Monday, March 30, 2020

Emergency Florida Diploma Privilege

An online petition is calling on the Florida Board of Bar Examiners to extend a "one time, sui generis" diploma privilege to all graduates of ABA-accredited law schools registered for the July 2020 Bar Exam. Such an expanded privilege is one of several suggestions in this multi-author paper about what to do about the Bar Exam in the current circumstances.

Posted by Howard Wasserman on March 30, 2020 at 12:01 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Creative Projects

I have written before about the creative projects I do in Civ Pro (I stole the idea for Josh Douglas of Kentucky). For voluntary extra credit, students put together something fun related to the class and the subject: skits, videos, song parodies, poems (lots of haikus), paintings, storybooks, comic strips, etc. At the Q&A session the day before the final, we display and perform them. Many of them are quite good--law students have talent.

The question is whether to do this this year and how. Many of the larger projects are collaborative, which obviously is impossible this year. We will not be in the same space to display the visual projects or to perform. I suppose people can read or show their projects through the Zoom connection and I can run any videos through it. Keeping the project might provide some sense of normalcy (as well as extra points).

Thoughts?

Posted by Howard Wasserman on March 30, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Sunday, March 29, 2020

Altering courses mid-stream

The move to remote instruction affects course coverage because class moves more slowly. There is a time lag, however slight, between when I call on a student and when she unmutes her microphone and gets ready to answer. In-person, I relied on volunteers, which limited the possibility of calling on someone who had no clue or was unprepared to talk. This meant fewer long silences, fewer times repeating a question or backing up to prior principles, and less time spent deciding when to try to work the student through something and when to move on or to bring in "co-counsel." Having to cold-call introduces those delays. (This should not be read as a knock on my students this semester, who have been prepared and engaged through a lot of technological and personal problems). But things move slowly.

This affects course coverage. When we went inside, we had about half a day left on discovery. This was followed on the syllabus by Summary Judgment, Subject Matter Jurisdiction, Personal Jurisdiction, Venue, and Erie. With nine 70-minute classes remaining, I have to make some hard choices.

Erie is gone. This is too bad because I like teaching it and it is the most "gamey" part of the class. I assign two cases--Erie and Hanna--then we work through a series of current problems to illustrate the various moves on the flowchart. I will miss doing this.

• I skipped the capstone problem for Discovery (based on a long-ago lawsuit in which Coca-Cola bottlers attempted to obtain the formula in discovery), in which I split the class into parties and work through the discovery issues. I could not make it work online, with cold-calling.

• On SMJ, I am basically skipping Federal Question Jurisdiction. We examined the different types of statutes and I will lecture (or post a primer on the course blog) about the Well Pleaded Complaint Rule and about the Mims standard for arising under. I am less concerned about this because I focus on FQJ in Fed Courts, going beyond what I do in Civ Pro to include Grable and complete preemption. It may be that this cursory overview becomes the new normal.

• On Personal Jurisdiction, I expect to have, at best, 7 days to cover what I usually cover in about 9+ (including Venue). My plan is to skip Pennoyer and lecture/write a primer on the different types of actions (in personam, in rem, etc.) and the basic idea of the Power Theory.

I will swing back in three weeks and let you know how it goes.

Posted by Howard Wasserman on March 29, 2020 at 02:04 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Saturday, March 28, 2020

Rothgerber Conference: Women's Enfranchisement now online

The 28th Annual Ira C. Rothgerber Conference on Constitutional Law, sponsored by the University of Colorado's Byron R. White Center for the Study of American Constitutional Law, slated for next Friday, April 3, will be online as a Zoom webinar. Registration is free.

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Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers, visit the CU Law Rothgerber event page.

Posted by Howard Wasserman on March 28, 2020 at 10:47 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Sunday, March 15, 2020

Assessment in a Time of Cholera (Updated)

Larry Cunningham (St. John's) discusses assessments in the current situation--he raises a number of questions, then proposes a framework for answering them. He rejects the suggestion making the Twitter rounds (which some of my colleagues have offered) that we cancel the semester and give everyone a "pass" in the course; we have "solutions—albeit imperfect ones—to the challenges we are facing. Giving up the semester should be a last resort."

I have been thinking about the grading questions this weekend because of the ongoing interim assessments I do throughout Civ Pro.

I distributed the preliminary exam (a one-week take-home of the type of short-answer questions on the final) last week; it is due Thursday. I have been working with our registrar to devise a mechanism for submitting electronically (I have 130 students in two sections, so email is not an option). My plan had been to print them out so I can grade on paper, but FIU moved us off campus effective Monday afternoon. So I will get electronic copies of all the papers and will try to grade on the computer, using the Comments feature to make comments and assign a number. I expect it to take longer than it would on paper, just because I read and can type comments and remarks more slowly than if I am working through it with a pencil and paper.

I expect to assign at least three essays in the three weeks we are guaranteed off campus (an essay is on one topic from the class, assigned to a random group of 6-7 students). The smaller numbers mean they can be emailed to the register, send to me, and graded electronically.

The question is the final exam, which ordinarily a four-hour in-class, open-materials, short-answer test. I guess I will make it take-home. I had been thinking of doing that before this hit, to get less-rushed and (hopefully) better-written answers. The question, as Larry raises, is the "integrity" of the exam. I have heard enough rumors of students cheating to fear take-home exams as a matter of course. But I am not sure there is an alternative.

Submitting grades will not be a problem (something Larry raises) will not be a problem, because we have been doing that through the school's web platform for years.

Read Larry's post; he goes deep into macro issues such as what to do about the curve, scholarship retention, rankings, etc. And looming over it all is who decides--how much is for individual faculty for individual classes, how much for faculty as a governing body, and how much for the administration.

Update: The argument against canceling the semester--in general and for law schools in particular--is content dissemination: Students need to know stuff for other classes in the remainder of the curriculum and for the Bar. And that is a good argument.  Larry's post shows that assessment remains tricky, even if content dissemination can go online. So I wonder if the answer is to keep classes through the end of the semester, but cancel final exams and projects and give everyone a "Pass."

Posted by Howard Wasserman on March 15, 2020 at 08:19 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, March 13, 2020

On two days of online teaching (sorry, remote instruction) (Updated)

Josh Blackman offers good thoughts on teaching via Zoom, which is the tool I have been using. My responses to Josh's bullet points and further thoughts after two days and four online classes (both 70-minute Civ Pro section). My verdict: Not as bad as it could have been; not my preference and I am unlikely to become a convert in support of this as the new normal.

1) Normal Appearance: Nope. I took advantage of this as the chance to wear shorts, a polo shirt, and a pullover. From the waist up, I look business casual. Not sure I am not going to wear a robe, a la Hogwarts, one day.

2) Put on a Show: Rather than sitting or standing in front of my laptop camera, I am conducting the class in a classroom, facing a Zoom camera with a screen showing the students. That is, I am conducting my regular class from my regular position in the room. I am pacing and moving around, as I do in class. The difference is I am talking to a screen of headshots rather than live people.

2 1/2) Dry-Erase Board:  The one limit on the "regular show" concerns the dry-erase board. I learned after the first class that it is useless--the camera cannot pick up what is written on it from a wide-field camera. So my usual interaction with stuff on the board (key language, flowcharts, maps of parties and claims) is out. My solution is to write out whatever I would put on the board and post it in advance of class to the course blog. It should work well enough.

3) Call on Students in Alphabetical Order: I do not cold-call in Civ Pro, relying on incentivized (participation is part of the final grade) volunteers. That cannot work in a large class because the Zoom screen only shows 25 people at a time. I am cold-calling, but I am doing it via the seating chart. I think it works as well as alphabetical, because the students know who they sit next to and so they are on notice when they might be next.

4) Switch the Camera Up: I see Josh's point about staring at one thing for too long. I think/hope that I overcome this because they do not see a close-up of my face, but what they would see if they were in the room. I am standing about 15 feet away from the unit, so I have no opportunity to play around.

5) Check the Chat Feature Often: My big lesson from day one to day two, along with stopping every 15-20 minutes for questions, either shouted out or on the chat feature. The students are using the chat feature to help one another out with answers. When a question was giving one student trouble, I cold-called the student who had answered it in the chat.

6) Virtual Office Hours: I love this idea and may try to implement it.

Other Thoughts:

• The interaction is slower and it takes longer to get through material--at least it feels that way. There is a time delay in the student response to me and likely in my response to the student. I think I am repeating rephrasing because I do not have a group of faces that I can read to determine if it is sinking in. Cold-calling contributes to that. With volunteers, the person answering is ready to go--if she is off the mark, I move on; if she is close or in the general vicinity, we can try to work through the question. With cold-calling, I feel obligated to try to work through it with someone who is at a complete loss.

• This probably relates to how I am using Zoom and that I do not have the computer right at my fingertips. I do bring up the speaker and I not necessarily see the person answering (if she is not one of the 25 on the first screen), so the back-and-forth is not visual. That makes it harder.

• That said, I my rethink cold-calling in Civ Pro when things return to normal. The students have been pretty good when called on, including some who had never or rarely raised their hands through the semester. I always have feared cold-calling a student who is lost and brings the conversation to a needle-screeching halt. But maybe my assumption has been wrong.

• I have had technological problems every class. This does not happen when the only "tech" problem I usually have is that the marker is out of ink.

• A question on economies of scale. I teach two sections of Civ Pro of ~65 each (the entire full-time class), opposite my colleague who teaches Crim to that group--I teach Section A and he teachers B in one time slot; then we flip in a second time slot. So would it work for each to combine section so we each teach once per day--I teach all ~130 Civ Pro in one time slot, my colleague teaches all in Crim in the other slot?

    I would never attempt to teach that many at once in an in-person class. But if I am cold-calling and the interaction is less engaged and more stilted, is there any drawback to adding more students to the mix? Everyone would have fewer opportunities to participate and I would have to jump between classes. But am I wrong that it would be less overwhelming and more efficient when it is remote?

