assessment and engagement techniques – comprehension checks, Socratic dialogue, discussion, group work, community-based learning, and reflection & metacognition.  I also hope to include a few guest posts from legal analysis & writing faculty and clinical faculty on specific assessment techniques used in these classes. 

The rest of this post will focus on comprehension checks – i.e., quick assessments to make sure that students understand the material and can apply it.  I am going to break down comprehension checks into those done before class to make sure that students have completed and understood the reading and those done during class to check that students understand the class discussion and are able to apply it to new situations. 

Pre-Class Comprehension Checks 

I’ve used a number of techniques to check students’ comprehension before class, and I’m considering a few new ones this year.  The benefit of these techniques is that I can move some of the analytical work into students’ before-class preparation, leaving more class time for deeper work.  I can also easily gauge whether students understood the material, allowing me to correct common misconceptions in class.

Google Doc Assignments.  My Civil Procedure syllabus often includes a brief assignment that students must complete before each class session (see here for a few examples).  The assignments are designed to take no more than 15-20 minutes.  The logistics are pretty simple and are designed to (i) keep students from emailing their assignments to me and flooding my inbox, and (ii) make it easy for me to review and comment on students’ answers.  Each student has their own google doc for class that they share with me; they are all based on the same template that I provide them.  I grade their answers for completion (i.e., they get full credit if they made a reasonable good faith effort), flipping through them before class so I can see the common mistakes or points of confusion.  I try to comment on approximately twenty percent of the submissions before each class through comment boxes, mixing up who receives personalized feedback each week.  If you use this approach, make sure you have the students order their responses in reverse chronological order so the most recent answers are always at the top and share the document with you so that you can both view AND edit the document. 

LMS Quizzes.  In other classes, such as Business Associations, I assign short quizzes for students to complete before each class.  My law school uses Blackboard, which allows me to create quizzes right in the learning management system (LMS).  Your LMS probably has something similar.  The questions are usually objective, which Blackboard can grade for you, although I’ll occasionally include a short answer question that I grade manually.  I call these quizzes, “Are You Smarter than a 1L?” with the idea that our 1Ls are quite smart but they typically do not know business law.  I thought students would complain about the quizzes, but they don’t seem to mind them at all.  Students often comment that reading the questions ahead of time helps them pick out the relevant issues as they do the reading.    I briefly review the questions and the right answers when we get to the relevant issues in class. 

Video Assignments.  I’m contemplating a new approach this year.  The Google Doc assignments and LMS quizzes work well in a typical year, but this year I’m scheduled to teach in a physically distanced classroom where everyone is in masks.  So I’m thinking of more assessments where we can see each other without masks on.  I’ve been looking at Flipgrid, which allows instructors and students to post short videos.  So instead of having the students answer a question in a Google Doc, I might ask them to answer it through a short recorded video in Flipgrid.  Flipgrid is free for educators, and there’s an option where you can initially keep student responses hidden and then decide whether to reveal them all once all students have turned in their assignment. 

Embedded Questions in Asynchronous Videos.  I hesitated in the spring to use too many asynchronous videos to cover course content because I didn’t want to spoon feed everything to my students.  I don’t want to tell them what the case is about or what the statute says.  Instead I want them to read carefully and find these answers for themselves.  In class, I’ll frequently pause during my discussions and ask them to re-read a statute, for example, and answer a specific question about the language.  I thought I would lose that ability if I relied on asynchronous videos.  It turns out, however, that there are pretty easy ways to embed questions into these videos.  My law school uses Panopto, an online video platform, which I recently learned allows instructors to embed questions right into the video.  Here’s a tutorial.  If you don’t use Panopto or if this feature isn’t enabled at your school, you might check out edpuzzle.  Angela Upchurch at Southern Illinois University School of Law has a great video that was part of CALIcon on how to embed questions into videos uploaded to edpuzzle.  I tried it out, and it was incredibly easy, although you do need a paid account if you want to upload more than 10 videos. 

In-Class Comprehension Checks

In class, whether physically distanced or remote, you can see whether students understand the material by asking questions of individual students.  But this approach is limited—you know whether those particular students understand the material, but it’s harder to get a broader sense of the class.  There are many tools, however, that allow you check the comprehension of the entire class, and most of them work regardless of whether the class is physically distanced or remote, so they are a good choice if you may have to transition between class formats at some point this semester. 

Polling Software.  If you haven’t tried polling software before and you teach a large doctrinal course, now is the time to check it out.  Polls are a great way to see whether the class understands the material and can apply it to new sets of facts.  I embed polls into my PowerPoint slides, and students can answer them using their browser or phone.  I use PollEverywhere, but Mentimeter, iclicker, and many more companies have similar products.  Zoom also has a polling feature, but I find it very clunky and far prefer other options.  In these other options, you can require students to register so you can see which students are struggling or you can make poll questions anonymous if you want students to be able to share their thoughts without attribution.  I typically use standard multiple choice questions, but I’ve also used surveys, which allow students to move through several questions at once, such as when they are working through a statute, or word clouds, which allow them to answer a question in a few words.  You can see the various types of questions that PollEverywhere offers here

Kahoot.  I’ve never tried this tool, but my teenage daughter highly recommends it!  Apparently Kahoots are like PollEverywhere, except that students get also points based on whether they answer the questions correctly and how quickly they answer them.  There is a leaderboard that shows the top five students, so it is like a gamified version of PollEverywhere.  There are Kahoot accounts that require the instructor to pay, but the free version (which isn’t prominently advertised on their website) should work for most people.  See the different account types here.

