Friday, September 21, 2007
Click here to read about Nebraska State Sen. Ernie Chambers' lawsuit against God for "widespread death, destruction and terrorization of millions upon millions of the Earth's inhabitants" filed in Douglas County District Court in Nebraska. Sen. Chambers probably expected to create a stir with his lawsuit, but what he probably didn't expect was a response from God.
On Wednesday of this week, God entered a special appearance arguing that the court lacked personal jurisdiction over him and, subject thereto, argued that Plaintiff Chambers fundamentally misunderstands the nature and consequences of his gift of free will to mankind. Apparently, God hired a Corpus Christi, Texas lawyer to defend him.
God contacted me about the case earlier this week. I told Him to blow off the lawsuit and collaterally attack if and when Sen. Chambers tried to enforce the resulting default judgment against Him. God expressed concern about foregoing what He thought was a pretty good defense on the merits, and, alas, went with the Corpus Christi counsel. He may have also balked at my fee.--Counseller
In my last post I detailed how my approach for much of this semester has been to encourage students to develop an analytical framework rather than outline. Part of what this means is that I've accelerated the "freak out" questions that usually come in the weeks before the exam. Experienced professors and recent graduates know what I'm talking about--- that time in the Fall semester when Thanksgiving comes around, students sit down with a practice fact pattern and have no idea where to start and what to say. They then frantically appear in the professors office feeling as though they've been missing something all semester. There are ways to avoid this, such as to provide a "sample final" or midterm, but those students who respond to the offer for extra work are either the one's who get it, or the one's who are totally lost--- the large group in the middle "sorta gets it" and believes that what they don't get they'll figure out by the end of the semester. Unfortunately I don't think that time ever comes for many of them, and they leave the class feeling as though they were missing something. I'm hoping to avoid that feeling.
As a result, my approach has created what I'll call the "November in September" effect. The freaking out that normally occurs with a few weeks left in the semester is happening now, but on a somewhat smaller scale. As such, I'm fielding lots of questions. Some professors reading this may be thinking "What a pain in the a$$, I'm definitely not going to encourage them to figure stuff out early if I'll have to deal with a semester's worth of out of class questions and freaked out students" in fact, I briefly thought that myself. I mean, I have writing to do, all this teaching and question fielding is taking time away from my scholarship. But, all this teaching is also a part of my job (albeit not given as much weight as scholarship) and at the end of it all some of my students will walk away with $135k+ of debt. I think I need to give them something more than a guided tour of the pool house that ends with me kicking them into the deep end where they will sink or swim. So I push the analytical framework approach early, and with it comes early questions. My hope is that it will minimize the number of questions at the end of the semester and will improve their understanding of the material.
So how do I handle the questions such as "Is my framework right?," "Am I analyzing this correctly?" "How do I know the right approach, is there a supplement out there?"
First, I frequently use hypothetical problems forcing students to use their framework. My expectation is that they will follow along as we deconstruct problems in class. Hopefully while one student is being grilled other students will be following along answering the question on their own, and where they can't find the answer they will make notes to themselves on areas where they may need to flesh out their analytical framework.
Second, the casebook I'm using makes it a bit easier to point students in the right direction so they can answer some of their questions on their own. For example, yesterday we covered the recent Jones v. Flowers 126 S.Ct. 1708 (2006) case, dealing with notice. For didactic purposes Spencer left out of the casebook Roberts' examples of additional steps the government could have taken to ensure notice. Some students keying in on this wanted to know what additional measures might have worked. Rather than answer that question for them, I pointed them to their electronic casebook and informed them that they should click on the citation and read the full opinion. Clicking the link in the casebook took them straight to WestLaw, providing them with the full opinion and because it's WestLaw it also provided them with the KeyCiteNotes which helps to pull out some key rules from the case which are hyperlinked directly to the body of the case where the rule comes from.
I informed my students that having the entire opinion at their fingertips in this instance can help them to further develop their understanding of the case, and also provides one way for them to double check their instincts. I also told them that the hyperlinked full text of the case, the hyperlinks to other informative cases and the links to law review articles are great resources for when they are reviewing and studying the material. Lucky for me, they are reviewing and studying the material now and as we go along, rather than trying to cram and syntheisize at the end.
Here's my vision. By developing their analytical framework early on, they begin to think about the material and how to synthesize it. The downside of this approach is that it may raise more questions than answers for them, and they're going to look to me for the answers. I don't see my role as providing them answers; instead in keeping with the pool analogy I'll kick them into the deep end, but I'll make sure I taught them how to swim first. By using some innovative resources that I've detailed above I'm teaching them how to swim by teaching them that they can find answers and further understanding of the material by working through problems, re-reading cases, consulting on-point articles and legal research tools. Those are law student skills I believe they should learn for my class, and they are lawyer skills that they should begin developing for life.
