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Tuesday, August 11, 2020

ICYMI: Ten (No, Make that Nineteen) Tips for New Law Professors

I wrote these tips a few years ago and reviewed them before reposting for anyone who is interested.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned  by violating it.  What the advice boils down to, I think, is that students desperately need you to be predictable. It is comforting to them when they know roughly what to expect each day. I think of this advice a lot as dean, too. The Dean's "mood" affects the whole institution, and it is important to remain predictably but not Pollyanna-ishly optimistic no matter what comes along. As an aside, I think this is important as a parent, too. My motto: We'll deal!

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 25 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another. 

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. Videos can be sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) 28 years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.  [I used the whiteboard feature in zoom this summer as a replacement for the board. It worked better than powerpoint in prompting interaction.]

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else. This is probably the most important piece of advice on this list. It happens to be good advice for deans, too!

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit when you're new. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now (I do as dean!), but I believe in signalling I take the endeavor seriously by dressing professionally.

Finally, if you're new and you'd like to talk about any of the subjects I teach (mostly Torts, Media Law, Advanced Torts, First Amendment Law), I'd be happy to share any materials I have.

Posted by Lyrissa Lidsky on August 11, 2020 at 05:08 PM in Lyrissa Lidsky, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (11)

Building Connections Among Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or 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 third step—building connections and community in our physically distanced, remote, or hybrid courses.

In a prior post, I discussed this importance of building connections and community in our courses this fall.  According to the community of inquiry model, if we want to design an effective learning environment, we should consider three types of interaction—(1) how students interact with the material, (2) how they interact with us, and (3) how they interact with each other.  My last post focused on how students can connect with us in these new learning elements, while this post will focus on how we can provide opportunities for students to interact with each other. 

Prioritize Group Assessments & Activities.  We are all rethinking how we will assess and engage students this semester, and with all of the challenges, it can be tempting to simplify and do more lecturing or individual assessments, especially if you are teaching in a physically distanced classroom where group work is far more difficult.  But the cost of choosing more individual assessments is that students will feel even more disconnected from each other.  We need to figure out how to get students talking to each other, even in physically distanced classrooms.  As I’ve talked about previously, it should still work to have students work in groups of two or three even in a physically distanced classroom, and it’s worth the effort even if it feels complicated to get students to work together while in masks.  You might even hold events outside of class that are more informal, like discussions of current events related to the class or a movie watching party.

Create group camaraderie.  Stealing an idea from Harry Potter, consider putting the students into groups and give them opportunities to earn points for their group.  The groups can compete against each other to gain the most points.  The two groups in my class will be the “Pennoyers” and the “International Shoes” (try to guess what class I am teaching…).  If I were teaching Business Associations, I’d break them into houses named after Delaware Court of Chancery judges.  Clearly, my motto is “if you’re going to geek out, geek all the way out.”  I may hold trivia contests or Jeopardy contests related to the course material as a review or just for fun, with the winning house getting points. 

The groups could also serve as a support system for the members.  For example, you could encourage them to share phone numbers, so they can reach out to each other if they are having tech issues.  If you are teaching a hybrid class with only some students in-person each class, you might assign them to the same in-class days, so they get to know each other in-person as well. 

Assign students to study groups.  In a regular semester, study groups can develop naturally.  It is harder for students to connect with each other remotely or in a physically distanced classroom, so you might create study groups early on.  You can give the groups a few assignments that they turn in for a completion grade to create incentives for them to meet as a group.  Not all of the groups will work well together, and I certainly wouldn’t force them to stay together beyond these early assignments, but it could help some students form connections.

Use fun icebreakers.  Consider icebreakers throughout the semester.  We typically use icebreakers on the first day of class and then assume the students will get to know each other organically throughout the rest of the semester.  In physically distanced or remote courses, however, we may have to work harder to introduce (and re-introduce!) the students to each other.  You might pick a theme each week, asking students to send you pictures or tidbits about themselves that relate to the theme. 

Here's what I’m planning.  I’m doing one “just for fun” prompt a week – they’ll be totally optional, but I plan to hype them up so students hopefully put in the few minutes it will take to do them.  I’ll also share my own answers with them so they get to know me a bit better.  If they choose to respond, they will put their responses in their pre-class Google Docs or Flipgrid video assignments, which I talked about here.  (As an aside, if you want sample instructions for either of these technologies, just email me!).  I’ll let the students know that I plan to share a few each class, so they can learn more about each other. 

Here are some sample prompts from my syllabus:

  • At the start of many movies, there is a song that plays when the hero makes their first appearance. This song (often called a “walkout song”) symbolizes the hero’s journey and what is to come.  You have just made your first appearance in law school.  What is your walkout song?  You can include the song title in your Google Doc if you would like.  And if you can’t think of a song that fits, you can include a meme or gif instead.  I stole this prompt from Professor Molly Brady at Harvard, and I love the idea.
  • Do you have a pet? If so, I’d love to see a picture! 
  • Share one thing that has surprised you about law school so far.
  • What TV series have you watched over the last six months that you have really liked?
  • Share your cutest or craziest baby pictures!
  • What’s your favorite board game or card game? What do you love about it?
  • If you could design your perfect career, what would it be?
  • What’s your favorite place to go in [the town where your law school is located]?
  • What’s your favorite holiday and what do you love about it?
  • What has been your favorite part of law school so far? What’s one thing about law school you wish you could change? 
  • If you could go anywhere in the world during winter break, where would you go? Since this is your fantasy, it can be any season you’d like as well. 

Simulate Unstructured Classroom Time. In an in-person class, students will often arrive a bit early and chat with their classmates, or they will stay after class to ask you a question.  You can provide similar opportunities in an online class.  Let the students know that you will open up the Zoom class ten minutes early, but will mute your own mic and speakers, so they can talk to each other.  You can also tell them that you will stay after class for 10 minutes for their questions.

Build fun moments into class.  If you are teaching remotely, you might screenshare word searches or crossword puzzles before class or during the break.  Students can work on them together using the annotation tool in Zoom. I bought an account to wordmint, which allows you to create all kinds of customized games and puzzles.  The account was cheap, and now I can create personalized puzzles for my students.  I might create one for personal jurisdiction, for example, that includes all the new terminology they have learned, from “long-arm statute” to “minimum contacts.” 

Combine fun and attendance:  My colleague Kristen Osenga has a good idea for using our polling software – PollEverywhere -- to take attendance in a fun way.  She asks a question in the first 2 minutes of class like “What’s your favorite decade?,”  “What’s your favorite type of candy?,” and “What are your plans for spring break?”.   The options will usually be multiple choice, and she’ll share her own thoughts as well.  She says that it gets the class talking from the beginning about something not class related, and gives the students a chance to know each other and her.

