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Sponsored Post: Teaching Tips for New Law Professors Webinar (Reposted and moved to top)

Reposting for tomorrow, Wednesday, June 22

Join West Academic casebook authors for the upcoming Teaching Tips for New Law Professors panel at 2 p.m. CDT Wednesday, June 22nd (tomorrow). The discussion will be centered around pedagogy across subject areas, course creation, promoting student engagement, traps to avoid, and more. The panel of award-winning law faculty will offer advice on building and teaching a law school course. There will be time at the end for participants to ask questions.

Date: Wednesday, June 22, 2022
Time: 2:00 p.m.

Register here: https://us06web.zoom.us/webinar/register/WN_5OouJNeHQF6iNBtnVZ_05Q

Beyond Imagination?: The January 6 Insurrection

The following post is by Mark C. Alexander, Arthur J. Kania Dean and Professor of Law at Villanova and is sponsored by West Academic.

As United States citizens, we have long prided ourselves on the peaceful transfer of power after elections. Every four years we hold a presidential election, resulting in a winner. Dissenting voices may object, but the winner is accepted, and the loser moves on. At least this was the case until January 6, 2021.

Since that fateful day, we have been consumed with and concerned by that day’s events. Amounting to nothing short of an insurrection, a violent and deadly mob stormed the U.S. Capitol while the Congress was meeting to perform the essential, yet largely ceremonial, task of counting the ballots from the Electoral College to formally declare the winner of the presidential election. That task has occurred without much attention for 200+ years, but this time it was different. Instead, Americans watched the unimaginable happen—an attack on our democracy, the rule of law, and the foundation of America’s constitutional democracy.

While our nation has always been a work in progress, the rule of law serves as the guide to achieve the promise of equal justice under law. Throughout our nation’s complex history, the rule of law and our carefully balanced constitutional system has allowed the nation to confront and successfully navigate many unique existential threats.

As law professors, we train the next generation of lawyers; therefore, we are obligated to examine these seditious acts, with an eye on the lawyers involved, the rule of law, and our system of laws and government. As lawyers, we also must act according to certain standards of conduct, which reflect the great trust placed upon all members of our noble profession.

In the immediate aftermath of the events of January 6, 171 deans of American law schools came together and wrote an open letter addressing the attack. After that open letter, I reached out to a number of colleagues, and 14 of us decided to write a book, entitled Beyond Imagination?: The January 6 Insurrection. The book is not a partisan undertaking; it is instead intended to expose the problems that led to January 6 and to help us move forward and heal. Our cause is the rule of law; our loyalty is to the Constitution of the United States. We support the American people, not one candidate, elected official, or individual. Each co-author wrote one chapter—relatively short and accessible, but still erudite. We write from our perspectives as legal scholars, as deans of our institutions, and as individuals who have been engaged in leadership in various ways, primarily (but not exclusively) in the law.

As lawyers and legal educators, the ongoing legitimacy of our nation’s republic requires us all to engage. This work will not be easy. We hope that all may be interested in reading this book as an exercise in civics and that it will challenge the reader. It could form the basis for a stand-alone course or, you could use select chapters in a course on any number of myriad subjects. It would work well for a sort of “One Book” course, or for CLE offerings as well.  We hope that this work can serve as a sober reminder of the weight and responsibility that attends the oaths we have taken to uphold the Constitution and the rule of law.

Sponsored Post: Beating the Licensure Game with MBEs for the MBE

The following post is by O.J. Salinas (,Clinical Professor of Law and Direct of Academic Excellence at University of North Carolina Schol of Law, and is sponsored by West Academic.

As bar results from New York, D.C., and California trickle in, we are getting a more complete picture of the passage rates for the July 2021 bar examination. Passage rates for first time takers are far from great. And passage rates for repeaters remain dismal.

The passage rates confirm something that all of us who have taken the bar exam know: the bar exam is hard.

The bar exam is a high-stakes, pressured-filled exam that covers *a lot* of law. This is particularly true for the Multistate Bar Examination (MBE), which, in most jurisdictions, is valued at 50% of a test taker’s overall score. This post focuses on a new resource for preparing for the MBE.

Never Say Never

I have been working in law school academia since 2011. If you would have asked me, back then, whether I envisioned writing a 700+ book on the MBE, I would have absolutely laughed in your face.

I did not enjoy studying for the bar exam. Who does? There’s just so much law to review for the exam and so little time to review it. And there is so much pressure to try to pass the bar on the first try. Careers. Finances. Livelihood. All (and more) are often tied to passing this closed-book exam that is only offered twice a year.

I initially didn’t think that I had anything worthwhile to say about bar preparation and the MBE. But as I started to engage more and more with bar support, including teaching for-credit bar preparation courses, I began to feel like there was a bit of a disconnect between the typical bar vendor materials and the experience and struggle that our test takers face. While the traditional bar vendor materials are super helpful, they are also super comprehensive. There are outlines, and outlines, and outlines of law to review. But there often is not a lot of direct focus and practice on the most commonly tested topics on the MBE.

I found that test takers were not studying smart. I found students were spending just as much time trying to learn the law for privacy torts as they were on negligence. They were spending just as much time on the presidential veto power as they were on the First Amendment. They were also struggling to remember the law that they most needed to remember. And they were not answering enough practice questions on the topics that they were most likely going to see on the MBE.

I wanted to try to find a way to get test takers to study more effectively and efficiently. I wanted to try to find a way to get test takers to focus on studying and practicing what they most needed to study and practice. And I wanted to find a way for them to be able to better recall and understand the law.

And that (plus COVID) is what lead me to write my book, MBEs for the MBE: Mnemonics, Blueprints, and Examples for the Multistate Bar Examination.

Working with Blueprints

A large part of my book includes summaries (or “Blueprints”) of the seven substantive areas of law tested on the MBE. The Blueprints are the outlines of the law and the foundation for the book.

Within each Blueprint, I highlight certain black letter rules or fact patterns that I want test takers to focus their studying on. I include all the highlighted rules and fact patterns in the Appendix of the book so test takers have an easy-to-read summary they can review. This can be particularly helpful during the last few days before the bar exam—when test takers are looking for something concise to focus their attention on right before the exam.

Working with Mnemonics

Many test takers rightfully find it particularly challenging having to deal with the tension and pressure of having to remember so much black letter law under such a high-stakes exam, like the bar exam. We need tools to help us categorize the information that we want to remember. And we need tools to help us recall that information when we need to remember that information. The mnemonics in my book can be those tools for us.

Working with Examples

I am especially excited about my partnership with AdaptiBar®.

AdaptiBar® is a user-friendly online program that has helped thousands and thousands of bar takers increase their MBE scores. I have selected 150 AdaptiBar® questions for my book that assess the most commonly tested topics tested on the MBE.

Almost all of the questions on the AdaptiBar® platform are licensed MBE questions. They are not simulated MBE questions. They are questions that actually appeared on prior bar exams. And when you are studying for one of the biggest exams in your life, it’s helpful and super important to practice answering the type of questions that you will be expected to answer on the exam. The AdaptiBar® questions for my book provide that practice.

Conclusion

There are legitimate criticisms as to whether the bar exam tests too much law and whether the bar exam is an appropriate assessment of a test taker’s minimum competency to practice law. These criticisms predate the (still unexplained) technological problems that plagued the July 2021 bar exam.

Test takers may complain that the many mnemonics and highlighted rules in my book prove that the bar exam is flawed and hyper-focused on memory and not on skills and competency. They may be right, and that is (hopefully) going to change with the update to the bar exam—which we are told may arrive in 2025 or 2026. However, until the exam is changed, test takers who want to get licensed will have to play the game that is presented to them.

MBEs for the MBE is my way of helping folks to better play (and hopefully beat) the licensure game.

Sponsored Post: An Active Learning Approach to Teaching Civil Procedure

The following post is by Rory Bahadur (Washburn) and is sponsored by West Academic.

It is easy to get overwhelmed when reading the copious literature on good teaching.  The literature is replete with pedagogy recommendations that can appear hyper technical and unattainable.  For example, active learning, flipped classrooms, facilitating cognitive schema formation, pretesting, providing more formative and summative assessment and engaging students in large classrooms.  In addition to unattainability and hyper technicality, implementing these pedagogic techniques appears to require a massive and labor-intensive revamping of what we already do and are comfortable doing in the legal classroom.  That is until I began experimenting with a directed reading approach to teaching law.

I began teaching civil procedure in 2007 and up until 2014 I struggled on two specific fronts.  Initially I struggled to get students confident and engaged when teaching the classes that required painful and careful rule reading, like the class where we cover Rule 12 and its subtly worded dual waiver provisions in 12(h)(1).  Additionally, I struggled to get students engaged in the more nuanced aspects of civil procedure.  For example, students never seemed to get rabidly enthusiastic about understanding that Justice O’Connor’s stream of commerce test is similar to Justice White’s opinion in World-Wide Volkswagen and that much of specific personal jurisdiction is a tension between federalism and fairness.

That all changed when, for one particularly grueling topic, I decided to give my students the Socratic questions I would be asking in class a few days later.  So, students were assigned the reading and were also given the Socratic questions I would be asking in the class that covered those readings. 

Kismet!!!!  In that class were the most prepared, excited students I have ever had.  I wondered if I was in some alternate universe where venue transfer, forum non conveniens and the Piper v. Reyno case was a really strong stimulant.  I spent some time after class chatting with the students to discover why class had gone the way it had.  The common themes were:

1. We did not come into class feeling completely lost and unaware waiting for the deer in the headlights feeling for an hour and a half of feeling incompetent as we suddenly realized how little we knew compared to you;
2. It made us able to think of the new material you were bringing to class, not in a contextual vacuum, but in terms of how it added to our understanding of the assigned reading;
3. We wanted to engage more because we felt more competent because of the questions;
4. In class, we were able to immediately realize what we had misinterpreted and how to fix the way we read or to shore up what we thought the doctrine was;
5. We could go back after class and incorporate the material you brought to class into the basic framework answering the questions allowed us to create before class;
6. We knew what we needed to do to become better at reading carefully and reading slowly.

From that point on I worked to create pre-class questions to accompany the material in every single civil procedure class I taught.  The process took seven years, and the result is my civil procedure casebook, Civil Procedure: An Active Learning Approach.

The pandemic created a baptism by fire scenario.  In summer of 2020, Drexel University, Kline School of Law asked me on short notice to teach a synchronous 4 credit torts class to incoming students via this thing called zoom.  I created directed reading questions for every class and those questions were provided to the students before class and I asked the students to answer the questions and submit their answers before class began using the LMS platform Drexel used.  This answering of questions was in lieu of traditional briefing.  I gave them a small effort-based grade and feedback where necessary on the submissions which counted to their final grade and we began answering those questions in class.  This allowed us to engage with the doctrine at a much more sophisticated level than when my students came into class after having just read and briefed in the traditional manner.  Also, by skimming the answers before class, I knew what topics the students had the most trouble understanding and could adjust the lecture accordingly. The student evaluations were unprecedentedly positive.

Next, I tried the directed reading approach in a fully asynchronous civil procedure class in summer of 2020.  Students were given access to the lecture discussing the questions only after they submitted their initial answers to the questions based on the reading assigned.  Post-lecture they would resubmit answers to the same questions they answered before the lecture.  By comparing the pre- and post-lecture submissions I could assess whether the learning goals of the lecture were achieved.  Students got feedback on the submissions for formative assessment and the questions were also graded, providing summative assessment.  The student evaluations were again positive to an extent I have never experienced or could expect, and a common thread was that the class required more work than a traditional law school class, but they were so encouraged to do the work because of the amount they felt they were learning compared to traditional classes.

Most recently I tried the method in an in-person/hybrid torts class and in a synchronous admiralty class.  Again, student evaluations were unbelievably positive and consistent with previous student sentiment.  In one of the classes I received the maximum score on every evaluation criterion and was told by the administration that it had never happened in their memory before.

An important takeaway is that the method can be applied seamlessly across the synchronous, asynchronous and in-person teaching modalities and the preparation on the part of the teacher is the same in each modality.

Civil Procedure: An Active Learning Approach represents the refinement of the directed reading approach.  Directed reading creates a flipped classroom for every class session resulting in higher student readiness, engagement, and doctrinal understanding.  Alternative contextualization, which forces students to draw parallels between new material they are learning and material they have previously learned, and to explain the new material in the context of the previously learned material, is used in the question structure such that cognitive schema formation is enhanced for students.  The aim is to deliberately contextualize previously learned principles in the context of new material being learned to make both contexts more understandable.

The book also has active learning exercises which result in students reading the rules more carefully and creating deeper and more meaningful context for the rules they are learning than in the traditional read and brief model.

Assessment is continuous and incorporated into the book’s structure such that students continuously receive extensive feedback about their learning without any extra labor expenditure on the professor’s part.

Finally, the teacher’s manual is unique.  It contains detailed answers to every directed reading question asked in the casebook and explains the pedagogy technique being employed by the question.  It also identifies areas where students traditionally struggle with concepts and provides solutions for these issues.  Adopters will also receive hundreds of PowerPoint slides with diagrams, flowcharts and case excerpts keyed to specific directed questions and the relevant material in the teacher’s manual.

Sponsored Post: Critical Race Theory Across the Curriculium

The follow post is by Dorothy A. Brown (Emory) and is sponsored by West Academic.

West Academic Publishing and I have embarked on a new initiative for the upcoming 2021-2022 academic year. For the first time, we are making individual chapters of my Critical Race Theory: Cases, Materials, and Problems (3rd edition) available for adoption.

Why should you talk about systemic racism and the law in your classes? Because you have students who have experienced societal racism and others who are now aware of it and they approach class discussions differently. When race is a factor and the professor doesn’t bring it up, instead of engaging doctrine – they are engaging their rage. Learning has stopped. Engaging racism and the law is what is required in a truly inclusive classroom.

The chapters available for the 2021-2022 academic year include: Torts; Contracts; Criminal Procedure; Criminal Law and Sentencing; Property; and Civil Procedure. In subsequent academic years, (perhaps as early as the Spring of 2022) we hope to bring forward additional chapters on popular upper-level courses and for those, I am seeking co-authors. If that’s you, please reach out to me at Emory Law.

Each chapter will have a brief introduction to Critical Race Theory and will come with a separate Teacher’s Manual which will include my tips on teaching systemic racism in law school classrooms. Some key points: prepare the students to have a conversation about race – don’t just hit them with it because you thought it was a good idea that day! Prepare them with your syllabus, your casebook selection, and your first class. I also discuss my 2-10-20 method which suggests, especially for those of you with less experience about this endeavor, to spend no more than 2 minutes the first time you talk about race. Everybody can talk about it for 2 minutes! Then when you have successfully done that, you can do it again, but longer the next time, until you wind up having productive conversations with your students.

Contact your West Academic Account Manager to learn more.

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

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

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

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

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

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

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

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

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

Providing Real-World Context for the 1L Civil Procedure Course

The following post is by Jack H. Friedenthal (GW), Arthur R. Miller (NYU), John E. Sexton (NYU), and Helen Hershkoff (NYU) and is sponsored by West Academic.

Civil procedure scholars disagree about many things—the scope of pleading rules, the need for liberal discovery, the role of litigation as a regulatory enforcement mechanism. But there is universal agreement that the first-year course is challenging to teach: As the law reviews put it, the course is “hard," “mystifying, frustrating, and difficult” and even “alien and incomprehensible." Civil procedure teachers also agree on the source of the problem: Our students typically lack a real-world context in which to study and engage with the rules and doctrines that they are learning. Numerous teachers have stepped up with excellent books that can supplement the basic procedure casebook, offering simulated case studies, drafting exercises, and practical study aides. Unquestionably these resources can enhance the classroom experience and improve student learning outcomes. Indeed, we reference many of these titles in the Teacher’s Manual to our casebook. The COVID-19 crisis, and the need for many of us to teach remotely, has created additional difficulties for teaching the first-year course as we each incorporate technology into the classroom.

To be sure, teaching and learning Civil Procedure require active engagement both by the professor and the student. However, not every professor is comfortable with technology, and when compelled to teach remotely, might choose to retreat into lecture-style classes. This approach runs the risk of producing rote memorization without maximizing the student’s skill development; at worst, it could stunt the student’s professional growth. Teaching during the pandemic, while the world is shuttered, thus makes it all the more imperative for the teacher to locate and to assign experiential exercises that the students can undertake even while studying remotely; these supplemental materials must be easily accessible on-line and conducive to serving multiple purposes throughout the course. Moreover, choosing from among different exercises must take account not only of a teacher’s individual comfort level with technology, but also the technology that is available at the law school (for example, the “break out” room function on Zoom) and in student living spaces, which in some situations are equipped with erratic or insufficient bandwidth. Recognizing all of these new pressures, we thought it timely to point out the helpful pedagogic tools that are contained in our
Civil Procedure Supplement for Use with All Pleading and Procedure Casebooks, which many of you already use in connection with our casebook. We also will include in our annual Update Memo materials that illustrate how civil procedure is adapting to the pandemic—changes in local rules, the availability of conferencing and oral argument by technology, permission to do constructive service, and so forth.
It’s obvious that the Supplement is an up-to-date source for the Federal Rules of Civil Procedure plus other relevant source materials, such as provisions from the U.S. Constitution, U.S. Code, state constitutions, local rules, and Rules of Appellate Procedure. It also contains edited versions of recent cases of the Supreme Court of the United States. But don’t overlook its utility in providing students with context and opportunities for experiential learning: the Flow Chart of a Civil Action, an Illustrative Litigation Problem with Sample Documents, and the complaints in Twombly and Iqbal. The materials are designed for students at an early stage in their substantive legal education, can be coordinated with reading assignments from our casebook (or from other casebooks), and is compact and accessible.

