Category: Law School (Teaching)

16

Class Absences and Grades

running man.jpgWith my move to Seattle University, the opportunity has arisen to re-examine my attendance and preparation policy for class. During the past two years, I required students in all of my courses to show up on time to class and to be prepared to discuss the assigned material. If they were tardy, absent or unprepared, I deemed them absent for that class session. My rule was to withdraw a student from the course who ended up being deemed absent for more than 25% of the scheduled class sessions. Having amassed attendance and grade data for 5 courses (2 first-year courses and 3 upper-class electives) and 223 students, I couldn’t resist the temptation to figure out whether class absences affected my students’ final grades. I’ve been crunching the numbers the past few days with Stata and have been surprised by what I found.

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3

Teaching Criminal Law

handcuffs.jpg.bmpThere are some great discussions over at PrawfsBlawg about teaching criminal law. Russell Covey wonders why so many professors bother to teach the Model Penal Code (MPC):

Well, guys, I’m here to say that the MPC-era is as yesterday as tie-dye and the VW van. Peel off those bumper stickers and put away the MPC. What do our casebooks have to say about, say, drug crimes? Usually very little, even though 21% of state prisoners and 55% of all federal prisoners were convicted of drug crimes.

Likewise, Doug Berman argues that it is time to stop “obsessing” over the MPC.

For those unfamiliar with criminal law courses, they often consist of teaching two things — the common law of crimes and the MPC. The MPC is a complete criminal statutory code developed around the middle of the twentieth century by a group of judges, academics, lawyers, and others to be a selection of the best approaches in the various states. Many states have based some of their criminal statutes on the MPC. The common law is for the most part no longer in use. States have replaced the common law of crimes with statutes. Nevertheless, most criminal law courses still focus significantly on the common law.

I teach my criminal law class as a statutory course since most of criminal law involves working with statutes. I therefore spend a lot of time teaching students how to interpret and apply statutes. These skills are also useful for students who don’t go on to work in the criminal law field (most students won’t practice criminal law). And these skills are absolutely essential for those practicing criminal law.

The problem isn’t with the MPC; it is the fact that most casebooks and courses are still obsessed with the common law. True, the common law is on the Bar Exam, but this is one of the (many) unfortunate stupidities of the Bar Exam. The common law definitions of crimes have been replaced by statutes, and many of the traditional common law elements no longer exist in the majority of states. As I’ve said before, if you practice the criminal law on the Bar Exam, you’ll be disbarred.

Although the MPC is a bit dated, its great strength is its mens rea provisions, which are a big advance from the common law’s cacaphony of mens rea (mental state) terms (there are hundreds of mens rea terms in the common law which the MPC simplifies to four). So although not perfect and in need of a rewrite, the MPC is still useful as a basis for a criminal statutory code. Since hardly any casebooks have a statutory focus, the MPC is the most handy thing for professors to turn to when teaching the statutory side of criminal law.

So while the MPC has its problems, it isn’t the problem. Instead, blame the excessive focus on the common law.

Kim Ferzan at PrawfsBlawg also weighs in, not to bash the MPC, but to point out that “if you spend all your time on the building blocks of crimes (e.g., the general part), you never get to the crimes that folks are actually prosecuted for.”

I’m not sure we serve students well by running through the definitions of a litany of different crimes. It’s easy for students to memorize elements of various crimes, but the hard part is internalizing the key concepts. Once students learn the basics of criminal law (actus reus, mens rea, causation, and statutory interpretation), they can apply them to nearly any criminal statute under the sun.

34

Using a feminine universal

In my lectures and class discussions (and out of class, for that matter), I tend to use a universal female pronoun. Not in cases where a universal is inappropriate because it conflicts with specific facts, obviously — “Mr. Jones went to the bank and she deposited her check.” But in cases where a universal pronoun is used, and where traditional English would therefore call for a “he,” I tend to use “she.” (Ditto for “her,” “hers,” and so forth). Thus, “for a testator to execute a will, she has to meet the following requirements.”