 Collaborative Start-Stop-Continue: In a start-stop-continue exercise, students work in pairs or small groups to provide their thoughts about what they’d like their instructor to start doing, stop doing, and keep doing in class. The groups can submit their responses to you using a Google Form email, or a free online bulletin board (e.g., Padlet, Lino). You can follow up by summarizing the results and discussing you will or won’t change and why.  This can be a good way for students to collaborate in a low-stakes way and learn how they are each experiencing the class. 

Allow Extra Credit Group Projects.  Consider giving students the option to form groups and do a fun extra credit project.  You might let them research the background of a case, come up with a video explaining a rule to a non-lawyer, or even make a fun hand washing poster that goes with the class:

Handwashing(Full disclosure -- I would love to give credit to whoever created it, but I don't know who that is!  If you know, email me and I'll edit this post.)

I’d love any other tips you have in the comments, or you can join the conversation on Twitter here.

Posted by Jessica Erickson on August 11, 2020 at 03:14 PM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

JOTWELL: Steinman on Jacobi & Sag on laughter at SCOTUS

The new Courts Law essay comes from Adam Steinman (Alabama) reviewing Tonja Jacobi & Matthew Sag, Taking Laughter Seriously at the Supreme Court, 72 Vand. L. Rev. 1423 (2019), analyzing the frequency of laughter during SCOTUS arguments and its dark side as a "weapon of advocacy."

Posted by Howard Wasserman on August 11, 2020 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, August 10, 2020

Hate Speech Returns to Campus

Students are returning to campus soon, and with them they are sure to bring more controversies over where the lines are drawn between free speech and speech that may be censured and censored.

Just last week, a controversy broke out at Princeton about a student's use of the n-word in social media. A white Princeton student responded on Facebook to a Black Fordham graduate who posted "We know you hate n---s" by saying that the Black graduate had gone to prep school and could not "speak for the n---s." This incident followed publication by a Princeton classics professor of an op-ed questioning some of the racial justice proposals made in a faculty petition to Princeton administrators; in that op-ed, the Professor called one Black student group a "terrorist organization."

Inevitably, Princeton administrators issued statements deploring the speech used in both incidents. With regard to the white student's use of the n-word, administrators branded it “contrary to Princeton’s commitment to stand for inclusivity and against racism” but said that the speech nonetheless did not violate university policy. Similarly, the President of Princeton condemned the classics professor's labeling of the student group as a terrorist organization, calling it "irresponsible and offensive," but the President said the speech was nonetheless protected by university policy.  

Many students rejected these conclusions on the grounds that a university committed to inclusion cannot tolerate hate speech. Their views seem to mirror those found in a recent survey:  81 percent of students on college campuses said that colleges should not punish offensive speech, but when asked whether colleges should restrict racial slurs, 78 percent said yes.  Moreover, seventy-one percent of students surveyed believed colleges should be able to restrict the wearing of costumes that involve racial or ethnic stereotypes. 

Unlike other campus free speech controversies, Princeton's are not governed by the First Amendment, because Princeton is a private university. State universities like mine are forbidden by the First Amendment from punishing protected speech, but Princeton is not. Nonetheless, Princeton seems to have adopted policies that protect free speech on its campus to the same extent the First Amendment does.

In my experience, many students and faculty, among others, are often surprised to discover the First Amendment protects a great deal of deeply offensive and even hateful speech. Indeed, the Supreme Court has stated: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Though many countries criminalize hate speech—that is, speech that demeans or dehumanizes a person or group based on their race, religion, ethnicity, sex, or sexual orientation—hate speech simply is not a legal category in the United States. Hate speech uttered within a classroom can be punished because it substantially disrupts the learning environment, but hate speech uttered by students speaking as citizens in public spaces—including online spaces--usually cannot. In that situation, state universities can only punish a student’s hate speech if it happens to fall into a recognized category of speech that is unprotected by the First Amendment. These categories include incitement, threats, defamation, discrimination against an individual, or fighting words.  The Princeton student’s Facebook post occurred in an online conversation about a public issue and did not fall into any of these categories. Had he been a public university student, the First Amendment would tie the hands of administrators seeking to censor or discipline him, leaving them to resort to counterspeech asserting that his speech did not comport with their values.

To many students today, the First Amendment's recommended response to hate speech is no longer satisfactory. Throughout our history, the First Amendment has asked us to put up with speech that evokes strong emotions based on a belief in the protective and healing power of discourse and the ability and willingness of citizens to come together and speak out against hate. What’s happening now in our country—with engaged students and other citizens speaking out and marching against racist violence, racist policies, and racist iconography—is exactly what our First Amendment envisions. In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse. 

Yet, to many critics, the victory of counterspeech over hate speech seems uncertain and counterspeech seems an insufficient remedy for the emotional wounds that hate speech causes. What they would prefer is an authoritative declaration that some speech, and some thoughts, are outside the bounds of civilized discourse and need not be tolerated. They take little solace from the arguments that I find compelling: that we have chosen this path because the power to censor is more often used to protect the powerful than the powerless, and we trust citizens more than we trust our governments to decide which ideas will prevail in the competition for adherents. Moreover, consensus formed through public discourse lends legitimacy to policy outcomes. Critics of the counterspeech cure would seemingly reject the lofty rhetoric of Justice Louis Brandeis, who once wrote that the First Amendment presumes “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” From their perspective, "evil counsels" have for too long drowned out good ones, and government power should be used to drive out the evil counsel of racists for good. The problem with this stance is that it depends on the benevolence and good faith of our government leaders or administrators in deciding whose views are so far out of bounds they can't be tolerated. Such benevolence or wisdom or restraint is certainly not something I take for granted, especially not now. 

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Posted by Lyrissa Lidsky on August 10, 2020 at 01:25 AM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Lyrissa Lidsky, Web/Tech | Permalink | Comments (7)

Saturday, August 08, 2020

Podcasts on cancel culture

Since I have been writing about cancel culture this week, here is an episode of Noah Feldman's Deep Background podcast, featuring Osita Nwanevu of the New Republic discussing cancel culture and why it is not a threat to free speech. On that note, Nwanevu debated Yascha Mounk on the subject on Slate's The Gist.

Posted by Howard Wasserman on August 8, 2020 at 02:19 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Friday, August 07, 2020

Standing for nothing

I agree with the majority of the en banc D.C. Circuit that the House has standing to enforce its subpoena against former W.H. counsel Don McGahn.