Jeopardy.  Again, I’ve never tried this one, but it turns out that there are lots of tools out there that allow instructors to create their own Jeopardy games.  Here’s a free Google Doc template, but there are also sites like Factile, Jeopardy Labs, and Flippity that offer easy-to-use templates.  I wouldn’t put up a customized jeopardy game every class period, but it could be a fun way to structure a review session or inject some fun learning into the flow of the semester. 

This set of suggestions is pretty tech-heavy.  In my next post, I’ll get away from tech and focus on ways to spark discussion in these new learning environments. 

Posted by Jessica Erickson on July 15, 2020 at 02:43 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (0)

Monday, July 13, 2020

The Burr Trial

The Supreme Court's reliance on John Marshall's rulings in Aaron Burr's Treason trial to resolve Trump v. Vance raises some interesting questions and points.

  1. Was the Burr trial the most important in American history? If not, what was? There's a fun cocktail party debate. 
  2. The Burr Trial is the only significant time where we see Chief Justice Marshall acting alone as a judge. Everything he did on the Supreme Court was done in collaboration with at least some colleagues. It's easy to overlook this fact.
  3. Some quick research suggests that citing the Burr Trial as a precedent coincided with the start of Marshall-mania in 1895. In that year, the Court relied heavily on Marbury to justify its decision in Pollock and cited the Burr Trial in a significant way for the first time (in Sparf and Hansen), one of my favorite sets of Supreme Court opinions. Marshall's reputation before 1895 was not as strong as it was after that year.

UPDATE: Orin Kerr correctly points out that Marshall was not acting alone: he sat alongside a District Judge. I should have been clearer about that. In practice, District Judges rarely challenged a Circuit Justice unless the Justice wanted a legal question appealed to the Supreme Court, which required a formal disagreement. (One of Washington's District Judge partners basically just cracked the occasional joke during circuit case.) We can, therefore, be confident that Marshall's rulings in the Burr Trial were his own rather than the product of extended consultation. 

Posted by Gerard Magliocca on July 13, 2020 at 07:55 PM | Permalink | Comments (6)

Universal v. Nationwide, Again

The Ninth Circuit affirmed an injunction prohibiting enforcement of DOJ's sanctuary-city regulations as to California and the City and County of San Francisco. This comes after the Second Circuit denied rehearing en banc of a panel decision declaring the regulations valid. We now have a clear circuit split, although I imagine nothing will happen at SCOTUS if Biden wins and the regulations go away.

The Ninth Circuit did narrow the injunction to prohibit enforcement within California but nowhere else. It did so in terms that seem to contemplate the distinction between the injunction's who and where:

Plaintiffs here, a state and a municipality, “‘operate in a fashion that permits neat geographic boundaries.’” . . . Because Plaintiffs do not operate or suffer harm outside of their own borders, the geographical scope of an injunction can be neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries. This is distinguishable from a case involving plaintiffs that operate and suffer harm in a number of jurisdictions, where the process of tailoring an injunction may be more complex.

The court distinguished a case involving asylum organizations that operate in California and other states, where an injunction limited to California would not address the harm from losing a client in Texas.

On the other hand, the court "acknowledge[d] the 'increasingly controversial' nature of nationwide injunction," a framing that confuses the point. There should be nothing controversial about nationwide injunctions, which the court faced here--injunctions that protect the plaintiffs wherever they operate. The controversy is over universal injunctions--injunctions that attempt to protect beyond the plaintiffs. Still, we are slowly getting there.

Posted by Howard Wasserman on July 13, 2020 at 03:46 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

CFP: Akron Law Review

Akron Law Review is seeking to publish an issue devoted to criminal justice reform. Topics may include, but are not limited to:

  • Recent efforts in and new ideas regarding bail reform, pretrial detention and pretrial “services”, the use of proprietary algorithms to make decisions about pretrial release, and other uses of technology for “predictive policing.”
  • Exploring new and existing ways of holding police accountable, including changes to qualified immunity, obstruction of justice charges for turning off cameras, changing the burden of proof in federal civil rights actions against the police, and taking charging decisions away from local prosecutors.
  • Collateral consequences of conviction, easier or automatic expungement, and felon disenfranchisement.
  • Financial burdens from the criminal justice system including fines, court costs, late payment fees, privatized probation and pretrial services, etc.
  • “Abolition” of prisons and/or police and alternative ways of securing public safety, and how these might be implemented in our legal system. Do models of policing/public safety/criminal justice in other countries, or historical instances where police forces were disbanded and replaced, have anything to teach us?

Articles published by Akron Law Review average 15–25,000 words. Please email submissions and any questions to [email protected] Articles submitted on or before September 15, 2020 will receive priority consideration. The submission window will close when the edition is full or on October 15, 2020.

Posted by Howard Wasserman on July 13, 2020 at 03:05 PM in Teaching Law | Permalink | Comments (0)

Preparing for Fall Teaching – Assessment Theory for Physically Distanced, Hybrid, and Remote Courses

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here.

In an earlier post, I laid out a five step approach to redesigning your courses for a physically distanced, hybrid, or remote semester.  This post introduces the second step, which is designing assessment & engagement techniques for these new learning environments.  I’ll cover this step in a number of posts over the next two weeks.  In this intro post, however, I want to review the basics of assessment theory, especially as it relates to these new learning environments.