This is normally not much of a problem. Substituting she for he is not exactly rocket science.

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0

More from the AALS Conference on New Ideas for Law School Teachers: Teaching Intentionally

Yesterday morning the conference began with a 45 minute lecture by Prof. Derrick Bell entitled, Creating a Classroom Where Deep Learning Occurs: Participatory Learning. During the course of the talk, Prof. Bell outlined his innovative, student-centered approach to teaching. The “participatory learning” method involves a structure in which students take responsibility for teaching others. A description of this approach is published in the program materials. Under the “participatory learning” method:

Each two and one-half-hour class is structured so that selected student teams brief and argue an actual or hypothetical case to the class sitting as the court. Following the class, students prepare and post on the course web site essays (called op-eds) that offer student perspectives on the law and policy issues. These are available for review and possible response in the class. At the following class, discussion about the op-eds led by those who presented the case in the previous class enables a review of the legal and policy issues that students have wrestled with as they either wrote op-eds or read those prepared by their classmates. Over the course of the semester, each student posts from 10-12 op-eds of from 500-2,000 words. Rather than a final exam, each student receives a graded memo reflecting all aspects of the work done during the semester. Teaching assistants (students who did well in the previous semester) provide guidance to the teams both in preparing their arguments and helping them improve their op-eds . . . .

The method has many attractive features. It forces students to take responsibility for their own learning, converting them from passive receptors of information to active listeners and learners. Under the method, students have to write – a lot, which is always a good thing. Over the years, I’ve reduced rather than increased the number of written assignments in my upper level (non-seminar) courses. This method also involves students from previous classes in the learning process allowing them to both share their expertise with other students, and presumably, to solidify their own hold on legal concepts through their role as teaching assistants. It emphasizes teamwork and peer-to-peer interaction, skills that are increasingly necessary in the legal marketplace. Finally, the method attempts to subvert the power relationship between law professor and law student.

And yet even given all of these advantages, I don’t think that the participatory learning method will never make its way into my teaching repertoire. The reason I doubt I’ll ever use the participatory learning method is because I’m passionately committed to the quasi-Socratic method of teaching that I’ve assiduously worked to perfect for more than 10 years. I’m committed to this method notwithstanding prominent critiques suggesting that it can reify power relationships within the classroom, silence some students and humiliate others, and work against rather than promote learning outcomes for women and people of color.

It’s not that I disagree with these critiques . . . I just believe they can be overcome. I think that, in the right hands, the Socratic (or quasi) Socratic method is incredibly well suited to teaching law. In the right hands, the Socratic method promotes active learning, creates an environment where the sum is greater than its parts, allows for the efficient delivery of information and doctrine and can create an electric feeling in the classroom – that wow moment when through the careful parsing of doctrine that the questioning method allows – the lightblub of true understanding miraculously flicks on.

I can certainly see the benefits of participatory learning, but for me (call me old-fashioned), the quasi Socratic method really works. Am I wrong?

5

Gosh, Those Law Students Say the Darndest Things!

Grading this semester has been multiplied because of Hofstra’s large class size (118 students in my contracts section) and an extra class I was teaching at Touro Law Center. To console those of you who are also still grading, I offer the top funniest paper / exam lines during the time I’ve been teaching:

“Decisions are like snakes, they slip and slide next to morality and justice, changing with time.”

“The common law is like a baby. It grows and grows until someone comes along and stops it.”

“The most impotent doctrine in contracts is lack of consideration.”

And, finally, from a seminar paper that discussed women’s rights in law & literature:

“The feminist movement began climaxing in the mid-1800s, and continued building, with varying levels of excitement, until the 1960s.”

To quote humorist Dave Barry, “I am not making this up!” I realize that I may be encroaching on Reader’s Digest territory, but anyone else find some humorous exam lines?

12

Examining Law School Exams

pen6a.jpgThere are a lot of really good discussions going on in the blogosphere about law school exams recently.

Ann Althouse asks whether exams are a rewarding educational experience in and of themselves for students. Jonathan Adler offers his thoughts here. Rick Garnett chimes in at PrawfsBlawg.