Update: Diane Klein, an experienced online teacher, raises two points with which I agree:

    1) It was "ridiculous and impossible" to believe everyone--including professors (like me) who had never taught remotely and rejected the very idea--would be able to transition to teaching online in one day or one week and be able to do so effectively. She likens it an order that everyone begin teaching using American Sign Language, effective tomorrow.

    2) "[C]lose observers of higher ed in America cannot help but wonder how many of the courses that "migrate" to these online platforms during this crisis may never come back. " I said the same earlier in the week: There will be pressure to make this the new normal.

Second Update: As to # 1, consider these points that have been passed around; they seem to have started on Facebook. No one is expecting anyone to speak ASL; the goal is to muddle through so there is some level of understanding.

  1. Let’s acknowledge that the quality of education will not be as good in alternative formats as it is in the pedagogical model we’ve actually planned for. That’s OK as well—we’re just trying to survive.
  1. Do not read on best practices for distance learning. That’s not the situation we’re in. We’re in triage. Distance learning, when planned, can be really excellent. That’s not what this is. Do what you absolutely have to and ditch what you can. Thinking you can manage best practices in a day or a week will lead to feeling like you’ve failed.
  1. You will not recreate your classroom, and you cannot hold yourself to that standard. Moving a class to a distance learning model in a day’s time excludes the possibility of excellence. Give yourself a break.
  1. Prioritize: what do students really need to know for the next few weeks? This is really difficult, and, once again, it means that the quality of teaching and learning will suffer. But these are not normal circumstances.

Posted by Howard Wasserman on March 13, 2020 at 06:22 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Wednesday, March 11, 2020

Online teaching

FIU (and the rest of Florida's State University System) joined the parade of colleges and universities by moving to "remote instruction" (ah, euphemisms) effective tomorrow. It starts with my 9:30 a.m. Civ Pro course, for which Zoom has not been set-up. It should not be surprising that I am not happy about this development. Not only do I find online law teaching a horrible idea. Not only are we, by necessity, rushing into it without preparation or organization. But I fear that this is the camel's nose for people who want online education (legal and otherwise) to become the new normal--"see how well it worked, let's put everything online so we are ready for the next emergency and never again have to worry about rushed transitions."

This defense of online education (sorry, remote instruction takes the cake, especially the start of the fourth paragraph:

But teaching online wasn’t that different from the classroom experience I was accustomed to. It was often more fun than standing at a lectern working through a well-worn set of PowerPoint slides. The trick was making it as personal as possible and accepting that sometimes, the technology fails and you figure it out. 

Anything is more fun than standing at a lectern working through a well-work set of PowerPoint slides. But if all you were doing is standing at lectern working through well-worn slides, then you were not doing a good job of teaching in the first place. So a poor facsimile of the educational experience will not seem much worse.

Posted by Howard Wasserman on March 11, 2020 at 09:22 PM in Howard Wasserman, Teaching Law | Permalink | Comments (9)

Wednesday, March 04, 2020

Fulbright Scholars program now open for applications

This year's Fulbright Scholars program is now open for applications.

For those who do not know, Fulbright, named after late Senator J. William Fulbright, is a grant program of the U.S. Department of State with funding provided by the U.S. Government. The Council for International Exchange of Scholars (CIES), the scholar division of the Institute of International Education (IIE), administers the program for State. Selected Fulbright Scholars spend time abroad at a foreign host institution. Awards are for teaching, research, or some combination of teaching and research. There are awards both for U.S. scholars interested in traveling abroad as well as non-U.S. scholars interested in visiting an institution in the United States.

Law faculty should note there are always multiple award announcements seeking faculty with legal expertise, and this year is no different. There are 62 awards for which law is a designated discipline. Destinations range from Australia to Zimbabwe, including multi-country regional grants. Can't spare a full semester? There are now flex awards that permit multiple, short-term stays in the host country over a period of 1-2 years. You can search the awards here.

In 2017, I completed a Fulbright to Croatia (Hrvatska) where I taught at the University of Zagreb for 5 months. I made many professional contacts and dear friends. As a parent, one of the most rewarding aspects of the Fulbright was the chance to live abroad with children, which while occasionally soul stretching, was very good for them developmentally. And I enjoyed myself too as I explored a corner of the world that was previously unfamiliar to me.

Posted by T. Samahon on March 4, 2020 at 01:35 PM in Teaching Law, Travel, VAPS & Fellowships | Permalink | Comments (2)

Friday, February 28, 2020

CFP: Junior Faculty Fed Courts Workshop

Washington University School of Law in St. Louis will host the Twelfth Annual Junior Faculty Federal Courts Workshop on September 11–12, 2020. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.

The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present.  There is no registration fee.

 

The conference will begin on the morning of Friday, September 11, and conclude by early afternoon on Saturday, September 12. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

 

The workshop will take place at WashU Law, which is located 15 minutes from STL airport. The School of Law will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at Washington University’s Knight Center, which is next door to the School of Law. Those wishing to present a paper must submit an abstract to [email protected] by March 30, 2020. Papers will be selected by a committee of past participants, and presenters will be notified by the end of May.

 

Questions about the conference may be directed to Prof. Daniel Epps ([email protected]) or his assistant, Andrea Donze ([email protected]). Up-to-date information about the conference will be provided at https://law.wustl.edu/faculty-and-research/conferences-and-workshops/12th-annual-junior-faculty-federal-courts-workshop/

Posted by Howard Wasserman on February 28, 2020 at 09:31 AM in Civil Procedure, Teaching Law | Permalink | Comments (0)

Monday, February 17, 2020

Call for Nominations: Peter Gonville Stein Book Award

Nominations are being sought for the Peter Gonville Stein Book Award from the American Society for Legal History, awarded to the best book in legal history (written in English) outside the field of US legal history, published during the previous calendar year.

Nominations are due by March 16, 2020. Direct inquiries to Matthew C. Mirow ([email protected]).

Posted by Howard Wasserman on February 17, 2020 at 10:53 AM in Teaching Law | Permalink | Comments (0)

Thursday, February 13, 2020

Before Law Schools

It is an important time to think about teaching law. After attending a recent teaching workshop, I noticed that (for whatever reason) I had focused on my experiences teaching doctrinal courses. My primary courses on administrative law and sales/contracts cover essential subjects. These classes span the public-private divide and incorporate my background in telecommunications litigation, as well as my scholarly interest in interpretive questions raised by regulatory statutes and contracts.

But doctrinal classes are only part of the teaching I do at Loyola. I also run a fantastic student fellowship program through Loyola’s Institute for Consumer Antitrust Studies. In addition to substantive courses on competition policy and consumer protection, our fellowship program facilitates other types of learning. We introduce our fellows to practicing lawyers through mentoring programs and monthly lunches, and fellows also engage in legal writing projects with opportunities for multiple rounds of faculty comments and revisions. These opportunities to connect with practitioners and develop writing skills are also integral to law students’ education.

My initial focus on doctrinal classes tracks a historical distinction between formal legal education and reading the law. Lawyers in the United States did not always enter the profession primarily by attending law school. Reading the law (à la Kim Kardashian) was once the norm. Aspiring lawyers who read the law in the 18th-19th centuries apprenticed in law offices, where they gained valuable exposure to professional traditions and practicing attorneys. Although this system did not do a good job of teaching broader legal principles and sometimes left apprentices alone while their teachers tended to clients, it was how most lawyers were trained. Even many Supreme Court Justices never attended law school. I explored this phenomenon in Schooling the Supreme Court — an empirical analysis of a period when Justices’ educational backgrounds were far more diverse than they are today. (I am indebted to Mike Zimmer for the title of this article, and fear I will never publish another article with a title that I like as well.)

Today law schools offer doctrinal courses, training in legal writing and other critical skills, and experiential learning. Some historical methods of teaching law, such as rambling lectures delivered by a professor sipping whiskey at the long-defunct Litchfield Law School, have gone by the wayside in today’s engaged learning environment. Law schools have also become more attuned to producing practice-ready lawyers.

My research suggests the importance of formal legal education. Historically, Justices who shared the benefit of formal legal education voted independently of the ideologies of their appointing presidents. Votes of Justices without this background were significantly predicted by ideologies of their appointing presidents. Thus, presidents lost political influence when they appointed Justices who had attended law school. Although my statistical analysis provides too blunt a measure to explain exactly why this was the case, the correlation between formal legal education and apolitical voting was significant. It suggests the value of learning about the law as a discipline with the potential to transcend the outcomes of presidential elections.  

My historical research also provides reason to think that the value of legal education extends beyond doctrine and skills taught in the classroom. Law schools currently operate as gatekeepers and control who has the opportunity to enter the legal profession. When entry into the legal profession turned on apprenticeships, these opportunities were most readily available to white men from affluent families. Today’s system of higher and legal education has expanded opportunities for women and minorities, although it still seems to favor privilege and lack optimal diversity. Law schools have made some significant strides in diversity. This year, the editors in chief of law journals at the top 16 U.S. law schools are women. Greater diversity in the legal profession and its leadership is another aspiration that the legal academy is uniquely situated to promote.

Posted by Christine Chabot on February 13, 2020 at 05:09 PM in Legal History, Life of Law Schools, Teaching Law | Permalink | Comments (3)

Thursday, January 30, 2020

Academic Feeder Judges

I have posted to SSRN the pre-submission draft of Academic Feeder Judges--a study of the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and who “produce” law professors from the ranks of their former clerks. Coming soon to a law-review mailbox near you.

Update: Karen Sloan at National Law Journal gave the piece a nice little write-up, as did Above the Law.

The abstract is after the jump. Spoiler alert above the jump: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), Dorothy Nelson (Ninth Circuit), Richard Posner (Seventh Circuit, resigned in 2018), and Harry Edwards (D.C. Circuit).

