Category: Teaching


Wheel of Fortune? Not Your Family Board Game

Wheel of Fortune: Not Your Typical Board Game

In the wake of the recent financial crisis, many now ask whether we should blame the Board of Directors of investment banks, commercial banks and other financial services firms for failing to manage the economic risks associated with their market activities. (See  here , here,  and here. In teaching the Business Associations course, I find that we have the most interesting discussions when we cover the role of the Board of Directors and Management. The conflicts among the cast of corporate characters – the board, managers, employees, creditors and shareholders (to name a few)- intrigue students. In assessing risk management, we typically do not expect the Board to have a direct role in monitoring risk on a transaction-by-transaction basis or determining the day-to-day operating procedures that reduce risk. We do, however, expect the Board to have a role in establishing policies that address enterprise risk management. When we juxtapose the danger of risks of loss related to certain market activities (think AIG’s financial products group) with our traditional expectations of the Board’s role in firm oversight, we find ourselves asking if it may be prudent to require that the Board be more informed and active in monitoring enterprise risk management.

Read More


Education, Technology, and Empirical Data

I just returned from the Institute for Advanced Study’s Symposium on Technology and Education. Anyone interested in how education operates should contact the folks in today’s symposium or in the year-long seminar The Dewey Seminar: Education, Schools and the State. It is a great group of people thinking about justice, finance, the structure of schools, education and labor matters, whether constitutions address education, and much more. Indeed, it struck me that many of the participants’ work could provide interesting opportunities for collaboration.

Today’s speakers offered some fantastic ideas about the way education works in K-12. One thing that occurred to me was how, in yet another field, data is increasingly important. In many areas, vast amounts of data are being used to understand how a student is performing or where a different type of learning style may be required or whether a teacher is effective, and so on. This point may be readily familiar to those interested in empirical legal studies. Yet, two key issues arise. How does one sort the data? And, how does one interpret the data.

The answer seems to lie in the ability to embrace the Google mindset. Take in data. Study it. Study it. Study it. And see where it takes you. As Hal Varian has described (pdf), “The real secret to Google’s success is that they are constantly experimenting with the algorithm, adjusting, tuning and tweaking virtually continuously.” He compares this approach to “the Japanese approach to quality control is kaizen which is commonly translated as ‘continuous improvement.'” As general matter Varian has offered:

During the 1960s and 70s the scientific study of financial markets flourished due to the availability of massive amounts of data and the application of quantitative methods. I think that marketing is at the same position finance was in the early 1960s. Large amounts of computer readable data on marketing performance are just now becoming available via search engines, supermarket scanners, and other sorts of information technology. Such data provides the raw material for scientific studies of consumer behavior and I expect that there will much progress in this area in the coming decade.

After today’s seminar I am wondering whether “large amounts of computer readable data on marketing performance” could also be written “large amounts of computer readable data on education performance.” It seems like that day is coming, if not already here. We may be entering an era where education is heavily data driven and educators must be able to use new tools to understand and use the data. The challenges regarding privacy, notions of tracking, and fairness will be large. Then again the promise of improved educational outcomes and a system that can reach more students in ways far beyond training them to jump through test-taking hoops suggests that whatever the obstacles, it is worth pursuing the possibilities.


Of Domes and Homes

I’m very happy to be back adding my two cents to Concurring Opinions.  Thanks very much, Dan, for the invite, and Sarah, for the introduction. 

I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium.  I kept looking at the shots of the stadium itself, and thinking about two recent court orders. OneTouch 4.0 Scanned Documents

One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land.  There were four bids.  The winning bid? $583,000.  Total.  After auction fees, the current owner — the City of Pontiac, Michigan — will net about $430,000.  When professional sports tenants such as the Detroit Lions left, a property that cost $56 million to build was rendered practically worthless.  In fact, Pontiac was prepared to accept any bid for the property, since maintaining it was costing the City $1.5 million per year. 

The other order was issued in September by Judge Berrigan of the U.S. District Court for the District of Eastern Louisiana, ordering St. Bernard Parish not to interfere with the construction of a mixed market-rate and low income housing project.  The Parish, faced with an influx of low income tenants, had refused to issue building permits for the project, imposed a moratorium on building apartment complexes, and passed an ordinance making it illegal to rent to anyone other than a blood relative without special permission.  The New Orleans area faces an extreme shortage of low income housing, despite the population diaspora from the area generally.  Most of the housing destroyed by Katrina was low income. 