First, the good news – assessment theory is largely the same in physically distanced, hybrid, or remote courses as it is in traditional courses.  The same principles still apply, so we aren’t reinventing the wheel from a theory perspective.  The bad news though is that we may not always follow this theory perfectly in our own classes.  So before diving into specific techniques for the fall (they’re coming in future posts – I promise!), I want to highlight some of the key principles from assessment theory that will be especially relevant as we redesign our courses for the fall. 

Alignment:  In my last post, I discussed integrated course design and how defining your learning objectives should be the first step of any course redesign.    Your learning objectives should then inform your assessments and learning activities, with all three tightly aligned.   This visual shows the interdependent relationship between these three parts of course design.

Integrated course design

So go back to your objectives before you start redesigning your assessments.  What is the best way to assess if the students have achieved the learning objectives?  How can you use class time to prepare students for these assessments?  Legal education has sometimes had a mismatch of objectives, assessments, and learning activities, so your redesign this summer is the perfect opportunity to create better alignment.

Formative & Summative Assessment:  Legal education is used to thinking about summative assessments, but many of us don’t think nearly as much about formative assessments.  Summative assessments are the assessments we provide to audit student learning and determine what grades to assign, often at the end of the semester.  Our final exams do a good job sorting students into grade categories, but they don’t do as much to help students learn along the way, especially when students receive little feedback on their exam performance other than the grade itself.  

In contrast, formative assessments are designed to be part of the learning experience.  They provide feedback on student learning throughout the course so both students and faculty can assess whether students are meeting the course objectives.  They also provide students with frequent opportunities to practice what they are learning, along with immediate feedback on their efforts.  The most effective formative assessments are ones that are (i) aligned with the course objectives and (ii) accompanied by feedback that is frequent, immediate, based on clear criteria and standards, and delivered empathetically (see here for more information on feedback guidelines).

Developing and using these assessments does not need to be overly time-consuming.  We tend to think of assessments as tests, papers, or quizzes that professors have to grade.  But there are plenty of ways to provide quick graded or ungraded feedback to students to help them reflect on their learning.  For graded assessments during the semester, consider using rubrics that allow you to quickly assess student performance (see here for sample law school rubrics) or multiple choice or true/false assessments that can be graded in your learning management system.  For ungraded assessments, instructors can provide feedback to the class as a whole by discussing the answers in class or through polling software that provides instantaneous feedback.  Instructors can also use peer assessment where students provide feedback to each other using rubrics from the instructor.  Or they can use self-assessment where students assess their own work using model answers.  With formative assessment, the grades are not the point; instead, the assessments themselves help students learn the material and guide their future learning.  

Offer a Variety of Authentic. Higher-Order Assessments.  Authentic assessments ask students to apply their knowledge in real-world scenarios.  How would a practicing lawyer use the information that you are teaching?  Try to have your assessments match how the law is used in the real world.  If you are teaching pleading standards, have students evaluate and/or draft real complaints?  If you are teaching elements of specific torts, have them look at real jury instructions. 

Learning activities should encourage students to apply the content and make connections using the content.  These connections can be internal (across the course content) or external (from the course content to the students’ experiences and/or the world).  These connections are crucial because new learners can have trouble seeing how all of the different elements of a course fit together.  They tend to focus on isolated facts or checklists instead of gaining the big picture.  Understanding the connections underlying the course material can advance their knowledge in important ways.

Finally, think about how you can build assessments to scaffold student learning.  If you want students to become proficient at more complex legal analysis or skills, you may need to start with easier formative assessments at the start of the semester and slowly build up to more complex assessments. 

The principles above focus on principles of assessment theory that apply to any course design.  But there are a few additional principles that apply when designing for physically distanced, hybrid, and remote courses. 

Engage More.  We are going to have to work harder for students’ attention this fall.  Think back to your last Zoom meeting.  How long did it take you to check your email or click over to social media?  Probably a lot less time than it would have taken you if you were physically in a room with the other meeting attendees.  There’s something distancing about sitting behind a screen or a mask, so we will need to design our classes to bring in even more opportunities for them to engage with the material.  If you used to lecture for 15 minutes before switching to a learning activity, you might want to make it 10-12 minutes now.

Don’t Try to Just Replicate Your Old Techniques.  If you are used to having your students learn through in-person Socratic discussions, that doesn’t necessarily mean that you need to find a way to have the same type of discussions in a physically distanced classroom or through Zoom.  Your goal is not to replicate your old learning activities in these new teaching environments.  Instead, go back to your course objectives and figure out what types of assessments and activities work best given how you will be teaching in the fall.  Maybe it’s replicating the Socratic method online, but maybe it’s an entirely different technique that better accomplishes your learning objectives.  

Consider How Remote Students Will Participate.  At many schools in the fall, students will have a choice regarding how they attend class – either in-person in a physically distanced classroom or remotely over Zoom or a similar platform.  This blended approach will allow students to participate in class even if they are sick, immune-compromised, or quarantined. It will, however, make designing assessments even more challenging.  With every assessment or learning activity, consider how you will include students participating remotely over Zoom.

Beware Extraneous Tech: When it comes to engaging students remotely, there are lots of tech tools out there.  Resist the urge to try new tech just to try it.  Every use of technology should connect back to your pedagogical goals.  You also don’t want to overwhelm your students (or yourself!) with lots of new tech in your courses.  I’m aiming to incorporate no more than one or two new tech tools this fall, so I’ve been evaluating the various options to see what might work best for me.   