First, the Flow Chart. As its name suggests, the chart is both a study aide and classroom tool (it originally was designed by Professor Michael Goldberg of the Widener University School of Law, to whom we are grateful, and since has been updated and the graphics, upgraded). The chart depicts the various stages of the lawsuit and marks the different entry points into the rules and doctrines typically taught in the 1L course. Studies show that students learn better if they have images—even simple images—in which to store ideas and information. The chart simplifies procedural moves without being simplistic. The graphics can serve as motivators to learning: Students are encouraged to move forward in the course as they move forward from box to box. Our students did not grow up watching the movie The Blair Witch Project, but they know what it means to be lost in the forest without a GPS or iPhone. The Flow Chart is a kind of map that guides students and helps them map for themselves the strategic advance of a lawsuit.

Second, the Illustrative Litigation Problem. The problem complements the Flow Chart by providing a simulated case file for a lawsuit involving a familiar kind of dispute—a car accident—building on substantive material that many students will be learning in their 1L Torts class. The problem helps to give a general picture of the flow of a lawsuit, and provides sample documents that illustrate how specific procedural rules and issues may arise during the course of a litigation. We find it helpful to point out the problem’s relevance to the particular topics that we are covering in class. So, for example, when we are teaching subject matter jurisdiction, we ask the students to look at Count One of the sample complaint and to discuss whether the complaint includes the necessary allegations to establish diversity of citizenship. Likewise, when we are teaching personal jurisdiction, we ask the students how the evolving standard they are studying, as we move from Pennoyer to International Shoe and on through World-Wide Volkswagen and Nicastro, affects the lawyer’s drafting of the complaint and the facts that the complaint must allege.

Third, drafting exercises. The Illustrative Litigation Problem offers opportunities to have students engage with drafting exercises. These exercises can be done in class or outside of class, individually or collaboratively, and we find it helpful that they be designed with ever-increasing complexity. For example, the question following the amended complaint asks whether defendants, or any one of them, may have the entire case removed to federal court. That question provides the opportunity to have the students draft a motion to remove by one defendant and by all defendants, accompanied by a memorandum of law in support. Similarly, students are asked whether Party B will be successful in challenging the joinder of parties. Students can be asked to draft the motion in opposition together with a supporting memorandum of law.

Civil Procedure is no doubt challenging to teach. One of the hardest parts is helping the students to appreciate how even small, seemingly technical changes can impact rights by raising the costs of enforcement and creating barriers to relief. Making sure that the students have a clear sense of the stages of a lawsuit and how different procedural opportunities inter-relate is an important start, and we believe that the Flow Chart provides a useful pedagogic aide in achieving that goal. Likewise, engaging with simulated lawyering exercises that illustrate how the rules operate in action reinforces student learning, and the Illustrative Litigation problem offers a convenient mechanism. We welcome your suggestions about how to teach the course and how to improve the Supplement so that it meets your classroom needs.

Sponsored content: Contract Law: An Integrated Approach

The following post is by Martha M. Ertman (Maryland), William K. Sjostrom Jr. (Arizona), and Debora L. Threedy  (Utah) and is sponsored by West Academic.

Because COVID-19 may require part or all of fall courses to be taught remotely, many professors face the daunting prospect of moving their Contracts class online, in whole or in part. If that includes you, take a look at our new casebook, Contract Law: An Integrated Approach (Foundation Press 2020). The book comes with videos and online quizzes that make a switch to a completely or partially online class much easier.

We spent three years designing and writing/recording a casebook that responds to new demands from the ABA and students by tightly integrating classic cases, experiential learning through drafting exercises, interactive online videos, and multi-level assessments. These innovations build on research and experimentation that we – and others -- have done over the years.  For professors new to online teaching and drafting exercises, the teacher’s manual and related materials provide a “course-in-box” with answers to problems, class notes, sample syllabi, PowerPoint slides and more.

The major online components of the new casebook consist of:

• Animated videos introducing each major topic. These videos work as the equivalent of the short introductory lectures or overviews you give in class as new topics arise. Students also find them helpful as a review at the end of the semester. West Academic broke new ground with the videos’ production values, integrating author-written and recorded scripts with colorful visual elements designed by an educational graphic designer. Many students – and faculty – should also appreciate that the avatars are race and gender-inclusive.  Unless you happen to have a professional graphic designer and audio engineer on call, you won’t be able to produce this kind of high-quality video over the summer.
• Short, black-letter law formative assessments following each of the videos to ensure student understanding. These quizzes are a form of pre-testing that gives students a “scaffold” or “mind-map” for the new material they will encounter. Students often revisit the videos and quizzes as needed to grasp the concepts.
• End-of-chapter formative assessments giving students the opportunity to “transfer” or apply doctrine to new fact patterns. More than 100 end-of-chapter multiple-choice quizzes are longer and more challenging to mirror bar exam questions. Each answer includes an explanation so that students understand where they may have gone wrong and need further study. Like the end-of-video quizzes, the end-of-chapter quizzes may be taken multiple times, allowing students to assess their progress during the course and prepare for the final exam.

These online materials have a modular design to give professors a great deal of flexibility. You could choose between three general approaches:

• Online videos and quizzes as supplements for a traditional law school course. Professors could leave the use of the videos and assessments up to the students, with or without professor guidance. Our experience is that today’s students appreciate having access to the online materials, both as they learn the material and for review.
• The major online portion of class that meets ABA Standards 306 and 310. Standard 306 allows up to a third of instructional time in a law school class to be online, and Standard 310 requires 50 minutes of instruction for at least 14 weeks for each credit hour. For a four credit-hour Contracts class, these Standards allow up to 933 minutes of instructional time to be online.

Each of the casebook’s 29 videos plus short assessments constitutes about 8 minutes in online instruction, about 232 minutes altogether.  If students spend an average of about 3 minutes on each of the 100+ questions in the end-of-chapter assessments, that adds another 300 minutes of online instruction, for a total of 532 minutes or more than 10 days of 50-minute classes.  That’s 19% of a course on-line, well under the ABA maximum.  Of course, most professors skip topics, so their total would be lower.  The point is that you can subtract the online instructional time from the overall required time for the course, thereby shortening the in-class instructional time. That kind of class could then be structured with shorter meeting times, fewer days of class per week, or fewer weeks of class.

• As part of the online instruction in a fully online course. The videos and assessments give the professor a leg-up on producing the materials for a fully online course. You start with online materials providing roughly 15-20% of the online content for a four credit hour course and then augment these with other online materials, such as short recorded lectures, online discussions (asynchronous or synchronous), small group exercises such as negotiations, and review of problem sets, drafting exercises, and practice exams. Handily, our casebook includes both problem sets and drafting exercises that could be used for online exercises.  Of course, your school’s policies may provide different limits on fully online courses, and currently the ABA strictly limits the amount of online credit that can count toward graduation.

Finally, each of us is available to engage questions you have about using any of the online or more traditional aspects of the book.  As we created these materials with a hybrid course in mind, we had no idea that the fall of 2020 would make them helpful to so many professors so quickly.  We did however know that these new methods can be daunting to adopt and fully expect to have engaging back and forth with professors as we all enter the brave new world of hybrid and socially distanced legal education.

Contractually,

Martha M. Ertman (U. of Maryland Carey Law School)

William K. Sjostrom, Jr. (U. of Arizona Rogers College of Law)

Debora L. Threedy (U. of Utah S.J. Quinney College of Law)

Teaching Federal Income Tax to the Current Generation of Law Students

The following post is by Jeffrey l. Kwall, Kathleen and Bernard Beazley Professor of Law (Loyola-Chicago) and is sponsored by West Academic.

The basic Individual Income Tax course opens a new world to most law students. Our challenge as professors is to find ways to make this unfamiliar area of law accessible to students with a wide variety of backgrounds and learning styles.

To break down barriers, I begin the course by exploring income issues in the context of relationships with which all students are likely to be familiar (e.g., a business owner and an employee, a donor and a donee, a lender and a borrower). To accommodate students with different learning styles, it is helpful to supplement cases with explanatory text, detailed examples, and many practice problems, and to highlight applications to the practice of law, online references, points worth noting and insights.

One of my primary goals is for Individual Income Tax students to walk away from the course understanding that economic considerations are more important than tax considerations. Students can become so enamored with the art of tax planning that they lose sight of the fact that the amount of taxes paid is far less important than the amount of money left over after taxes have been paid. The importance of economic considerations is a valuable lesson for all law students.

Stressing the importance of economic considerations opens the door to exposing students to quality of practice issues. The vast majority of our students will be practicing attorneys. Regardless of their area of practice, they can learn much about the practice of law by reading not only the traditional tax cases familiar to all of us, but provocative, contemporary cases that illustrate good planning skills as well those that reveal poor planning.

The new Doctrine and Practice Series™ (Foundation Press®) is an ideal vehicle for teaching the basic Individual Income Tax course. Its features make tax law accessible to students with a wide variety of backgrounds and learnings styles. In addition to the problems in the text, this new series offers students significant practice opportunities with online quiz questions after each chapter and cumulative review questions. I encourage you to review THE FEDERAL INCOME TAXATION OF INDIVIDUALS: AN INTEGRATED APPROACH and determine if this new approach to teaching tax resonates with you.

The Case for Teacher-Created Supplemental Learning Guides

The following post is by Leslie Y. Garfield Tenzer (Pace) and is sponsored by West Academic.

There is a chasm between doctrinal classroom learning and commercial study aids. In the classroom, particularly first year, faculties aim to rewire student neurons, training them to "think like a lawyer." In contrast, commercial outlines, flashcards, and the like, detail the black- letter law, encouraging students to memorize rather than analyze.

Commercial outlines have been a valued supplement to learning for decades. A growing number of today’s students, however, are finding these materials critical to academic success. One cause for this over-reliance may be that commercial materials tend to deliver information through bullet-points. This design promotes memorization, a skill essential to most undergraduate lecture-type classes, and therefore one with which college graduates are familiar.

I find it ironic that the skill that earned many students the grades necessary to get into law school is quite different from the skills necessary to earn top grades in law school. Study guides are undoubtedly helpful to students seeking to understand critical legal concepts. Commercial outlines serve the purpose of providing a basic explanation and aid with memorization. As a student, I enjoyed the benefit of a Gilberts outline to provide structure for my personal study guides. But while these types of materials provide a solid backdrop for learning legal concepts, few succeed in developing the kind of thinking inspired by Socratic teaching.

To encourage analytical learning outside of the classroom, many faculty are creating supplemental learning materials or extra assignments. My colleague Michael Mushlin and Judge Lisa Smith, Magistrate Judge for the Southern District of New York, developed a series of supplement assignments designed to take 1L Civil Procedure students beyond the technical knowledge of the Federal Rules as a way to help students appreciate the analytical rigor essential in the courtroom. Students are asked to draft a complaint, conduct a deposition, and engage in other lawyering skills. Providing students with a contextualized experience at the beginning of their law school careers, students learn that law school demands more than pure memorization of the law. You can read more about their experience here.

Another colleague, Bridget Crawford, created a series of prompts for her Federal Income Tax students to answer in between classes. The questions are designed to guide students through critical tests included in the Internal Revenue Code and Regulations. According to Professor Crawford, "Sometimes forcing oneself to slow down and write out answers to questions enables students to read a complex statute differently and more carefully than any of us might on our own. I created this worksheet as an exercise in close reading and statutory interpretation. Those are fantastic skills that will help a lawyer in any area of the law."

Other professors are developing materials that are designed for their students but are also available on a more national scale. Beth Wilensky and Nancy Vettorello found that there was not enough time to cover both the law and the skills necessary to succeed in their Legal Practice at the University of Michigan School of Law. They created a series of YouTube videos on fundamental legal skills concepts. Asking students to watch the videos on their own time, allows for more supervised analytical learning. "Students seem to like the videos," according to Prof. Wilensky, "both because they get a break from reading and also because they appreciate having access to the videos after the class ends." Professor Vettorello noted the added benefit of using class time to have students write, enabling her to comment immediately on their writing. “Frankly it tested my ability to describe and explain suggested changes -- when I made a suggestion and was left with blank stares, it was obvious that my feedback was not detailed enough or that I was using terminology that was not getting through.” Both professors find the experience invaluable. “It's like being able to sit next to them while they write, which is fascinating, informative, and even humbling.” An added benefit is to those outside the Michigan classroom. The videos are getting national traction, with well over 1,500 hits since their posting in 2016. A sample video is available here.

In 2018, out of my desire to combat what I call "flashcard learning," I created the podcast “Law to Fact.” In each episode, I have the opportunity to explore a particular concept with a member of the legal academy, a sort of “portable office hours” students can download at their convenience. The deep exploration of doctrinal issues such as the rule against perpetuities with Shelby Green or skills like how to read a legal opinion with Orin Kerr offers students the chance to observe the analytical component of law school learning. The podcast has been enthusiastically received by students and professors, with over 125K downloads to date.

It is the enthusiasm on the part of the “Law to Fact” guests that I find most encouraging. In every instance, faculty members, many of whom I have never met before, have been generous with both their time and their passion. We teach because we want students to learn not just the law, but how to think like lawyers. In an era where more and more students are inclined to believe that mastery of the material means memorizing the law, I argue it is incumbent upon law faculty to acknowledge reliance on commercial study guides and provide a proper context for their use. Doing so can be as easy as explaining the when, why, and how to use commercially prepared study aids to accomplish ideal learning. And, for those of you who haven’t done so in the past, I encourage you to create the type of supplemental material you believe will best prepare your students for success on exams, on the bar, and ultimately, as attorneys.

Finally, I welcome anyone interested to join me on an episode of Law to Fact. As those who have already participated can attest, it is a fun easy 1⁄2 hour exercise, and one that benefits those studying the law. You can reach me at [email protected].

Surprising, Disturbing and Encouraging Things We Learned Researching Law Jobs

The following is by Andrew McClurg (Memphis and my former FIU colleague), Christine Nero Coughlin (Wake Forest), and Nancy Levit (UMKC) and is sponsored by West Academic.

As seasoned law professors, we thought we had a good handle on legal careers and the legal job market. We were wrong. In researching and interviewing more than 150 lawyers for our new book Law Jobs: The Complete Guide (West Academic Publishing 2019), we discovered we didn’t know nearly as much as we thought. For this post, we asked ourselves a three-part question: “What was the most surprising, disturbing, and encouraging thing you learned from this book project?”

McClurg: My biggest “surprise” was something I already knew, but had never taken time to really think about, which is how few law students do any serious career-planning at all. Too many students simply resign themselves to taking whatever job comes along. Whose fault is that? Partly the job market. It’s not as easy to find quality entry-level jobs as it was in the good old days. Partly legal education. Not many schools incorporate career-planning into their curriculums. But ultimately it’s up to students to know themselves—their skillsets, personality types, and true aspirations for long-term happiness. Only with that understanding will they be in a position to find the best job fit.

We learned quite a few disturbing things, but one that flies under the radar is the rapid increase in “alternative staffing” arrangements, a benign-sounding term for cutting permanent associate positions in favor of contract lawyers, half-priced staff attorneys, and paraprofessionals. An Altman Weil survey asked 386 large firms to rate twenty new-era performance strategies in terms of their effectiveness for improving profitability. Four of the top five choices involved alternative staffing models. Half of the firms said that the increased use of contract lawyers was their top alternative staffing strategy and also the most effective one.

An encouraging sign is that employment rates continue to rise, to nearly 90% for the graduating Class of 2018 (ten months after graduation), but that’s somewhat misleading because NALP has attributed the increases largely to smaller graduating class sizes over the past several years. For the fifth year in a row, the number of actual jobs went down or stayed flat in every sector except Biglaw. This is worrisome because many schools are increasing enrollment, in part for economic reasons after the lean, down years. Will the job market support these larger classes when they graduate?

Coughlin: What surprised me is how important the majority of lawyers consider their role as “counselors at law.” I was humbled by the stories we heard about the lengths attorneys go—not only to ensure their legal advice is tailored in a manner best for that client—but in ways that consider the client as a whole person. A factor that continues to disturb me is the lack of diversity within the profession. We attempted to give diversity data for each career, where available, but also to explore some of the barriers to diversity in the profession.

While there is room for improvement, law school classrooms are more diverse than ever in terms of gender, race, ethnicity, and sexual orientation. This is a positive step. Studies reflect that increasing diversity makes the classroom more dynamic and positively adds to the learning experience. Unfortunately, the data also reflects that these increases in diversity do not always carry over to the legal profession. Indeed, in a few areas, such as the appointment of federal judges, we may be moving backwards. Real efforts are being made to enhance diversity in the profession, but there are still too many barriers that seem to clog the pipeline between legal education and the practice of law. One area that needs more study is sexual orientation. While society has become far more accepting of sexual orientation, the limited data available shows a wide disparity between the percentage of LGBTQ individuals in the population and the profession.