Read More


A Civil Procedure Curriculum Challenge

I read with great interest Jon Siegel’s recent post on curricular reform and the thirty or so comments it generated. I don’t really disagree with his main point that law school is mostly about “acquiring the ability to acquire skills and knowledge.” But at the same time, I don’t spend that much time on personal jurisdiction and Erie in my civil procedure class and wanted to use this post to explain why.

I started teaching civil procedure during my time at Brooklyn Law School where civil procedure was a two semester five credit course. When I got to Loyola, civ pro was a two semester six credit course. Two years ago we moved to a one semester four credit course as part of a general reform of the first year curriculum. So I have now taught the course in just about every possible permutation.

I currently spend the first 2/3 of the course on the litigation process and about the remaining 1/3 on personal jurisdiction and Erie. I am probably in the minority on this and it’s hard to find a casebook that is set up the way I prefer.

I do it this way because of my belief that only a detailed study of the litigation process reflected in the FRCP can convey a deep understanding of the American civil justice system and its strengths and weaknesses. For better or worse, we have a system that (until very recently) has deemphasized pleadings and uses discovery to lay the groundwork for settlement or summary judgment for those cases that make it into the system and is increasing reliant on ADR for those cases that don’t. Of late, the Supreme Court has seemingly raised the bar on pleadings in Twombley and Iqbal and reinvigorated motions to dismiss as a more meaningful part of the litigation process. One cannot understand what we do, how we do it, why the rest of the world thinks we are crazy, what is changing, and what needs to be changed without a large amount of class time, which of necessity limits the amount of time devoted to personal jurisdiction and Erie.

All this is driven by my view of in most litigation the law is easy, but the facts are hard. Discovery is where the facts come in. If you don’t understand how parties marshal, present, and protect facts from their files, from the real world, and from the other side through discovery then the students leave civ pro (and possibly law school) without any real clue how our civil justice system works. Read More


Teaching Constitutional Law

I’ve been working on my Con Law syllabus for next semester.  I must admit that I find Con Law the most difficult course to teach, even though it’s the subject that I enjoy the most.  Why is that?

Read More


Sabbatical Blogging

This semester, I get to take my first sabbatical. As Larry observed, law firm sabbaticals are a thing of the past, and so lawyers might see this opportunity as yet more evidence that academics are insulated, head-in-the-clouds, wastrels. Perhaps, though it might help to see the sabbatical, like tenure, as simply a form of alternative compensation for professors, rather than a serious spur to productivity. And, like tenure, the sabbatical is a relic: while many years ago, a regular sabbatical policy was commonplace, now it’s my sense that it’s somewhat more rare.

I’ve got to say, I find the prospect of a fall with no duties other than those I set for myself more than a little terrifying. Putting aside the absence of structure, and colleagues to talk to, there’s the problem of figuring out which kinds of projects are the right size. If I pick something too big, I’m not going to finish (and thus feel pretty bad about having nothing to show for the immense privilege that the Law School and its stakeholders have extended me). If I pick something too small, well, you get the idea. So I’m looking for the sabbatical goldilocks. As I’ve learned, painfully, promising goldilocks projects in the empirical world are often (forgive me) wolves in sheep’s clothing. You start collecting data, and before you know it it’s two years later and you realize you never fully specified your research question. Yikes!

Some folks use their sabbaticals to do something entirely different, e.g., hiking the Appalachian trail (no, seriously); writing fiction; constructing toasters from scratch. I fear I’m more conformist than that. Apart from some personal business, I’ll probably be spending the fall writing more articles, coding more data, thinking about how to be a better corporations teacher, and blogging a little bit more often than I did over the summer.

I do have two larger intellectual projects that I’m going go try to fold in. The first is to read (again) the works of the Situationalist project. I’ve read several of the project’s papers – in one case, multiple times – but I still don’t think I really understand many of the claims, and, more importantly, the project’s motivation. Since there are tons of brilliant folks affiliated with the group, this obviously is a situation that I’ve got to remedy.  Second, I want to read at least a large sample of the articles that Herb Kritzer identifies here as fruits of pre-1940 empirical legal studies work. One of the few abiding disadvantages to not having a PhD is is a missing sense of the intellectual history of your field. That problem is particularly acute in ELS, where (to read the dates on citations in most recent papers) nothing useful was written before 1995.

I suppose that’s it. I’m not training to climb Everest. I’m not going to reorient my scholarly path. I’m not taking on a court case (though the amici in Jones appear to be having tons of fun). I can’t imagine that I’ll pick up a new hobby. Nevertheless, I’m pretty sure I’ll be spending more hours working than I do when I’ve got classes to teach!


