Thursday, April 23, 2015
As for the series on law school instruction and law schools in general that Jeremy started here recently: count me in!
I agree with Jeremy’s views that issue-spotting is very important in helping students develop their “practical skills,” as the industry now so extensively calls for. As Jeremy and Professor Bruckner do, I also never give up trying to have the students correctly issue spot, which in my book not only means spotting what the issues are, but also omitting from their tests and in-class analyses what I call “misfires” (non-issues). In my opinion, the latter is very necessary not only for bar taking purposes, but also in “real life” where attorneys often face not only strict time limits, but also word limits.
But I’ll honestly admit that my students very often fail my expectation on final tests. Some cannot correctly spot the issues at all. Many have a hard time focusing on those aspects of the issues that are crucial and instead treat all issues and elements under a “checklist” approach overwriting the minor issues and treating major issues conclusorily. Yet others seem to cram in as many issues as they can think of “just in case” they were on the test (yes, I have thought about imposing a word limit on the tests, but worry about doing so for fear of giving any misleading indication of how many words they “should” write, even if indirectly so on my part).
Maybe all this is my fault … but maybe it isn’t (this too will hopefully add to Professor Bruckner’s probably rhetorical question on how to teach issue-spotting skills). Every semester, I post approximately a dozen or so take-home problems with highly detailed answer rubrics. I only use textbooks that have numerous practice problems long and short. I review these in class. I also review, in class, numerous other problems that I created myself. I give the students numerous hints to use commercial essay and other test practice sources. Yes, all this on top of teaching the doctrinal material. All this is certainly not “hiding the ball.” Frankly, I don’t really know what more a law professor can realistically do (other than, of course, trying different practice methods, where relevant, to challenge both oneself and the students and to see what may work better as expectations and the student body change).
So what seems to be the problem? As I see it, it doesn’t help that at least private law schools at the bottom half of the ranking system have to accept students with lower indicia of success than earlier. But even that hardly explains the problem (who knows what really does). Some law schools have to offer remedial writing classes and various other types of extensive academic support to students in their first semesters and beyond. Some of the problem, in my opinion, clearly stems from the undergraduate-level education our students receive. In large part, this makes extensive use of multiple-choice questions for assessments and not, as future lawyers would benefit from, paper or essay-writing tests or exercises. Thus, undergraduate-level schools neither teach students how to spot "issues" from "scratch" nor do they teach them how to write about these. Numerous time have my students told me that they have not really written anything major before arriving in law school.
Why is that, then? Isn’t that problem one of time and resources; in other words, the fact that not just law professors, but probably most university professors, are required to research and write extensively in addition to teaching and providing service to their institutions? For example, see Jeremy’s comments on his busy work schedule here. Something has to give in some contexts. At the undergraduate level, maybe it’s creating and grading essays and instead resorting to machine-graded multiple-choice questions and not challenging students sufficiently to consider what the crux of a given academic problem is. Just a thought. I am, of course, not saying that we should not conduct research. I am saying, though, that I find it frustrating that lower-level educations, even renowned ones, cannot seem to figure out how to use whatever resources they do, after all, have to train their students in something as seemingly simple as how to write and how to think critically.
At the law school level, some “handholding” and various types of practical assistance is, of course, acceptable. But to me, the general trend in legal education seems to be moving towards a large extent of explaining, demonstrating, giving examples, setting forth goals, assessments, and so forth. I agree with what Jeremy said in an earlier post that we should at some point worry about converting the law school education process into one that resembles undergraduate-style (or high school style!) education.
Recall that the United States is not an island unto itself. Many studies show that our educational system is falling behind international trends. Where in many other nations in the world (developed and developing), students are expected to come up with, for example, quite advanced research and writing projects for their degrees, we are - at least in some law schools - teaching students just how to write, and what to write about. This is a sad slippery slope. Until the American educational sector as such improves, I agree that we should do what we can to motivate and help our students. But I also increasingly wish that our “millennial” students would take matters into their own hands more and take true ownership of learning what they need to learn for a given project or class with less handholding, albeit of course still some guidance. Nothing less than that will be expected from them in practice.
To the point raised in your post though, even experienced lawyers benefit from headnotes on cases, reading treatises, learning to pick up on contextual clues, etc. And your casebook likely has a table of contents that situates the case you're reading in class within a range of issues and sub-issues. I suppose that if you situate the case for the students, there is a risk that students will stop trying to pick up these contextual clues for themselves. But if you don't, there is also a risk that students won't ever appreciate why you read a case in the first instance, etc.