The most encouraging factor to me was how important today’s lawyers consider the development of “soft skills,” such as communication, time management, problem-solving, empathy, creativity, etc., to having a successful career. I believe there is a correlation between honing these skills and feeling fulfilled in your legal career.

Levit: What surprised me most was the extraordinary array of jobs that people can do with a law degree, ranging from art law and animal law to cybersecurity and gaming law. Hearing the stories of how people developed their niche specialties was fascinating, including jobs people developed by merging their law degrees with a prior passion or expertise, such as in technology. People think about technology as usurping jobs, which is happening to some degree, but specialties are also developing that capitalize on technology.
For each career we cover, we asked attorneys in the field what law students can do to position themselves for a job, what opportunities for advancement exist, and what a typical day is like for each of them. We hope their personal stories and advice will give readers a much richer picture of what different jobs in law entail—and how to get them.

What was disturbing were the number of people who, early in their careers, sought high-paying positions, for reasons of prestige or to pay off loans, and sacrificed a significant amount of time and life satisfaction until they moved toward areas that interested them. The attorneys we surveyed were very candid about the pros and cons of different jobs. Their collective advice was quite clear: don’t take a job for either marquee value or for money.

It was encouraging to see how many (really, almost all) of the lawyers we interviewed expressed a real interest in mentoring newly minted lawyers. There is such a supportive community of practicing attorneys ready to welcome new graduates.

Teaching leadership and addressing gender inequality

The following post is by Hannah Brenner, Vice Dean for Academic and Student Affairs and Associate Professor of Law at California Western School of Law ([email protected]) and Renee Knake, Professor of Law and Doherty Chair in Legal Ethics at the University of Houston Law Center ([email protected]) and is sponsored by West Academic.

Law schools increasingly acknowledge the importance of teaching students about leadership, many offering new courses and even specializations or certificates. (A quick search reveals numerous programs launched in the past handful of years at a range of schools, including Baylor, Columbia, Elon, Michigan State, Ohio State, Santa Clara, Tennessee, and the University of Chicago, among many others—please feel free to supplement this list in the Comments.) The Association of American Law Schools recently approved a new Section on Leadership. Two years ago, Stanford Law Review devoted its annual symposium issue to the topic. Given the prominent roles lawyers often take on in their professional lives and in their communities, we believe that this training is necessary and we applaud efforts like these to better prepare our future lawyers.

At the same time, the number of women rising to leadership ranks in the legal profession does not come close to reflecting the number of women who graduate from law school. For decades, women have entered the profession in numbers equal to men, but comprise only a fraction of leadership positions in law firms, the judiciary, corporate legal departments, government, higher education, and beyond.

In part as a response to this reality, we created and taught seminars on gender, law, and leadership, collectively, over a dozen times spanning the last fifteen years at three different law schools, in an undergraduate honors college, and undergraduate women’s studies and political science department. One of our constant frustrations comes from the reality that our female students, and especially those who are women of color, do not have access to the same opportunities to put this training into practice.

As we have done previously with other scholarly projects (like our empirical Supreme Court Media Study that explored media coverage of nominees to the Court through a gendered lens) we channeled this frustration into writing a new casebook: Gender, Power, Law & Leadership. The text is designed for a semester-long course in law school and higher education classrooms. In it we expose readers to intersections of gender, race, class, power, and law through both historical and contemporary works. We also explore post-feminism discrimination ignored by the modern legal system, including the glass cliff, shortlisting, emotional taxation, admin burdens, work wife syndrome, gender sidelining, imposter syndrome and other gender-based barriers in an effort to more adequately educate students about barriers that hold women, and especially minority women, back. Narratives about transformative women leaders appear throughout to educate, inspire, and mentor students. The text concludes with concrete guidance for students to consider as they pursue leadership paths, and it proposes reforms to create a world of leaders who reflect the public they serve.

It is our hope that by better educating our students about the gendered dynamics inherent in professional contexts like law, they will be better equipped to successfully navigate the pipeline to power and beyond.

Sponsored Post: Reproductive Rights and Justice Stories

The following guest post is by Melissa Murray (NYU School of Law), Katherine Shaw (Cardozo), and Reva B. Siegel (Yale) and is sponsored by West Academic.

Reproductive Rights and Justice Stories (Foundation Press® 2019) examines the field of reproductive rights and justice, with attention to the dynamics of legal change inside and outside of courts.

Where reproductive rights are often defined as negative liberties that protect individuals against government coercion, reproductive justice thinks holistically about the conditions in which individuals make decisions about having and not having children. The field examines how relations of race, class, language, citizenship, sexuality, and gender shape decisions about reproduction and intimate life, inside and outside of law—in the organization of communities, markets, health care, religion, and other structures of social life. Pursuit of reproductive justice is not limited to greater access to contraception and abortion, but instead includes conflicts over sterilization, pregnancy, and assisted reproductive technologies. Critically, reproductive justice cannot be attained in courts alone, but instead requires action across many bodies of law, and in many social domains, to redress inequalities in intimate life.

The stories collected in this book present legal change broadly to capture the multiple social contexts in which these conflicts occur. This method for understanding constitutional change—what one of us has termed “democratic constitutionalism”—recognizes that debate over constitutional meaning unfolds inside and outside of courts and inside and outside of the state. Obviously, courts matter. But so do other actors and institutions—from grassroots organizations, NGOs, and political parties to state and federal legislatures to administrative agencies and bureaucrats to interested individuals.

Many chapters shed new light on cases that are very much part of the constitutional law canon—Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Geduldig v. Aiello. Others introduce the reader to less well-known cases from state and lower federal courts that illuminate paths not taken in constitutional law. All of the chapters contain lessons for contemporary controversies. (Indeed, a recent symposium, hosted by the Take Care blog, featured a number of response essays tying the chapters to developments in the law and politics of reproductive rights and justice.).

Contributing authors include: Melissa Murray, Neil Siegel, Linda Greenhouse, Reva Siegel, Deborah Dinner, Maya Manian, Khiara Bridges, Serena Mayeri, Priscilla Ocen, Sam Bagenstos, Kate Shaw, Cary Franklin, and Doug NeJaime.

Faculty Hiring: Three Faculty Positions at Lewis & Clark

Lewis & Clark Law School is currently accepting applications for an Assistant Clinical Professor in the Low-Income Taxpayer Clinic, an Assistant Clinical Professor in the Animal Law Litigation Clinic, and a Visiting Assistant Professor (two years) in the Lawyering program. Applications for the Low-Income Taxpayer Clinic and VAP positions are due February 8, 2019. Applications for the Animal Law Litigation Clinic position are due February 15.

Teaching Civil Procedure With A Simulated Case File: My 90% Solution

The following post is by David Oppenheimer (Berkeley) and is sponsored by West Academic.

Civil Procedure is reportedly the least popular 1L course. Why? Because it lacks a familiar context. Our students arrive with some understanding, however faulty, of the role of contracts, the existence of property, the problem of crime, and the phenomenon of personal injury. But Civil Procedure is a great mystery to them.
A common response is to provide context by organizing the course around a semester-long simulation. Several case-files are now available from legal publishers, all of them good. Each helps students see how Civil Procedure works in the real world. But most require so much work for the students and faculty that they push aside other important material, and as the number of units we devote to Civil Procedure shrinks, this is increasingly challenging.

My response is the 90% solution – provide the students with pleadings and motion exercises that are 90% complete, so that they can focus on the core problems.

My 90% simulation is Oppenheimer, Leiwant, Schonberg, and Wheeler, Patt v. Donner: A Simulated Casefile for Learning Civil Procedure (Foundation Press 2014; 2nd ed. forthcoming spring 2019). (Leiwant, Schonberg, and Wheeler are former students/RAs who helped me develop the casefile.) The case begins on the first day of class, with a fourteen-minute videotape of a client interview. Paula Patt is an anthropology graduate student who just arrived in Berkeley. She applied to rent an apartment, and believes she was rejected because she has a five-year old daughter. She has come to the Berkeley Law Clinic for advice.

Over the course of the semester the students, working in rotating groups with the casefile materials and on-line videos, will: draft a federal housing discrimination complaint; switch sides and move to dismiss the complaint as insufficient; move for a preliminary injunction when another apartment in the building becomes vacant; move to dismiss the absentee landlord/defendant for lack of personal jurisdiction; oppose the motion; move to amend the complaint to add a supplemental state law claim; move to intervene; move to compel discovery, or for a protective order; move for summary judgment; and negotiate a settlement.

Since each of the exercises is 90% complete when assigned. The students don’t spend time trying to figure out what a pleading or motion looks like, formatting the table of cases, or drafting the preliminary matters. They complete a nearly finished pleading or brief by drafting the key argument, thus applying the cases we’re studying in class to the facts provided in interviews and documents found in the file.

To learn more about the materials, and to download the videos and sample exercise answers, go here.

Bringing Students into the Criminal Procedure Courtroom

The following post is by Brian R. Gallini (Arkansas) and is sponsored by West Academic.

When I first started teaching the investigative criminal procedure course more than a decade ago, I was immediately struck by how the material captured student attention. I doubt it was my teaching. After all, the subject matter—largely an inquiry into what police can and cannot do—impacts us all as citizens.

Convincing students to engage with the criminal procedure course has become an increasingly easy sell. In just thirty-five days after its release, an average of 19.3 million viewers watched each episode of Making a Murderer. Meanwhile, in the first full year following its release, 80 million listeners downloaded season one of the hit podcast Serial. Those numbers reflect the reality that criminal procedure is an intriguing and constantly evolving area of the law that seemingly captures the public interest unlike other law school courses.

I have for the past few years been thinking deeply about how best to capture that momentum in the criminal procedure classroom. I have long been skeptical that approaching the course through excerpts from scholarly literature, Supreme Court cases, and a series of notes and questions following an excerpted case continues to suit the modern law student. Instead, I have long been curious about how the cases of real-world defendants might inform, enhance, or even outright form the basis for teaching the investigative criminal procedure course.
That long-standing curiosity forms the basis of my inspiration to provide a criminal procedure casebook that tries to bring law students into the courtroom. In my opinion, today’s law students benefit more from courses that teach the substantive law in a manner that captures their attention while honing their practical skills. That, in short, is what this book tries to do. It relies heavily on practical materials to guide students through the substantive law.

In an effort to engage students and present “the big picture,” each chapter focuses on a specific “real-world” defendant, such as O.J. Simpson (the former NFL running back), Richard Kuklinsky (the mafia’s most prolific hitman), and John Wayne Gacy (one of this country’s most prolific serial killers)—among numerous other (in)famous defendants.

Organizationally, each chapter begins with an introductory description highlighting the relevant legal aspects from the particular defendant’s case. Typically, each chapter also tries to lay out the law in an easy to digest format. There is no hiding the ball in this book. Core cases are then presented in a logical and easy to follow order.

One of the book’s features that I’m most proud of is the supplemental online case file repository. To further explore the topics presented by each defendant’s case, the book includes access to an online case file repository that provides professors and students with access to relevant filings from each defendant’s case. These files include the actual litigation documents from each case, such as complaints, search warrants, transcripts, and other resources like interrogation videos. One chapter even introduces students to the particular defendant by offering them access to private Supreme Court materials associated with that defendant’s case.

By focusing so heavily on defendants—rather than rely more traditionally on core cases and scholarship alone—my hope is to offer a fresh approach to teaching the investigative criminal procedure course. This book aside, I’ll submit to you that an investigatory criminal procedure class discussion focused on “real life” defendants and litigation materials creates a lively environment unlike a more typical conversation that revolves around discussing one case at a time in a vacuum—disconnected from how that case applies to a real person.

Teaching Transactional Skills

The following post is by Stephen L. Sepinuck, Frederick N. & Barbara T. Curley Professor and Director of the Commercial Law Center at Gonzaga University School of Law, and is sponsored by West Academic.

If you mention transactional lawyering to someone, that person is likely to envision a scribe toiling alone in a poorly lit office. Like Bob Cratchit working 60 hours per week for Ebenezer Scrooge (although Cratchit was a clerk, not a lawyer). Perhaps this vision is more common among our litigation-focused colleagues than among law students who never even contemplated what a transactional practice might be like, but the fact remains that the subject lacks allure. Put simply, transactional lawyering does not make for good television.

To some extent, this rather visceral reaction is justified. Two of the most important transactional lawyering skills are the ability to draft contractual terms with precise language and the ability to spot and resolve ambiguity. Teaching these skills requires repetition and practice, which for some can create tedium (it is asking too much to expect students to share my geekish enthusiasm for the quirks of the English language). So, while I cover these skills extensively in my course – and in my book co-authored with John Hilson, Transactional Skills: How to Structure and Document a Deal (2d ed. 2018) – we put equal or greater emphasis on other skills: imagination, creativity, and strategy.

Imagination. Litigators deal with the past, in which the facts are fixed. Transactional lawyers deal with the future, in which the possibilities are infinite. The client might want the lawyer just to document the deal, but the lawyer needs to consider all the things that might go wrong. What if the electronics that your retail client is buying from the manufacturer become antiquated before they can be sold? What if the painting your client is about to buy turns out to have been looted from its rightful owner during World War II, but that fact is not discovered until after the limitations period has expired on a claim for breach of the warranty of title?
Creativity. Many transactions are relatively simple, two-party affairs that resemble countless prior transactions. But some clients come to the lawyer more with an end goal, rather than a specific deal, and the lawyer needs to devise a transaction that will best achieve the client’s objectives. Will a stock sale, rather than an asset sale, avoid the restrictions on assigning contract rights? Should a planned loan be made to the parent company and guaranteed by its subsidiary, or vice versa, so as to minimize the risk that the transaction involves a fraudulent transfer?

Strategy. Strategic thinking is perhaps the most important skill a lawyer needs and the most fun to teach. Stressing it in class immediately conveys to students that transactional lawyering is less the work of scribes and more like that of skilled chess players. For example, in drafting an agreement for the purchase and sale of a business, should the continued employment of key personnel be a covenant, a condition, or both? How should the covenant not to compete in that agreement be drafted if the jurisdiction follows the “blue-pencil” rule? How should an attorney’s fees clause in a form commercial lease be revised if the jurisdiction enacts a reciprocity statute?

I cannot claim to inspire all my students and I do not try to convert them all into transactional lawyers. I can say, however, that this approach appeals to many of them. More important, most of them come to the course with no interest in transactional lawyering and many leave it with a very different attitude. As a teacher, I cannot really ask for more.

Sponsored Post: The unauthorized practice of law for nonlawyers

The following post is by Ellen Murphy and Steve Nickles (both from Wake Forest) and is sponsored by West Academic.

The dramatic changes in the legal profession since the 2008 market crash, from the increase in virtual law practice to the rise of DIY services to clients’ increasing demand for efficiencies, have led to a recognition that nonlawyers have an increasingly critical role in the delivery of legal services. While most regulatory bars are not yet sure exactly: (a) what this role should be; or (b) how, if at all, it should be regulated, that a change is coming is certain.

Meanwhile, companies large and small -- saddled with increasing regulations but fewer resources – look more frequently to employees in risk management, compliance, and human resources, to name but a few, to exercise legal judgement, decreasing the reliance on traditional inside and outside counsel.

When the ABA created the Commission on the Future of Legal Services, with a goal of using technology and innovation to increase access to justice, the President acknowledged that some people see this shift as a “back doorway of disrupting a system that they’re comfortable with.” All a perfect precursor to the coming regulatory challenges for our current restrictions on the unauthorized practice of law.

In response, education directed at nonlawyer legal professionals is also increasing; the providers include law schools, other higher education entities, trade associations, and for-profit companies. However, little of this education is focused on the unauthorized practice of law. As the debate is getting hotter over what nonlawyers, people or computers, can do without running afoul of unauthorized practice of law restrictions, education must include coverage of the current state of the law, no matter how impossible it may be to define the “practice of law” with precision.

To bridge this gap, our new book and interactive course, The Unauthorized Practice of Law for Nonlawyers, explores the extent to which people with legal training, but no license to practice, can use the law, as a social and economic variable, to better manage risk without fear of prosecution or civil liability. Materials include a complete, 1-credit course syllabus, with over 4-hours of videos and 700-minutes of direct-faculty contact hours through discussion prompts and project prompts, perfect for an active-learning, flipped classroom. Alternatively, the materials can be used as a 1-hour self-directed module.
The book is intended for general education about the UPL and to provoke informed thinking and useful discussion about the UPL’s present and future boundaries. UPL regulation varies widely across the country, is always and everywhere highly fact-specific, is riddled with non-uniform, judicial and legislative exceptions, and always is decided on a case-by-case basis. But even with this uncertainty, educators must promote and provide for the exploration of these issues.

