Category: Teaching

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After a Year of Teaching

Yesterday began the last week of my first year of teaching. I taught Civil Procedure and Criminal Procedure as a Visiting Assistant Professor, so a colleague dubbed me the “Pro Prof.” There is still so much more to understand about becoming a challenging, inspiring, and effective professor, but I doubt I’ll learn in any other year the amount I learned in these two semesters. So, for the purpose of comparing notes with other professors, here are a few reflections accumulated after a thoroughly enjoyable year of professing.

1. Teaching is about balance. It’s necessary to find the optimal balance of informality (students tend to participate more and have more fun in a relaxed learning environment) with authority. There’s a balance of writing out notes but not wedding yourself to them. I also had to balance making deliberate choices about the kind of professor I wanted to be (modeling humbly after my law school professors) with the inevitable facts about who I am. When you speak for 1.5 hours in front of a classroom, your actual personality inevitably emerges. It turns out, I’ll never be as tough as Professor Kingsfield, but I can force myself to look disapproving if a student’s cell phone accidentally rings during class, and I can challenge students through my fervent, yet compassionate, Socratic questioning.

2. What excites the students will surprise you. It takes a few weeks with a new class to learn which types of questions, and which ways of phrasing/posing questions, will promote the best classroom discussions. Just because I am interested in the theories behind each rule of Civil Procedure doesn’t mean my students wouldn’t rather discuss whether a plaintiff can aggregate the claims of conjoined twins to meet the amount in controversy (this was an actual hypothetical a student posed in my class). That said, don’t give up on trying to get the students to come around to what excites you about the law.

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Why I Don’t Teach the Privacy Torts in My Privacy Law Class

(Partial disclaimer — I do teach the privacy torts for part of one class, just so the students realize how narrow they are.)

I was talking the other day with Chris Hoofnagle, a co-founder of the Privacy Law Scholars Conference and someone I respect very much.  He and I have both recently taught Privacy Law using the text by Dan Solove and Paul Schwartz. After the intro chapter, the text has a humongous chapter 2 about the privacy torts, such as intrusion on seclusion, false light, public revelation of private facts, and so on.  Chris and other profs I have spoken with find that the chapter takes weeks to teach.

I skip that chapter entirely. In talking with Chris, I began to articulate why.  It has to do with my philosophy of what the modern privacy enterprise is about.

For me, the modern project about information privacy is pervasively about IT systems.  There are lots of times we allow personal information to flow.  There are lots of times where it’s a bad idea.  We build our collection and dissemination systems in highly computerized form, trying to gain the advantages while minimizing the risks.  Alan Westin got it right when he called his 1970’s book “Databanks in a Free Society.”  It’s about the data.

Privacy torts aren’t about the data.  They usually are individualized revelations in a one-of-a-kind setting.  Importantly, the reasonableness test in tort is a lousy match for whether an IT system is well designed.  Torts have not done well at building privacy into IT systems, nor have they been of much use in other IT system issues, such as deciding whether an IT system is unreasonably insecure or suing software manufacturers under products liability law.  IT systems are complex and evolve rapidly, and are a terrible match with the common sense of a jury trying to decide if the defendant did some particular thing wrong.

When privacy torts don’t work, we substitute regulatory systems, such as HIPAA or Gramm-Leach-Bliley.  To make up for the failures of the intrusion tort, we create the Do Not Call list and telemarketing sales rules that precisely define how much intrusion the marketer can make into our time at home with the family.

A second reason for skipping the privacy torts is that the First Amendment has rendered unconstitutional a wide range of the practices that the privacy torts might otherwise have evolved to address.  Lots of intrusive publication about an individual is considered “newsworthy” and thus protected speech.  The Europeans have narrower free speech rights, so they have somewhat more room to give legal effect to intrusion and public revelation claims.

It’s about the data.  Torts has almost nothing to say about what data should flow in IT systems.  So I skip the privacy torts.

Other profs might have other goals.  But I expect to keep skipping chapter 2.

 

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Teaching Sexual Assault

This week, I began teaching the unit on sexual assault to my Criminal Law class. I – untenured, female, and in my second year of teaching – walked into my classroom and wrote “carnal knowledge of a woman forcibly and against her will” on the chalkboard, thus beginning a two week exploration of the law of rape. Am I brave? Am I foolish? Or am I simply doing what I am supposed to do as a Criminal Law professor?

A couple of senior professors from other law schools had advised me not to cover sexual assault as part of my Criminal Law class at all. It was too risky, I was told. And this is generally true. All classes have an element of risk and uncertainty: one can never be quite sure how any given class is going to turn out on any given day. The most beautifully constructed notes containing the most carefully (and charmingly!) written lecture can produce quizzical looks, yawns, and dead silence during the discussion period; meanwhile, those notes that might as well have been written on napkins during the faculty meeting that preceded the class can produce the most brilliant, Socratic unveiling of that hard-to-understand, but oh-so-fundamental concept. So, yeah: there’s uncertainty built into all classes. But, the uncertainty associated with teaching sexual assault is terrifying. Will my question about the mens rea of nonconsent yield a response that indicates that one of my students has been accused of rape? Will another response indicate that another student has been raped? Will a screaming match break out? Will someone break down in tears? Will that person be me?