But it reaffirms how little sense standing makes as a threshold Article III inquiry. As Marty Lederman notes, more important questions remain about whether the House has a cause of action, whether there is testimonial immunity, and other executive-privilege objections to the subpoenas. But we now have spent 17 months fighting over this issue and are no closer to a resolution before January 3, when Congress ends, the subpoena expires, and the whole mess becomes moot.

Worse, some of the arguments and disagreement between majority and dissent conflate standing and merits, a common and unavoidable problem. For example, McGahn and Judge Griffith's dissent argue that the House lacks standing because the case raises separation of powers problems and separation of powers underlies standing (sort of). But those stand-alone S/P concerns go to the merits of the case--to whether the subpoena or something sought through the subpoena is valid or whether the executive/legislative balance protects against some disclosures. The result is an attempt at double-counting: Using the possible failure of the House subpoena on its merits with what is supposed to be, but is not, a distinct question.

The court also splits on questions of legislative/executive cooperation and bargaining and perverse incentives that arose in Mazars. The majority argued that without judicial enforcement, the executive would have no reason to bargain, because the House would have no alternative means to ensure compliance (the executive may not pursue contempt against itself and inherent contempt authority has fallen into disuse). The dissent argues that the House will run to the courts rather than negotiate (this is the same argument the Chief Justice used in Mazars).

Posted by Howard Wasserman on August 7, 2020 at 02:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Some Thoughts on Qualified Immunity

I teach about qualified immunity on a regular basis but have never written an article on that topic. It's one of those doctrines that I often think of writing about but then say "Nah" because I'd rather write about something else. Still, I thought I'd offer some thoughts on what is a growing conversation.

My starting point is that I think the current doctrine is erroneous as a matter of law and policy. I think, though, that the proper remedy lies with Congress and with the state legislatures. A couple of states have already reformed their official immunity doctrines this year, and I expect that more will do so next year.

Why do I prefer this route? One answer is that qualified immunity should not be a one-size-fits-all concept. The Supreme Court's decision to apply the same standard to all governments officials who exercise discretion was a mistake. There are many kinds of government officials who perform very different sorts of tasks. Some may deserve qualified immunity. Some may not. And some might deserve that only if certain conditions are met. Legislatures can make these sorts of distinctions in a much better way than courts. 

A second answer is that I don't see the Supreme Court doing anything with its qualified immunity precedents with the current zeitgeist on stare decisis. Statutory stare decisis, we've been repeatedly told, is the strongest kind. And when the precedents in question are under discussion in Congress and in the states, that just gives the stare decisis crowd another reason to say that they should not act. The certiorari denials in the recent petitions challenging qualified immunity signal that fact loud and clear.

That said, I can see the Court applying qualified immunity in a less stringent way. To my mind, another fault in the current doctrine is that "clearly established law" is  a standard that gives courts too much discretion in saying when immunity applies. "It's clear to us" is easy to say assuming that a constitutional violation occurred. It's just as easy to say "it's not clear to us." There is no objective standard of clear in contested cases. Thus, the Court could adhere to its qualified immunity standard but just start saying that more cases do not warrant immunity, as a way of sending a message to the lower federal courts. Do I think that will happen? Probably not, but I'm not sure. 

Posted by Gerard Magliocca on August 7, 2020 at 09:02 AM | Permalink | Comments (2)

Building a Rapport With Your Students -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or 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 third step—building connections and community in our physically distanced, remote, or hybrid courses.

 In my last post, I discussed this importance of building connections and community in our courses this fall.  According to the community of inquiry model, if we want to design an effective learning environment, we should consider three types of interaction—(1) how students interact with the material, (2) how they interact with us, and (3) how they interact with each other.  This post will focus on second element, or how students interact with us.  It will be an adjustment for sure, but even if our students are behind masks or a video screen, there are a number of things we can try to build meaningful connections with them. 

Welcome Videos:  Record a short video of yourself to introduce yourself to your students.  Make it fun.  Show your kids, your pets, whatever!  Let them see you as a person rather than just the teacher behind the mask at the front of the room.  You might also talk about what makes the course important/relevant/fun and how they can succeed in it.  Here’s a good example of a script for this sort of video.  You might also have students record short videos of themselves in the first week of class.  You can use your learning management system or a tool like Flipgrid to do this.  You might ask them to give their name, their hometown, and a fun fact about themselves.  Or you can tie it into the course content.  If you teach Civil Procedure, for example, you might style the welcome video as a chance for them explain their citizenship for subject-matter jurisdiction purposes.  You learn a lot about someone by hearing about where they intend to remain indefinitely and why!  Encourage the students to have fun with the videos and then make them all accessible to the whole class, so they can get to know each other a bit better.  

Learn their names quickly.  Try to learn every student’s name, ideally in the first week of class.  Your learning management system may have photographs of the students in your classes.  Our tech team here has used these photographs to create a matching game that professors can use to quiz themselves on your students’ names, but you can just study the photographs as well.  In larger in-person classes, consider having them use name tents for a few weeks.

Get to know them personally.  It will be harder to get to know students when they are behind a mask or screen, so you will have to be more deliberate about making these personal connections.  Consider setting up Zoom coffee dates with individual students in the first few weeks of the semester or with small groups of students if you are teaching larger classes.  You can also ask students to fill out a Google Form at the start of the semester that asks a whole host of information about their background, why they came to law school, and their broader interests.  In your later communications with them, try to refer back to things you know about them from these more personal meetings.  

Use Video Assignments Where Possible.  I’ve talked before about the pre-class assignments my Civil Procedure students do in Google Docs.  This semester, I’m going to make some of these assignments video assignments instead so I can see students without masks on and get to know their personalities a bit better.  My learning management system allows video assignments, but I think I’m going to use Flipgrid this fall­­—its interface is more personal and frankly fun, and it seems like a better platform if your goal is to build connections.  In these videos, you might ask them to summarize a key point of law from the assigned reading or give a hypothetical client advice based on the reading.  You might also ask for their personal views on the reading—i.e., do they think the court got it right?  why or why not?

Record periodic videos yourself.  If you get a few questions from students on the same point, you might record a brief video clarifying the point and send it out to your students.  Especially if you are teaching in a physically distanced classroom this fall, these videos could be a good opportunity for your students to see you without your mask on.  Make these videos a little more personal and engaging than you might in a normal semester. 