Using a Teacher’s Manual

Textbooks and casebooks often have accompanying teacher’s manuals. These manuals range from limited, rambling copies of the textbook author’s classroom notes to detailed discussions of the book’s materials and related course structuring issues and classroom questions.

I have not really used a teacher’s manual over the years, in part because it was not an option when I started teaching years ago as I started teaching with a casebook that did not have a teacher’s manual. Later, when I began using books that did have teacher’s manuals, I did not always agree with the manual or the suggestions made therein, so I never really consulted the manuals.

That said, I will be working with a colleague on his teacher’s manual, so I am curious about what other professors find useful in a teacher’s manual. My impression is that a teacher’s manual should be geared toward:
(a) the new teacher who has never taught anything before,
(b) the teacher who is picking up a certain class to fill a curricular need, outside her/his area of primary expertise, or
(c) the teacher who needs help with the basics of a certain limited aspect of his course (such as tax in a mergers & acquisitions class).

Am I correct on the sort of faculty who tend to extensively use a teacher’s manual or are their teachers out there who do not fit the above parameters who find teaching manuals useful?

Perhaps it is best to ask professors who are reading this post: What would the ideal teacher’s manual include, and would an outstanding teacher’s manual sway you in favor of adopting a particular book for your class?

(Does this blog have a “poll” function, and should I know how to use it?)


First Amendment Theory Study Aid: Make No Law

Thanks to Dan and everyone else for inviting me back (and then putting up with me as I delayed accepting the invitation). At this time of the year, as the semester ends and the opportunities for faculty writing time increase, student attention turns understandably towards exams. I’ve been teaching the basic First Amendment course at Wash. U. for six years now, and the more I have taught the course, the more interested I have become in the theory and structure of free speech law at the expense of its often technical doctrinal rules. As my course has evolved to reflect these interests, my students understandably have asked me to suggest a study aid that could supplement some of the things I talk about in class (though “gibberish” may be more accurate). For doctrine, I have always suggested the First Amendment section of Erwin Chemerinsky’s excellent one-volume treatise Constitutional Law. But I always struggled to suggest a good, one-volume, accessible primer on the history and theory of the First Amendment. But in rereading Anthony Lewis’ Make No Law (Vintage 1991) for a paper earlier this semester, I think I might have found the answer. Lewis’ book tells the story of the landmark 1964 case of New York Times v. Sullivan, which applied rigorous First Amendment scrutiny to state defamation law, and held the “core meaning” of the First Amendment to be criticism of public officials. What I had forgotten about the book is the masterful and accessible way that Lewis situates the Times case in the evolution of First Amendment thought more broadly, both in its intellectual origins in the work of Milton, Madison, Holmes, and Brandeis, as well as in its effect on First Amendment law more generally. It’s not perfect; Lewis has a tendency at times to be uncritical of the Court’s opinion in Times and to view the result as foreordained. But although it is a bit of a hagiography of the case, its early chapters are the best basic treatment of elementary First Amendment history and theory that I’ve seen. So I thought I’d pass it on, should any First Amendment teachers or students feel the need to brush up on their free speech theory as we approach the business end of the semester.


UCLA Law Review 56:4 (April 2009)


Volume 56, Issue 4 (April 2009)


A Constitutional Birthright: The State, Parentage, and the Rights Of Newborn Persons (pdf)

James G. Dwyer

“Which Is To Be Master,” The Judiciary or the Legislature? When Statutory Directives Violate Separation Of Powers (pdf)

Linda D. Jellum

Normative Methods for Lawyers (pdf)

Joseph William Singer


Sex Outside of the Therapy Hour: Practical and Constitutional Limits on Therapist Sexual Misconduct Regulations (pdf)

S. Wesley Gorman


Law School Field Trips

This morning I accompanied a group of kindergarten students on their field trip to a planetarium. The whole experience left me musing about how at some point in one’s education the field trip just disappears. The quintessential field trip, which is undertaken despite the knowledge that some students will simply goof around on the bus, reflects the belief that even the uninterested are enriched by participating. But by high school, not to mention law school, the general enrichment trip is replaced with targeted opportunities for students with particular interests. (Think clinics and externships.)

So, here’s my question: if you were planning a series of field trips for 1Ls, where would you take them? I’d start with a tour of a prison, which would be bound to leave some sort of impression. I’d also like to arrange for each student to spend a full shift in a squad car, although I’m not sure how to pull that off for an entire first year class. (Also, the Estates and Trusts professor in me would like everyone near Philadelphia to visit the Barnes Foundation and see what all the fuss is about. That, however, may be a bit too targeted for my list, which is aimed at general legal enrichment.)

Suggestions, anyone?