I have my strategies, though: first, I avoid any attempts at humor during the unit, which is a departure from my approach to the rest of the class. Criminal Law frequently involves people doing horrible things to other people. The fact patterns of the cases are awful much of the time. So, as a professor, one could go into the classroom and lament man’s inhumanity to fellow man for an hour and a half; or, one could treat it like a dark comedy. I typically choose the latter. I prefer the Fargo approach to the There Will Be Blood approach … except during the unit on sexual assault. During those weeks, I am Daniel Day-Lewis as a turn-of-the-century oil prospector. (Interestingly, even dark comedies tend not to make light of sexual assault. People are killed all the time in dark comedies; but they are infrequently raped. If they are (think of Ving Rhames’ character in Pulp Fiction), the rape scenes are not supposed to be funny; they are supposed to be horrifying.)

My second strategy: instead of calling on students at random, I only call on volunteers. But, I am not entirely comfortable with this strategy. Undeniably: rape is terrible, and talking about it can make some people profoundly uncomfortable. But, you know what else is terrible? Murder. Voluntary manslaughter – which involves case after case of men experiencing sometimes adequate/sometimes inadequate provocation and killing their wives – is terrible, too. Yet, I do not hesitate to call on students randomly during the homicide unit. Some Constitutional Law professors tell me that, during their units on abortion (and definitely on the day that they teach Gonzales v. Carhart, if they teach it at all), they only call on volunteers. The exceptions that professors are willing to make to their usual pedagogy might be a bit problematic. Both abortion and sexual assault are gendered subjects. Is there something about topics that disproportionately and distinctly affect women that makes it appropriate to remove them from normal classroom procedure? One cannot argue that professors make these exceptions with respect to abortion and sexual assault because these topics are especially controversial. You know what else is controversial? Same-sex sodomy. Also controversial: affirmative action. But, the professors whom I have come across do not make exceptions to their practice of cold-calling when they teach Lawrence v. Texas or Grutter. (Indeed, I feel for the student who is a racial minority and who is called upon to be Socratically drilled about Grutter. A sufficiently competent performance may exonerate him or her from an implicit accusation that he or she is a beneficiary of the very program upheld in Grutter. And a bad performance? Well, that’s pretty good evidence that Justice Thomas was absolutely correct in that vigorous dissent….) So, why should we, as professors, be especially sensitive about abortion and sexual assault? Does our sensitivity construct women as especially sensitive? Or does it reflect the belief that crimes against women and gendered issues such as reproductive rights are Other?

Nevertheless, I shall adhere to my strategies, and I shall humorlessly and sensitively teach my students the law of sexual assault. And I shall sigh a huge sigh of relief when the unit is over and we can move on to lighter things – like Bernie Goetz shooting four, young, unarmed racial minorities on a New York City subway. [sigh]

Lombardo on Legal Archaeology

Paul A. Lombardo published an essay “Legal Archaeology: Recovering the Stories behind the Cases” in the Fall 2008 issue of the Journal of Law, Medicine, and Ethics.  It reminded me of the wonderful chapters in this volume of “health law stories.”  Here are some excerpts that may be of interest: 

 Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the events that gave rise to litigation.

Rarely do we admit that the official factual account contained in an appellate opinion may have only the most tenuous relationship to the events that actually led the parties to court. The complex stories — turning on small facts, seemingly trivial circumstances, and inter-contingent events — fade away as the “case” takes on a life of its own as it leaves the court of appeals.

How can a law professor correct this bias?  Here are some of Lombardo’s suggestions: 

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Some Words of Advice for Law Students, from 1811

As the year draws to a close, it might be worthwhile to review the following advice, provided to American law students (clerks, really) precisely two centuries ago.  These words of wisdom come from William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale  with “additional notes for the American student” back in 1811.  (One can view the complete text here, on Google Books.)

  • The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.
  • Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.
  • Habits of attention and application, properly directed, produce what is commonly called genius.
  • The student should make himself most intimately acquainted with the practice which is likely to be the most useful.
  • Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.
  • The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.
  • Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.
  • Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.
  • An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.
  • When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.
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The Phone Booths in Katz v. United States?

I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.

I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.

Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles,  circa the mid-1960s.  I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.

According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard.  And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is?  The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)

I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be.  Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.

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Back for One (or Two) Last Things—An Offer and a Request

D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

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Hammontree v. Jenner: The Rest of the Story

Schoolhouse Ruins, Metropolis, NV

I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays.  In a related story, this will be my last guest-blogger post on the site.  Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience.  It’s been fun, at least for me.

I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.)  This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.

The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel.  Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.

The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.)  The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.

Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others.   If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.

The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case.  Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.

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Professor Graham’s Top Nine Failed Attempts to Increase His SSRN Downloads

9. Offering Justin Bieber $2,500 to rave about latest article on Twitter

8. Frequent integration of trendy words and phrases like “jeggings,” “Winning!” and “Tebowing” into article titles

7. Legally changing my name to “Eddie Murphy” for one month prior to, and following, the posting of each new piece, because if Eddie Murphy were to write a law-review article, that would really be something else

6. Ill-fated promise to students that if I get up to 5,000 total downloads, A+ grades for everyone, unless I don’t like them

5. Offering Charlie Sheen $2,500 to rave about latest article on Twitter

4. Having article titles painted on the sides of the turkeys thrown from the WKRP helicopter pursuant to their Thanksgiving giveaway

3. Extensive unsuccessful efforts to have Oprah name “Why Torts Die” as her Book of the Month

2. “Rick-Rolling” people over from Cass Sunstein’s latest article on SSRN

1. Prominent advertisements that each article is guaranteed to be “100 percent Kardashian-Free”