Make office hours more inviting.  I don’t know about you, but my office hours aren’t typically the most popular events.  I’ll sit in my office for a few hours, and maybe one or two students will stop by, at least until we get a few weeks out from exams.  This semester, I am going to work harder to get students to attend.  I’m renaming them “student hours” based on recommendations suggesting that some students (especially first-generation students) may not know the purpose of office hours, and I plan to regularly encourage students in my classes to attend.  When students do attend, I will make a special effort to get to know them personally.  Logistically, office hours are pretty easy to hold in Zoom—just enable your personal waiting room, and admit students one-by-one in the order in which they arrived in the room.  I may also hold some communal office hour sessions that function more like review sessions at the end of different units, so students can have more opportunities to interact with each other.      

Hold optional events outside of class.  A few times during the semester, you might hold an optional event related to the course.  For example, you can invite them to read a few chapters of a book related to the course or send out a shorter article or video, and then meet one evening on Zoom (or even physically distanced in your backyard or on campus) to discuss.  You might also hold an optional session to talk about course content in the news.  If you teach a business related course, you might talk about what the heck happened at WeWork.  If you teach Civil Procedure, you might talk about the oral argument in the Ford personal jurisdiction case that will be argued in October.  The goal here would be to bring together a smaller group in a less formal setting.  If you are teaching in a physically distanced class where everyone is wearing masks, you might hold these smaller sessions over Zoom so people can see each other without masks on.

Notice positive contributions.  Send students a personal email when they have a good contribution in class, a discussion board, or an assignment.  Keep track of who has received emails, and see if you can send at least one or two emails to every student during the semester. 

Humanize your tech.  We will likely be using technology a lot more this semester, but the default interfaces can feel really impersonal.  I’m going to make my Blackboard course page and my slides more human and interesting this semester.  In your learning management system, consider adding your own profile picture and/or adding images in your posts (here are directions -- go down to “add images in the editor”).  In PowerPoint, trade the black-on-white slides for slide templates that are a bit more engaging.  You might also add pictures, videos, etc. to text-filled slides.  It’s a little thing, but the world already feels impersonal enough right now without our tech choices adding to it.

Embrace imperfections.  New online teachers often have a desire to make their class sessions perfect. I was definitely guilty of this in the spring.  When I recorded asynchronous videos, for example, I would keep re-recording them until I could get a take without any stumbles or other issues.  But experts in online pedagogy say that stumbles help personalize online courses.  Students don’t necessarily want the Coursera version of a law school course.  They want to see their professor as a real person and that means seeing the version of the video where your kid interrupted your recording or where you momentarily  forgot what you were going to say.   This spring, my students had many laughs at the “cloffice” (i.e., closet/office) where I hid from my kids during our class sessions, and I think it helped bring humor to the class in a way that a perfect Zoom background would not have. 

I’d love your suggestions as well – feel free to post other ideas in the comments.  In my next post, I’ll talk about ways to connect students with each other this fall. 

Posted by Jessica Erickson on August 7, 2020 at 06:45 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Thursday, August 06, 2020

Emergency bar admission rule for law grads

This week, the American Bar Ass'n passed Resolution 10G, which urges states to cease in-person bar examinations until which time that they can be carried out with appropriate attention to the examinees' public health.  It further invites states to consider which mechanism of licensure is appropriate, whether providing a remote bar exam (if that could be administered effectively, given technology issues), limited practice under professional supervision, a diploma privilege, or some other device. 

This resolution is merely advisory, as these choices are all made within the states, and typically via the state high court.  Moreover, the resolution comes too late for the graduates in the twenty-three states that late last month gathered to take in-person exams.  There is one documented case (Colorado) of an examinee testing positive for COVID-19.  We can only wonder whether and to what extent there are other cases.

I was pleased to participate in the debate on behalf of this resolution, a resolution supported by myriad organizations within the ABA.  Notably, however, members of the board of trustees of the Nat'l Conference of Bar Examiners opposed this resolution.  Curious and dispiriting, but ultimately unsuccessful, as the resolution passed by a wide margin.

Prof. Deborah Merritt of Ohio State gave oral testimony to the House of Delegates on this matter.  It is an especially cogent statement of the dilemma and the reason for decisive action.  I reproduce it here in full:

"Thank you, Mr. Chair. This is a very simple resolution. It calls first on states to postpone in-person bar exams until health authorities declare them safe. That is a necessary recommendation. By the end of this month, COVID-19 will be the third leading cause of death in the United States. For most victims, it is a prolonged, painful, and lonely death—one without family or loved ones at their side. Even for victims who survive, there are long-term consequences that we are just starting to understand. That’s not what we want for applicants to our profession. Nor is it what we want for the support workers who will clean the toilets, floors, tables, snack bars, and hotel rooms used by these applicants.

Gathering hundreds of young adults in a single city spreads COVID-19, especially when those adults come from all corners of the state and country. It is horrible to think of an exam-taker falling ill from COVID-19, lying helpless on a ventilator, and perhaps dying from this disease. It is equally horrible to think of low-income workers suffering that fate because our profession was not willing to adopt alternative methods of licensing during a fatal and uncertain pandemic.

This resolution also urges states to adopt one of those alternative methods, rather than simply halt licensing. That recommendation is just as important. Half of newly licensed lawyers work for government agencies, nonprofits, or law firms with fewer than 10 lawyers. New attorneys are an essential part of the team in those offices. I know this because I have taught those new lawyers for 36 years and closely followed their work after graduation. Many of you know this too: You work with new lawyers in the organizations and law firms that serve the most vulnerable clients. If states don’t find alternative ways to license these lawyers, even if just through well-supervised, temporary licenses, we will be reducing the flow of legal support to disadvantaged members of our communities—just when the pandemic and economic hardships have dramatically increased their legal needs.

I have just completed a nationwide study of the work that new lawyers do, as well as the knowledge and skills that they need for their work. Together with the Institute for the Advancement of the American Legal System and more than two dozen researchers, we held 50 focus groups with new lawyers and their supervisors in 18 locations around the country, from rural North Carolina to Silicon Valley. I led that project, have read all of the transcripts, and coded the data. I know from that work that there are many ways to assess minimum competence on an emergency basis, during this pandemic only, that won’t impose the health risks of an in-person exam. The resolution leaves the choice of method to jurisdictions.

This is not a resolution about the future of the bar exam—or about granting diploma privilege to all 2020 graduates. A few states have chosen that route, and this resolution recognizes that. This resolution is about many ways to solve a once-in-a-lifetime urgent problem. We have ways to solve this problem that will preserve access to justice, protect the integrity of the profession, and respect the health of our communities.

One of those ways is through a remotely administered, online exam. That’s what the third part of this resolution addresses, laying out a series of recommendations that are simply best practices for an online, high-stakes exam. Most of these appear in the Standards for Educational and Psychological Testing, known as the “Bible” to all test-makers and administrators. These are the standards that NCBE itself follows.