In future posts, we’ll turn to assessment techniques, building on the assessment theory outlined here.  If you tried a great assessment technique or if you’re curious about a particular technique, let me know!   

Posted by Jessica Erickson on July 13, 2020 at 12:25 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (0)

AALS Federal Courts Section: Calls for Nominations

After the jump is information on two Calls for Nominations from the AALS Section on Federal Courts: The first is for the Daniel J. Meltzer Award, designed to honor the life and work of the late Prof. Meltzer. The second is for the Best Untenured Article on Federal Jurisdiction.

AALS Federal Courts Section - Daniel J. Meltzer Award: Call for Nominations

The AALS Section on Federal Courts is pleased to announce that it is seeking nominations for the Daniel J. Meltzer Award, which is designed to honor the life and work of the late Professor Meltzer.  The Award recognizes a professor of Federal Courts who has exemplified over the course of their career Professor Meltzer’s excellence in teaching, careful and ground-breaking scholarship, engagement in issues of public importance, generosity as a colleague, and overall contribution to the field of Federal Courts.

Eligible nominees are those who are full-time faculty members at AALS member or affiliate schools, have not previously won the award, and have not served as an officer of the Federal Courts Section in the two previous years.  It is not required that the award be given out in any particular year, and it may not be given out more frequently than every three years. 

Nominations (and questions about the award) should be directed to Prof. Seth Davis at the University of California, Berkeley School of Law ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2020.  Nominations will be reviewed by a prize committee consisting of Professors Seth Davis (Berkeley), Gillian Metzger (Columbia), James Pfander (Northwestern), and Carlos Vázquez (Georgetown).  If the committee decides to make the award, it will be announced at the Federal Courts section program at the 2021 AALS Annual Meeting.

AALS Federal Courts Section - Best Untenured Article on Federal Jurisdiction: Call for Nominations

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2021 AALS Annual Meeting.

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2020 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2020), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.

Nominations (and questions about the award) should be directed to Prof. Seth Davis at the University of California, Berkeley School of Law ([email protected]). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2020. Nominations will be reviewed by a prize committee comprised of Professors Samuel Bray (Notre Dame), Seth Davis (Berkeley), Allison Orr Larsen (William & Mary), Marin Levy (Duke), and Leah Litman (Michigan), with the result announced at the Federal Courts section program at the 2021 AALS Annual Meeting.

Posted by Howard Wasserman on July 13, 2020 at 12:08 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Saturday, July 11, 2020

Bushrod Washington Draft Complete

Phew! This draft is done. I'm happy to share the manuscript with interested scholars. Just drop me a note. In the meantime, on to the next article, which I'll start talking about soon.

Posted by Gerard Magliocca on July 11, 2020 at 08:48 AM | Permalink | Comments (1)

Friday, July 10, 2020

The process of Mazars and Vance (Updated)

Some process questions following Mazars and Vance, less about what happens on remand in these cases* than about what happens in future cases.

[*] I agree with what I have seen as a prevailing consensus--Trump runs out the clock on these subpoenas for this term, but may be in for a world of hurt and embarrassment as a private citizen if he loses in November. If he wins in November, all bets may be off.

Mazars

1) Which way do the incentives cut following Mazars and how likely is litigation over future subpoena disputes? The Chief's premise is that these cases historically were handled through the hurly-burly of politics until inter-branch negotiation broke down here (with no mention of why inter-branch negotiation broke down during this administration and not before). But Congress' subpoena power cannot be too broad, otherwise "[i]nstead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court."

But then why had Congress never previously walked away from the bargaining table? The majority cites four examples--from Washington, Jefferson, Reagan, and Clinton--in which Congress has negotiated for and accepted some-but-less-than-all of what it requested. He cites no examples in which Congress walked away, despite precedent hinting at a broader subpoena power than what the Court recognized.

More importantly, what about presidential incentives? He holds the information and has no desire to give it up unless and until compelled to do so. Mazars offers a more beneficial standard (how beneficial is a subject of debate and must await future cases) that must be satisfied before he can be compelled to do so. So it seems to me that "instead of negotiating over information requests, [the President] could simply walk away from the bargaining table and compel [Congress to start the lengthy process to] compel compliance in court," where the President can try to avail himself of the new standard. Moreover, time is on the executive's side--if the litigation process takes a year or more (not unlikely if SCOTUS gets involved), the President can try to hold out to the next election or to the end of the Congress and the expiration of the subpoena.

2) The President's incentive to walk away is furthered by the Speech or Debate Clause, which prevents suit against Congress. The house or the committee must make the first move by bringing an action to enforce the subpoena or holding the President in contempt of Congress and seeking to enforce the contempt order (which requires the U.S. Attorney for D.C.). Either way, Congress is the first actor. The President's incentive is not to bargain, to run out the clock, and, perhaps, try to shift political blame onto Congress for escalating the political stalemate.

3) We see a stark contrast in what gets left to the hurly-burly of politics and what is appropriate for judicial refereeing. Whether members of the legislature can rig the design of legislative districts to (try to) ensure continuation in office of themselves and their party colleagues) is politics; how one branch engages in oversight of another branch requires judicial intervention. For present purposes, it does not matter which is correct; the point is an odd disparity.

Vance

4) The procedural issue in Vance involves Younger abstention. The state grand jury issued the subpoenas, Trump sued the DA in federal court, the district court abstained in deference to pending state proceedings, and the Second Circuit held that abstention was improper. Vance did not appeal the Younger ruling, so SCOTUS never had reason to decide it. But the Court said that a President could challenge in federal court a subpoena that attempted to influence or manipulate his official actions. Later, the Court says the President can raise "subpoena-specific constitutional challenges, in either a state or federal forum," such as claims of undue influence or undue interference.