POSITION ANNOUNCEMENT - DIRECTOR OF THE ENTREPRENEURIAL/TRANSACTIONAL LAW CLINIC AND ASSISTANT/ASSOCIATE/PROFESSOR OF LAW

DRAKE UNIVERSITY LAW SCHOOL invites applications for the position of Director of the Entrepreneurial/Transactional Law Clinic. The position will begin in the 2019-2020 school year, and will be a twelve-month position. The directorship could be annual or long-term contract, or tenure-track, depending on the candidate’s qualifications and preferences. Duties will include supervising and assessing Clinic students representing nonprofit organizations and emerging entrepreneurs.   The Clinic primarily focuses on assisting startup businesses and nonprofits in underserved communities in Polk County, Iowa that are not able to afford retained counsel.   In addition, graduate students and other researchers at Iowa State University provide another source of Clinical transactional cases, many of which include advanced issues involving tech transfers, capital structures, and software licensing. The Director will have the opportunity to build on the success of the existing clinic, which serves a vibrant, diverse community of innovators.  In addition, there may be opportunities to teach doctrinal and experiential-learning courses depending on the law school’s curricular needs.

Candidates must possess a J.D. or comparable law degree and be admitted to, or able to satisfy the requirements for admission to the Iowa Bar. A distinguished record of clinical teaching or extensive practice-related experience, with a demonstrated capacity for excellence in teaching, supervision and assessment, scholarship, and service is preferred. At least three years of teaching and/or practice experience is also preferred.

Drake has long excelled in clinical education and is a pioneer in the area. Our six clinics provide students with an outstanding legal experience in Children’s Rights Law, Delinquency Law, Elder Law, General Civil Law, and Criminal Law. Housed in the state-of-the-art Neal and Bea Smith Law Center, the Legal Clinic is an integral part of the Law School Program and is supported by a multi-million dollar endowment. The Law School is located in Des Moines, the capital of Iowa, a thriving metropolitan area of more than 700,000 people. Des Moines is consistently ranked in national surveys as one of the best places to live in the United States. 

Drake University is an equal opportunity employer and actively seeks applicants who reflect the diversity of the nation. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake’s core values and applicants need to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.

Confidential review of applications will begin in August 2018. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: [email protected].

Flipping the Classroom—Put your Students Through Mental Gymnastics

The following post is by Steven Baicker-McKee (Duquesne) and is sponsored by West Academic.

Last semester, I realized with about a month to go in my first year Civil Procedure class that I had a good six weeks of material left to cover. Yikes! I have no idea how it happened—I do not have a set schedule or pace for my class; rather, I try to calibrate my pace to the class’s understanding, slowing down when I see that glazed look on their faces and moving more briskly when I see heads nodding. Usually, it works out fine and I end up right where I need to be, with only one class at the end where I speed talk or break out some war stories. But last semester …

My solution was to flip the classroom for the last month. It was a technique I had played around with a little and wanted to explore more, but life kept getting in the way. I decided to turn my pacing blunder into a pedagogical opportunity.

My normal teaching approach involves a combination of learning modalities. I use PowerPoint extensively and try to have lots of images and not a lot of words on my slides (except for when I am displaying rule text or hypos). The majority of classes involves some sort of interactive exchange, but there is also some component that is purely me conveying information. My flipped class approach entailed taking the lecture/information conveyance component of my class presentation and making a short (10-15 minute) video where I simply lectured from my PowerPoints. We use Panopto for video capture at Duquesne, which is extremely easy to use and allows you to either capture only the audio while displaying the slides or to include a box with a video of your head doing the talking—I chose the former! Panopto also allows you to see who watched the videos and how long they spent watching.

My class met twice per week, and I recorded a video before each of the remaining classes. It really didn’t take much time—I took my existing slide decks, picked out the ones where I did most of the talking, and put them in a new deck. Then, I essentially did what I otherwise would have done in class for those portions. I’m not a perfectionist, so I did virtually no editing or second takes. If I messed up badly in the first minute or two, I started over. Otherwise, I just went with it.

The beauty of the approach is that class becomes entirely interactive. If you are a devotee of cases, you can spend the entire time Socratically challenging your students. I use Learning Civil Procedure (which I co-author), and we focus more on hypos than on cases. I have also become a fan of small group discussions. So, I put a hypo on the board, have the class break into small groups to work through the hypo, poll the class to see how they did as a whole, call on someone or a group to explore their answer and reasoning, add or change a fact in the hypo to tease out more nuance (perhaps with another group), etc.

Flipping the classroom did two extremely positive things. First, it allowed me to get through the material I planned to cover within the remaining class time. Second, it made me feel less time pressure during class. I felt free to play around with the hypos more because I knew I had already conveyed the essential information in the videos. I felt like my class discussions were deeper, richer, and more successful, and the class feedback overwhelmingly confirmed my sense—the flipped classroom videos were commonly included under “What aspects of the instructors teaching were most effective?” and “even more videos” was a common theme under “How could this instructor improve his/her teaching effectiveness?” Students commented to me that they felt better prepared for class and got more out of the classroom discussion, and also that they used the videos again when studying for the final.

It’s my goal to record a flipped video for virtually every class this coming year. Unless life gets in the way …

Sponsored Post: Teaching Remedies

The following post is by Samuel L. Bray (UCLA School of Law, soon decamping for Notre Dame) and is sponsored by West Academic.

Last year I joined Emily Sherwin as an editor of a remedies casebook: Ames, Chafee, and Re on Remedies. We worked together on the second edition, which was published in December by Foundation Press. In this post, I want to sketch some of the ways this remedies book is distinctive and why you might or might not want to use it.

We hope the book is a volume of logic, but first a page of history. The book is a lineal descendant of James Barr Ames’s Cases in Equity Jurisdiction (1904-1905), and its title is a homage to Ames and two of the other editors in the long history of the book, Zechariah Chafee and Edward Re. (Edward was no relation to the brilliant Richard—I asked.)

A remedies teacher confronts three threshold questions, and how they are answered will determine the shape of the course. The first is about organization, the second is about equity, and the third is about restitution. On each of these our book takes a different approach than some other books.

First, the course can be organized in one of two basic ways. One organization is by substantive area, such as tort remedies, contract remedies, and public law remedies. The other organization is by transubstantive remedies—first damages, then injunctions, for example. My view is that the transubstantive approach is the only one that justifies the existence of a course on remedies—the value of this course, and for that matter this field, is that we can understand remedies better and deeper by seeing how they work across the substantive domains. Consistent with that, our book has an introductory section and then three major divisions: “Damages,” “Equity,” and “Unjust Enrichment and Restitutionary Remedies.”

Second, a remedies teacher has to decide what to do with equity. Here is where the biggest difference lies between our book and a leading remedies casebook, Doug Laycock’s Modern American Remedies. Doug is the leading scholar of remedies, and his work reflects his brilliant scholarship in the book and article both named The Death of the Irreparable Injury Rule. He does not treat the irreparable injury rule, more conventionally the requirement of “no adequate remedy at law,” as an organizing principle, and his treatment of the law/equity distinction is skeptical.

Our book takes a different tack. The distinction between law and equity is pervasive in American law. This is not true only in the jurisdictions that have separate courts or divisions for equity (Delaware, Tennessee, Mississippi, New Jersey, and Cook County, Illinois). Rather it is true in case after case in state and federal courts—including recent U.S. Supreme Court decisions such as Petrella and SCA Hygiene, that held that laches is an equitable defense that applies only to equitable claims, not to legal ones. In our view, to prepare students to litigate in a world where the law/equity distinction still has currency, remedies should be taught without embarrassment about the law/equity distinction, and its functional value should be explained, not just questioned.

Finally, a remedies course has to decide what to do with restitution, that unwieldy amalgam of remedies and substantive law. In our book, restitution is given its own section, but care is observed in distinguishing between restitutionary claims and remedies that are legal (such as quasi-contract for a mistaken payment) and restitutionary claims and remedies that are equitable (such as constructive trust). That distinction between legal and equitable restitution matters for defenses, for the jury trial right, for priority in bankruptcy, and for the availability of a remedy under statutes such as ERISA that authorize “equitable relief.”

Many other points could be made about our book. It is light on notes—it is not replacement for a remedies treatise such as Dobbs and Roberts. Private law tends to predominate, rather than public law. (There is, however, a new chapter in this edition on remedies against the government—including discussion of qualified immunity and structural injunctions.) Our casebook tends to have more state cases than federal cases. Many points are taught with two cases, one from contract and one from tort, which allows students to better understand a principle as they see it applied in more than one context.

One final note should be stressed. The remedies we have in American law were never developed according to some kind of master plan. On the first day of remedies class I contrast a city like Washington, DC, which was developed according to such a plan, and a city like Boston, where cowpaths turned into cartroads which turned into streets. Remedies is like Boston. It is therefore unusually important in the field of remedies to understand the historical background, since it is not just background—the path dependence is strong. That is why each of the major divisions of our book begins with a discussion of history. That sets our remedies book apart from other casebooks. As with each of the points discussed in this post, it will work well for some remedies teachers and courses and not for others. De gustibus.

Make Your Students’ Lives—And Your Life—Better

The following is by Tom Holm of Thomas Holm Legal Consulting and former director and instructor for the Lawyering Skills Clinical Program at UCLA School of Law and is sponsored by West Academic.

Teaching 1L students is incredibly difficult. They need to understand everything before they can really understand anything at all. And they are often burdened by reliance on rote learning skills and misconceptions about law school teaching methodology. So students often seek the right answers rather than the best arguments—demanding certainty when embracing ambiguity is ultimately their goal.

If you would like to help students “get it” more quickly so you can focus on higher-level teaching, augment your students’ casebook and classroom experience by assigning Cracking the Case Method. My co-authors—Paul Bergman and Patrick Goodman—and I wrote this second edition of Cracking to help “clear the underbrush” for novice students and provide them with a framework for understanding your instruction.

For example, Chapter 1—The Case Method and its Myths—could help you demonstrate that the Case Method helps students learn how to identify legal issues and construct arguments regarding those issues. Similarly, few professors want to focus their valuable class time on briefing skills. Establish your expectations by assigning Chapter 7—Briefing Cases—to teach students why they should brief and how they can brief efficiently and effectively. Students could then brief the two sample cases in the chapter and compare their briefs to the accompanying annotated case briefs. Chapter 4 illustrates the full panoply of arguments lawyers offer to support their clients’ positions, further amplifying the fundamental goal of the Case Method: learning the process of legal argument.

Cracking the Case Method helps demystify law school by teaching students how to take full advantage of your instruction. With Cracking, you’ll get better prepared, more analytically skilled students—students who seek arguments, not answers. It provides concise, clear, and in-depth instruction on all aspects of academic success, including such topics as:

• Overall strategies for approaching students’ 1L semesters, including:
    • Reading cases and preparing for class efficiently and effectively;
    • Practicing legal analysis and extracting crucial information from their classes; and
    • Preparing for law school exams.
• The Case Method: why professors rely on it and how studying cases helps students develop rigorous analytical skills.
• How to expertly read cases to extract legal issues, rules, and judges’ rationales for adopting and applying those rules.
• The major types of legal arguments, including illustrations of each type of argument.
• Sources of law and hierarchies of authority.
• How to skillfully prepare case briefs—with two annotated sample case briefs.
• How to use class discussions to practice legal analysis, illustrated with annotated excerpts from actual first-year class discussions.
• Exam preparation tools, including:
    • Structuring outlines to clearly state rules and their underlying policies in order to provide an analytical framework of the law—with detailed examples and sample annotated outlines;
    • Developing checklists, flow charts, and mind maps—with illustrations; and
    • Practicing exam-taking skills with prior exams.
• A transparent approach for analyzing and writing exam-answers, including:
    • Identifying relevant legal theories and issues;
    • Marshalling and using facts in arguments;
    • Structuring and writing their analysis—with sample annotated exam answers that respond to actual 1L exam questions; and
    • Using time-management strategies during exams to ensure they develop more sophisticated arguments.

In addition to helping individual students, Cracking can be used to enhance any orientation course your law school may provide; it can also augment the outlining and exam-taking sessions your students may attend.

Sponsored Post: Teaching Bus Orgs in the real world

The following post is by Michael A. Chasalow, Director of the Small Business Clinic and Clinical Professor of Law at USC Gould School of Law, and is sponsored by West Academic.

A successful Business Organizations course needs to cover a broad range of material that involves a number of new concepts while keeping students engaged. After several years of teaching, I developed several hypotheticals that connected “real world” scenarios to the substantive material. (Eventually, these hypotheticals developed into the foundation of my Experiencing Business Organizations book.) I have found that practical exercises provide context to substantive material that can be somewhat dry and allow students to engage as “lawyers” rather than passive students. On the other hand, I do not believe that practical exercises alone are sufficient to teach Business Organizations.

Given the movement toward experiential learning (okay, and the pending release of the second edition of Experiencing Business Organizations), I wanted to share my experiences using practical exercises as part of a doctrinal course. I have found that students appreciate a connection to the real world and learn the material better when there are practical exercises. However, I typically have over 100 students in a course, and I recognize that it can be challenging to personalize an experiential component—let alone grade each exercise—in such a large class. To address this challenge, I divide the class into “firms” of four or five students and give them the types of assignments they might receive as associates working on a corporate matter in a law firm. I try to limit the responses to 2-3 pages, which I find is sufficient to make the exercise meaningful, but not excessively burdensome. (I also let each firm rotate a “point person” who has primary responsibility for completing the exercise.)

The assignments are intended to incorporate the most recent substantive material we cover in the course, while building some practical and strategic lawyering skills. There are a few students who balk at the extra work, but, by and large, most of my students find the exercises beneficial and appreciate experiencing how the issues we are covering in class might arise in practice. These exercises provide great opportunities for feedback both on the written assignment itself and in class when we review the exercises and give students an opportunity to present. While the team approach works well in larger classes, the exercises also work well individually.
I believe that a good course should include both theoretical and practical instruction. I use the materials in Experiencing Business Organizations to provide the opportunity to maintain the fundamentals of a traditional course while enhancing the learning experience with simulations. However, there are, of course, many approaches to including practical material in a doctrinal course. Whether you use a casebook that provides exercises, draw on your own experiences or gather material from local practitioners, you will find that including practical exercises is extremely useful and worthwhile, and students seem to feel that they are getting a good mix of practical experience skills along with the substantive subject matter.

Sponsored Post: Promoting active learning

The following post is by Ellen Murphy, Assistant Dean for Instructional Technologies and Design at Wake Forest University School of Law. She can be reached at [email protected].

As an instructional designer and law professor, one of the most frequent questions I am asked about teaching law today is “what can I do to help my students become active instead of passive learners?”Now, these are not necessarily the words my friends and colleagues use; instead, they say things like:“how do I keep my students attention;” “how do I engage my students;” or if they’re reading teaching and learning blogs, “how do I flip my classroom?” But they’re saying the same thing: how do I get my students to engage with the material – and with one another – during class

And I tell them this: creating an active learning environment does not require abandoning that which we know works and with which you likely are comfortable: the case method. In fact, an optimal way to incorporate active learning, as well as practical, real‐world skills, is to create in‐class exercises based on the primary cases that drive your course. In much the same way our best exam questions and
hypotheticals frequently come from actual cases, so do the best active learning exercises. For example, I teach Professional Responsibility. When I teach the famous Buried Bodies case, I have my students draft a release of the attorney‐client privilege (which would have resulted in a very different outcome for Attorneys Belge and Armani!). When I teach the recent Sheppard Mullin case involving the waiver of future conflicts of interest, I have students role play obtaining “informed” consent from a client. When I teach the disciplinary decision of Duke Lacrosse prosecutor Mike Nifong, I have students prepare a media policy for a prosecutor’s office. I spend very little time lecturing, and my students are engaged (and certainly not passive), while simultaneously developing a range of lawyering and professionalism skills.

For our new book, Legal Ethics for the Real World: Building Skills Through Case Study, my co‐author Renee Knake and I developed a set of seven case studies just for this purpose – creating an active learning classroom for a course that many students don’t want to take, and some professors don’t want to teach. Each case study combines critical thinking with practical skills based on real‐world ethical dilemmas. We cover the most pressing issues in modern legal ethics, including social media use, lawyer substance abuse and wellbeing, client confidentiality, wrongful convictions, advance conflicts waivers, prosecutorial discretion, and advertising with new media. These exercises serve as a model for all subjects and courses in the law school curriculum in how to promote active learning, while giving students practical skills experience – without reinventing the wheel.

Sponsored Post: How to teach international law

The following post is by Jens David Ohlin, Vice Dean and Professor of Law at Cornell Law School. It is sponsored by West Academic.

There are multiple approaches to teaching international law. One option is to stick with the doctrine and get students to nail down the basics. While certainly pedagogically sound, this approach can be dull and uninspiring. A second option is to build the course (or its casebook) entirely around a series of problem cases: situations where international law either resolved, or failed to resolve, a particular international controversy. This second option often resolves the problem of being dull, though the success or failure of each problem case depends on the degree to which the problem case catches fire with the students.