We cannot administer an online, high-stakes exam without assuring that the online platform works, that reasonable accommodations have been provided to test-takers, that we follow data privacy protocols, that we provide information about exam conditions to candidates in advance, and that we assure the reliability of the exam’s cut score. NCBE is providing the materials for this online exam, but it is leaving these other matters to jurisdictions. Jurisdictions urgently need the recommendations in this resolution. Without them, we risk administering exams that do not serve the purpose of reliably measuring minimum competence.

Friends, I am not a voting member of this distinguished body. I am just a law professor and part-time prosecutor preparing to teach a clinic online in two weeks. But I can tell you that we need this resolution. Our communities need it to protect their health. Vulnerable clients need it to continue their access to legal services. Candidates for admission need it. And our profession needs it to affirm our ethic of responsibility. I ask you to vote in favor of the resolution."




Posted by Dan Rodriguez on August 6, 2020 at 06:16 PM in Daniel Rodriguez | Permalink | Comments (2)

Anti-SLAPP fee-shifting in federal court

I have argued in prior posts that the solution to SLAPP suits is not the  heightened standards from state laws (which cannot apply in federal court) but attorney fee-shifting. The paradox has been that most fee-shifting provisions apply to actions disposed of under the statutory standard, but not under a different standard. Thus, if the state statutory standard does not apply and the case is resolved on a simple 12(b)(6), the fee-shift does not apply.

But not so with the Florida anti-SLAPP law, according to Judge Martinez of the Southern District of Florida. Florida law provides for fees for any action that is "without merit" and based on constitutionally protected speech. The determination that the action is without merit can be made under any procedural device, such as 12(b)(6) (as in this case). In other words, the statute is a garden-variety fee-shifting provision serving substantive policy ends, the same as other fee-shifting provisions held to apply in federal diversity actions. So an action dismissed on a 12(b)(6) can provide the basis for an award of fees.

This is unique to Florida's anti-SLAPP statute. But it produces a conclusion that balances the requirements of the REA/Erie/Hanna against First Amendment interests.

Posted by Howard Wasserman on August 6, 2020 at 03:38 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

More cancel culture and counter-speech

Efforts continue to define and defend criticisms of cancel culture, beyond "I know it when I see it" or "Canceling for me but not for thee." Jonathan Rauch takes a crack in Persuasion (free registration required), identifying six warning signs, the presence of some or all suggest canceling:

• Punitiveness, in that the goal or effect is to cost a job or other opportunities.

• Deplatforming, which includes disinvitations, demands for retractions, and shout-downs.

• Organization

• Secondary Boycotts

• Moral grandstanding, through "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric.

• Truthiness

Punititiveness perhaps helps. But there must be circumstances in which someone's deeds or expression are so egregious that calling for his removal from a job or position or platform should be fair game, such that non-governmental actors can decide to remove him from their circle of discourse and engagement. The person remains free to speak, but private persons need not listen, nor provide him with a platform. And private companies can choose not to retain him as an employee, private consumers can choose not to do engage in business with him, and people and entities in general can elect not to associate with him. If that is permissible, then the dispute is not punitiveness or deplatforming, but where to draw the line. We can identify ridiculous overreactions. But some situations are not ridiculous overreactions.

Five of Rauch's categories involve forms or manners of expression and thus of counter-speech. These purportedly neutral rules perpetuate the problem of the preferred first speaker--they impose unique limits on the type of speech regarded as "legitimate" when used by those who object to a speaker. For example, Rauch does not call for an end to all "ad hominem, repetitive, ritualistic, posturing, accusatory, outraged" rhetoric, only that used in response to someone. He rejects shout-downs, thus obligating counter-speakers to engage civilly and openly through dialogue in a way that original speakers are not obligated to do. A categorical line between organizing (rallying many people to a cause, which is somehow a bad thing) and persuading imposes an obligation of reasoned discourse not placed on an original speaker.

Rauch does treat everyone the same as to truthiness--it is as problematic when President Trump lies and distorts as when left-leaning groups lie and distort. But then we are not talking about cancel culture as some unique threat to free speech. The threat is lying, whoever is lying and wherever that person stands in the exchange process.

These and other efforts bring me back to Chief Justice Rehnquist in Hustler v. Falwell: "If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description [cancel culture] does not supply one."

Posted by Howard Wasserman on August 6, 2020 at 12:11 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Wednesday, August 05, 2020

Judge Reeves on qualified immunity

An opinion to behold from Judge Reeves of the Southern District of Mississippi. (H/T: Michael Masinter). the 72-pager includes a lengthy history of § 1983 from passage in 1871 to the creation of qualified immunity; it calls out racial bias in policing and in society at large (especially in Mississippi) to explain why a search was not consensual. It calls out appellate judges for creatively interpreting Reconstruction statutes to protect older white men while failing to protect African-Americans against government misconduct. It calls directly and explicitly on the Supreme Court to do something (while admitting to not knowing what that should be). And it uses a cute three-point Star Wars allusion to organize the opinion ("§ 1983: A New Hope;" "Qualified Immunity: The Empire Strikes Back;" and "The Return of § 1983"). All while granting the officer qualified immunity for an egregious Fourth Amendment violation (traffic stop and lengthy search with no cause to be found) because he has no choice under current law.

For those who believe in such a thing (I don't), is this judicial activism? Does the judge's role, especially a lower-court judge, include railing against the state of the law, its horrific incorrectness, and its negative effects, especially in such sharp terms? Judge Reeves "applied the law rather than making the law," so he behaved consistent with that typical definition. An opinion is an essay having no direct force or effect. But should judges use these essays for such a cri de coeur?

Posted by Howard Wasserman on August 5, 2020 at 03:40 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (21)

Sovereign Immunity and Dalehite

With all of the attention now being given to qualified immunity, let's not forget that sovereign immunity (both at the state and federal level) also bars many lawsuits that ought to go forward in the interests of justice.

One case that I periodically use in class is Dalehite v. United States, a 1953 Supreme Court case that invoked sovereign immunity over one of Justice Robert Jackson's crackerjack dissents. Dalehite came to mind today because the facts are almost identical to what happened in Beirut yesterday. A large stash of ammonium nitrate was negligently stored in a port warehouse as part of a government aid program. There was an explosion of the nitrate that (in Dalehite) killed over 500 people. The estates and survivors sued the United States for damages and lost. The opinions (especially Justice Jackson's) are worth your time. 