In most law school courses, the grade is based on one final exam given at the end of the semester. Eugene Volokh offers a defense of this practice:

Naturally, some students might value the greater accuracy of the multi-exam approach, and the lower risk to them that this approach provides (since they don’t need to worry as much about tanking a class because they screw up one exam). But for many students the downside of yet more studying and yet more worrying exceeds the upside of less risk and better measurement accuracy. And on top of that, grades are on balance mostly a zero-sum game — more accuracy of testing will just rearrange the As, Bs, and Cs, so as many students will lose as will win. Increased time needed to study for exams is a net loss for students as a whole. Therefore, you’d expect that more accurate measurement devices will please only a few students, while greater need to study will displease many more students.

So professors don’t want to institute more exams, even if having more exams provides more accurate measurement. More students, I suspect, don’t want to institute more exams, even if having more exams provides more accurate measurement. Who would predictably benefit from more accurate measurement, and lose nothing from it? Employers, and perhaps indirectly the legal system generally.

My take on exams is that the big problem with them is the format, not the one-exam-decides-it-all system. Exams are given under immense time pressure, thus favoring students who are able to analyze and write cogently in a very quick timeframe. This is a good skill, although it is significantly undervalued in practice, where law firms reward associates based on billable hours. Ironically, law firms therefore should select students who don’t do well on law school exams, since it will take these students longer to complete assignments, and hence generate more billable hours. In the land of the billable hour, the inefficient lawyer is king.

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3

Law School Clinics: What Exactly Does Student Tuition Subsidize?

In his recent post about ABA law school accreditation, Dave Hoffman suggests that law school clinics provide (among other things, presumably) legal services for the poor, subsidized by student tuition. For Dave, this is probably a social good. For many others, however, this might be seen as an undesirable tax on those students uninterested in such issues. I’d like to take issue with this whole premise, however.

Painting with a broad brush, law clinics are split between two different models: those driven by the need to provide services and those driven by pedagogy. Clinics on the service model are constantly struggling to provide services to a relatively substantial client base. These clinics are typically funded by soft money – grants provided by some interested group for the purpose of delivering particular legal services. As a result of these grants, these clinics cost law schools – and students – far less money. Their cost is underwritten by third parties, not tuition. But these clinics have pedagogical problems, because their need to serve many clients conflicts with the clinical pedagogy calling for students to dig very deeply into a small number of cases.

The other model – the one typically funded by hard money, and thus tuition dollars – takes on cases primarily for the purpose of training students how to practice. Because these clinics serve the goals of the law school (albeit with social justice issues still hovering about), they provide services to a relatively small number of clients. Instead, they train students in “best practices”, teaching them the ideal way to provide legal services. The thinking is that once you train a student how to practice well, she will use better judgment later when her caseload demands more corner-cutting.

So who exactly is receiving the benefit of these highly subsidized clinics? Law firms (and their clients) lacking in-house training programs. Big firms train lawyers themselves. But small firms, legal service offices and – this is a big one, in a place like Alabama – government agencies (i.e., DA offices) need law schools to train students in concrete lawyering skills. For economic reasons, they simply can’t do an adequate job themselves.

So the ABA requirement that schools provide experiential education (and that those teachers be treated as legitimate members of the law school community) actually speaks to the needs of the small town law firm and client, the shingle hanger and her clients, the indigent client, and that entire public consuming such goods as crime control, pollution suppression, and housing safety. Perhaps we shouldn’t worry about these folks – us, that is – but maybe worrying about “us” is exactly what motivates states to grant such power to the ABA. It’s hard to imagine, but maybe in this respect, the guild is actually doing right by the public at large.

15

Teaching Today’s Students

Many thanks to Dan and the crew for inviting me to join them for a couple of weeks.

From time to time here and at other law professor blogs, the subject of “teaching today’s generation of students” comes up — usually in the context of whether laptop use and/or wireless Internet access should be curtailed in the classroom. I’d be interested in hearing readers’ thoughts on this subject more generally.