PermaPrawfs' former judges are well-represented in the top-101 (arbitrarily set at 8+ academic former clerks)--John Walker of the Second Circuit (Ethan), Patrick Higginbotham of the Fifth Circuit (Rick H.), Joseph Sneed of the Ninth Circuit, died in 2008 (Lyrissa), Alex Kozinski of the Ninth Circuit (Dan), Raymond Randolph of the D.C. Circuit (Carissa), Calabresi (Gerard), and Jane Roth of the Third Circuit (me, as well as current guest Christine Chabot). Marsha Berzon of the Ninth Circuit (Steve), Richard Arnold of the Eighth CIrcuit (Rick G.), and Ed Carnes of the Eleventh Circuit (Paul) just missed the 8-prof line.

I wrote previously about the origins of the paper: Seven or eight years ago while helping with a reunion/portrait unveiling for Judge Roth, I noticed what seemed a lot of .edu addresses on the list of former clerks. I wondered how many of her former clerks went into teaching (13, it turned out, plus several in other disciplines), whether that was a lot or a little, and who among lower-court judges "produced" academics from among their former clerks. I finally got around to doing the study and writing the paper.

Comments welcome.

This paper identifies “academic feeder judges”—the federal judges (especially from courts of appeals) for whom law professors clerked at the beginning of their careers and the judges who “produce” law professors from the ranks of their former clerks. The study is based on a summer 2019 review of publicly available biographies and c.v.’s of full-time faculty at ABA-accredited law schools, identifying more than 3000 “academic former clerks” and the judges for whom each clerked. From this, the paper identifies 1) 101 lower federal judges with the most academic former clerks, 2) 52 federal trial judges, 3) 53 federal judges appointed since 1995, 4) top state-court judges, and 5) SCOTUS justices, current and past. For each judge within each grouping, the study examines appointing presidents, biographical information such as former career, numbers of academic former clerks, rankings of the schools at which former clerks teach, and a projection of how many academics newer judges might produce over a 35-year judicial career. The study closes with some comments and conclusions from the data. (Spoiler alert: The leading academic feeder judge is Guido Calabresi (Second Circuit), followed closely by Stephen Reinhardt (Ninth Circuit, died in 2018), Stephen Williams (D.C. Circuit), and Dorothy Nelson (Ninth Circuit)).

Posted by Howard Wasserman on January 30, 2020 at 03:17 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Friday, January 10, 2020

Baude and Chilton offer advice to scholars (junior and otherwise)

Great posts by Will Baude and Adam Chilton advising junior scholar--and, really, all scholars. A good way of thinking and talking about the scholarly game and what we do.

Posted by Howard Wasserman on January 10, 2020 at 12:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Monday, January 06, 2020

A teaching experiment

Our new scheduling guru is trying something new this semester--teaching on consecutive days rather than alternate days. So rather than Civ Pro meeting Monday/Wednesday/Friday, it will meet Wednesday/Thursday/Friday.

I am excited to see how this works. It should be interesting to have students working and focused on just my material (or my material and material in one other class) in a few-day block. And it fits how I structure the class and syllabus by topic rather class session--we work through something in however much time it takes, even if that time cuts across multiple classes. I am anxious to see whether that works better when students return to a case or problem in 24, rather than 48, hours.

Posted by Howard Wasserman on January 6, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (7)

Monday, December 30, 2019

Dean Search: Roger Williams School of Law

Roger Williams University invites nominations and applications for the position of Dean, School of Law.

Founded in 1919, Roger Williams University is a private institution that places high importance on teaching and scholarship in both the liberal arts and sciences and numerous professional fields of study. With a combined enrollment of more than 4,500 undergraduate and graduate students, and more than 275 full-time faculty, the School is positioned to become one of the finest comprehensive universities in the country. With campuses on the coast of Bristol and in the heart of Providence, RI, Roger Williams University is committed to strengthening society through engaged teaching and learning so that students graduate with the ability to think critically and to apply the practical skills that today’s employers demand. Roger Williams offers a wide array of academic programs through six schools of study, including the School of Law (RWU Law).

Established in 1993, RWU Law has approximately 450 students (75 percent of whom come from out of state) and 24 full-time faculty. A leader in experiential education, RWU Law delivers an innovative, high-quality legal education that is also affordable and inclusive. As Rhode Island’s only law school, RWU Law has the undivided attention of the state bench and bar, a world-class faculty dedicated to both teaching and research, exceptional clinical and externship programs, and a broad and accomplished alumni base. Last year, RWU Law celebrated its 25th anniversary.

Reporting directly to President Ioannis Miaoulis, PhD, and working closely with the Law School’s Board of Directors, the Dean will inspire a diverse constituency around the School’s vision and mission, which focus on preparing students not only for careers in law but also to become forces for positive change. As the only law dean in Rhode Island, RWU Law’s leader holds elevated prominence within the state’s legal system. The Dean will ensure that RWU Law remains student-centered; promotes diversity, equity, and inclusion; continues the University’s commitment to serving the public interest; and prepares graduates for challenging legal careers. Promoting faculty excellence in scholarship, teaching, and public service and supporting students and alumni in their journeys to become capable professionals and engaged citizens, the Dean will continue to prioritize academic rigor and will improve shared governance, transparent leadership, and collaborative decision-making. In addition to being passionate about legal education and its access, the next leader of RWU Law will also demonstrate financial acumen and possess a proven record of fundraising. A J.D. or its equivalent is required.

Please send all nominations, inquiries, and expressions of interest in confidence to:

Shelly Weiss Storbeck, Managing Partner Anne E. Koellhoffer, Senior Associate Storbeck/Pimentel & Associates, LP [email protected]

For more information, please visit Roger Williams University Law’s homepage at law.rwu.edu.

Roger Williams University is an affirmative action/equal opportunity employer and committed to a diverse workforce. All applicants will receive consideration for employment without regard to race, color, religion, gender, sexual orientation, gender identity or expression, national origin, age, disability, veteran status, or any other basis protected by applicable state and federal law.

Posted by Howard Wasserman on December 30, 2019 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Sunday, December 29, 2019

Karen Daniel (1957-2019)

At Faculty Lounge, Steve Lubet has stories and remembrances of Karen Daniel, former director of Northwestern's wrongful-convictions clinic, who was struck and killed by a car last week.

Posted by Howard Wasserman on December 29, 2019 at 11:21 AM in Teaching Law | Permalink | Comments (0)

Friday, December 27, 2019

AALS Law Prawf Karaoke

The following comes from Franita Tolson (USC) and Anthony Michael Kreis (Chicago-Kent):
 
AALS Law Prawf Karaoke on Saturday night while we're in D.C..
 
Time: 8pm, Saturday, January 4th.
 
Place: Recessions Bar 
1823 L Street Northwest
Washington, DC 20036
 
 
Uber/Lyft/Taxi Meeting Point: For those who want to ride over together, we will meet in the Marriott Wardman Park main lobby at 7:30pm.
 
Please spread the word to anyone who might be interested that I've inadvertently left out. Hope to see y'all there!

Posted by Howard Wasserman on December 27, 2019 at 10:23 AM in Teaching Law | Permalink | Comments (0)

Saturday, December 21, 2019

More on the role of academic experts

Andrew Ferguson in The Atlantic offers a new contribution to the debate over academic experts in public debate and public affairs and he pulls no punches in arguing that academic experts have nothing to add to public-policy debates. He aims his current ire at historians in the current impeachment debate, but spares some for nuclear scientists who argued for disarmament in the '80s and doctors arguing for stem-cell research in the '00s. He also questions the motives of the "obscure signatories from backwater colleges scattered between the coasts" who enjoy the ego boost of seeing their names alongside better-known professors. As I said, he pulls no punches.

I do not reject the participation of experts as completely as Ferguson does, because I believe there is a place for that participation. Ferguson's pithy point is "[i]f I want to understand the Whiskey Rebellion of the 1790s, Sean Wilentz [the Princeton history professor] will be my go-to guy, I promise. But Trump’s impeachment, and contemporary politics in general?" The problem is that the Whiskey Rebellion (or some other historical event) might be essential to understanding contemporary politics, making that expertise essential to understanding contemporary politics. The same for nuclear scientists. Ferguson dismisses their actions as assuming that "knowing how to build a bomb was the same as knowing whether it should be used," ignoring that scientists' knowledge of the bomb's effects is relevant, thus helpful, to the political question of whether the bomb should be used. I agree that some of this is argument from authority. But some of this input from experts is necessary, proper, and essential.

Which brings us to Ferguson's insistence that "[t]he whole democratic enchilada rests on the assumption that when it comes to prudential matters of public importance, the view of the stevedore is as valuable as that of the Princeton professor." But I am not sure that is democracy's assumption (putting aside that we are a republic, not a democracy). Democracy assumes that the stevedore and the Princeton professor's votes count equally in selecting representatives and that the stevedore and the Princeton professor have an equal right to speak on matters of public concern. But democracy does not assume the surrender or rejection of any role for experts and expertise. Nor does democracy assume that, on a matter on which the Princeton professor offers an expertise that the stevedore lacks, the stevedore's views should be as influential on policy decisions. Just as I expect the stevedore's views should be more valuable and influential on the question of working conditions on the docks.

Ferguson is on the same page as Paul, Eric, and others who criticize academics for trading on their prestige in opining on matters beyond their expertise; the trick then becomes figuring out when those academics are truly speaking as useful experts and when they are speaking as credentialed citizens (as Brian Kalt put it, "your average lawyer"). But Ferguson goes one step further in rejecting all expertise.

Posted by Howard Wasserman on December 21, 2019 at 06:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Sunday, December 15, 2019

Proposal for Law Journal Publication Reform

Brian Galle (Georgetown; Chair of AALS Section on Scholarship, Advisory Committee on Law Journal Reform) has shared the working draft of the Section's proposal for reworking the publication system. It makes two proposals. It is worth a read.