Posted by Gerard Magliocca on August 5, 2020 at 07:34 AM | Permalink | Comments (1)

The Importance of Building Connections and Community -- Preparing for Fall Teaching in Physically Distanced, Hybrid, or 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

My posts so far in this series have focused on the first two steps of my five step approach to redesigning your courses to be physically distanced or remote— (1) identifying your learning objectives and (2) deciding on your assessment and engagement techniques.  This post will introduce the third step, which focuses on building connections and community in these new learning environments.  

We may think of connections and community as things that are nice to have, but they are actually essential to student learning.  Research shows that a sense of community at school is associated with increased motivation, greater enjoyment of their classes, and more effective learning.  The research also suggests that building this sense of community is much harder in online or hybrid courses.  Students in online environments struggle with feeling isolated (as do many professors!).

Most of the empirical data on this topic comes from undergraduates, but data from the Law Student Survey of Student Engagement (LSSSE) shows that a sense of belonging matters to law students as well.  LSSSE data has been used to examine both the inputs and outputs of law students’ sense of belonging.  In other words, using the LSSSE data, we can gain insight into what causes law students to feel a sense of belonging (the inputs) and the impact that a sense of belonging has on law students’ performance in law school and their career more generally (the outputs).

Starting with the inputs, LSSSE’s 2018 report Relationships Matter surveyed more than 18,000 students at 72 different law schools.  They conclude:  “Relationships with faculty, administrators, and peers are among the most influential aspects of the law student experience. These connections deepen students’ sense of belonging and enhance their understanding of class work and the profession.”  Connections, in other words, are key when it comes to fostering law students’ sense of belonging.  That’s not surprising.  Think back to your most meaningful learning experiences in law school.  They probably didn’t happen when you were passively listening in class.  For me at least, they came through study groups and conversations with faculty—i.e., those times in law school when my learning combined with meaningful relationships.

When it comes to the outputs, we can look at research summarized here by Professor Victor D. Quintanilla, who was one of the researchers who conducted a key study using LSSSE data.  They found that a sense of belonging significantly predicted three key outputs – (1) students’ overall experience in law school, (2) whether they would choose to go to law school again, and (3) their academic success (i.e., law school GPA).  Moreover, not only does a student’s sense of belonging help predict their academic performance, but the impact was even greater than other commonly used predictors such as undergraduate GPA and LSAT scores.  This means that, even if students come to law school with different academic backgrounds, we can help close this gap by fostering our students’ sense of belonging. 

Professor Quintanilla depicts the inputs and outputs of law students’ sense of belonging as follows:

The takeaways from this research are clear.  We cannot just focus on the content of our courses.  If we want our students to succeed, we also need to help foster key connections between our students and between our students, faculty, and staff.  In traditional classes, these connections develop fairly naturally.  Students talk casually with the professor and each other before and after class, and they bolster these connections through interactions outside of class—stopping by a professor’s office, running into their classmates in the hallways or the library, etc.  There are also personal bonds that develop in class when we can see people’s faces and expressions.  These connections will be much harder in physically distanced or remote classrooms, so this fall we will have to be much more intentional about developing a sense of connection and community among our students.

So how do we do it?  The theory on building community in online courses is built around the community of inquiry model.  The model has been represented as follows:


Social presence refers to the development of an online environment in which participants feel socially and emotionally connected with each other.  Cognitive presence describes the extent to which learners are able to construct and confirm meaning through sustained reflection and discourse.  Teaching presence is defined as the design, facilitation, and direction of cognitive and social processes for the realization of meaningful learning.

This can feel a little abstract, but the main idea is that you need to think intentionally about how students will interact with the content, how they will interact with you, and how they will interact with each other.  I’ve talked about how students interact with the content in my prior posts on assessment and engagement techniques.  In my next two posts, I’ll discuss the other components, starting with how to foster connections between you and your students.  

Posted by Jessica Erickson on August 5, 2020 at 06:49 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Tuesday, August 04, 2020

Second Circuit tries for solution to universal injunctions, misses the mark

The Second Circuit affirmed-but-narrowed an injunction prohibiting enforcement of the Trump Administration's public-charge regulation. As modified, the injunction is limited to the named plaintiffs (three states and several advocacy organizations) in New York, Connecticut, and Vermont (the Second Circuit), where the states are located and the plaintiff organizations do most of their work.

The court attempted to find a middle ground in the final five pages of the opinion, which I copy after the jump. But the court failed, in part because, as many courts, misunderstands the issues.

Here is the relevant portion of the opinion:

We have no doubt that the law, as it stands today, permits district courts to enter nationwide injunctions, and agree that such injunctions may be an appropriate remedy in certain circumstances – for example, where only a single case challenges the action or where multiple courts have spoken unanimously on the issue. The issuance of unqualified nationwide injunctions is a less desirable practice where, as here, numerous challenges to the same agency action are being litigated simultaneously in district and circuit courts across the country. It is not clear to us that, where contrary views could be or have been taken by courts of parallel or superior authority, entitled to determine the law within their owngeographical jurisdictions, the court that imposes the most sweeping injunction should control the nationwide legal landscape.

When confronted with such a volatile litigation landscape, we encourage district courts to consider crafting preliminary injunctions that anticipate the possibility of conflict with other courts and provide for such a contingency. Such approaches could take the form of limiting language providing that the injunction would not supersede contrary rulings of other courts, an invitation to the parties to return and request modification as the situation changes, or the limitation of the injunction to the situation of particular plaintiffs or to similarly situated persons within the geographic jurisdiction of the court.

We need not decide whether the able district judge in these cases abused his discretion in entering nationwide injunctions. Instead, we exercise our own discretion, in light of the divergent decisions that have emerged in our sister circuits since the district court entered its orders, to modify the injunction,limiting it to the states of New York, Connecticut, and Vermont. Cf. Smith v.Woosley, 399 F.3d 428, 436 (2d Cir. 2005). As modified, the injunction covers the State plaintiffs and the vast majority of the Organizations’ operations. We see no need for a broader injunction at this point, particularly in light of the somewhat unusual posture of this case, namely that the preliminary injunction has already been stayed by the Supreme Court, not only through our disposition of the case,but also through the disposition of DHS’s petition for a writ of certiorari, should DHS seek review of this decision. See New York, 140 S. Ct. at 599.

The court not only uses the wrong term ("nationwide" rather than "universal" or "non-particularized), but it conflates who and and where. It talks about the concern for conflicts with other courts, contrary rulings, and other issues that compel against non-particularized injunctions, then narrows the geographic scope while protecting only the parties. That is, the court issued a particularized injunction protecting only the parties, making it unnecessary to address the power to issue non-particularized/universal injunctions unnecessary.