But how does a case such as this fit into Younger? The typical framework for Younger goes as follows: 1) Whether the case falls within one of three classes of cases (including ongoing criminal proceedings; 2) consideration of the Middlesex factors of whether there is an ongoing proceeding, whether the proceeding implicates state interests, and whether the federal plaintiff can raise federal issues in state court; and 3) whether the case falls within an exception, such as bad faith, harassment, or "other exceptional circumstances."

The Second Circuit's analysis did not follow this framework. It instead held that Younger's underlying concerns for comity were not implicated in a case built around a federal-state conflict and raising "novel and serious" federal issues. It could have squeezed those concerns into the exceptions (this is what Trump argued in the complaint), but instead made them macro-level policy considerations that a court must consider before jumping into that framework.

5) What about Younger going forward, in this case or a future case? With respect to subpoenas for private documents, the President seems to be an ordinary citizen able to challenge a subpoena on state and federal grounds, including unique federal presidential grounds such as non-interference with Article II functions. Are those challenges automatically a basis for federal jurisdiction and non-abstention? Can ordinary state-law arguments against a subpoena, such as overbreadth, be a basis for federal jurisdiction? Do state-law arguments become Article II arguments when raised by the President? Must there be a federal forum for all Article II arguments, in a way there need not be a federal forum for First Amendment arguments?

6) The Court's resolution arguably alters the Younger analysis in this case. The Second Circuit rejected abstention because of the President's "novel and serious claims," specifically that the President is absolutely immune from state criminal investigation or that a unique standard applies. So the same questions apply: If the President is asserting micro challenges, many under state law, to specific pieces of the injunction, is a federal forum warranted? Can the lower court, having rejected Younger, find abstention appropriate given the changed nature of the case?

Posted by Howard Wasserman on July 10, 2020 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (6)

Preparing for Fall Teaching– Identify Your Learning Objectives

This post is part of a series on preparing to teach in the fall.  For the other posts in the series, see here.

In my last post, I laid out a five step approach to redesigning your courses for a physically distanced, hybrid, or remote semester.  This post covers the first step, which is to identify your learning objectives. 

I’ll fully admit that this step is the least exciting of the five.  We have so much to learn about distanced and remote pedagogy that we are eager to dive into the new stuff.  We don’t want to spend our precious time this summer on more general pedagogical work.  I get it, but if you’re going to spend time overhauling your courses, you have to know what you want your students to get out of them.  It’s the foundation for all of the other steps. 

Pull out your old learning objectives from past syllabi, and take a hard look at them.  Do they still represent your learning goals for the course?  My learning objectives represent a constant battle between depth and breadth.  It feels so satisfying to cover lots of content in a course, zipping through the chapters in a casebook.   This satisfaction dissipates though when you see the same students in a year or two, and they remember little of the content.  Three weeks of personal jurisdiction in Civil Procedure becomes “um, minimum contacts?”

This isn’t a critique of our students.  It’s just how the human brain works.  Our brains are not designed to remember lots of information if we don’t regularly use it.  That doesn’t mean that content is irrelevant—I still teach personal jurisdiction!—but I need to do more in the classroom to get it to stick in students’ minds.

Just as importantly, most of us have pedagogical goals that extend beyond our students being able to remember and parrot back the content.  We want our students to be able to use the content in various ways, and it takes time to develop these deeper skills.   So deciding on your learning goals is a balance between covering lots of concepts and developing students’ ability to use these concepts in various ways.

To develop these deeper learning objectives, take a look at the various learning taxonomies that instructional experts have developed.  You might start with Bloom’s taxonomy, a  staple for many of us.  The list of verbs that often accompany each level of Bloom’s taxonomy are a helpful start to drafting learning objectives.  I aim for fewer objectives that start with the verb “understand” and more objectives that start with specific and measurable verbs that represent what students will be able to do with the content.  Here are the levels of Bloom’s taxonomy along with some corresponding verbs for each level.

Bloom

Some faculty balk at the hierarchical nature of Bloom, however, and there are plenty of other good learning taxonomies out there.   Dee Fink, who wrote one of the foundational texts on integrated course design, has a good taxonomy that incorporates the human side of learning, including learning how to learn and developing self-knowledge, empathy, and an understanding of one’s own values.  Davis & Arend have a similar framework that may be appealing to many law professors because it includes components for building skills, cultivating problem solving abilities, and developing professional judgment. 

It’s also worth thinking through the broader questions you want to tackle in your course.  What are the deep questions that run through your course?  Phrased more broadly, in your deepest, fondest dreams, what kind of impact would you like to have on your students?  That is, when your course is over, and it is 3-5 years later, what will your students still value, know, and/or be able to do?  These questions come from a course design workshop I took with Professor Michael Palmer from the University of Virginia several years ago, and they are a helpful reminder that not all learning objectives need to be objective and measurable. 

For those professors who already review their learning objectives on a regular basis, here are three ways to go a bit further.

First, use this moment in history to think about how your course treats issues related to oppression and racism.  If you are rethinking content, ask yourself some hard questions about the traditional content in your courses.  Which issues and voices are you prioritizing in your selection of readings?  Do you acknowledge and discuss the interests and perspectives that the law is protecting or ignoring?  Do you provide space in the classroom for students to explore the broader social and historical context of the doctrine?  As I rethink my learning objectives for  Civil Procedure in the fall, these questions will be at the center of my thinking.  The AALS had a good webinar last week on racism and justice in our fall courses, and the video is available here if you want to check it out.