Some of the problem cases might strike the students as antiquated; events that occurred during the lifetime of the professor might as well be ancient history from the perspective of the student, who doesn’t care whether the events occurred in 1985 or 1945—both happened before their time. Furthermore, teaching the doctrine exclusively through the problem case raises a reoccurring problem with the students. After working through the material, the students worry that they’ve only learned the necessary material required to analyze a particular problem case, which was arbitrarily selected, and they worry that they lack a general background knowledge of the subject matter for that chapter. Or they can’t tell which norms they learned are generalizable to other contexts and which ones only apply to the problem case. This sparks anxiety and uncertainty.

The obvious response to these problems is to skip any problem cases that miss the mark or fail to resonate with the students. But if the problem case is interwoven with the presentation of the doctrine in the chapter, the professor doesn’t have the option of skipping the problem case; it is woven into the very DNA of the chapter. What to do?

In my own humble way, I’ve tried to find a third way in my own casebook, International Law: Evolving Doctrine and Practice. The casebook is designed with flexibility as its goal. Doctrine is presented with a clear and crisp formulation, followed by cases and other materials that show an application of the doctrine. Then, to add flavor to the materials, my casebook includes short, modular problem cases that are less than a page in length—just long enough to give students a chance to apply the doctrine to another set of facts, but short enough that the problem case can be skipped entirely without any loss of coherence to the chapter’s presentation of materials. In so doing, I’ve tried to craft a third way in between the two approaches discussed above. This third way avoids the dullness of a doctrine-heavy, treatise-like casebook, while at the same time, it avoids the problems of generalizability that problem-oriented casebooks sometimes suffer.

Of course, not everyone teaches international law in the same way, and a diversity of approaches is a good thing. But like goldilocks, the result I hope is something that is “just right”: enough doctrine for those who want to focus on the case law, rules, treaties, and custom, and enough examples and problem cases so that students appreciate that international law is called upon to resolve the most pressing and urgent global problems of yesterday, today, and tomorrow.

Sponsored Post: The New Sheriff in Town Threatens to Crack Down on Cannabis

The following post is by Mark V. Osbeck (Clinical Professor of Law at the University of Michigan Law School and is coauthor of Marijuana Law in a Nutshell (West Academic Publishing 2017)) and sponsored by West Academic.

No one has ever accused Attorney General Jeff Sessions of being a friend of the cannabis industry. Even so, his announcement on January 4th that the Justice Department was retracting the Obama Administration’s so-called Cole Memo came as a surprise to many of us. And it certainly came as unwelcome news to the cannabis industry in legalization states.

The new “Sessions Memo” threatens to reverse the Obama Administration’s hands-off policy toward the states, whereby the Administration had effectively assured actors in the cannabis industry that they would not face federal prosecution so long as they complied with state law and met the 8 policy priorities that were set out in the Cole Memo. (Those priorities included such things as preventing the distribution of marijuana to minors, preventing its diversion to non-legalization states, preventing drugged driving, etc.) In place of those assurances, the Justice Department has now instituted a policy that stresses the illegal nature of cannabis possession and distribution under federal law but leaves enforcement decisions to the discretion of individual United States Attorneys.

The net effect of this change is to create considerable uncertainty among industry actors as to what they can expect in terms of a possible federal crackdown, and to leave open the very real prospect of patchwork federal enforcement across the legalization states. The latter seems particularly problematic in states such as California that have more than one federal judicial district; in these states, similarly situated industry actors located in different parts of the state (e.g., Los Angeles versus San Francisco) may be subject to radically disparate treatment.

Thus far, the various U.S. Attorneys in legalization states have been fairly non-committal about their intentions, although some have signaled a less aggressive approach than others. The U.S. Attorneys in Colorado and the Western District of Washington, for example, have indicated that they intend to continue enforcing the Controlled Substances Act in the same manner they did under the Obama Administration: focusing enforcement efforts on marijuana-related crimes that threaten public safety. But other U.S. Attorneys, such as Andrew Lelling of Massachusetts, have created fear in the cannabis industry by refusing to provide assurances that industry actors will be spared from federal prosecution. It seems likely that if different U.S. Attorneys do start enforcing the Controlled Substances Act in disparate ways, this will lead to an increased sense of urgency among cannabis-friendly members of Congress to find a legislative fix at the federal level to ensure uniform federal treatment.

Stay tuned; this could get interesting!

Sponsored Post: Evidence in Practice

The following post is by Deborah Jones Merritt & Ric Simmons (both of The Ohio State University-Moritz College of Law) and is sponsored by West Academic.

Law professors try to generate active, rather than passive, knowledge in students. We want our students to do more than simply recite legal rules—or even choose the correct answer to a multiple choice question. To work effectively as lawyers, our students must be able to seize relevant facts from an unfolding situation, recognize the legal implications of those facts, and craft solutions.

Classroom hypotheticals, writing exercises, and problem sets help develop active knowledge, but we wanted to go further for our Evidence students. The fourth edition of our book, Learning Evidence: From the Federal Rules to the Courtroom (West Academic Publishing), will include seven online courtroom interactives to aid active learning.

Students will play the role of a courtroom lawyer or judge in each interactive, raising or ruling on objections to testimony that they hear in real time. Five of the interactives focus on subsets of rules (such as character evidence or hearsay); the other two are meant for semester-end review and combine rules from all parts of the course.

Students playing these interactives must know when not to object, as well as when to object. They lose points when they object to admissible evidence, mirroring the impatience that a judge might demonstrate in the courtroom. They also lose points when they fail to object to inadmissible evidence. To gain points, students must object at the proper time and cite appropriate grounds for their objection. The interactives require students to type in the rule number or common designation (“irrelevant,” “leading,” “hearsay”) to support their objection; they must recall that ground on their own, not choose it from a list of possible objections.

The interactives offer continuous feedback, sustaining proper objections and explaining the flaws in improper ones. Students may play as many times as they wish, trying different grounds for their objections. When they are done, they can view and print a full transcript of the trial scene, which explains both proper and improper objections.

We have tested the interactives with current students, who uniformly offer two reactions: “This is fun!” And, “this is hard!” We hoped for both of those reactions. Objecting to inadmissible evidence in real time, while listening to courtroom dialogue, is hard. It is much more difficult than spotting issues in a multiple-choice question or on an essay exam. But this is what actual attorneys have to do during a trial. We believe that if students can master these interactives, they will increase their ability to analyze evidence issues in other settings. The “fun” part of the simulated trial experience, meanwhile, will keep them working.

The interactives, labeled “Evidence in Practice,” will be available to all students who purchase our Learning Evidence book. We will also provide information for both professors and students about how to use these interactives most effectively. These are learning tools, not graded quizzes. Most students will struggle to gain points the first time they play an interactive. But if they replay several times, and then study the trial transcript available at the end of the exercise, they will learn evidentiary concepts more deeply.

Going forward, we hope to create more interactive exercises of different types. Some exercises might put a student in the middle of a settlement discussion; others might embody a brainstorming session among lawyers preparing for trial. Students will learn to apply evidentiary rules in diverse settings.

We intend these interactives to complement—not replace—classroom discussions, live simulations, and writing exercises. All of those experiences foster active learning. But by providing additional opportunities for practice and feedback, we hope our “Evidence in Practice” series will enhance outcomes for students.

Sponsored Post: Practicing Environmental Law

The following post is by Todd Aagaard, Vice Dean & Professor of Law at Villanova; David Owen, Professor of Law at UC Hastings; and Justin Pidot, Associate Professor at University of Denver, and is sponsored by West Academic.

A month or so into a typical environmental law course, something bad can happen. Students encounter the Clean Air Act. Statutory interpretation can be tough in any circumstance, but the Clean Air Act is a particularly daunting beast, with hundreds of partially overlapping and somewhat intertwined provisions and no simple organizing principles or themes. Many students approach environmental law with the notion that the subject matter is going to be inspiring and fun. Now, instead, they are slogging through statutory provisions that seem, in Justice Rehnquist’s memorable words, to “swim before one’s eyes.

After that initial shock, things don’t get much easier. The authors of the Clean Water Act, CERCLA, and RCRA accomplished many wonderful things, but they won no prizes for the accessibility of their prose. The appellate court decisions interpreting those provisions often aren’t much better. And reading those decisions offers only a glimpse into the world of environmental lawyers, who often rely more heavily on guidance documents and administrative decisions than the rulings of judges. By the end of the semester, more than a few students are wondering if environmental law is really what they want to do.

As law students, each of the three of us had this experience. But we still practiced environmental law, and it was intellectually engaging and inspiring and even sometimes fun. So, when we became professors, we wondered how we might bring the excitement of environmental law practice into environmental law pedagogy.

A new casebook, Practicing Environmental Law, published by Foundation Press®, is our response to that dilemma. Our basic premise is that the way to make students’ learning experiences more enjoyable— and deeper and more lasting—is to bring environmental law practice into the classroom. We did that by building the book around a series of case studies. Over the course of the semester, students will advise a community group on an environmental justice advocacy strategy, help clients determine whether they have standing to bring an environmental case, negotiate a RCRA enforcement settlement and a regional- scale habitat conservation plan, design a litigation strategy to address changes to air quality standards, and testify at a hearing on water pollution reduction—among many other exercises. As this list implies, applying law to new facts, doing some teamwork, and engaging in oral and (if the professor chooses) written advocacy all will be part of an environmental law course taught out of our book. And the range of materials goes well beyond the federal appellate decisions that dominate a typical casebook.

So, will it work? We, the three authors, have each taught much of the book several times in our own classes, and students really appreciate the new format. And if you’re interested in reviews from professors who didn’t actually write the book, we’d be happy to put you in touch with one of the many professors who is testing the book out this semester.

Sponsored Post: Changes in Administrative Law

The following post is by Todd Rakoff, Byrne Professor of Administrative Law at Harvard, and Gillian Metzger, Stanley H. Fuld Professor of Law at Columbia, and is sponsored by West Academic.

Administrative law has risen from being a domain of the cognoscenti to the subject of daily headlines. Conservative complaints about the Obama administration’s exercise of executive power—and the corresponding liberal complaints about the Trump administration’s exercise—have become the stuff of ordinary debate. For us, involved for the last year in revising Gellhorn and Byse’s Administrative Law for its soon to be published 12th edition (along with our co-authors Peter Strauss, Anne Joseph O’Connell, and David Barron), this ferment has been both problem and opportunity.

On the one hand, we have had to revise—or at least check for change—much more of the book than the mere passage of a few years since the last edition might suggest; and we have had in many instances to signal the possibility, but not yet the accomplishment, of yet more fundamental change. We have a new Supreme Court Justice, and he has in the past expressed definite, and negative, views of the Chevron doctrine. How will his views combine with the trend many scholars have already noted for the Court to downplay Chevron? We have bills pending in Congress that would, if passed, revise much of the rulemaking process used for major regulations. Do we portray the present notice-and-comment process simply as still dominant? As being challenged? As likely to survive? Even without new legislation, what do we say about the two-for-one Executive Order? And in our new chapter on statutory interpretation, included so that the book can be used for “Legislation and Regulation” courses, how do we handle what is now Scalia’s legacy?

On the other hand, the ferment in the field, and its headliner status, has allowed us to reach students where they live. This is true in the particular: we can include materials that allow for the discussion of current issues such as the procedural posture of the DACA program, or the constitutionality of the government’s decreeing its no-fly lists. And it is true in the general, too: if there is one thing the experience of the last few years has shown, it is the need for, and value of, principles of governmental behavior that apply across the inevitable change of political regimes. And that, of course, is the fundamental domain of administrative law.

Sponsored Post: A critical foundation for the change agents of tomorrow: Teaching today’s law students the business of law

The following is by Katrina Lee, Associate Clinical Professor at The Ohio State University Moritz College of Law, and author of The Legal Career: Knowing the Business, Thriving in Practice (West Academic 2017). This post is sponsored by West Academic

I teach a business of law course at The Ohio State University Moritz College of Law. Some assume that I teach the business of law because I want to help students get jobs at law firms and make partner. I hope that my course benefits those students aspiring to succeed at law firms, and I’ve been told that it does serve that purpose.

But, I have another, complementary, goal for my business of law course, and for the business of law coursebook that I recently wrote. I want to help prepare law students to be change agents in the world of legal.

After all, much progress remains to be made. Access to justice has yet to be achieved, by a longshot. Low-income people in the U.S. receive inadequate or no legal help at all for 86% of their civil legal needs. The legal profession has made some strides in diversity, but much unfinished work will be left to the next generation of attorneys. Just 2.6% of law firm partners are minority women. Only 8.05% of partners in major law firms are minorities. 36% of lawyers in the U.S. are women. The legal profession must urgently address issues of lawyer well-being. The National Task Force on Lawyer Well-Being’s recent report, referencing two studies, described a profession in crisis, “To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being. The two studies referenced above reveal that too many lawyers and law students experience chronic stress and high rates of depression and substance use. These findings are incompatible with a sustainable legal profession, and they raise troubling implications for many lawyers’ basic competence.”

Law students will be in a better position to make change, inside and out of law firms and legal departments, if they have learned about topics like legal innovation and technology trends; efforts to apply design thinking to law; the consequences of the billable hour; attorney compensation trends and models; the competitive landscape of legal service providers; the Legal Services Act in the U.K.; and lawyer wellness issues. They require a foundation in the business of law—including an understanding of how the legal profession has historically and traditionally functioned, and the reasons why—to be able to create, experiment, and innovate in a way that truly advances the legal profession.

In that spirit, the coursebook that I recently wrote, The Legal Career: Knowing the Business, Thriving in Practice, includes reflection questions and activities designed to encourage law students to explore further and to share ideas. It includes interviews with a broad range of legal industry professionals, including the general counsel of an international company; the senior director of knowledge management at a Biglaw firm; a legal innovator who founded a pioneering legal process outsourcing company; and a legal tech startup CEO and co-founder.

In my experience, law students embrace the opportunity to learn about the connection between the business of law, and what they, future lawyers, want the legal profession to be, to look like, and to accomplish.

Today’s law students may be our best chance at changing legal for the better. Let’s give them the business-of-law foundation they need to achieve progress.

 

Sponsored Post: Critical Reading Instruction for Law School Success

The following post is by Jane Bloom Grise, Director of Academic Enhancement and Assistant Professor of Legal Writing at University of Kentucky College of Law, and is sponsored by West Academic.

Scott Turow, the best-selling author of One L, compared reading cases to “stirring concrete with my eyelashes.” Students report getting lost in cases and feeling like “idiots” when they read cases. While reading cases may be difficult for students and even practitioners, critical reading skills are important for success in law school and legal practice. Furthermore, empirical research shows that top law students consistently use different reading strategies than lower performing students.

However, there are two pieces of good news for law professors and law students. First, it is possible to identify the reading strategies of high performing legal readers. While expert legal readers read cases to solve client problems, novices often just memorize case information. While experts read headings and summaries in order to understand the subject of a case before even beginning to read a case, novices start reading without any information about the case topic. Experts understand that cases are structured in predictable ways, while novices sometimes assume that every case is organized differently. Experts understand the significance of procedural references in cases while novices tend to ignore these terms because they simply have not been introduced to procedural concepts.

Experts carefully examine the facts while novices may assume that the facts are not important and not even read them. Experts vary their reading speed while novices read everything at the same pace. Experts look up new terms while novices may skip over unfamiliar words. While experts understand that cases can be interpreted in different ways, novices often look for the “correct” interpretation. Finally, experts master important skills such as analogical reasoning, case evaluation and case synthesis. Experts also use many of these same skills when they read statutes. They read statutes in relationship to other statutes, examine definitional sections, and understand basic principles of statutory construction.

The second piece of good news is that all students can learn the strategies of high performing law students and become effective legal readers. After teaching legal writing for fifteen years, I decided to explore whether critical reading instruction could impact legal writing performance. It appeared that some writing problems were impacted by students’ failure to comprehend the underlying cases they were reading. In 2014, as the recipient of a Lexis/ALWD/LWI Scholarship Grant, I created a reading curriculum tailored to law students and conducted an empirical experiment. Could critical reading instruction improve students’ legal writing? In fact, I found that critical reading instruction did positively impact student writing. Critical Reading for Success in Law School and Beyond is the culmination of this research. It introduces students and new lawyers to the critical reading strategies used by expert legal readers to solve legal problems and represent clients.

Critical reading instruction is an important part of any orientation program, doctrinal course, legal writing course, or bar prep course. It is not enough to orient students with an hour of instruction on reading cases and expect students to master the strategies and information needed to read critically. A systematic approach is needed so that students are equipped to read like the legal experts. While we often feel that we do not have time to teach skills and strategies, it is clear that students may struggle if they have not been exposed to important background information about cases such as the purpose for reading cases, the structure of cases, and procedure. Furthermore, students will attain higher levels of comprehension if they master strategies for analyzing language in cases as well as basic concepts such as analogical reasoning and case synthesis. Critical Reading for Success in Law School and Beyond is designed to introduce these concepts in a systematic manner so that all students can become expert legal readers. If we incorporate critical reading instruction into courses, student learning will be enhanced and students will be more prepared to meet the rigors of law school and the practice of law.

Sponsored Post: Network Inequality: When No One Knows Our Students

The following is by Desiree Jaeger-Fine, Esq. (principal of Jaeger-Fine Consulting, LLC and author of A Short & Happy Guide to Networking (West Academic Publishing) and is sponsored by West Academic.