The guidelines the court tries to impose make no sense. The court says a universal/non-particularized injunction is permissible where a single case challenges an action or multiple courts have ruled the same way. But it gives no reason why either situation justifies expanding the party scope and no guidance for when universality becomes ok. If multiple courts have ruled the same way, there is no need for one universal injunction, since individual plaintiffs in each of those cases have their remedies and do not need the new universal remedy. And it leaves most questions unanswered--How many courts must rule the same way? How many cases become too many to justify it? Can the first court issue a universal injunction if it can do so before other cases are filed?

Nor do the attempted limitations work. One is to provide that the injunction does not supersede a contrary ruling. But this does not provide parties with much guidance or reflect the practices of litigation. If Court I issues an injunction that might be universal--and we are taking universality seriously--there will not be a second litigation, because non-parties threatened with enforcement will not file a new lawsuit but will go to Court I to enforce the existing injunction that purports to protect them.  And the final limitation--"the situation of particular plaintiffs or to similarly situated persons within the geographic jurisdiction of the court"--again conflates who and where.

Finally, the injunction the court ends up with is insufficient as to the plaintiff organizations. The court says they do the "vast majority" of their operations within those states. But that ignores that some portion (however small) of their operations are outside those states and not protected by the injunction, leaving their injury (threat of enforcement of the regulations as to them) unremedied. And the court offers no good reason for leaving that bit of their rights unremedied.

It is a good effort by the court to wrangle and try to provide guidance on the issue. It fails because the courts cannot keep the real issues straight.

Posted by Howard Wasserman on August 4, 2020 at 08:30 PM | Permalink | Comments (2)

Debate: Free speech v. Cancel culture (Updated)

Ken (Popehat) White for the position that "cancel culture" is a cynical ploy to undermine counter-speech v. Greg Lukianoff (of the Foundation for Individual Rights in Education) for the position that the real source of protection comes from "free speech culture," which means a culture of accepting other people's views and going along for the ride.

Unsurprisingly, I agree with White. Critics of cancel culture are imposing norms on "more speech" that they do not impose on the speech being rebutted and are essentially insisting that more speech not be too harsh. Lukianoff makes the good point that a culture of free speech is as important as formal legal protection for free speech. But he never deals with White's argument that much of what is derided as cancel culture is counter-speech, including many of the outrageous examples he offers. Lukianoff emphasizes the heralded legal principles "Sticks and stones" and "to each his own," which are possible responses to obnoxious speech. But there is no reason they should be the only responses to obnoxious speech.

Lukianoff kind of proves White's point with his requests: Don't call people hypocrites, welcome temporary allies, and don't lump free-speech advocates (himself or Nadine Strossen) with cynical partisans (Charlie Kirk). The last is well-taken, although most serious free-speech advocates do not do that. But the last is inconsistent with the first, which seems to require us to accept Charlie Kirk's support for free speech rather than recognizing its hypocrisy. In any event, Lukianoff's argument is about policing speech, about declaring some expression out of bounds. His arguments never answer that concern.

Update: As if on cue: Kelly Loeffler--Senator and senatorial candidate from Georgia, co-owner of the WNBA Atlanta Dream, and critic of BLM and kneeling basketball players--cries "cancel culture" because WNBA players wore t-shirts supporting her opponent in the coming election. It is difficult to imagine anything more central to the First Amendment than speech saying "Vote for X." Can it possibly lose protection because spoken in response to Loeffler's statements about about BLM and the flag?

Meanwhile, Auburn is investigating a (non-tenure-track) faculty member for "fuck the police" tweets and a Republican congressman is calling for him to be fired for anti-police hate speech. Proving White's point that there are hypocrites and grifters.

Posted by Howard Wasserman on August 4, 2020 at 02:25 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, August 03, 2020

Unpacking Deadlines and the Planning Fallacy

I am in the final stages of preparing my new article, The Contract Thicket: Addition and Supra Addition in Private Law Theory for submission. In the article I analyze the literature on the behavioral effects of bundling and unpacking in relation to contract terms that a lengthy and paired with many other restrictive terms. I will post more about the article and the arguments I develop about contract and antitrust law's treatment of such practices, but here is something I just cut out of the draft. It's about the planning fallacy and why people usually take on too much. This might be rather close to home for us scholars:

“Applied to the planning fallacy, support theory suggests that one reason people may underestimate task completion times is that they do not naturally unpack those tasks into their various subcomponents...Writing a manuscript,’ for instance, involves several different (and lengthy) constituents: completing the literature review, composing the general discussion, double-checking the statistical analyses, writing the references section, hounding (or pleading with) recalcitrant co-authors.”

It comes from an article by Kruger and Evans called If you don't want to be late, enumerate: Unpacking reduces the planning fallacy inJournal of Experimental Social Psychology 40(5):586-598 · September 2004.

Good advice and good luck with all your summer writing projects! Don't be late, enumerate...

Posted by Orly Lobel on August 3, 2020 at 06:16 PM | Permalink | Comments (5)

Competing views on the Biskupic articles

Josh Blackman sees this as a threat to the institution that the Chief must repair (through some actions that I am not sure the Chief, as "first among equals," can do) or resign. Dan Epps argues that more transparency is a good thing. Take your pick or land somewhere in the middle.

I will share and concur in a comment from the Conaw List Serv that the Biskupic stories were interesting, but not earth-shattering--some of it could have been gleaned from the opinions themselves or from what we already knew about the Court's operations.

Posted by Howard Wasserman on August 3, 2020 at 12:40 PM in Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Metacognition and Learning How to Learn Online – Preparing for Fall Teaching in Physically Distanced, Hybrid, or 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. 

So far I’ve talked about a variety of techniques to assess and engage students from comprehension checks to group work, discussions, and community-based learning.  In my last post on the topic of assessment & engagement, I want to talk about techniques that help students reflect on their learning.  Even in non-COVID times, we could all probably do a better job teaching students how to succeed in law school courses, but this instruction is especially important as we ask students to suddenly transition to an entirely new way of learning.  This transition also comes at a time when their personal lives and professional goals may in flux.  Simply dumping students into remote or physically distanced courses without some guidance on how to succeed in these courses seems like a failure in our job as educators.

So how can we help students learn effectively in their fall courses?  First, we need to offer them guidance on what we know about successful learning in these new environments.  There are a lot of resources out there on how students can prepare to learn online.  Here’s a great list compiled by Professor Cat Moon at Vanderbilt Law School.  As professors, it’s worth becoming familiar with these resources ourselves and talking with our students and advisees about how they can thrive in their remote courses.