Initially, of course, one should ask whether “today’s generation of students” has any meaning beyond the descriptive — in other words, whether students today are different in kind, rather than simply in degree, from our own classmates. I think they are, and in important ways. Students today are a more diverse group in terms of race, gender, religion, ethnicity, sexual orientation, financial status, political views, family situations, work experience, and life experience. (That’s not to say that earlier generations were exceedingly less diverse in each of these areas, but those students may have felt less able to engage in a public discourse about some of these facets of their identities.) Students today have been raised on a diet of popular culture and instant communication, resulting in shorter attention spans and higher demands on faculty to use technology in the classroom. They are fluent Internet users but do not always have a similarly developed ability to be intelligent consumers of information — to distinguish reliable sources of information from less reliable sources of information. Finally, some students today see themselves as consumers of an educational service, which manifests itself in the way they treat the classroom experience (choosing to attend class or not, expecting (and requesting) a certain type of classroom experience or procedure, and so forth).

Is this an accurate description? And, if so, how should faculty respond to these issues, if at all?

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18

Advice to Starting Law Professors: Don’t Give Advice?

Over on Prawfs, Dan Markel instigated a nice thread collecting advice to incoming professors. Something that hasn’t gotten discussed in this recent round of posts (although it has been in the past) is what a law professor should do when a student asks for help with a legal problem. This happens with some frequency to me – as a contracts teacher, I get asked a handful of times a semester to consult on a lease (for the student or a relative) or an employment agreement. I imagine that other professors get different types of questions (the property-suite of subjects is similarly vulnerable; federal courts probably isn’t).

These questions create a difficult problem for junior professors in particular. If you aren’t a member of the state bar, you obviously can not ethically practice law. Most professors have not bought malpractice insurance. Providing advice, even when insured and barred, fundamentally changes the student-teacher relationship, and may get you in a heap of trouble with the administration and students you do not help.

But failing to give students what they want can get you into trouble. And the first (and second and third) time this happens to you, you will be strongly tempted to read the lease, or parse the will, and suggest a course of action. Is there a way to let students down without creating ill-will?

In the comments to this thread, folks should feel free to (a) disclose interesting examples of requests for legal advice and how they handled it; and (b) follow-up on the issues raised when professors actually give advice.

[Topic Suggested By: Temple Law Freedman Teaching Fellow Meredith Miller, who will be joining Touro Law in the fall.]

12

Should Professors Ban Laptops in Class?

computer8a.jpgOrin Kerr writes about June Entman, a University of Memphis Law School professor who has decided to ban laptop computers in her class. While certainly of interest to law students and profesors, I’m a bit surprised that the AP thought that this was a national news story. [I should ban something from my classes and make national news, too.]

Anyway, the issue is interesting, and Orin posts an email he received from Professor Entman explaining her rationale for the policy. She observes that when students use laptops, they “focus primarily on transcribing everything said,” and don’t develop good note-taking habits. She also explains that the “wall of vertical screens” prevents her from seeing her students’ faces and that keystroke noise is a distraction.

An interesting discussion has ensued on Orin’s post. I have a comment there, disagreeing with Professor Entman’s policy. I will give students advice on good study and note-taking habits, but in the end, it is for the students to decide for themselves. Students need to learn to make their own choices and to live with the consequences of those choices. I don’t think that turning back the clock and taking students’ laptops away will help them. These are the tools we use today, and I think that it is better to teach students how to more effectively use today’s technology than to take it away. As I concluded in my comment:

There are many things I’d like to force my students to do. I’d like to force them to be prepared, to study diligently throughout the semester, and so on. I tell them all this, but in the end, I leave the choice to them. Otherwise, I begin to feel too much like parent, and I don’t always know what’s best for each student.

Will students be better off without laptops? I doubt it. Most won’t suddenly learn good habits; they’ll just resent the no laptop policy.

To keep the conversation in one place, please comment in Orin’s post (if he’ll allow you to).