When we talk about inequality, we usually talk about inequalities that arise from race or gender. But there is another inequality, an inequality which directly affects many minority and socioeconomically disadvantaged students. The way we build and grow social and professional networks amplifies and exacerbates existing inequities in society. It is an inequality that emerges not because of who we are, but because of who we are not connected with. One’s chances of finding a job as a law graduate can have as much to do with the friends of our friends and family as with our skillset. Network inequality, an often-overlooked disadvantage, creates and reinforces inequality of opportunity. What can and should law schools do about it?

We pass along the importance of networking to our students at every opportunity. But law schools often fail to recognize network inequality and how it affects the students. We repeat platitudes such as “join bar associations, go to events, have an elevator pitch, create a personal brand, have business cards, and conduct informational interviews.” If law students don’t act on our advice we blame them for their lack of social capital and initiative. “If the students only bothered to network, they would be in a better place.” We blame the victim for the problem. But is our advice always helpful? Does it acknowledge network inequality? Does it remedy or reinforce it?

By advising students in this way, we reinforce the importance of networking to those who have already gained substantial exposure to networking from their family and their organizational ties – their college, high school, neighborhood, sports teams, religious affiliations, just to name a few. Those students who do not begin law school with such a backbone of social capital and who have never been culturally exposed to networking will not likely act upon our advice. They can’t. And we reinforce pre-existing inequalities by priming those students who are already supported by a solid network without supporting those who do not. Is it appropriate, then, to place network responsibility solely on the student? Should law schools play a more prominent role in helping students recognize and overcome network inequality? In light of network inequality, we must not be content with demonstrating that social ties are important and offering cookie-cutter advice.
Mario Luis Small, author of Unanticipated Gains: Origins of Network Inequality in Everyday Life, emphasizes the responsibility of organizations and argues that

people’s social capital depends fundamentally on the organizations in which they participate routinely, and that, through multiple mechanisms, organizations can create and reproduce network advantages in ways their members may not expect . . ..

This is precisely why we encourage law students to join and become active in bar associations. But understanding law students’ connections, and how much their status may generate social inequalities, requires taking a hard look at their most prominent organization – their law school. It is not enough to tell our students how important networking is and then leave the responsibility solely with them – especially in situations in which networking inequality places some at such a serious disadvantage.

Law schools are a place not merely to learn skills but also to make and facilitate connections. The magnitude of a law student’s social capital advantage depends on the condition of her law school and how effectively her school can mobilize its connections to her advantage. A law student’s ability to build a network, especially if that student enters with network inequality, is strongly influenced by her law school, which, intentionally or unintentionally, might either dramatically increase or diminish that disparity. The condition of the law school along with its willingness to reduce network inequality will also determine whether students form ties to other organizations. Law schools maintain ties to many organizations and offer many types of resources that, if managed appropriately, can directly benefit the student.

While relationships are built through direct interactions between humans, a law school can and should facilitate such opportunities for its students. We cannot ignore network inequality if we want to remedy existing inequities in society. Network inequality reinforces such divisions. For many students, social capital will depend in large measure on how the law school structures student interactions with others and to what extent it offers a platform for social interactions in professional settings. For minority students and socioeconomically challenged students, new social ties are not merely made in law school, but in many ways by it.

My new book, A Short & Happy Guide to Networking, attempts to help law students better understand networking by eliminating the hoopla the popular press and others have created around a behavior that is as old as our society. The term networking is an invention—building relationships is deeply human. This book cuts through the clutter and outlines how everyone can build relationships in a way that is not only comfortable but enjoyable. No ploys or stunts, no templates or arbitrary rules. The more students and those who guide them understand the essence of networking, the more effective our efforts will be.

Sponsored Post: Contract Interpretation (in the Real World)

The following post is by Lawrence Cunningham (George Washington) and former GuestPrawf Miriam A. Cherry (SLU), and is sponsored by West Academic.

Recently a couple of fun and whimsical cases about legal interpretation have appeared in the headlines. The first case, O’Connor v. Oakhurst Dairy, involved a Maine statute that exempted certain groups of workers from eligibility for overtime wages. The dispute ultimately centered on a missing oxford comma in the statute. The end result was that the transportation workers were able to collect $10 million in overtime wages, so unlike the perception of grammar questions as insignificant matters, this one certainly had a real-world impact.

The second case involved a familiar piece of kitsch, the snuggie, which its marketers advertised as a “blanket with sleeves.” An article from Bloomberg News describes the case, and the case itself, Allstar Marketing v. U.S., can be found here. The tax code provided for a lower rate for imported blankets than it did for clothes; the dispute centered on whether to classify the snuggie as a blanket or clothing. Back in 2009, when the snuggie first came out, a reporter tried wearing a snuggie outside, in public; the reporter received strange looks from children and kept tripping over the snuggie. The court ultimately agreed with the reporter’s anecdotal assessment, noting that the snuggie seemed mostly to be for indoor use. The court noted that the snuggie had no snaps or clasps, as one might expect from clothing. Ultimately the court applied the lower tariff rate applicable to blankets.

While these two headline cases deal with interpretation questions in statutes or codes, many of the same questions and issues present themselves in contracts. We are delighted to announce that we have signed a contract with West Academic Publishing for our forthcoming casebook, Contracts in the Real World, which we expect to be available for adoption staring in Fall 2018. Our casebook features contemporary cases, ripped from the headlines, juxtaposed with the canonical cases establishing or classically used to illustrate fundamental principles. So in addition to the familiar discussion of interpretation in the “what is chicken” case that many of us read in law school, we have also included the more recent issue of whether a burrito is a sandwich.

We also discuss what happens when the parties sign a contract and then technology changes rapidly. This is exactly what happened to controversial rapper Eminem, who signed a long-term contract in 1995 that provided different royalty rates for “records sold” versus “masters licensed,” but which never set out royalty rates for digital downloads of music or cellphone ringtones. Eminem successfully argued that the wording of the language of the contract allowed him to recover under the higher royalty rate. As with the overtime case, the language and grammar used mattered to the court.

Recent cases spark student interest. In our experience, students enjoy the more contemporary vibe, with hypos about everything from Uber’s surge pricing (and whether it causes economic duress), to cases about the recent housing crisis (and the doctrine of unconscionability), to the augmented reality game PokemonGo.

Our casebook’s rich provenance may be familiar to some of you. It emerged from Larry’s Cambridge University Press book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter, which was featured in a Concurring Opinions Symposium online as well as a symposium in the print version of the Washington Law Review. In preparing those materials, our background research examined all of the leading Contracts casebooks to assure that all of the canonical cases and doctrines appear, while assuring contemporary illustrations and treatments.

We are circulating the manuscript for a final test run to select colleagues—let us know if you want to volunteer – but in the meantime, what is your favorite interpretation question (contract or otherwise)? Even though a court has ruled that a snuggie is a blanket, lingering questions still remain. What do you think: Is a burrito a sandwich?

Sponsored Post: The weekend MPRE

The following post is by Leah Christensen (Thomas Jefferson) and is sponsored by West Academic.

Have your students been asking you about the MPRE lately? It’s offered just a few times a year—and it’s just around the corner on March 18th.

“Hey Professor, what materials do you recommend to prepare for the MPRE—and oh by the way, it’s only two weeks away!” I have heard that question so many times over the years that I finally took the time to develop a program that would meet students’ needs for a content-rich MPRE study program that is both concise and efficient.

I developed The Weekend MPRE: Complete Preparation for the MPRE in Only A Weekend’s Time (Print & Video Bundle) knowing that students usually don’t begin to study for the MPRE until a couple of weeks before the exam. I’ve taught Professional Responsibility (PR) for years—but I realized that the MPRE exam requires very different study materials than a traditional PR course. The MPRE’s exam questions are specialized and very different than typical PR multiple-choice questions. You can’t simply rely upon your “gut” reaction to answer MPRE questions correctly. That’s why very smart law students fail the MPRE every year!

There are other MPRE programs out there—usually associated with bar programs. The content of these programs is good, but the materials never go far enough to truly prepare students for the MPRE.

The Weekend MPRE offers short lectures on each of the key subjects tested by the MPRE, quizzes, outlines and two full, simulated MPRE exams (with answer explanations). I wanted the program to be a “one-stop shop” for busy law students who wanted all the materials they needed to prepare for the MPRE in one place.

The materials are grounded in learning theory—using 20 minute lectures with a full study plan so that students can truly prepare in one weekend.

And because I teach PR, I developed this course to work in conjunction with any PR course as well.

So when your students ask: “What should I do to prepare for the MPRE?” Have them check out The Weekend MPRE which I developed for the busy law student (or law school professor). I wanted the program to maximize law student success so students only have to take the MPRE one time!

Sponsored Post: Real Property for the Real World: Experiential Education Made Easy

The following post is by Heather K. Way (Texas), Lucille D. Wood (Texas), and Tanya Marsh (Wake Forest) and is sponsored by West Academic.

Have you been thinking lately about bringing experiential education opportunities into your classroom? Not sure about how much or how little you can do with the 1Ls?

Your timing really couldn’t be better. Students are clamoring for more “experiential education,” and new “skills-building” curricular requirements abound. We are three practicing attorneys who really enjoy teaching property concepts through our casework. In our new book, Real Property for the Real World, we have drawn from our practice experiences to share with you eight accessible and interesting case studies that will engage your 1Ls in property law—their new favorite first-year subject.

This book has its origins in our desire to teach our cases, because the cases deal with contemporary “hot button” issues that we care about, and because we have found that students care about these issues too. Two of us have legal aid backgrounds and have worked intensively in low-income communities. One of us is now a tenured doctrinal property law prof. We wanted to bring the excitement students often have in clinical settings into the very first semester of law school. To do that, we set out to introduce students to property through complicated situations in which our former clients’ homes and livelihoods were on the line. We think these kinds of cases allow 1Ls to see quickly how property law is never boring.

In short, Real Property for the Real World is a one-stop experiential ed shop for property law professors where you can get what you need to bring in skills-building while reinforcing property doctrine through low-dose or high-impact experiences, right down to detailed tables that show the number of minutes in prep and class time you should expect to use for each case study.

Sponsore Post: West Study Aids

The following post is by Anna Lawless-Collins, Associate Director for Systems and Collection Services at Boston University Law School, and is sponsored by West Academic.

The Fineman and Pappas Law Libraries at Boston University added the West Academic Study Aids Subscription in April 2016, just in time to help with end-of-year exams, and it was an immediate hit with our students. We went on a marketing blitz (aided by materials sent by West Academic) and set out table tents, posted flyers, added slides to the law school's slide show, blogged about it, and handed out materials at the circulation desk. We even wore buttons encouraging students to ask us about using the materials. Students told our library director, Ron Wheeler, that they find the online versions infinitely better than the print reserve materials - not least because they can use them anytime and anywhere. They don't have to worry about other students returning the materials late or the print versions going missing.

From the implementation end, we worked with the West Academic team to set up school branding on the page. Now, when students visit the page, it's clear that the library is providing access to the study aids. It also includes a "Most Popular at Your School" module that pulls real-time usage reports from our school. That, plus the "Recent Releases" module, shows students new and important content their peers are accessing. We are also using the free MARC record collection from OCLC to ensure discoverability in our catalog. We have had to do some tweaking to the records to make sure they are complete and to get the records to FRBRize with our print holdings, but that work is minimal when compared to the number of records we are adding with the monthly updates.

The platform initially was only accessible from the Westlaw home page, but recently moved to an independent platform with IP access. This allows students to browse the titles as a guest, but they still have the option to create their own account and sign in to their own account within the platform. If they do that, they can take notes, highlight passages, and keep track of important information in their own accounts. Students have told our Head of Access Services that this platform is the easiest to use of all our eBook platforms. The usability, good content, and new features being added (like audio lectures) has led to high usage. For Fall 2016, we saw our usage rise steadily over the semester, reaching a high of well over two thousand document views for the exam period in December.

The statistics themselves are very useful. We can see breakdowns by month, guest users by IP authentication, and unique visitors by month. We also get breakdowns showing which series are being used and how frequently, number of global searches, the top search terms, searches within books, and the top ten books searched. This gives us a good idea of what our students are looking for help with and we can use that to help guide our collections decisions in other areas.

The Study Aids Subscription from West Academic has been a great investment for us. It's helped our students access materials more easily during stressful times, it's eased the burden on our print reserves collection, and it's created an enormous amount of goodwill for the library.

Sponsored Post: Learning Criminal Procedure

The following post is by Ric Simmons (The Ohio State University Moritz College of Law) and Renee M. Hutchins (University of Maryland Carey School of Law) and is sponsored by West Academic.

The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law.  The goal of complete practice-readiness might be something of a tall order.  True competence in even one area of the law may take five or even ten years to develop.  We have our students for just three.  But, there is certainly much more we can be doing to make our students what we will call “practice-primed.”  There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers.  There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum.  This is a large part of the reason we came together to write the Learning Criminal Procedure.

And, so many former students report back that they are using the book precisely as we intended:  First, as a learning tool to expose them to criminal procedure doctrine.  And, then as a desk reference to help them navigate the early years of practice as defense attorneys or prosecutors.

As a learning tool, Learning Criminal Procedure eschews the traditional method of law school teaching, which asks students to read cases and then derive the law by parsing through the court’s decisions.  Instead, the book presents the applicable legal rule to the students in the very first section of each chapter. The next section uses case summaries to explore the scope and policy behind the rule. The book takes this approach because it frees up class time for you and your students—instead of guiding them through the cases to eventually arrive at the rule, you can start with the rule and then use the text in class to engage students with the doctrine in the many ways students will see the doctrine deployed in practice.  For example, when teaching students about Terry’s stop-and-frisk doctrine, you might first work through each of the review problems that we present at the end of each chapter, allowing students to immediately apply the knowledge they have learned and use the law as a practitioner would.  After you have a sense that students have a preliminary grasp on the material, you can then do a deeper dive.  For example, you might explore one of the simulations mapped out in the Teacher’s Manual and require your students to use their newly acquired knowledge in the dynamic environment of role play.

As a desk reference, your students can use the book to refresh their knowledge and inform their thinking after they have moved out into practice.  The book’s clear organization and direct approach to presenting the law make it easy for new lawyers to refer back to the book when they have a specific legal question.  Indeed, former students routinely report back that the book has been essential to them as they bridge the gap between law school and the early years of practice.  Just the other day, a former student reported that his first draft of a response to a suppression motion had been adopted with few changes by the supervising attorney at the state prosecutor’s office.  “Your book was essential to that draft,” the student said.  Mission accomplished.

Fifty Years of Criminal Procedure – the Subject and the Casebook

The following guest post comes from regular reader and commenter Orin Kerr (GW and The Volokh Conspiracy) and is sponsored by West Academic.

Fifty years ago, in 1965, a young professor named Yale Kamisar paired with a more established professor named Livingston Hall to publish a new casebook that introduced a new academic field. That casebook, Modern Criminal Procedure, was the first casebook about a then-new field of criminal procedure. When the first edition was published, the Warren Court was in the midst of its so-called “criminal procedure revolution.” Mapp v. Ohio was four years old, and Gideon v. Wainright was two. Massiah v. United States and Escobedo v. Illinois were hot off the presses (literally). Miranda v. Arizona would follow the next year, with Katz v. United States the year after that and Terry v. Ohio the year after that.

The many editions of the Kamisar casebook have traced and influenced the Supreme Court’s development of the field ever since.

This summer marks the publication of the 14th Edition of the Kamisar casebook. Kamisar remains an active author, as are Wayne LaFave and Jerold Israel, both of whom joined the casebook in 1969 for the 3rd edition. More recently, three new co-authors, Nancy King, Eve Brensike Primus and I have joined the book. In the new 14th Edition, the authors made extra efforts to make the book more user friendly while retaining its comprehensive coverage. The new book has slimmed down a bit, and the authors have added an online teacher’s manual.

Both Yale Kamisar and Jerold Israel will be discussing their work on the casebook, and the evolution of the field of criminal procedure more broadly, at the upcoming Southeastern Association of Law Schools conference, July 27 – August 2 in Boca Raton, FL. Here’s the panel description for those interested:

Teaching Criminal Procedure: Fifty Years of Experience Courses in Criminal Procedure have now been taught at U.S. law schools for half-a-century. Over that time, the nature of these courses has changed and evolved. The speakers on this panel, some of whom have taught Criminal Procedure from the beginning, will discuss how the course has grown and evolved over the decades.

Moderator: Professor Stephen Singer, Loyola University New Orleans College of Law

Speakers: Professor John Burkoff, University of Pittsburgh School of Law; Professor Steven Friedland, Elon University School of Law; Professor Jancy Hoeffel, Tulane University Law School; Professor Jerold Israel, University of Michigan Law School, University of Florida, Levin College of Law; Professor Yale Kamisar, University of San Diego School of Law, University of Michigan Law School; Professor Ellen Podgor, Stetson University College of Law

The Professor’s Role: Helping Law Students Put Legal Knowledge into Practice.