The moderate change is Limited Submission with Mandatory Acceptance ("LSMA")--authors submit to a limited number of journals and must accept the first offer. A supplement would impose a "quite period" of four weeks--no journal can make an offer on a piece for four weeks from receipt. The sweeping change is a Matching System, a la medical residency--authors identify the journals they would publish in and journals identify the articles they would publish.

The Section meets on from 3:30-5:15 on January 5 at the AALS Annual Meeting.

Two interesting proposals. I am trying to think about which approach is best specifically for professors at schools outside the top-50 or top-75 schools.

Posted by Howard Wasserman on December 15, 2019 at 09:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, December 09, 2019

Segall on the role of law professors

Eric Segall has an excellent post at DorfonLaw about the proper role for law professors in controversial legal and political disputes. The obvious trigger was the four prawfs who testified at the impeachment hearings. But Eric expands it to participation in congressional testimony, confirmation hearings, amicus briefs, letters on public matters, etc. And blogs--he questions whether writing publicly, in our professional (and professorial name) about matters beyond our scholarly expertise either trades on the professorial name or dilutes it.

Two thoughts. First, Eric references the letter that 2000 law professors signed arguing that Brett Kavanaugh's demeanor at his hearing was not judicial and should have been disqualifying. I did not sign for the reason Eric offers for not signing--the question of Kavanaugh's demeanor did not call for any scholarly expertise and was really a cover for political opposition to Kavanugh's appointment.* I had a heated debate with my wife and overly engaged daughter, who did not buy the distinction or the idea of trading on my position to suggest expertise on a contentious political matter on which I could speak not as an expert but as a "concerned citizen."

[*] Which I shared. And which I offered in emails to several Republican Senators (not my own, because I chose not to waste my breath), using my name but not my title or position.

Second, a blog, like other social media, strikes me as a different medium of work. I am trading less on my position and expertise and more taking an opportunity to write for a regular audience about things that interest me and about which I know something (even if I do not know as much about these things as I do about universal injunctions). Regular readers of the blog know and expect that some of what I write about is going to be non-expert interests (baseball, Judaism) or personal matters (family, etc.). And you understand that this is part of the forum and what I like to do here. That is different than using my professorial cache (such as it is) to talk about a non-expert matter to a new, unfamiliar audience in a different forum, such as the op-ed page of the The New York Times or an advocacy letter to a congressional committee.

Posted by Howard Wasserman on December 9, 2019 at 03:11 PM in Blogging, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Friday, December 06, 2019

Students finding interesting issues (Further Updated)

I gave my Evidence exam earlier this week. In the study/review lead-up, several students asked me a similar question (not sure if all were using the same commercial materials or if they all were talking):

A party calls an adverse party and is allowed to ask leading questions on direct under 611(c)(2). Can the party ask that witness about specific instances of untruthful conduct to impeach under 608(b), which is ordinarily allowed only on cross. In other words, when a party is allowed to ask leading questions under 611(c)(2), does that convert direct into cross for all purposes?

I presented the question to the Evidence Prof listserv. No one knew of case law raising the issue or the certain answer. One person said my students deserve a pat on the back for identifying and thinking up this issue.

The prevailing view among professors is that the party can ask about 608(b) specific instances. This derives from three things: 1) 607, which allows a party to impeach its own witnesses, from which it follows that all methods of impeachment are available; 2) 611(c)(2), which contemplates "direct" examination that functions like cross; and 3) because the party could have waited for the other side to call that witness and then cross examined the witness on specific instances, it should be able to do the same thing when it calls that witness itself for strategic reasons.

Thoughts?

Update: A reader emailed me to say that, despite the language of 608(b), courts allow specific-instances evidence on direct. The reasoning is that 607, allowing a party to impeach its own witnesses, trumps the limitation in 608(b)--all methods of impeachment are available to impeach any witness at any time--your own on DEX or the other party's on CREX.

But I wonder if the limitation-to-cross continues to apply in one situation: When Pty II uses its witness to impeach Pty I's witness. So imagine the following:

Tom has testified, called by Pty I. On the plain language of 608, Pty II could impeach Tom on specific instances of conduct in the following ways:
   • On CREX of Tom, ask him about Tom's untruthful acts: 608(b)(1)
   • Call Ira; on direct, ask him about Tom's character for truth under 608(a). But not specific instances of Tom's conduct under the text of 608(b)(2), because this would not be on CREX.
 
But under the approach courts take to reconcile 608(b) and 607), could Pty II ask Ira, on direct, about Tom's specific instances of untruthful conduct under 608(b)(2)? I understand allowing 608(b)(1) evidence on direct if I am forced to impeach my own witness. But the rationale for that extension does not extend to 608(b)(2) evidence in the Tom/Ira situation I describe here.
 
Further Update: My original emailer says the answer is no, Pty II can't ask Ira about Tom's specific instances. That owes to the prohibition on extrinsic evidence in 608(b), not the cross-examination requirement. Ira testifying to Tom's specific instances would be extrinsic evidence. Which makes sense.

Posted by Howard Wasserman on December 6, 2019 at 11:26 AM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Thursday, December 05, 2019

Another study shows handwriting > computers

New in the Journal of Legal Education, from Colleen Murphy and Christopher Ryan, Jr. of Roger Williams Law and Yajni Warnapala of the Roger Williams Mathematics Department. The study looks at performance in required 2L Con Law and Evidence courses at Roger Williams. It also contains a piece from Murphy's 1L Civ Pro class, showing that students who were given the option of using a laptop but were shown a memo describing the studies comparing handwriting with computer notetaking were more likely to elect not to use computers.

Posted by Howard Wasserman on December 5, 2019 at 06:45 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, November 26, 2019

Lawsky Practice Problems - On-Line Tax Teaching and Learning Tool

I've put together an on-line teaching and learning tool for introductory tax courses at

https://www.lawskypracticeproblems.org/

Some questions and answers follow after the break.


Q: What does this website do?
A: It generates multiple-choice federal individual income tax practice problems. The problems are a random selection of facts, names, and randomly (but thoughtfully) generated numbers about a range of basic tax topics. You can pick a particular topic, or you can have the website to pick both  a topic and problem at random.

Q: Are the answers also random?
A: No. The multiple-choice answers are based on mistakes that students commonly make.

Q: What happens once the student picks an answer?
A: If the student picks a wrong answer, the website usually provides a substantive hint about what the student did wrong. A right answer usually returns a full explanation. In many of the explanations of answers both right and wrong, there is a link to the relevant code section. (There is usually a single answer that is randomly generated--if a student selects that, the feedback is the crushing, "This number was randomly generated.")

Q: What topics are covered?
A: Among others, restricted property as compensation; options as compensation; the principal residence sale exclusion; depreciation; recapture; like-kind exchanges; installment sales; and more. You can see the full current list, with information about what’s covered within each topic, here.

Q: Do the questions repeat?
A: Eventually--there are not an infinite number of problems--but there are a lot of different problems. Setting aside the numbers' changing, which doesn't necessarily provide conceptually different questions, different types of problems toggle a bunch of different facts and relationships between the numbers, all of which change the problem conceptually. For example, for like-kind exchanges, there are five different facts than can toggle (asset is personal use or business use, whether there is debt relief and whom that debt relief favors (someone who provides boot or not), etc.) and four different questions. For installment sales there are even more toggles; for unrestricted property as compensation, many fewer. Suffice it to say that so much changes that the most efficient way to solve these problems is to learn the law.

Q: What is this for?
A: Whatever you want. A professor can use to generate problems for teaching or you give students direct access to it; students can use it to practice for their tax classes--whatever works for you. The website is free and is made available under a Creative Commons Attribution-Share Alike 4.0 license, which means, roughly, that you can share this or use it for any purpose, just so long as you give appropriate credit, distribute the material so other people can use it under the same terms, and don't create any additional restrictions.

Q: Is it just problems?
A: No. There is also a page with rate graphs and a rate calculator (and of course some pages that are more on the administrative side—a list of all topics covered, for example).

Q: Does the website take into account inflation adjustments?
A: Yes. Problems, rate graphs, and rate calculations take into account inflation adjustments for 2019 and will, for the foreseeable future, update with the current year’s inflation adjustments.

Q: I found a mistake!
A: Yes! This website is in its early stages, so there are certainly errors. When you find an error, please let me know so I can correct it.

Q: I teach topic X, and I think it would really lend itself to problems like those on the website.
A: Great. Send it my way -- I can't make any guarantees, but I can give it a shot.

Q: This would work for tax classes other than basic tax.
A: Yes indeed! I currently plan to add a page that similarly generates partnership tax problems.

Q: I have another suggestion.
A: Awesome--please send it my way. I very much welcome any suggestions or thoughts.

Posted by Sarah Lawsky on November 26, 2019 at 05:18 PM in Tax, Teaching Law | Permalink | Comments (3)

Monday, November 25, 2019

Organizing Fed Courts

My Fed Courts class ended this week. For the second straight year, I ran out of time and was unable to reach the last section, on  Congressional Control over the Federal Courts; this covers Klein and Plaut, as well as the fun theoretical stuff on jurisdiction-stripping, court-packing, etc.

After the jump is the broad strokes of my syllabus. I would welcome thoughts of what I can or should cut to give me the two days I would need to include this final section. Or, alternatively, is the congressional control stuff the least important and it falling by the wayside, while unfortunate, is less problematic than if I skipped something else.

By way of background, I teach Fed Courts as (in the words of one former student) "the love child of Con Law and Civ Pro." It is a federal-court litigation course, interspersed with some constitutional and judicial theory.

Introduction: Broad strokes of the text of Art. III and the broad structure of the federal judicial and judicial decisionmaking.