Second, consider partnering with faculty teaching similar courses to develop common learning objectives.  We often design our courses in a vacuum, but many law professors are working this summer to rethink their courses, which presents a great opportunity to collaborate and share ideas. I’ve met a few times with the other professors here at Richmond Law teaching Civil Procedure, and it’s been so helpful to hear what they are planning and be able to learn from them.

Finally, look for opportunities to share your learning objectives with your students.  I’ve traditionally included my learning objectives in my syllabus, but we all know students don’t always read the syllabus with as much care as we might like.  It turns out that students perform better when they take the time to reflect on how the learning objectives connect to their personal goals for the course.  You might think about an assignment in the first week of the course asking students to read the course objectives and submit a brief video or written response discussing how these objectives relate to their own objectives for their career or the course.  You might also ask students to reflect at the end of the semester on whether they achieved the course objectives and the advice they might have for students taking the course in the future.

I’ll end by noting that we already have many tools to address the challenges of the fall semester.  Yes, we still have so much to learn about online pedagogy (and physically distanced pedagogy, which appears to be entirely new), but course design all starts from the same basic principles.  So before you dive into all of the new stuff out there specifically about online pedagogy, spend some time reflecting on integrated course design and rethinking your learning objectives.  I really like Dee Fink’s primer on integrated course design and the accompanying self-directed guide available here.

My posts next week will focus on assessment & engagement techniques in physically distanced, hybrid, and remote courses, so feel free to share any specific questions on these topics in the comments below.    

Posted by Jessica Erickson on July 10, 2020 at 10:35 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (3)

Thursday, July 09, 2020

Teaching and evolving doctrine

I will teach 1L Constitutional Law (structure, powers, and basic 14th Amendment) for the first time this semester.

A friend who teaches the course at another school described the difficulty in this course as the rapid increase in the amount of law in a course whose time structure has not changed. Many major cases that occupied many casebook pages and many minutes of class time when he began are now one-paragraph or one-parenthetical notes. In the past two weeks, the Court has decided four cases--Seila Law, June Medical, Vance, and Mazars--that could be substantial cases in addition to or in lieu of what is in the casebook. (My momentary preference is to add Seila Law and maybe Mazars but not the others). And that is without cases radically altering the legal landscape (we are not living through either the Switch in Time or whatever we call Lopez).

Is this unique to Constitutional Law? Do other law school subjects (especially 1L course) have the same issues? Is Con Law unique because the focus is on SCOTUS decisions, so every new case seems important and necessary to the course?

I have experienced this a bit with personal jurisdiction in Civ Pro. I have moved several post-2011 cases (Nicastro, Walden, and Daimler and probably Ford when it comes out next Term) into the mix. During an early Civ Pro Unavailability Workshop someone raised which of the nearly ten recent P/J cases to include and which 1980s-era cases to replace, to say nothing of what to do with Pennoyer. Less so in Fed Courts and Civil Rights, where I use a treatise and new developments or applications (e.g., the legislative and policy move to eliminate qualified immunity) can be integrated into existing materials without displacing them.

But it feels pervasive and never-ending in trying to plan this course. Thoughts?

Posted by Howard Wasserman on July 9, 2020 at 01:01 PM in Constitutional thoughts, Howard Wasserman, Teaching Law | Permalink | Comments (7)

Wednesday, July 08, 2020

Justice Kagan’s Warring Views on the Religion Clauses

Today (Wednesday) the Supreme Court decided two cases involving questions of law and religious rights: Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267, consolidated with 19-348), which addressed the scope of the First Amendment’s “ministerial exception,” and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431, consolidated with 19-454), which determined the legality of regulations exempting employers from ACA-mandated contraceptive coverage for religious reasons. Justice Kagan joined the majority in both—in full in Our Lady and in the judgment in Little Sisters. But in what appears as case of the right hand not knowing what the left hand is doing, a footnote in her concurring opinion in Little Sisters misreads the majority opinion she joined in full in Our Lady. (Of course, she could be putting forth a revisionist reading.)

Our Lady grounds the so-called “ministerial exception” clearly in the broader doctrine of church autonomy. That doctrine, supported by the Religion Clauses, “protect[s] the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” (Slip op. at 10) (quoting Hosanna-Tabor, 565 U.S., at 186). Further, “[s]tate interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion.” (10).

Our Lady observed that “[t]he independence of religious institutions in matters of ‘faith and doctrine’ is closely linked to independence in what we have termed ‘matters of church government.’” (10) (quoting 565 U. S., at 186). The First Amendment “protect[s] [religious institution’s] autonomy with respect to internal management decisions that are essential to the institution’s central mission.” (11). What is more, “a component of this autonomy is the selection of the individuals who play certain key roles.” (11). The Court notes that the “‘ministerial exception’ was based on this insight.” (11). And the “constitutional foundation” for the Court first recognizing this exception in Hosanna-Tabor “was the general principle of church autonomy”—“independence in matters of faith and doctrine and in closely linked matters of internal government.” (12). To support this, the Court notes three earlier church autonomy cases, all of which had to do with the control of church property (though in some, but not all, “the authority and appointment of a bishops” was also at issue).