A lot of this advice is common sense--i.e., create a dedicated work space, minimize distractions, and create a regular work schedule.  That said, students will still benefit from clear guidance on these topics as well as conversations about how to implement this guidance in their own lives.   For example, I often recommend that students try the Freedom app, which blocks specific website so you don’t find yourself mindlessly spending hours on social media or ranting at the news sites (not that I’ve ever done that…).  It’s also worth reminding students that everything they’ve learned about growth mindsets applies here too.  I’ve heard lots of students say that they “just don’t learn well online.”  That may well be true, but they are also probably pretty new at it.  Like anything, it may take practice and some trial and error before they find out what works for them.  As an aside, the same is probably true for all of the faculty who say that their teaching style just doesn’t work online.

Even if we think we have all of the answers, we know we shouldn’t just stand at the front of our physically distanced classrooms or on Zoom and lecture at students on how to learn effectively in these spaces.  Going back to basic pedagogy concepts, we need active learning to help these concepts sink in.  And of course, we don’t have all of the answers.  Our students are in very different situations, especially now, so they need to figure out what works best for them given their own course loads, living situations, and other challenges.

I’ve decided that I am going to build short opportunities for reflection at least every other week into my fall courses.  Some of these opportunities will be through pre-class assignments (I’ve talked here about the Google Doc assignments my students complete before class), and others will be during class or at the end of class. 

Here I need to give credit where credit is most definitely due.  I watched a webinar this summer where Professor April Dawson at North Carolina Central University School of Law highlighted a reflection exercise she does at the end of her classes that asks students to provide 1-2 takeaways from the class session and provides a space for their questions that she can then answer during the next class period.  She recommends using a QR code that students can open with their phone that links to a short form.  She uses airtable (here’s a short video she created to show how to set up a similar form yourself), but you could do the same thing through Google Forms.  I love this idea, and it would also work for professors who are trying to figure out how to take attendance in these new spaces. 

Here’s a form that I created based on her template.  Just open the camera on your phone, aim it at the QR code, and then click on the link that comes up.  If students do not have a cell phone, you can provide them with the web link.

QR code
Here are some specific metacognition prompts that you can also use, either through polling software or reflection that students do on their own:

  • What helped you learn in the spring when classes went online?  What practices or strategies do wish you had adopted?
  • If you were to do [name specific assignment] again, what would you do differently?  What would you do in the same way?
  • Think about today’s class.  What strategies did you use to prepare?  How do you think they worked?  What other strategies would you like to try?
  • What does fully preparing for class include for you?  Create a list of the things you want to do on your own to understand the material before coming to class. 
  • If you were to spend 30 minutes after class reflecting on what we learned today, what specific things would you do during this time? 
  • What are your goals for this course in light of your larger motivation in coming to law school?  What have you done so far this semester that has helped you to achieve these goals?  What specific strategies could you try to help you achieve these goals?

I’ll end by acknowledging that students won’t necessarily want to reflect on these questions.  Students often want us to focus on the black letter law and other information they will need for the exam.  Fair enough, but their overall success as lawyers depends on them learning this broader set of skills.  Just as education is changing, the practice of law is changing as well, and our students will have to bring these same metacognition skills to their practice.  So as you’re overhauling your courses this summer, consider building in a few metacognition exercises and explaining to students why it’s important to stop and reflect every once in a while.

Posted by Jessica Erickson on August 3, 2020 at 08:58 AM in Remote & Physically Distanced Teaching, Teaching Law | Permalink | Comments (1)

Sunday, August 02, 2020

Sandmann: Bringing the Dream

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage. The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them. 

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits. 

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.  On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy. Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).  

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child? The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards. 

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy. For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.  Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.  Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court. 

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)  One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon ‘sheer bad luck.’"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.  

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him. 

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about. 

Posted by Lyrissa Lidsky on August 2, 2020 at 07:54 PM in Current Affairs, First Amendment, Lyrissa Lidsky, Torts | Permalink | Comments (7)

RIP, Wilfred Brimley

Actor Wilfred Brimley died Saturday. Brimley had too many roles to mention--most curmudgeonly, which apparently was Brimley. But I, and many lawyers, love his scene as a DOJ attorney in Absence of Malice, who swoops in at the end to smack everyone down. (This is one of two great lawyer scenes in this movie, the other comes early when the newspaper's attorney explains the law of defamation to the reporter). The full Brimley scene is not on YouTube, but here is the beginning:


Posted by Howard Wasserman on August 2, 2020 at 10:28 AM in Howard Wasserman | Permalink | Comments (3)

Saturday, August 01, 2020

Rethinking the Failure of the Arab Spring

My next law review article is going to be on Franklin D. Roosevelt's Constitution Day Address of 1937. More posts to come on that, as I'm starting to make some new discoveries about that speech.

One theme of FDR's Address was how political events overseas can influence our democracy. There are many examples, but one that deserves more attention is the failure of the Arab Spring. That failure was a tragedy for many countries, but its global significance is probably underestimated.

Many observe that faith in democracy has declined in recent years and that authoritarian regimes have grown bolder. Why is that? There are many possible explanations, but one that seems compelling is that successful counterrevolutions give hope to dictatorships and hurt the morale of democracies. (What occurred in the 1980s and 1990s (especially in Eastern Europe) did the opposite.) The Arab Spring was a successful counterrevolution. Instead of seeing new democracies doing well, we saw them mostly flail around. Instead of seeing dictatorships on their heels, we've seen them look stronger and more successful. This probably does matter for how some Americans look at their own government.



Posted by Gerard Magliocca on August 1, 2020 at 08:24 PM | Permalink | Comments (3)

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (8)

The right to stand is not the obligation to stand

I suppose this was inevitable, given that most debates about free speech are not about free speech but about one side's policy preferences. But not standing for the Anthem has become news, and a source of criticism, for players, coaches, and others in the NBA bubble. Spurs Head Coach Gregg Popovich (whose progressive credentials should not be in dispute) and assistant Becky Hammon did not stand; they defended by one of the Spurs star players. Jonathan Isaac of the Magic stood and did not wear a BLM t-shirt; he defended by a teammate.

That we are talking about people not standing shows that we have come a long way since 2016--from "people should not kneel" to "people should not not kneel." But that is as bad. The idea in supporting Colin Kaepernick is that players should be able to choose methods of expressing their ideas. That should cover what they choose to use and what they choose not to use.

Posted by Howard Wasserman on August 1, 2020 at 04:44 PM | Permalink | Comments (2)