SCOTUS Jurisdiction: Original; § 1257; § 1254

Ct App Jurisdiction

District Court Jurisdiction: Federal Question (including Grable); Complete Preemption; ATS

Non-Article III Jurisdiction: Magistrates, Bankruptcy, CAAF

11th Am

Justiciability: Standing/Ripeness/Mootness

Abstention:

I added Non-Article III a few years ago. It takes about 1-1 1/2 days, so it could go and leave most of the additional time I need. But I thought (and think) is is too important, given how much more decisionmaking is done by non-Article III actors. I also used to spend less time on 11th Amendment, which I cover in Civil Rights. But I have no guarantee students will take that course and I believed they needed fuller coverage.

Just to clarify: We get to the basics of congressional control--the difference between the source of SCOTUS power as opposed to lower-court power, for example. We do not get to things like the Hart-Wechsler debate, the stripping debates of the 1980s, court-packing, and the various recent  proposals to change SCOTUS structure--in other words, the fun, theoretical, and not likely to happen stuff.

Thoughts?

Posted by Howard Wasserman on November 25, 2019 at 11:44 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Tuesday, November 19, 2019

I'm old

I taught Hicks v. Miranda in Civil Rights today. A student was explaining Miranda's close connection to and interest in the state in rem civil forfeiture action as a basis for Younger abstention. The following exchange occurred:

Student: They were his DVDs.

Me: It was 1975.

Student: They were his videotapes.

Me: It was 1975.

[Student stares blankly]

Posted by Howard Wasserman on November 19, 2019 at 12:37 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Wednesday, November 13, 2019

FIU wins ATL Halloween Costume Contest

The winner of Above the Law's Legally Themed Halloween Costume ContestProf. Tom Baker's Con Law Section at FIU, continuing the since-2012 tradition of dressing like Prof. Baker on or around October 31.

FIU: We pass the bar and we dress well.

Posted by Howard Wasserman on November 13, 2019 at 09:29 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, November 07, 2019

Two thoughts on the Socratic method (or whatever we call Q&A teaching)

1) My colleague Stanley Fish appeared on FIRE's So to Speak podcast, discussing his new book, his old book that there is no such thing as free speech, and other topics. It is a wide-ranging hour-plus discussion.

At one point in the conversation, Fish explains why he does not want to hear student opinions or what they think/believe about some subject; interviewer Nico Perrino asks if that means Fish does not like the Socratic Method. But is there any connection between the Socratic Method and students offering their opinions and personal views? I believe I would be regarded as a highly and rigourous Socratic professor, in that I ask a lot of directed questions. But I give students no opportunity to espouse their opinions or to tell me what they think; I  use tight, specific questions to draw out specific answers tied to the material. There is little danger of a student going off on an unrelated tangent or saying something offensive. There are some professors who allow and welcome student pontificating through less-directed questions. But that is a matter of professorial style--it is not inherent in being Socratic.

2) Judge Jane Roth (3d Circuit and my former Judge) visited FIU this week as a Jurist-in-Residence and the lead judge for our intramural moot court final. As part of her visit, she spoke with students about oral argument, especially about the centrality of answering questions directly, slowly, and as specifically and precisely as possible. Judge Roth visited some classes and commented on how well the students had handled hard questions in those discussions. That reminded me of something I tell 1Ls on the eve of their first argument in legal writing--the Q&A teaching style imitates oral arguments. You should be prepared in your argument the way you are prepared in class. And if you can handle a Socratic class, you can handle moot court.

Posted by Howard Wasserman on November 7, 2019 at 07:05 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Friday, October 25, 2019

Pledge to Reduce Academic Marketing Waste

This is making the academic rounds today. I post it without comment.

In honor of International Day of Climate Action (October 24), a group of law professors have announced the Pledge to Reduce Academic Marketing Waste, which seeks to address the routine and indiscriminate use of paper-based flyers, newsletters, offprints and postcards by law professors and law schools.  Most of this material is discarded without ever being read.  However, law schools continue to produce and distribute these materials in an effort to increase or maintain their national and international rankings.

Continuing this practice is unconscionable in the current era, given the availability of electronic marketing options.  Limiting or eliminating reliance on paper-based materials will not only reduce the destruction of forests, it will also reduce carbon emissions generated as part of the printing and transportation processes.

Given the competitive nature of higher education, it is unlikely that individual law schools will act on their own initiative to stop or significantly curtail paper-based marketing for fear of risking their rankings.  However, positive results may be obtained by coordinating actions across numerous law schools. 

Individual faculty members as well as law schools both inside and outside the United States are therefore invited to join the Pledge to Reduce Academic Marketing Waste by emailing Prof. S.I. Strong ([email protected]) to indicate their support.  The names of individual law professors and institutions who have adopted the Pledge will be published on a webpage housed at Pace University.  That webpage is regularly updated to show increased support for this initiative.

The language of the Pledge is as follows:

We, the undersigned, hereby pledge to reduce academic marketing waste, individually and institutionally, by limiting or eliminating the production and transmission of paper-based marketing materials and/or by encouraging the relevant decision makers at our institutions to adopt actions and polices consistent with that goal.  Reducing academic marketing waste can take a variety of forms, including but not limited to:  (1) reducing the size of paper-based marketing materials (eg, replacing newsletters with postcards); (2) reducing the frequency of paper-based marketing initiatives; (3) adopting an opt-in rather than opt-out approach to paper-based mailing initiatives; (4) replacing some or all paper-based marketing with electronic or other forms of marketing. 

Please feel free to forward this message to anyone at your institution or in your network who you think might be interested in joining the Pledge.  The current signatories can be seen here -

https://law.pace.edu/academics/juris-doctor-program/environmental-law-program/pledge-reduce%C2%A0academic-marketing-waste - although more are being added all the time.

Posted by Howard Wasserman on October 25, 2019 at 02:38 PM in Teaching Law | Permalink | Comments (0)

Monday, September 30, 2019

Bleg: Great Recession and the Legal Academy

Can anyone point me to studies or articles on the slowdown in legal academic hiring during and just after the Great Recession?

Posted by Howard Wasserman on September 30, 2019 at 07:24 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Wednesday, September 18, 2019

Research Fellowships at Stanford Constitutional Law Center

For those seeking an academic career. Information here.

Posted by Administrators on September 18, 2019 at 08:59 PM in Teaching Law | Permalink | Comments (0)

Monday, September 16, 2019

FIU Bar Passage

I do not know if I have ever done this before, but I wanted to highlight that FIU Law grads had a 95.7 % pass rate (111/116) for the July 2019 administration of the Florida Bar. A ton of credit to Louis Schulze, assistant dean for academic support, who does an amazing job working with students on how to learn and study, and Raul Ruiz, who runs our bar-prep program.

Posted by Howard Wasserman on September 16, 2019 at 10:46 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Thursday, September 12, 2019

Dorf on the irrepressible myth of the great scholar/bad teacher

My experience, as a student and faculty member, lines up with Mike's: I have had, as teachers and colleagues, many excellent scholars who also were also excellent teachers. And I would add another category: Great scholars who are not great teachers, but want to be  and, even well into their careers, think a lot about teaching and how to improve. The archetype of the "prof who can't be bothered with teaching" is not a thing--or no more of a thing than the insurance salesman who can't be bothered. There are always people who are not good at their jobs.

Posted by Howard Wasserman on September 12, 2019 at 04:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (13)

Friday, September 06, 2019

Penn State Law Review Symposium

The Penn State Law Review is now accepting articles for its annual symposium, which will be hosted in the Spring of 2020. This year, the topic of the Penn State Law Review Symposium will focus on the legal implications of upcoming technological advances, for example, artificial intelligence, autonomous vehicles, and big data.

The symposium is intended to increase the breadth of research on such novel topics; stimulate discussion amongst attorneys, students, and academics; and enhance the overall understanding of the legal effects of such rapidly developing technological advancements. 

 

To facilitate the application process as easily as possible, the Law Review requests that all applicants use the attached formhere: https://forms.gle/Lt95Z9zamMLKDAiz7. Please submit all application forms and inquiries no later than October 3, 2019 at 5:00 pm (EST) to Gaela Normile, the Law Review’s Executive Articles Editor, at [email protected]. 

 

Applicants should expect to write and present his or her article at the symposium, which will be either late March or early April. All travel expenses will be reimbursed by the Law Review. In addition, applicants should expect that the Law Review may request further information. The Law Review will notify applicants whether they remain under consideration by October 15, 2019. Thank you.

Posted by Howard Wasserman on September 6, 2019 at 11:13 AM in Teaching Law | Permalink | Comments (0)

Thursday, August 29, 2019

Faculty Hiring: FIU (two tenure/tenure-track positions)

Assistant, Associate, or full Professor of Law (two positions)

Florida International University College of Law, Florida’s public law school located in Miami, invites applicants for two tenured or tenure-track Assistant, Associate, or full Professor of Law positions to begin in the 2020-21 academic year. Our primary curricular interests are Cyber Law (focusing on cybercrime/forensics, interconnected cities, infrastructure security, and general cybersecurity training and education), Environmental Law, Wills & Trusts, and Torts. The Cyber Law position may be a joint appointment with another FIU School or College.

Candidates must have a J.D. degree or its equivalent (or a Ph.D. for the Cyber Law position) and a strong academic record. In addition, applicants should demonstrate a track record or promise of outstanding scholarly achievement and effective teaching. Successful candidates will be expected to engage in scholarship, teaching and service. Rank as Assistant Professor, Associate Professor, or Professor will be determined based on qualifications and experience.

FIU Law is the only public law school in South Florida, established in 2001 on the idea that a high-quality legal education should be affordable and accessible to a broad, diverse community. In 6 of the past 8 administrations of the Florida bar exam, FIU Law has ranked first in bar passage among the 11 law schools in the State. In 2018, 84% of graduates secured full-time, long-term bar passage required and J.D. advantage jobs. FIU Law ranks as the most diverse law school in Florida, and the third most diverse nationally.