In other words, the ministerial exception is a sub-part (“component”) of the First Amendment’s church autonomy doctrine. It is sufficient to violate the church autonomy doctrine by violating the ministerial exception, but it is not necessary. One can still violate the doctrine even if the exception does not apply. Put another way, within the larger circle of the church autonomy is a smaller circle of the ministerial exception. Justice Kagan joined all of this without comment.

Now turn to her concurrence in Little Sisters. There she claims that “there is no general constitutional immunity, over and above the ministerial exception, that can protect a religious institution from the law’s operation.” (Kagan Concurrence at 3 n.1). Yet how can this be squared with Our Lady? There the Court clearly stated that the ministerial exception is a “component” of the church autonomy doctrine. It is not the entire doctrine. But Justice Kagan wants the “component” to swallow the hole. To put it differently, in Little Sisters Justice Kagan sees the ministerial exception circle and the church autonomy circle as having perfect overlap.

Actually, that may be understating it. Justice Kagan appears to view the ministerial exception as being the only way that the Religion Clauses “can protect a religious institution from the law’s operation” via a “general constitutional immunity.” But as I have noted earlier on this blog, that runs smack dab into Trinity Lutheran’s footnote 4, which notes categorical protection from laws or government actions that, among other things, specifically target religion as such. Justice Kagan joined Trinity Lutheran’s footnote 4 in full as well.

These warring views do not appear reconcilable. I guess we will have to see in future cases which version of the First Amendment Justice Kagan will endorse.

Posted by James Phillips on July 8, 2020 at 07:10 PM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (4)

Universal v. Nationwide

A good illustration of why the nationwide/universal and where/who distinction matters for the scope-of-injunction question. Here is footnote 28 in Ginsburg dissent in Little Sisters:

Although the Court does not reach the issue, the District Court did not abuse its discretion in issuing a nationwide injunction. The Administrative Procedure Act contemplates nationwide relief from invalid agency action. See 5 U. S. C. §706(2) (empowering courts to “hold unlawful and set aside agency action”). Moreover, the nationwide reach of the injunction “was ‘necessary to provide complete relief to the plaintiffs.’ Trump v. Hawaii, 585 U. S. ___, ___, n. 15 (2018) (SOTOMAYOR, J., dissenting) (slip op., at 25, n. 13) (quoting Madsen v. Women's Health Center, Inc., 512 U. S. 753, 765 (1994)). Harm to Pennsylvania and New Jersey, the Court of Appeals explained, occurs because women who lose benefits under the exemption “will turn to state-funded services for their contraceptive needs and for the unintended pregnancies that may result from the loss of coverage.” 930 F. 3d, at 562. This harm is not bounded by state lines. The Court of Appeals noted, for example, that some800,000 residents of Pennsylvania and New Jersey work—and thus receive their health insurance—out of State. Id., at 576. Similarly, many students who attend colleges and universities in Pennsylvania and New Jersey receive their health insurance from their parents’ out-of-state health plans. Ibid.

Ginsburg is correct that protecting New Jersey and Pennsylvania is not bounded by state lines, given the number of employees, students, etc. likely to turn to the state for financial assistance. That is, the injunction should have been nationwide in where it protects the parties.  It should protect NJ and Pennsylvania and those people with some connection to NJ or Pennsylvania (on whose behalf NJ and Pennsylvania sued), regardless of where those people are.

But complete relief does not require that the regs be enjoined as to other states who may incur the same harm as NJ and PA or to individuals who might be denied coverage but have no connection to NJ and PA. That is, the injunction need not be universal (or non-particularized) in who it protects. Complete relief to NJ and PA does not require that the enforcement be enjoined as to California or those people who might turn to California for funding if denied coverage.

For what it is worth, the same should apply to the lawsuit Harvard and MIT filed to stop ICE from enforcing the rules with respect to student-visa holders and remote courses. Complete relief to Harvard and MIT does not require enjoining enforcement of the regulations as to other schools or students from schools other than Harvard and MIT. It only requires an injunction protecting Harvard and MIT and their students, regardless of where located. I recognize this is inefficient. But this is the scheme we have.

Posted by Howard Wasserman on July 8, 2020 at 01:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (6)

Preparing for Fall Teaching – Five Steps to Designing a Physically Distanced/Hybrid/Remote Course

This post is part of a series on preparing to teach in the fall.  For the first post in the series, see here.

As I mentioned in my first post, I’ve spent a lot of time this summer reading books and attending webinars about remote teaching.  A week or so into this deep dive, however, I found that I was overwhelmed.  Perhaps you’ve had a similar experience.  There are lots of great tips out there, but it can feel like drinking from a water hose.  We’re told to learn more about our learning management systems, keep our videos short, offer flexible options for students, have a good online presence, experiment with new assessment techniques, caption our videos, along with so many more tips.  They were all good ideas, but it was too much.  I wasn’t sure where to start. 

I needed a broader framework, so I took a step back and tried to fit this information into five concrete steps to redesigning a physically distanced, hybrid, or remote course.  This post introduces these steps, and I’ll go into each step in more detail in future posts.  Approaching the fall using these steps feels a lot less overwhelming, at least to me.

Here are the five steps I will be talking about:

Step 1: Identify your learning objectives. This isn’t the most exciting step, but it’s hard to design a good course in any learning environment without being really precise about what you are trying to achieve. 

Step 2: Figure out how you will assess and engage students in these new learning environments.  This is a staple of integrated course design, but it’s particularly challenging when we are teaching in new environments that may well change during the course of the semester.  Some tried and true techniques won’t work, so it’s important to have a robust plan.