The following post is sponsored by West Academic. Grover E. Cleveland is a Seattle lawyer, speaker and author of Swimming Lessons for Baby Sharks: The Essential Guide to Thriving as a New Lawyer (West Academic Publishing, 2010). He is a former partner at Foster Pepper PLLC, one of the Northwest’s larger firms. His clients included the Seattle Seahawks and other entities owned by Microsoft co-founder, Paul Allen. Grover is a frequent presenter on new lawyer career success at law schools and firms nationwide. Readers may connect with him on LinkedIn here or follow him on Twitter @Babysharklaw. He is not related to the 22^nd and 24^th President of the United States.

Law schools have been unfairly maligned in some circles for not providing enough practical skills training.

For decades, the unspoken pact between law firms and clients was that clients would pick up the tab for new lawyers’ on-the-job training. When the recession battered revenues, clients renounced the pact once and for all. Perhaps because the “pact” more closely resembled client acquiescence, even with the economy improving, clients have shown little interest in renewing the bargain.

Law schools, legal employers, and new graduates each have a role in practical training. But some critics instantly insisted that law schools had to pick up all the slack.

In the post-recession, “new normal,” law schools are now “expected to graduate laterals,” Graham Sherr, Assistant Dean for Career Services at Loyola Law School, Los Angeles, aptly noted.

Answering the call, many schools have dramatically expanded “real world” training opportunities. Students have also gotten the message, and these programs are now a differentiator for applicants when choosing schools.

All first-year Harvard Law School students take a Problem Solving Workshop that allows students to confront client problems. The workshop bridges the gap between academic study and practical lawyering. And Harvard Law’s Office of Career Services embraces technology, providing a plethora of on-demand career podcasts, said Yih-hsien Shen, Assistant Director and Director for J.D. Advising.

Drexel University, Thomas R. Kline School of Law provides many practical programs – and goes further. The school reimburses students for career resources, including books and webinars, according to Donna Gerson, Associate Dean for Career Strategies.

Professional development at the University of Tulsa College of Law begins before students ever enter the classroom during an intensive, four-day Foundations of Legal Study program. And all 2Ls begin the year with another full day of professionalism training. The Dean of the College of Law, Janet Levit, participates in Professionalism Day, highlighting its importance to students. The school also supplements and reinforces this intensive training with related programs throughout the year.

On the West Coast, the UC Berkeley School of Law has instituted a practical skills requirement. All students must take one of several professional skills courses, a legal clinic or a field placement in their second or third year. Berkeley uses Swimming Lessons for Baby Sharks as a text in one of its professional skills courses.

These are just a few of the creative ways schools promote practical learning. Professors play a key role in crafting an approach that is consistent with their own school’s culture.

Professors can support this work in many ways:

•          Engage the Career Services Office. The career services office is on the front lines of change in the legal profession and interacts with legal employers daily. The career office can suggest important ways to increase practical skills opportunities. The alumni office can also provide valuable input and may be able to garner funding from law firms.

•          Take Part in a Gaps Assessment. When assessing practical skills offerings, schools often discover that they provide more opportunities than they expected. Once the school has an inventory of all the ways that students can learn practical skills, the next step is to identify gaps.

•          Start Small and Build Support. How to fill gaps – and who should fill them – will depend on the school. Sandee W. Magliozzi, Associate Dean for Experiential Learning at Santa Clara University School of Law, recommends that schools start with modest goals and then “nibble, nibble, nibble.”

•          Incorporate Legal Problem Solving Into Courses. Professors can often find ways to incorporate problem-solving exercises into their existing classes. This provides students with yet another way to gain practical experience.

•          Encourage Students to Take Advantage of Professionalism Programs. Students have many demands on their time. They also may be skeptical of the value of “soft skills.” I often hear from recent graduates that they wish they had read Swimming Lessons for Baby Sharks before they made a mistake on the job. Other students have said the book helped them give more compelling interview answers because it helped them understand what legal employers’ value. Your endorsement tells students that professionalism programs are important. Legal employers will thank you.

•          Encourage Clear, Error-free Writing. Legal employers often lament that new graduates cannot write in a way that clients understand. Professors should emphasize the importance of succinct, direct, error-free prose. Drew Berry, the late Chairman of McCarter & English, LLP, told new hires that it is a lawyer’s job to force the reader’s mind to move forward through ideas and that a grammatical or typographical error “derails the train of thought.”

Law students’ most valuable experiences put them in the role of lawyer

The following post is from Paula Schaefer (Tennessee) and is sponsored by West Academic.

I spent the past three years chairing the review of the 1L curriculum at my law school, the University of Tennessee College of Law. As part of our committee’s research, we surveyed alumni about the law school classes and experiences that were most valuable to them in practice. Time and again, our alumni responded with stories about working in the law school’s clinics, writing briefs and making arguments in moot court competitions, and taking simulation-based classes like trial practice and legal writing.

As a civil procedure professor, I noted that no one listed “civil procedure” in response to our question about most valuable law school experiences. Even though many of their best experiences were litigation-related, civil procedure did not make the cut.  But it was not just civil procedure that was absent. Doctrinal classes were rarely listed in response to the survey.   

What is the difference between a traditional doctrinal class and the classes remembered (and used in practice) by our alums? The vast majority of “most valuable experiences” placed students in the role of lawyer. In those settings, students started acting like and feeling like lawyers. The experiences noted in response to the survey were transformative, and doctrinal classes generally did not fit the bill.

Integrating skills training into doctrinal classes – even first year classes - can provide students with a richer learning experience, akin to the experiences our alums found significant in practice. To place students in the role of lawyer, professors can develop their own materials or use one of the many books now on the market. In my Civil Procedure book in West Academic Publishing’s Developing Professional Skills series, students are asked to draft an answer based on information learned in a client interview, use Twombly and Iqbal to prepare an argument for dismissal of a counterclaim, negotiate the return of an inadvertently disclosed document, and address other simulated problems related to civil procedure. Self-assessment, peer feedback, and group discussion make it possible to complete these exercises in a large class.

These assignments do not displace the law, but provide students context to understand the law. In course evaluations, my students often note these mini-simulations as something that enhanced their learning in the class. Even if my students do not remember civil procedure as one of their most valuable law school experiences, I hope they will remember it as a course that helped them begin to understand the law and what it means to be a lawyer.

Multiple choice and formative assessment

The following is by Ben Spencer (Virginia) and is sponsored by West Academic.

The forthcoming ABA standards require law schools to pay better attention to how they assess student learning. Such assessment can not only measure student achievement after the conclusion of a unit or course (summative assessment), but can also be used as a tool to enhance the learning of the material throughout the course (formative assessment). Formative assessment permits students to determine their own level of understanding at a point when they can improve before the final exam and permits the instructor to discover areas of student weakness at a time when further training can still occur.

There are several effective ways to engage in formative assessment but the one I'd like to focus on here is multiple-choice questions. Multiple-choice questions do not have to be that different from essay or short-answer questions from a substantive perspective, meaning they too can present students with a hypothetical fact pattern and ask for legal analysis to reach a decision or outcome with respect to a given issue. However, the multiple-choice format offers several advantages over the traditional essay format, if properly constructed.

A. Coverage. Multiple-choice questions can permit assessment on a wider range of topics than essay questions.

B. Objectivity, Consistency, Reliability. Multiple-choice questions ensure standardized grading standards for all students and more reliability of results.

C. Granularity/Calibration. Multiple-choice questions allow the examiner to isolate specific skills or doctrinal understandings and test for student learning on those points precisely. The focus that a multiple-choice question provides makes it clear to the instructor what the particular areas of strength and weakness are across the topical areas covered by the course.

D. The Multi-State Bar Exam. The Multistate Bar Exam (MBE) is something each law student will have to take before they can practice law in the United States. This exam consists entirely of multiple-choice questions. Thus, using multiple-choice questions as part of one’s assessment approach will give students some practice handling those types of questions.

These benefits notwithstanding, multiple-choice questions are difficult to draft in meaningful quantities, something that may deter professors from using them. That's why I have drafted 200 multiple-choice questions in my field (civil procedure) that are available for faculty to use with their students as part of West Academic’s CasebookPlus™, a new digitally-enhanced casebook experience that provides students with support beyond classroom teaching and materials by offering additional digital resources to help them succeed in law school. Question sets for seven additional other law school subjects are available as well from West Academic for fall 2015 classes as part of the new CasebookPlus offering. Regardless of whether you use questions already curated by myself or others, or you decide to try your hand at drafting your own, adding this method of formative assessment is certain to result in enhanced learning from your students and will improve your ability to be more responsive to their learning needs along the way.

Experiencing practical education

The following guest post is by Michael Chasalow (USC Gould School of Law) and is sponsored by West Academic.

Given the new ABA guidelines (and the push by many State Bars) for experiential learning, I wanted to share my experiences using practical exercises as part of a doctrinal course.  For many years I have included practical exercises in my Business Organizations course.  I have found that students learn the material better and that they appreciate a connection to the real world.  I typically divide the class into “firms” of four or five students, and give them the types of assignments they might receive as associates working on a corporate matter in a law firm.  I try to limit the responses to 2-3 pages, which I find is sufficient to make the exercise meaningful, but not excessively burdensome.  The assignments are intended to incorporate the most recent substantive material we cover in the course, while building some practical and strategic lawyering skills.  There are a few students who balk at the extra work, but, by and large, most of my students find the exercises beneficial and appreciate experiencing how the issues we are covering in class might arise in practice.  These exercises provide great opportunities for feedback both on the written assignment itself and in class when we review the exercises and give students an opportunity to present.    In a large class, I use the team approach, but the exercises also work well individually.  This approach has been incorporated into the Experiencing Series - a new casebook series by West Academic Publishing that includes practical exercises with substantive material.  (In the interest of disclosure, I have written Experiencing Business Organizations.)  I believe that a good course should include both theoretical and practical instruction.  The Experiencing Series provides the opportunity to maintain the fundamentals of a traditional course while enhancing the learning experience with simulations.  Regardless of how you feel about the mandate to include such exercises in the curriculum, I have found the exercises in Experiencing Business Organizations  extremely useful and worthwhile, and students seem to feel that they are getting a good mix of practical experience skills along with the substantive subject matter. 

Introducing Skills Training in the Doctrinal Classroom: An Overview and a New Coursebook

The following post is by Hillel Levin (Georgia) and is sponsored by West Academic.

For several years—decades now!—there have been clarion calls for changes to law school pedagogy. Buzzwords like experiential education, practical learning, skill building, problem solving, and others have been thrown around with increasing frequency. These calls have only grown louder as the market for legal services has experienced both cyclical and structural changes.

Many law school professors want to answer these calls and to include skill-building in the doctrinal classroom. Sessions devoted to this topic at annual law conferences (like SEALS) are typically among the best-attended; the topic comes up repeatedly in chatter on blogs and listservs; and faculty members are constantly sharing notes and ideas. Yes, it is clear: the demand for appropriate teaching materials is high.

Unfortunately, until the past couple of years, professors have not been able to find much, as authors and legal publishers have been unsure of how to meet the demand for this new pedagogy. In the absence of published solutions, some professors developed their own materials, much to the benefit of their students.

However, many professors have expressed frustration with the difficulties inherent in developing such materials for the doctrinal classroom. Which skills should I focus on? What makes for a “good” simulation? How should I review and discuss case documents with students? How can I naturally integrate these novel materials? How do these materials fit alongside the traditional casebook that the course is built around? Do I really have to invent all of this from scratch? How do I give useful feedback? How do students work collaboratively in class while receiving individual grades? Should I ask students to do research? Write memos? How much time will it take? What will I have to sacrifice in terms of substantive course coverage? How do I explain to students the purpose and use of this “extra” material so that they buy in? Will students rebel?

Since I began teaching in the doctrinal classroom six years ago, I have been committed to developing practical lawyering materials for each of my courses (Legislation and Statutory Interpretation, Civil Procedure, Constitutional Law II, Administrative Law, and Education Law and Policy). I took an everything-including-the-kitchen-sink approach, introducing new materials every year, tweaking old assignments, and tossing whatever hadn’t worked the first time around and couldn’t be salvaged.

In introducing these materials, I always (1) explain to students the purpose of each assignment, (2) am transparent about the experimental nature of the material, and (3) request anonymous feedback for everything. I have found students to be remarkably open to the experimentation, appreciative of my effort to help prepare them to be better lawyers, and insightful in their feedback. Even when an experiment fails and/or places unfamiliar and time-consuming demands on students, they unfailingly express gratitude at the attempt. I suspect that some are simply bored with traditional law school teaching by their second or third year; others never liked it in the first place; others simply appreciate a variety of teaching techniques; and others very much want more skills training. In any event, the response from students has been overwhelmingly positive. Most rewarding of all have been the emails I receive from students in summer or post-graduation jobs (sometimes years later) recounting how they impressed a supervisor or were particularly prepared for an assignment thanks to something we did in class.

I discovered early on that some of my courses are more naturally given to this kind of experimentation than others. My Legislation and Statutory Interpretation class, which focuses on statutory interpretation but also covers legislative and regulatory processes, proved to be a natural fit. As I introduced more and more practical lawyering materials, students began to ask me to replace the casebook altogether with my own materials. After five years of teaching the course, I finally felt ready to tackle the challenge. West Academic Publishing, which has been making a concerted effort to publish practical lawyering materials (primarily, but not exclusively, with course supplements), quickly accepted my proposal.

The result is Statutory Interpretation: A Practical Lawyering Course, a new paperback (and thus comparatively affordable) coursebook that serves as a standalone text for any course anchored to statutory interpretation, though it also includes materials suitable for related courses, like Legislation or Leg/Reg. It covers the leading cases and doctrines, but it also offers a variety of experiential and skills-building exercises. The teachers’ manual includes a sample syllabus, case summaries, points for discussion, and perhaps most importantly, detailed suggestions for how to successfully use the exercises. It offers guidance for exercises geared to improving students’ skills in negotiating and drafting legislation, strategizing, organizing arguments, responding to counter-arguments, conducting legal research, writing briefs, and more. My plan is to refresh the book every two years in order to keep the cases and assignments current.

The central innovation of this book (I hope) is that it brings practical lawyering skills into the framework of the doctrinal classroom without casting off the benefits of traditional law school pedagogy. It explains why students are asked to do some things that may be unfamiliar to them, and it makes explicit the connections between the traditional doctrinal and case-based materials, the novel materials and exercises, and the role of the attorney in the real world. In addition, it gives professors substantial freedom to work with these materials as they see fit.

Publishers have finally begun to respond to the demand for these kinds of materials by offering a variety of products. We are in an exciting period of innovation in law school teaching, and I am thrilled to be a part of it.

 

 

Photo Safaris

The following post is from John Sprankling (Pacific-McGeorge) and is sponsored by West Academic.

Pictures are powerful tools.  As Ivan Turgenev observed in his 1862 novel Fathers and Sons, “[a] picture shows me at a glance what it takes dozens of pages of a book to expound.”  Learning theorists have long understood the pedagogical value of images.  Thus, Neil Fleming’s Visual Auditory Kinesthetic learning style model posits that all students benefit from the use of pictures, either because they are predominantly visual learners or because visual learning supplements their dominant learning styles.

When I began teaching property over two decades ago, I was drawn to the Dukeminier & Krier casebook, which included black-and-white photos and other images that related to some of the cases.  Over time, I concluded that this approach was too narrow.  I wanted high-quality photos and other images for every case, in color, which students could access easily, and which I could display in class.  But such photos did not exist.

This goal became a reality when my colleague Ray Coletta and I decided to write a new property casebook called Property:  A Contemporary Approach, which would appear in both hard copy and electronic format.  I planned to travel across the United States taking original color photos of the case locations which could be used both in the book and in the classroom, together with other images such as charts, diagrams, and maps.  Ray dubbed the trip a “photo safari,” and the name stuck.=

My wife and I drove across the country twice, tracking down the original sites of cases included in the book and taking photos of these locations.  Finding the actual site of a case often involved detective work.  Starting with a vague sense about the location, we would explore the region, talk to local residents, and slowly get closer, often with the help of friends or relatives of the original parties.  The grandsons of Oscar Boomer, for example, directed us to the site of the junkyard in Boomer v. Atlantic Cement; the son-in-law of the plaintiffs in Brown v. Lober told us how to find the farm land at issue in the case; and a Greek Orthodox priest helped us explore the disputed tract in Van Valkenburgh v. Lutz.

We eventually took more than 500 color photos of case sites.  They included apartment buildings, beaches, bridges, businesses, churches, condominiums, crops, driveways, factories, farms, fields, a fire station, forests, houses, lakes, oil wells, streets, vacant lots, and other properties.  In the process, we sometimes battled the elements, dodging heavy rain and tornado threats, and not-so-patiently waiting for suitable photography weather.  Ray and I then selected the best photos to illustrate the cases, and developed charts, diagrams, maps, and other visual images to facilitate student learning, all of which went into the electronic version of the casebook. 

For the past seven years, I have been using enlargements of these photos in the classroom.  I typically show one to three photos for each case via PowerPoint, usually leaving a photo on display during the entire classroom discussion.  In anonymous surveys, my students overwhelmingly report that these photos help them to:  (a) understand the cases; (b) remember the cases; and (c) keep their attention focused during class.