FIU is Miami’s public research university and in less than five decades has become a top 100 public university, according to U.S. News and World Report’s Best Colleges. The university is focused on student success and research excellence, with nearly $200 million in annual research expenditures. FIU is in the Carnegie R1 category (“highest research activity”), and was recently designated by the Board of Governors as an emerging preeminent university in the State’s public university system. FIU has 16 colleges and schools that offer more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine. FIU has awarded over 200,000 degrees and enrolls more than 54,000 students in two campuses and three centers. For more information about FIU, visit http://www.fiu.edu/.

Qualified candidates are encouraged to apply to Job Opening ID 519267 at https://facultycareers.fiu.edu and attach a cover letter and curriculum vitae in a single PDF file.

Prior to a campus interview, applicants will also be required to submit a list of references. For any questions related to the position, please contact Appointments Committee co-chairs Jan Osei-Tutu ([email protected]) or Scott Norberg ([email protected]). To receive full consideration, applications and required materials should be received by September 30. Review will continue until the positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or protected veteran status.

Posted by Howard Wasserman on August 29, 2019 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Faculty Hiring: FIU

Lecturer in Legal Skills and Values

Florida International University College of Law, Florida’s public law school located in Miami, seeks applicants for entry-level or lateral appointments for the position of Lecturer in Legal Skills and Values. The start date for the position is August 2020.

The College of Law’s Legal Skills and Values program consists of two required courses in the first year of law school and an additional required course by the end of a student’s fourth semester. We are seeking dedicated legal writing and skills teachers to teach legal research, analysis, and written and oral communication skills, all with a heavy emphasis on professionalism.

Lateral candidates should show a demonstrated record of teaching excellence. Entry-level candidates should show commitment to excellence in teaching and significant potential as law teachers. Experience in legal practice and/or judicial clerkships is preferred. JD required. This is a full-time faculty appointment, with an initial one-year term, with the possibility of successive three-year or five-year terms.

Qualified candidates are encouraged to apply to Job Opening ID 519269 at https://facultycareers.fiu.edu and attach a cover letter and curriculum vitae in a single PDF file.

Prior to a campus interview, applicants will also be required to submit a list of references. The Appointments Committee may request additional material such as teaching evaluations, writing samples, and letters of recommendation. To receive full consideration, applications and required materials should be received by September 30. Review will continue until position is filled.

Questions about the position can be directed to search committee co-Chairs, Scott Norberg ([email protected]) and Jan OseiTutu ([email protected]).

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or protected veteran status.

Posted by Howard Wasserman on August 29, 2019 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, August 28, 2019

Legal Methods Hiring at Utah

The University of Utah S.J. Quinney College of Law invites applications for one or more career-line faculty positions, on a presumptively renewable five-year contract basis, at the rank of assistant or associate professor beginning academic year 2020-2021.

The successful candidate(s) will teach one section of our year-long (6-credit) first-year legal methods course in addition to other teaching and program supervision responsibilities. Qualifications for the position include a record of excellence in legal practice, with a focus on strong writing and analytical skills, and successful teaching experience or potential as a teacher. Interest in scholarship will be considered but is not essential for this position. Interested persons should submit an application to the University of Utah Human Resources website: http://utah.peopleadmin.com/postings/91875.

The University of Utah is an Equal Opportunity/Affirmative Action employer and educator. Minorities, women, veterans, and those with disabilities are strongly encouraged to apply. Veterans’ preference is extended to qualified veterans. Reasonable disability accommodations will be provided with adequate notice. For additional information about the University’s commitment to equal opportunity and access see: http://www.utah.edu/nondiscrimination/.

Posted by Howard Wasserman on August 28, 2019 at 10:35 AM in Teaching Law | Permalink | Comments (0)

Wednesday, August 21, 2019

Using Reddit for Law School seminar?

A question for the Prawfs hive-mind:  Could it work well, for a seminar-style course, to create a (private, I assume) subreddit for class-related links, posts, discussion, etc.?  Or, are there excessive risks of distraction (or worse) from some of Reddit's more . . . colorful content?  Does anyone have any experience with this kind of discussion-mechanism?  (I am, I admit, trying to avoid having to learn how to use TWEN or Sakai for this kind of thing.)

Posted by Rick Garnett on August 21, 2019 at 08:53 AM in Rick Garnett, Teaching Law | Permalink | Comments (4)

Thursday, August 15, 2019

What about a tablet?

A question for those who do not allow laptops and do not allow students to type notes in class:

What about taking notes using a stylus and tablet (iPad, Surface, etc.)? On one hand, this is writing rather than typing, so the ability/temptation to stenography is absent; it is the same means of notetaking, with fewer dead trees. On the other, I presume the benefit is that the tablet program converts the handwritten notes into typeset notes, which can be cut-and-pasted into a study outline; this eliminates the need or use for retyping of notes, which is an important point at which learning and understanding occurs.

Thoughts? Does anyone familiar with the literature know of any studies comparing writing-on-tablet with writing-on-paper or typing?

(Note: I know many readers believe that my position on laptops is wrong. That is beside the point here, so please do not bother with comments to that effect. My question begins from the premise that laptops and typing for notes are out. Now what?)

Posted by Howard Wasserman on August 15, 2019 at 05:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (4)

Tuesday, August 13, 2019

Welcome back 1Ls

We see similar things every year around this time. This is from Lawprofblawg, an anonymous prawf writing at Above the Law. It is good advice.

Posted by Howard Wasserman on August 13, 2019 at 10:18 PM in Teaching Law | Permalink | Comments (1)

Saturday, August 10, 2019

"The Grievance Studies Affair," purpose, and result

FIRE's So to Speak podcast interviewed the three authors (Jim Lindsay, Helen Pluckrose, and Peter Boghossian, the latter of whom is on the faculty at Portland State) behind the "Grievance Studies Affair." The three wrote and submitted a series of papers designed to show that certain humanities disciplines, which they call "grievance studies," lack scholarly rigor and feature a broken peer-review process. Seven papers were accepted, four were published, and seven were still in play when everything was exposed last fall. Boghossian was sanctioned by his university (subscription required) for failing to obtain IRB approval for a study on human subjects (the editors and reviewers who read the papers).

Critics of the the authors and their hoax accused them of  trying to get people fired and departments shut down, comparing them with Hungarian Prime Minister Viktor Orban's efforts to ban gender studies at Hungarian universities. The authors reject this criticism; they insist they respect academic freedom and did not want to see anyone fired or any departments closed. Instead, they hoped universities would use the information they exposed to recognize the defects in these fields and thus discount scholarship in these fields and these journals when making tenure and hiring decisions.

But what is the difference between people being fired and people being denied tenure or not hired? The result is the same--scholars who publish this stuff in these journals should not be working as professors in these universities. And if these departments cannot (or should not) hire these scholars, the departments will close. The difference is motive. Orban want to control what academics write and wants to close gender studies because of political and ideological objections to the field; Lindsay, Puckrose, and Boghossian want these journals to do better in their peer-review and publication decisions and want these scholars to do better in their research and writing. One opposes academic freedom; the other protects academic freedom by ensuring that a university is place of intellectual rigor and serious truth-seeking--that academic freedom serves its purpose.

So Lindsay, Puckrose, and Boghossian would like certain people not to have jobs in academia--those who write what they believe (and what they believe they have proven to be) poor scholarship undeserving of publication and tenure. They claim to have a good reason for that goal and we can debate the means and ends (I am largely agnostic over the whole thing). But it is disingenuous to suggest that lost jobs and empty departments are not the logical conclusion of what they believe they have shown and what should happen.

For what it is worth, I am somewhat surprised that FIRE cared about this case, except perhaps for the sanctions imposed on Boghossian, which are somewhat specious. And I am surprised FIRE approached the hoax and this interview as the typical culture-war/tyranny-of-the-left/silence-the-right campus-speech issue. The authors wrote papers reaching (sometimes silly) left-leaning conclusions, which fits the ideology of the journals and the fields. But FIRE usually does not care if lefties say or write silly things and it generally does not care about the vigor of  discourse in scholarly journals. FIRE cares about viewpoint discrimination, when one position is allowed and the other shut down or when one position is foisted on unwilling listeners. But the hoax did not show such discrimination--that otherwise similarly rigorous scholarship reaching a right-wing conclusion was not published. One of the authors described this as his one regret in the project--they never wrote a paper reaching that reverse ideological result to see if it would be published. Had they done so and the piece been rejected, they would arguably have shown the sort of political biases about which FIRE cares. Without that, this really looks like a take-down of silly lefties and silly academics--fun for many, but not FIRE's typical bailiwick.

Posted by Howard Wasserman on August 10, 2019 at 02:17 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Friday, August 09, 2019

MAGA student speaks (with minor edits)

So now we know. The MAGA-hat-sporting student that Gonzaga Prawfs Jeffrey Omari described is Austin Phelps, a rising 3L who has taken to the pages of the same ABA Journal to give his side of the story.

Phelps' version differs from Omari's in two important respects. Phelps makes it sound as if the MAGA hat was not a late-semester sartorial one-off; it sounds as if he had worn the hat and a Trump-Pence 2020 shirt at various points in the semester and that his laptop was festooned with similar stickers.* He also says Omari did not call on him "with the frequency that left-leaning students enjoyed." Omari described a conservative student who participated in class (enough to make his views known) but how had to that point "not  . . . donned any political paraphernalia in the classroom."

[*] Yet another reason to ban laptops.

He also complains about called out for wearing a build-the-wall t-shirt to his "university-affiliated internship," which he attributes to Omari's op-ed. The internship enforced a neutral (although never-before-enforced) rule banning t-shirts with slogans while at work.

The rest of the piece combines a defense of free speech, with an explanation for his support for the President (including filling two SCOTUS seats "with conservative posteriors," so glad he writes like a serious future lawyer). All of which reflects "my struggle" as a conservative law student--which might not have been the best choice of phrase, considering the context.