Step 3: Determine how to build connection and community in your courses.  Connections develop more organically in traditional classrooms, which means we’ll have to work harder to build these connections in the fall.

Step 4: Develop a communication strategy.  This fall will continue a period of upheaval for our students, both personally and in the classroom, so we will need to make our expectations and agenda for the course even more visible to them.

Step 5: Create a plan to support all students.  Students fall through the cracks more easily when we are not in traditional classrooms, so we need to be more deliberate about supporting students in these new learning environments.

I’m a visual person, so I created this image, which sets out each step as a separate layer in redesigning our courses.


Layers of Distanced Course Design

These steps intentionally take a broader view of course design than a lot of the other resources out there.  I’m not starting with the choice between synchronous or asynchronous or the details of particular tech tools.  That information is important, but it has to fit into the bigger picture of your course design.  I’ll include some of this information in the various steps, but I don’t think it should drive the discussion. 

My next post will focus on the first step of identifying your learning objectives.  If there are specific topics or ideas you want me to cover in the future, let me know in the comments!

Posted by Jessica Erickson on July 8, 2020 at 10:34 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (3)

Tuesday, July 07, 2020

Bingham, Ohio

I hear that the city of Columbus is looking for a new name. A name that is part of Ohio's history and stands for racial justice. How about Bingham, Ohio? 

Posted by Gerard Magliocca on July 7, 2020 at 07:48 PM | Permalink | Comments (4)

Call for Articles: Post-Pandemic Impact on Healthcare Development and Delivery

The Annals of Health Law and Life Sciences at Loyola University Chicago School of Law invites original submissions for publication in our Winter 2020 issue. The Winter 2020 edition is seeking articles about post-pandemic impacts on the American healthcare system in the different stages of healthcare development and delivery. These topic areas may include but are not limited to:

Health law and the life sciences. Topics may include a discussion of the bounds of the FDA’s authority; the impact of a public health crises like the COVID pandemic on the FDA’s function; and the FDA’s role in innovation in recent years.

Technology and Telehealth. Topics may include a discussion of the role of telehealth in primary patient care; the long-term integration of telehealth into healthcare delivery; challenges of adopting a technology-based approach to healthcare; data privacy in the age of a pandemic; and the introduction of telepsychiatry into post-pandemic healthcare delivery models.

The impact of COVID on healthcare providers. Topics may include a discussion on mental health considerations for healthcare providers; mechanisms to prevent disruptions in equipment supply chains for future emergencies; and long-term changes in the delivery of health care.

Submission Information: We welcome submissions from professional disciplines other than law and encourage submissions from authors whose voices are traditionally underrepresented in legal scholarship.  We will also consider JD and LLM student submissions with a short letter of support from a faculty advisor from your home institution. Please direct articles for publication to [email protected] by July 24, 2020.

Questions: Please email any questions to [email protected].

Posted by Sarah Lawsky on July 7, 2020 at 04:24 PM in Law Review Review | Permalink | Comments (0)

The First Amendment and the preferred first speaker

Harper's has published online (and will publish in print) a letter on "justice and open debate" from a cross-section of journalists, authors, and academics, including several law professors. They decry a "new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity." They allude to  recent events involving fired editors and analysts, canceled books, investigated professors--what has come to be called, loosely, "cancel culture."

The authors claim to "uphold the value of robust and even caustic counter-speech from all quarters," but to fear that "it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought." Ken White (Popehat to those on Twitter and KCRW) sees the letter as drawing an untenable (or at least elusive) distinction between "silencing" and "more/responsive/critical" counter-speech. White labels this the "problem of the preferred first speaker," the " tendency to impose norms of civility, openness, productiveness, and dialogue-encouraging on a RESPONSE to expression that we do not impose on the expression itself." In other words, the original speaker is free to say what she wants however she wants; the response must listen to, engage with, and respond to that speech. "Shut up" is not acceptable counter-speech.

This is an extension and expansion of the problem of campus speech and "controversial" speakers. The invited speaker (Charles Murray, whoever) is the preferred first speaker, entitled to have his say; those who object or oppose his views are expected to sit quietly, listen to what he says, perhaps ask a question or make a comment during Q&A (if he deigns to call on them). Anything else (such as a noisy protest outside the hall) is the dreaded heckler's veto.

Both situations create a puzzle . We do not want people to lose their livelihoods for their speech, nor do we want speakers chased off campus. But we also should not hamstring one side of the debate--to paraphrase Justice Scalia, we should not allow the original speaker "to fight freestyle," while requiring counter-speakers "to follow Marquis of Queensberry rules." I do not know the right answer or correct balance either to the recent online issues or to campus speech (the latter will not be an issue for awhile, unfortunately). But this letter does not provide it.

Meanwhile, White provides a great title for the article I hope to write.

Posted by Howard Wasserman on July 7, 2020 at 01:39 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Judenhaas

At The Forward (subscription required), Stephen D. Smith argues against use of the term antisemitism (or anti-Semitism) in favor of "Jew hatred." He argues it is more accurate, less couched in pseudo-science, and less recent (Smith traces the term antisemitism to the late-19th century, whereas the concept has existed for millenia).

Unfortunately, "Jew hatred" is awkward. Fortunately, the Germans provide a single word: Judenhaas. Maybe the term (but not the concept) will catch on.

Posted by Howard Wasserman on July 7, 2020 at 12:15 PM in Howard Wasserman | Permalink | Comments (1)