I suppose in December I'll have to report back on this and tell you if my scheme worked.
Thursday, September 20, 2007
The Thursday Interview is back. This week's interview is with Jennifer Wolsing, an attorney in the litigation section of Blackwell Sanders, about her new article Daubert's Erie Problem. If you're a procedure and evidence junkie like me, her article is the perfect storm. Many thanks to Jennifer for taking the time to discuss her work with us.--Counseller
Wednesday, September 19, 2007
I'm at the point in the semester where I'm about to wrap-up Personal Jurisdiction. This seems like a natural break point to encourage my students to go back and review the material and make sure they understand what we've covered. That's exactly what I've told them to do, but I also told them not to outline.
You're probably wondering why the heck I would tell my students to review their material, but NOT to outline. The reason is simple, most of my first year law students (in fact many of my 2nd and 3rd year students too) don't know what the term outlining is intended to mean. So they go with what they know (for the most part undergraduate outlining experience) and they rehash their typewritten notes into very well organized, paginated, tabbed, bulleted dictation notes which don't help them understand the material now or for the exam. It seems there is no synthesis or attempt to understand the material, instead it's a clerical exercise, often involving 100's of pages by the end of the semester, especially when study groups collaborate to make one mega outline. What a waste of paper and time.
Instead of this "outlining" process, I've told my students to develop an "Analytical Framework." I don't use the term outlining, in fact I don't use it in any classes I teach. I instead always tell my students to develop a framework which helps them apply the material we've covered to new circumstances. The results have been extremely encouraging. Instead of fielding questions such as "what is the rule here?" I'm fielding questions such as "So when applying my minimum contacts analysis, should I read Shaffer to say that International Shoe always controls?" Those types of questions are the norm, and considering that we're in Week 4 I'm pleased to see my students synthesizing the material and thinking in terms of application and analysis not regurgitation. (In fact, in my upper level class one 3L student came to office hours to tell me that he had never thought of outlining as developing an analytical framework and since he has looked at it that way he has a whole new grasp of the material---whoa.)
With so much else to worry about, how did I integrate this teaching method into my class? Well, once we made substantial progress through Personal Jurisdiction I began hammering home the point of developing an "Analytical Framework." In the Hypo's found in the book and in the cases we covered I started pressing my students to tell me how they would approach the facts of a problem to resolve the jurisdictional questions. At first they ALWAYS wanted to jump to the quick answer "yes/no there is/isn't jurisdiction" or "yes/no there are/aren't minimum contacts." Rather than let them flail about I began to press them to tell me, if presented with such a fact pattern as a lawyer or a judge, what would be the first question they'd seek to resolve? I have forced them to articulate their rationale in light of what we've learned so far. I repeat this process through each step of the analytical framework.
Here's the hard part about this. First, it requires me to have my analytical framework fully developed---that is to say when it comes to personal jurisdiction questions I need to know today how I want students to approach the problem. If I don't have that in my hands it's tough for me to fairly evaluate how well they are comporting with the approach I believe to be correct and consistent with what we've covered. Luckily, I did this, and when we get to exam time the 5 page analytical framework that I developed will form something of a scoring sheet for that portion of the exam. Second, the in-class part of this is also extremely time consuming, at least at first. The first time I did this I spent 45 minutes with one student on the hot seat, and used him to walk the class through his analytical framework. What actually was happening was that I walked the class through my analytical framework by helping him along the way with guidance and suggestive questions. When we finish personal jurisdiction I will end by doing the same thing, and hopefully it will flow seamlessly.
With that said, it is time consuming at first but it gets easier After a little more than a week of this analytical framework talk, we've arrived at a point where I believe most of my students have taken the time to develop their own framework. When I pose a question, rather than flail they jump to their analytical framework (usually there's a shuffle of papers or a click click of opening windows). As they begin to ponder the question, their answers demonstrate a reasoned analytical approach which details the steps in their thought process, the questions they'd attempt to resolve, and how they would apply the facts of this case or hypo to their understanding of the law. This is a good time (at least for me).
One of my most enjoyable exercises is to take a case we've covered and to change the facts just slightly. Then, based only on the facts of that case (perhaps with my slight modification) I have the student explain to me how they would approach those facts within their analytical framework. Oftentimes I'll ask them to argue against jurisdiction where the court found that jurisdiction was proper. It's fascinating to watch them develop legal arguments and use what they've learned and to do so in an organized analytical fashion.
I'm not sure if time will permit me to continue this approach throughout the semester. However, I believe that getting them in the habit of developing an analytical framework at this stage in the semester will benefit them throughout the course, and hopefully throughout their legal career. I'm also hoping that it will make for some great exams to read over Christmas break. We'll see!