Posted by Howard Wasserman on August 9, 2019 at 06:23 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (6)

Hiring: The Ohio State University College of Law

The Ohio State University Moritz College of Law is conducting four separate faculty-line searches this year. Here are the details:

Williams Chair in Civil Rights & Civil Liberties

The Ohio State University Moritz College of Law seeks an established teacher and scholar to serve as the Gregory H. Williams Chair in Civil Rights and Civil Liberties. Candidates should be tenured professors with a demonstrated record of excellence in scholarship and teaching. The research of the Williams Chair should focus on civil rights and civil liberties, which may include race law, critical race theory, gender and the law, sexual orientation and gender identity law, constitutional rights, or other related areas, including First Amendment freedoms, human rights, disability law, poverty, or economic or criminal inequality. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required. The successful candidate must satisfy Moritz’s requirements for tenure and promotion to full professor.

 

Entry-Level or Junior Lateral Tenure-Track Position with Drug Enforcement and Policy Center

The Ohio State University Moritz College of Law seeks an entry-level or junior lateral tenure-track faculty member in the criminal justice field who will be part of its Drug Enforcement and Policy Center (DEPC). The faculty member will be expected to help advance the Center’s mission. Criminal law and procedure are closely intertwined with drug enforcement and policy; from police stops and searches and seizures, to sentencing and post-conviction forfeitures and disabilities, to concerns about disparate impact, the law of criminal justice and drug enforcement and policy mesh. The new faculty member will work with the Executive Director and other associated faculty to advance the Center’s mission. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required.

 

Entry-Level or Junior Lateral Tenure-Track Position

The Ohio State University Moritz College of Law seeks entry-level or junior lateral candidates for at least one tenure-track position. Our primary areas of need are Dispute Resolution, Business Law, and Race and Law. Secondary areas of need include Antitrust, Banking/Insurance, Civil Procedure/Complex Litigation, Commercial Law, Evidence, Immigration, Intellectual Property/Law and Technology, Natural Resources/Energy Law, Poverty/Social Welfare Law, Property/Real Estate, and Wills & Trusts. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required.

 

Entry-Level Legal Writing Position

The Ohio State University Moritz College of Law seeks entry-level candidates for a clinical-track faculty position teaching legal writing. The faculty member will be part of Moritz’s nationally recognized legal writing program. Candidates should have relevant occupational experience and strong potential in all relevant areas of performance, including classroom teaching, feedback on student work, public service, and maintaining knowledge in the field. The faculty member will be hired for a 3-5 year probationary period, then eligible for promotion to a long-term renewable contract that permits removal only for cause or financial exigency. The faculty member will be eligible for a summer research grant and a research budget. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required.

*          *          *

The Ohio State University Moritz College of Law is committed to building and maintaining a diverse and inclusive community to reflect human diversity and improve opportunities for all. Diversity, inclusion, and equity are essential to the excellence of our community, culture, and curriculum, and the pursuit of this excellence is critical to our educational mission. We value diversity in all of its dimensions, including gender, gender identity or expression, race, ethnicity, religion, age, sexual orientation, physical and learning abilities, socioeconomic status, veteran status, and viewpoint. We seek to reflect multiple perspectives, backgrounds, and interests in all facets of our community. The Ohio State University is committed to equal employment opportunity and does not discriminate on any basis prohibited by law in its activities, programs, admission, and employment. All qualified applicants will receive consideration for employment without regard to a protected status.

Candidates should send a cover letter and C.V. to Daniel Tokaji, Associate Dean for Faculty, [email protected], stating that they are applying for this position. Applicants are encouraged to submit the Equal Employment Identification Form.  

Posted by Howard Wasserman on August 9, 2019 at 12:27 AM in Teaching Law | Permalink | Comments (0)

Tuesday, August 06, 2019

Hiring Announcement: Suffolk University Law School Transactional Clinic Director

My school is undertaking a search for an entry level assistant clinical professor to launch and direct a Transactional Law Clinic.  From the job description: 

We seek candidates with strong academic records and a commitment to excellence in teaching and scholarship. Prior experience in clinical education is preferred, and at least three years of transactional law experience is required. Applicants must be admitted or eligible for admission to the Massachusetts bar.
The Transactional Law Clinic will provide students with the hands-on, practical experience they need to navigate the rapidly evolving field of transactional law. At a minimum, the Clinic will provide free legal services to underserved clients on transactional issues and collaborate with several existing clinics at the Law School on transaction-related issues.
The ideal candidate will be a self-motivated individual who can launch and grow the Clinic by developing relationships within the greater Boston community, the University community, and the academy and Bar.
In addition to directing the Clinic, the faculty member will be expected to teach one non-clinical course in a related field, contribute to the Law School and community, and produce scholarship.
The Transactional Law Clinic, once launched, will be one of Suffolk’s 12 in-house clinics, adding depth and breadth to Suffolk Law’s nationally regarded Clinical Programs. Suffolk Law’s Clinics have been ranked among the top 20 such programs in U.S. News & World Report for more than a decade. The Clinic also will be a part of Suffolk Law’s successful Business and Financial Services concentration.
Applicants should submit a curriculum vitae, a list of references, and a cover letter addressed to Professor Sarah Boonin, Co-Chair of the Clinical Committee, Suffolk University Law School.

I can add that we have a "unified" tenure track that includes clinical and legal practice skills professors.

Posted by Jeff Lipshaw on August 6, 2019 at 03:10 PM in Getting a Job on the Law Teaching Market, Teaching Law | Permalink | Comments (0)

Monday, August 05, 2019

DeStefano on "the Adjacent Possible"

Michele-DeStefano_cropLast week, one of the SSRN journal emails included a new piece by an old friend, Michele DeStefano (Miami, left) - Innovation: A New Key Discipline for Lawyers and Legal Education. From the abstract:

It begins by demonstrating that clients' call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers' professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator's DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

This is music to my ears - because it's about the self-imposed limitations, for better or worse, that can be the result of the frames or presuppositions from which many lawyers (and law professors) see and make sense of the world (e.g., deliberately, logically, algorithmically, dispassionately, syllogistically). Michele's point here (and in her book Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law) is that kind of square-cornered thinking is just the beginning; clients will demand as well a collaborative and creative mindset in order to craft solutions to problems.

What was particularly delightful was finding Michele's incorporation of a coinage from Stuart Kauffman, M.D., theoretical biologist, and complexity researcher (University of Chicago, University of Pennsylvania, Santa Fe Institute, among other affiliations), about the "adjacent possible." I also recently came across Kauffman's work, and I've used it in the piece (title has changed but that's another blog post to come) from which I've been out-taking this month. The "adjacents possible" are the possible next states from the one in which we are in or which we are observing. Kauffman's point was to distinguish the adjacent possible in physics (or cybernetics) from that in a complex biological or economic system.  In a physics or computational system, all of the adjacents possible in either direction, all state changes, are predictable. But not so in biology (and I would add, in human thought). There, the move to the adjacent possible (the set of all possible next states), while not random, is not predictable. (I like this particular observation: the universe has constructed every possible stable atom, but not every possible protein.)

The connection to human creativity and innovation should be obvious.

More to come later.

Posted by Jeff Lipshaw on August 5, 2019 at 09:37 AM in Article Spotlight, Lipshaw, Teaching Law | Permalink | Comments (0)

Sunday, August 04, 2019

More on Malcolm Gladwell

Mike Dorf critiques the fourth season of Malcolm Gladwell's Revisionist History, which contains several episodes relevant to law and legal education. In particular, the first two episodes criticize the LSATs as the gateway into legal education. The basic argument is that the test's tight time constraints favor "hares" who think and react quickly over "tortoises" who take longer to think and analyze a problem, while the practice of law is more for tortoises.

But at least the first two episodes (I am midway through Ep. 3) are worse than Dorf suggests. The problem is that Gladwell tends to pick a thesis, find evidence that undermines one variable in furtherance of that thesis, then conclude (or assume) that his thesis has been proven, without exploring the other variables or other obvious explanations for the result. Dorf describes this as Gladwell "overclaim[ing]." Three glaring examples in these episodes.

The first is the story of Sixth Circuit Judge Jeffrey Sutton. Sutton attended The Ohio State University for law school because he did not get into Michigan, because it is assumed (without stating) his LSAT scores were not high enough. From this, Gladwell assumes that Sutton is a tortoise. And Sutton might have been overlooked for a clerkship by Justices such as Scalia (to whom Sutton was assigned as a clerk for the retired Powell) who hire based on law school (which is based on hare-favoring LSAT), which rewards hares over tortoises. This despite the fact that Scalia praises the tortoise Sutton as one of his best clerks because clerking and judging are jobs that favor tortoises. So the LSAT--and thus law schools, judges, and law firms--fails to identify, benefit, and reward brilliant tortoises such as Sutton.

There are many gaps in this logical progression. First, poor LSAT performance does not necessarily mean Sutton is a tortoise; it may mean he is a hare who had a bad day (the episode does not say how many times Sutton took the test). Second, we do not know that his LSAT scores kept him out of Michigan, as opposed to his undergrad grades or quality of his essay (Gladwell relies on the strong inference from LSAT being such a significant part of the admission calculus). Third, Sutton has some hare-like qualities--he did extraordinarily well in law school, which (Gladwell argues in Ep. 1) is framed to favor hares by using time in-class exams (this was even more true when Sutton was in law school in the late-'80s, where it was one end-of-semester in-class exam).*

[*] The reliance on timed exams in the first year is why the LSAT predicts 1L performance--both rely on time constraints in testing.

The second is a story told by Bill Henderson (Indiana-Maurer-Bloomington) about a 3L who booked his class, which relied on a take-home exam (I think it was 8 hours); this was that student's highest grade in law. The horror, Gladwell says. The school had labeled this person as an average student  by giving hare-like exams, when he was just a tortoise who, given the chance to take his time, could write a beautiful, well-organized essay.