Property is a visual subject.  A photo is sometimes useful in helping students understand the context in which the case arises.  Ark Land Co. v. Harper, for example, is a dispute between a West Virginia coal company and an extended family about how to partition the family’s ancestral land.  The photo of the family home, overshadowed by a tall hill of coal slag in the background, illustrates the stakes of the dispute in a manner that words cannot.  Similarly, photos of the Colonial-style homes that surround the site of the proposed “pyramid house” in Stoyanoff v. Berkeley instantly explain the neighborhood opposition to the project.

Photos help students remember content.  In the controversial case of Kelo v. City of New London, the Supreme Court held that taking owner-occupied homes for the purpose of economic development was a “public use” within the meaning of the Fifth Amendment; but after the homes were taken, the project was abandoned.  The photo of Kelo’s home site―now merely a basement filled with debris―serves to embed the case in student memories.  Another example is Deep Water Brewing LLC v. Fairway Resources Ltd., where the construction of new homes in violation of a height restriction partly blocked the lake view from plaintiff’s restaurant; photos of the blocked view make the case memorable.

Photos also focus student attention.  An illustration is Eyerman v. Mercantile Trust  Co., where the testatrix directed her executor to destroy a valuable home, but the neighbors objected.  I display a photo of the house through the discussion, which serves as a constant reminder of the issue:  should the dead control the rights of the living?  In a similar manner, the photo of the dilapidated house at issue in Wade v. Jobe highlights the question of whether landlords should be obligated to maintain residential rental property in habitable condition.

More broadly, using the photos of actual case sites makes the class more interesting for students.  It brings life to the case materials, adding authenticity and connecting students to what attorneys do in the real world.  In sum, my students uniformly report that these photos improve the overall quality of the class.

We have not finished our photo safaris.  In particular, two sites in Hawaii await us…

Addressing Psychological Distress with Your Students

The following post is from Andrew McClurg (Memphis) and is sponsored by West Academic.

My students appear to be happy and content.  When I arrive at class, they’re chattering and laughing.  Same thing when I see them in the halls or student lounge.  On Facebook, they show that, despite the workload, law students find plenty of time to socialize.

But a less cheerful picture lurks beneath the surface, as I learned researching 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (West Academic Publishing, 2d ed., 2013). A surprisingly large body of research shows that many law students suffer from psychological dysfunction, including depression and anxiety.  Here are some of the findings:

• As far back as 1957, a study found that psychological distress in law students significantly out-paces not only the general population, but other graduate student populations, including medical students.  (Eron & Redmount, 1957).

• A 1980s study of law and medical students at the University of Arizona found that law students scored significantly higher than both the general population and medical students in nearly every category of psychological dysfunction, including anxiety, depression, feelings of inadequacy and inferiority, hostility, and obsessive-compulsiveness.  (Shanfield & Benjamin, 1985).

• With regard to the chicken and egg question of whether law school causes psychological distress or attracts people who are already inclined toward it, one study found that law students begin school with psychopathological symptoms similar to the general population, but that those symptoms become substantially elevated during law school.  The same study found that 17-40 percent of the participating law students suffered from depression. (Benjamin, Kaszniak, Sales & Shanfield, 1986).  Comparatively, the Centers for Disease Control reports that 9 percent of the U.S. adult population show symptoms of depression, including 4.1 percent who suffer major depression.

• In another study, researchers administered a battery of tests to entering law students to measure their states of happiness, life satisfaction, physical symptoms, and depression.  The scores showed that the students were a mostly contented, normal group on arrival.  By the end of the first year, however, they showed large reductions in positive affect, life satisfaction, and overall well-being, and large increases in negative affect, depression, and physical symptoms.  (Sheldon & Krieger, 2004).

• A 2000 study of University of Michigan law students found that half of the students showed symptoms of clinical depression by the end of their first year, and that these high levels remained throughout their law school careers.  Comparing the law students’ scores on a standard depression scale to scores for other groups subject to extreme stress yielded startling results.  The 50 percent depression rate for law students compared to rates of 40-45 percent for unemployed people, 50 percent for people experiencing the death of a spouse or marital separation in the past year, and 50-60 percent for persons being treated for substance abuse.  (Reifman, McIntosh & Ellsworth, 2000).  This isn’t to suggest, of course, that being a law student is as bad as those events, but law school can push the brain’s depression buttons.

To the extent law school is responsible for causing emotional distress in law students, one doesn’t have to look far for plausible explanations, including the make-it-or-break-it single-exam format, heavy emphasis on grades and class rank, lack of feedback, competitive environment, high student-teacher ratios, Socratic method, and intense workload.  Added to these traditional woes are modern worries about heavy debt-load and finding a job.  Intangibly, the adversarial nature of the legal system in which law students are immersed, the emphasis on objective analytical thinking over personal values and emotions, and strains on personal relationships can all add to psychological dissonance.

My research persuaded me to start checking up on my own students.  Mid-semester, I asked my 1Ls to list their three top emotions about law school and then dumped their answers into a Word Cloud program, which depicts entries by size according to how often the words are repeated.  The results, as you can see from the picture, are not a pretty sight.

I also asked them to play Ernest Hemingway.  You may have heard the legend that Hemingway once made a bet that he could write a complete story in six-words, and proceeded to write on a napkin, “For Sale: Baby shoes, never worn.”  I assigned, as some other professors have done, my 1Ls to write a six-word story about law school.  The majority of their stories reflected stress and anxiety.  Here are some samples:

    • I came.  I studied.  I suffered.

    • Orientation.  Confusion.  Overwhelmed.  Anxious.  Exhausted.  Graduation.

    • Accepted application.  Law school.  Emotional wreck.

    • Started school.  Constant briefing.  Now crying.

    • Socrates meets Bentham under Sisyphus’ boulder.

I make it a point to talk to my first-year students about the issues.  I tell them about the psychological distress studies. I distribute a list of depression symptoms.  I give them the phone number of the university counseling center and encourage them to make an appointment if they’re struggling (word has it that law students are the biggest consumers of the service within our university). 

I tell students to not accept depression or severe anxiety as normal consequences of law school and assure them there is no shame in suffering these conditions, offering the confession that I too have suffered from depression and anxiety.  Each time, some students contact me afterwards to say thanks and share their own experiences.  In many cases, they take me up on my advice to seek help. 

Amidst all the cases and rules, take a few minutes to talk to your classes candidly about psychological distress in law students.  Simply acknowledging the issue can help them.  Students tend to think they’re the only ones struggling.  Many suffer silently, hiding their distress even from their close loved ones.  I felt that way as a student.  Hearing from their professors that they are not alone gives them a kind of permission that it’s okay to feel bad.

Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

Final Repost: The deadline is next Monday, December 1.

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015. 

The conference seeks to address the following topics:

• Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
• The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
• Legal obligations and accommodations of religious health care organizations
• Protection (or not) of health professional conscience
• Health care decision-making for minors with religious parents
• Religious objection v. discriminatory behavior
• Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
• “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
• Abortion policy, including clinic protests and protections, and its relationship to religion
• Embryonic stem cell policy and its relationship to religion
• End-of-life care, including assisted suicide, and its relationship to religion
• Complicity as both a legal and religious concept
• Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.  

The conference seeks to address the following topics:

• Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
• The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
• Legal obligations and accommodations of religious health care organizations
• Protection (or not) of health professional conscience
• Health care decision-making for minors with religious parents
• Religious objection v. discriminatory behavior
• Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
• “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
• Abortion policy, including clinic protests and protections, and its relationship to religion
• Embryonic stem cell policy and its relationship to religion
• End-of-life care, including assisted suicide, and its relationship to religion
• Complicity as both a legal and religious concept
• Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2014.  

The conference seeks to address the following topics:

• Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
• The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
• Legal obligations and accommodations of religious health care organizations
• Protection (or not) of health professional conscience
• Health care decision-making for minors with religious parents
• Religious objection v. discriminatory behavior
• Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
• “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
• Abortion policy, including clinic protests and protections, and its relationship to religion
• Embryonic stem cell policy and its relationship to religion
• End-of-life care, including assisted suicide, and its relationship to religion
• Complicity as both a legal and religious concept
• Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

A Sponsored Announcement from West Academic

The following guest post is authored by Prof. Michael Vitiello of McGeorge.

Finding bad news about legal education is easy.  And some of the bad news is deeply troubling.  No one in legal education can be insensitive to the slowly recovering employment market and to concerns about student debt.  But some of the gloom and doom about law schools is just wrong.

In 2011, David Segal wrote a series of articles that appeared on the front page of the New York Times.  His articles did not say anything new about legal education.  But the appearance of his views on the front page of the Times made Segal’s voice important.

Some of Segal’s criticisms are legitimate. But one aspect of his critique was galling.  In one article, after observing that young lawyers have spent over $150,000 for their legal educations, Segal commented, “What they did not get, for all that time and money, was much practical training.”  Segal also contended that the law school curriculum has changed little since the days of Dean Langdell.  Segal’s portrayal of legal education was stereotypical and one dimensional.

When I graduated from law school 40 years ago, the statement about limited practical training was true.  Even then, law schools were putting in place legal clinics and volunteer programs to give students on-hands experience.  To continue to insist that little has changed in the past three decades demonstrates a lack of awareness of what goes on in law schools around the country.

Start with changes in skills based courses like legal writing and moot court. 

Within the past 25 years, many schools have converted their programs from one or two unit pass-fail courses often taught by upper level students to far more demanding programs.  Most schools hire tenure track or long term contract professionals.  Many law schools offer rigorous writing programs and train students in oral advocacy skills.  That has been the pattern at McGeorge.  The directors of our Global Lawyering program have created a nationally recognized writing program.  The program spans the first two years and offers students with a wide range of practical skills.  For example, during their 2 L year, students argue multiple motions in a “district court” after they have submitted memoranda to the court.  Their earlier memoranda culminate in a full appellate brief, submitted and argued individually to an appellate court.  Each student argues before a three judge panel.  The realistic litigation problem introduces students to international law as well.  For example, students may have to argue whether domestic or foreign law applies because the problem presents a conflict of law question.

Skills education goes well beyond clinics, legal writing, trial advocacy, and externship programs. Many professors have integrated skills training into more traditional courses.  I offer my own example as someone who came into the academy after three years of experience, mostly as a judicial clerk.  Many years ago, I realized the necessity of integrating simulation exercises into my Civil Procedure course.  Concepts like personal jurisdiction and summary judgment challenge the best students; students have trouble grasping concepts that lack any intuitive feel.  For many years, I pieced together simulation exercises; but I did not provide systematic exposure. 

That all changed when my acquisitions editor at West Academic Publishing accepted my proposal to publish a series of simulation books.  The books in the Bridge to Practice Series™ are designed to supplement traditional casebooks across the curriculum.  Priced reasonably, the paperbacks run between 100 and 200 pages.  Each contains a series of simulations with a teacher’s manual detailing how the professor can integrate the simulations into their “podium” courses.

For example, Civil Procedure Simulations: Bridge to Practice, which I wrote, includes nine simulations.  On the first day of class, students meet a young woman who has learned that an internet journalist intends to publish a story asserting that her boss, a prominent judge, and she downloaded child pornography on their office computers.  They must not only interview her but also decide whether the prospective client should file an action in New York, where they are licensed, or Connecticut.  (Although they do not fully understand the importance of that choice until later, they begin to get a sense that choice of law problems lurch near the surface:  if New York tort law applies, the client may have no claim for relief, while her case can move forward under Connecticut law.)  Later in the semester, they argue a motion to dismiss for lack of personal jurisdiction before a magistrate judge (one of my research assistants).  Still later, they submit memoranda arguing for or against a motion to dismiss for the failure to state a claim for relief.  The simulation tests their ability to decipher the Supreme Court’s new test in two controversial decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.  They also submit memoranda, arguing whether the court can grant an amendment to add additional defendants after the statute of limitations has run.  Over the course of most of four weeks, they engage in discovery exercises and must hand over documents from a packet of material or determine whether and how they can resist.  Finally, they submit memoranda assessing whether the court should grant summary judgment in the case.

I am looking forward to using Criminal Procedure Simulations: Bridge to Practice during the fall semester when I will be teaching the course at night.  Anyone who has taught three hours at night knows the pitfalls:  exhaustion of the students and the professor make even the most interesting material a challenge. The Criminal Procedure Simulations book, which I also authored, includes a wide variety of exercises, including one in which the students must advise the senior partner on litigation strategy.  Others assign students roles so that they can conduct a hearing and then argue a motion to suppress; yet others involve arguing a motion to suppress from facts developed in a hearing transcript; still others involve short writing assignments; and others allow for appellate arguments.

The series is expanding.  Already in print are Galves, Imwinkelried and Leach's Evidence Simulations: Bridge to Practice; Sprankling’s Property Law Simulations: Bridge to Practice, and Cerrnak’s Antitrust Simulations: Bridge to Practice.  Other books, including volumes in contracts, professional responsibility and criminal law, are in progress.  Additional volumes are under discussion, including torts, immigration law, constitutional law, advanced criminal procedure, and business associations.

By way of circling back to my original point, I offer my experience and the Bridge to Practice books as examples of some of the changes that have taken place in legal education.  They are hardly unique.  Segal should have dug deeper and questioned his thesis before broadly criticizing legal education.  In fact, legal education has changed in meaningful ways.  And while no large corporate law firm would trust a new associate to prepare a corporate merger, graduates today have far more practical training than lawyers graduating 40 years ago.  Indeed, Dean Langdell would not recognize legal education today.

Flipping Socrates: A Sponsored Announcement from West Academic

From: Deborah Merritt (OSU)

Flipping Socrates

“Flipped” classrooms are gaining popularity in high school and college courses. Students in these topsy-turvy classes watch videotaped lectures as homework, then gather in class to discuss material and solve problems. Hands-on classroom activities allow students to work in groups, as well as to obtain just-in-time help from the teacher.

What’s the big deal? Didn’t law schools flip their classrooms long ago by introducing the case method and Socratic questioning? Our students, after all, absorb content by reading cases and statutes before class; in the classroom we push them to apply their knowledge by answering questions and solving new hypotheticals.

That’s the theory. In reality, the conventional law school class falls short of the engagement and active learning that a well flipped classroom can offer. After the first semester, many law school classes fall into a predictable pattern of lecture cloaked in “Socratic” questioning. Our Socratic questions too often seek specific answers that will advance the underlying lecture, rather than truly engaging students in problem solving. Even when we call on students to apply their knowledge by solving problems, other students simply take notes; they don’t attempt to solve the problem themselves.

I recognized this phenomenon in my own upper-level Evidence class and sought a solution. A colleague, Ric Simmons, had devised an extraordinary number of creative problems for students to solve. I started asking students to solve these problems, either in small groups or through clicker responses. To allow time for problem solving, however, I had to rush through discussion of the cases and rules.

One day an epiphany occurred:

 We had time in class either to analyze how courts had solved previous problems (the case method) or to use that reasoning to solve new problems. There simply wasn’t time for both.

For upperlevel students, the choice was easy: Both my classroom experience and the cognitive science literature counseled that students would learn far more by engaging with new problems rather than retracing old ones. Ric agreed and we created Learning Evidence, an “uncasebook” that flips the classroom by giving students the basic information they need to allow active learning in class.

Learning Evidence explains the policy behind each Federal Rule of Evidence, walks the reader through the language of the rule, and outlines issues that arise when applying that rule. We use cases to illustrate the issues, but we don’t use appellate opinions. Instead, we present the facts of a case along with an explanation of how the court resolved the dispute. We present this information in concise summaries that we hope model excellent legal writing.

When professors first skim this book, they often say: “But what do you do in class? The book is so clear that I will have nothing left to say!” This reaction underscores the fact that our traditional classes have become lectures in disguise—or that we try to educate students by generating mysteries that we then resolve in class.

Ric and I answer this question by pointing to all of the hypotheticals, simulations, group problems, and other materials we have developed for class. Ric even runs a “sweet sixteen” tournament of hearsay exceptions, an activity that has become one of my favorites. Every year I have more than enough material to fill every class—and then some.

By flipping the classroom, we and other professors have found that students are eager to come to class. They read the book, because the book helps them understand the rules, policies, and open issues of evidence law. They quickly realize, however, that reading isn’t knowing. By participating in a full 50 minutes of problems and simulations, they expand that knowledge—just as the original Socratic method intended.

Flipping isn’t for everyone; students benefit from diverse pedagogies throughout the curriculum. Nor are flipped classrooms homogeneous; there are lots of way to flip your classroom style. I encourage all law professors, however, to assess how active your classrooms really are. From behind the podium, it is easy to overestimate a class’s engagement. After all, we are “on” for the whole class. We participate in every oral exchange, and we’re always thinking about how to steer the conversation in the best direction.

Traditional Socratic classrooms don’t feel nearly as active to those seated in the rows. How many students participate during a single classroom hour? How many are simply taking notes (or worse)? Even if 20% of your students participate each day—a very high percentage for a class of more than 50 students—that means 80% are simply taking notes. How different is that from a lecture?

Try flipping old Socrates. You (and he) may like it.