Again, however, note the gaps and assumptions. I agree with the basic idea that ideal grading combines times and untimed assessments and I try to give both kinds within any class. But I have not not noticed a massive divergence in performance on the two types--good students do within a small range of well on both, weaker students do within a range of less well on both. And the testing format does not necessarily alone explain this one performance. Maybe the student related to that course's material (Gladwell does not identify the course, although Henderson teaches corporations and bus-org classes). Maybe the student responded well to Henderson's teaching style and learned well from him, which might produce stronger exam performance. We do not know how other IU professors assess--whether Henderson was the only prof giving take-home exams--and we do not know how this student performed in any other classes that used something other than in-class exams.

The third story discusses law practice. Gladwell describes a study showing that success in big-firm practice (especially rainmaking) is not correlated to the law school attended--the most successful attorneys attended night law school and schools the person never heard of. But big law firms continue to hire based on law-school prestige to bring in people who "look like them" (what Gladwell's subject called "mirrorocracy"). But that assumes that the people doing the hiring at big firms are the t-14-grad partners rather than the most successful attorneys at those firms--the hiring partners are t-14 grads looking for more t-14 grads, while ignoring the success of their partners who are non-t-14 grads but do the best work. But why aren't those non-t-14-grads who are the best lawyers also doing the hiring? Gladwell does not say.

Finally, not a criticism but a question: Gladwell describes the high enrollments of the three most prestigious schools in Canada--Toronto has 70k undergrads, British Columbia has 50K+, and McGill (the small, intimate school) has 25k. How do they avoid the problems that plague similarly large U.S. pubic schools--not enough teachers, over-reliance on adjuncts, massive classes, limited writing assignments that do not prepare students for the next level, etc.?

At some level, criticizing a podcast for not following and tying down every argument is similar to doing that to a blog post or twitter thread (although not fully--the first two episodes ran 79 minutes, time enough to tie-up obvious loose ends). But Gladwell purports to uncover the real story and offer real understandings, theories, and solutions to problems. It seems fair to hold him to the obvious flaws or incompletions in his arguments.

Posted by Howard Wasserman on August 4, 2019 at 01:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Friday, August 02, 2019

Free speech on campus

A random assortment of free-speech controversies on campus. Some were discussed in programs at SEALS.

• Complaints about MAGA hats (and other clothing) in the classroom are becoming a somewhat common thing for deans to deal with, complaints coming more from students than faculty. For the moment, everyone seems to conclude that the clothing is permitted as protected speech that, while offensive and derogatory to many, is tied to the sitting President and within the bounds of allowable public discourse. Although one colleague wondered about a time we could have said the same about a swastika, when that changed for the swastika, and when that might change for MAGA. The only true solution is a school or classroom dress code, which nobody seems to want.

• What is worse--the epithet or the offensive idea behind the epithet? Should it be impermissible for someone to use a derogatory word--even when that word is contained in course materials being discussed--but permissible for someone to use the precise language describing an idea we now regard as offensive? Is it possible to distinguish them?

For example, what is the difference between quoting from cases the derogatory words for African-Americans, people with mental disabilities, or undocumented immigrants, and quoting  the derogatory ideas about women in Justice Bradley's concurring opinion in Bradwell v. Illinois. For another example, what is the difference between one student calling another student a derogatory name and one student spouting, approvingly, derogatory ideas as part of the class discussion (e.g., minority populations causing more crime); the former should be sanctioned because students should not attack one another, but what about the latter?

On one hand, it seems odd that the word is worse than the idea. On the other, if you treat them the same and sanction (as opposed to challenging and exposing) the expression of "wrong" ideas in a class discussion, it really does interfere with the supposed academic mission of exploring ideas and seeking truth. And you can respond to, challenge, and demonstrate the wrong-headedness of an idea; you cannot do that with an epithet (this is the justification for the fighting-words doctrine).

• I learned about an ongoing controversy at the University of Tennessee. The state and the university have been trying to defund the student group Sexual Empowerment and Awareness at Tennessee (SEAT) and its signature event, "Sex Week." The legislature passed a law prohibiting state funds from being used for Sex Week. This was not a huge deal, because most of SEAT's non-private funds came from the student-activities fees program. Under Rosenberger, the university could not deny funds to SEAT because of disagreement with its sex-positive (and sex-provocative) viewpoint.*

[*] Rosenberger remains my favorite unintended-consequences case, in which a victory for one political position has been used as precedent to provide victories for the opposite political position. Religious conservatives cheered the decision, which held that the state could not deny activities funds to religious organizations. But the case's staunch prohibition on viewpoint discrimination has been used to stop university efforts to defund all manner of liberal student groups. I think this may make an interesting article, especially in showing the difference between judgment and opinion/precedent.

The university's solution, imposed after SEAT refused to "compromise with university administrators who have asked it annually to 'tone it down' and consider the impact of its language choices"** was to eliminate the student-activities fee pool, replacing it with a system in which the university approves and funds all speakers and programs. The university hopes this converts all student programs into the university's speech, allowing the university to pick and choose based on viewpoint or any other considerations. The new program has not been implemented, so it remains to be seen how it plays out.

I think it is a matter of allies. Right now, most student groups oppose the program; College Democrats and College Republicans both hate it. If many student groups do not get money under the new scheme, SEAT will continue to have many allies in the fight. If everyone gets money except SEAT (which is what the university and state hope will happen), SEAT may find itself alone in the fight.

[**] In other words, compromise by changing your speech to make it more palatable to the government.

• Last spring, three white University of Mississippi students posed holding weapons in front of an Emmett Till memorial the was riddled with bullet holes; the photo was taken by a fourth, unknown person, and posted on the private social-media page of one of the students. The identified students were suspended by their fraternity. The university referred the matter to the FBI, but did not continue its investigation because, it claims, it was unaware that the FBI had completed its investigation (the FBI concluded that the photograph was not a specific threat). News stories question how the university responded to that initial bias report in March, particularly whether the university knew the identities of the students at that time (they are Ben LeClere, John Lowe and Howell Logan). The university says it will resume its student-conduct investigation, although it initially said the photo did not violate the code of conduct because it happened off-campus in a non-school setting. And the story seems to be wrapped in broader discussions of removing Confederate monuments on campus.

Is there any doubt that the photo and posing in front of the monument are protected by the First Amendment? This is not an unprotected "true threat" because it is not targeted at "a particular individual or group of individuals." It occurred off campus and was posted to a private social-media page; so even if we allow a university greater leeway to regulate racist speech on the quad or in the dorm, it does not extend to these actions. The photo is racist and offensive and I am glad their fraternity expelled them. I would like to see the university take more seriously, in word and deed, its obligation to engage in counter-speech. And perhaps the three will crawl back into hiding. But a public university's speech code is limited by the First Amendment, which prohibits government from sanctioning someone for engaging in protected speech, no matter how much we hate what they say.

Update: An Ole Miss faculty member pointed to this 2016 story of two students who pleaded guilty to civil rights violations for hanging a noose and a Confederate flag around the campus statute of James Meredith. Other than one happening on campus and one off (which is irrelevant to the criminal charges), it is hard to see a meaningful distinction between this and the current case--they are equally threatening or equally non-directed.

Posted by Howard Wasserman on August 2, 2019 at 10:25 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Monday, July 29, 2019

Organizing a panel

As we enjoy SEALS at Boca Resort, some wise words for all academics from Yascha Mounk.

Posted by Howard Wasserman on July 29, 2019 at 10:29 PM in Teaching Law | Permalink | Comments (1)

Saturday, July 27, 2019

Random snippets of law

Each too short for a stand-alone post. Maybe this is why we have Twitter.

Here is everyone's Evidence question for the coming semester: The government in the Roger Stone prosecution has moved in limine to admit the clip from Godfather Part II in which Frank Pantangeli recants his prior statement implicating Michael Corleone. The government argues this is relevant to explaining Stone's repeated references in his communications with Jerome Corsi and shows that Stone was urging Corsi to lie to Congress.

• This point is moot with the announcement by the House Judiciary Committee that it is investigating "possible impeachment." But following Robert Mueller's testimony on Wednesday, Adam Schiff and Nancy Pelosi stated that their preferred next step was to complete litigation over various subpoenas; if the President disobeyed an Article-III-final court order, that would be the last straw prompting a move to formal impeachment.

I did not understand why that is or should be the relevant line. Some have flagged this as the line that Nixon would not cross, so crossing it would make Trump worse than Nixon. But it is hardly the worst or most wrongful thing a President could do. And it is not obviously worse or more impeachable than the misconduct--some criminal, some representing abuses of office or prospective office--described in Mueller's report and testimony.

I would guess that Pelosi and Schiff believed that Mueller had not described, in sufficiently dramatic terms, a single flashing-red-light act that would rally the public. Or they bought the media spin that Mueller's testimony was too dull to do that. So the strategy became to wait for the next single flashing-red-light act. Or the one after that. Or . . .

Posted by Howard Wasserman on July 27, 2019 at 09:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Friday, July 26, 2019

"Amadeus" and the academy

Keith Humphrey (Stanford Medicine) discusses how the movie Amadeus reflects life in the academy--specifically, how fortunate one is to be Salieri even if he cannot be Mozart.

Posted by Howard Wasserman on July 26, 2019 at 10:03 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Wednesday, July 24, 2019

Meta Rankings of Law Reviews

Former guest Prawf Bryce Newell has updated his Law Journal Meta Rankings for 2019. This ranks mainline journals by combining US News ranking for the school, US News peer ranking for the school, Google Scholar rankings for the review, and W&L rankings for the review. It makes some of my recent or forthcoming pubs look better, others worse.

Posted by Howard Wasserman on July 24, 2019 at 09:53 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)