Matthew has a point. There are lots of shortcuts to issue spotting for those students who are on top of things enough to use them. I have a running joke with my students in both contracts and business associations. If a student has a hard time identifying the issue in the case or (in contracts) tells me that the issue is whether one party breached (always a good place to start), I tell them to check the syllabus and see what subject matter we are covering on that day. After some laughter and shuffling of papers, we approach an identification of the issue and establish once again that students do not look at syllabi and certainly would not benefit from 12-14 page syllabi identifying SLOs.
But that is just the beginning of an issue-spotting exercise, because as we progress through the semester, I also use issue-spotting as a mechanism of review. So, for example, when we get to affirmative defenses, we may have cases in which extrinsic evidence, the statute of frauds and interpretive issues also arise. In discussing damages, in addition to those issues, there might also be questions of affirmative defenses or even problems in formation. I use Socratic questioning to see if students can find those issues as well. And I really do aspire to treat the Socratic questions as means of reminding them, through step-by-step questioning, of things they knew in their past life (that is, three weeks ago, when the relevant doctrine was still stored in short-term memory). For me the Socratic method is, in this instance, both about teaching them the right questions to ask of a case and about reminding them that they can do this on their own.
Matthew Bruckner's comment continues:
We definitely practice reading cases, extracting relevant facts and issues, understanding a case' procedural history in my 1L contracts class. But by second semester, I'm giving them the issue flat out and then we spend the whole class working on legal analysis trying to understand why the court reached the conclusion that it did.
I never give up on issue spotting. It is not only relevant in the litigation context. But as I'm sure Professor Bruckner knows, it is also the best mechanism for helping transactional lawyers prevent the contract they are drafting from becoming Exhibit A to the complaint. Issue spotting is relevant whether the client is coming to you with a transaction gone wrong or a contemplated transaction. The challenge facing transactional attorneys is all the harder because they have to entertain ideas of what might go wrong and figure out the best way to insulate the client from liability if what might happen does happen.
I am near the end of teaching a bar prep course for the first time. I had my 3L students write about twenty practice bar exam essays, and at the end of the semester, I am still reminding them: IRAC, IRAC, IRAC.
Links to Related Posts:
The Current Series
Related Posts form 2012:
Thoughts on Curricular Reform VI: Preparing the Academically Adrift for PracticeThoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
This is the fourth in a series of posts on reform in legal education. Related posts are listed at the bottom of this post.
A few years ago, I was at a conference on national security law, and one of the scholars there, a Navy veteran, suggested that the military had made a wrong turn in entrusting knowledge of the law of armed conflict to JAG officers. As impressed as he was with the commitment of those JAG officers to the rule of law, he thought it would be better if all officers were expected to know the law of armed conflict rather than having a rudimentary introduction to the relevant law but relying on the expertise of JAG officers in the decision-making process. The attendant JAG officers were unanimous in their opposition to this notion, and I'm in no position to judge the merits of the claim, but the idea stuck with me.
I think we have a similar situation in law schools. In the 1980s and 1990s, law schools created legal writing programs, and they hired a legal writing faculty to teach in those programs. Like JAG officers with respect to the law of armed conflict, dedicated legal writing faculty members have thought about legal writing -- and related subject matters such as legal reasoning and legal research -- in different and deeper ways than traditional doctrinal instructors had done or now do. They are our trusty repository of information about how our students think, write and reason and of pedagogical innovations that will help them do better.
It is a problematic model. It creates a hierarchical division of labor within faculties, generating resentments on all sides, and it does not serve our students as well as would an integrated curriculum in which legal writing, reasoning and research were treated as integral to every doctrinal course. Students think that legal writing is a separate subject matter, and they don't all have the instinct to apply the skills, techniques and intellectual habits to which they are exposed in legal writing to their work for doctrinal courses.
One response has been to ask doctrinal courses to incorporate more skills training into doctrinal courses. Another has been to add additional courses and required credits in courses in which students work on legal writing and reasoning skills. To keep with the theme of this series, the result is that traditional legal education gets squeezed. We are asked to do more in less time. I propose we consider doing more in more time by integrating legal writing and reasoning into the traditional doctrinal curriculum and eliminate independent writing programs.
Schools have been very creative in staffing their legal writing programs (involving visiting faculty, contract faculty, adjuncts, VAPs, and tenured and tenure-track faculty in teaching legal writing and research). There likewise could be innumerable models (which would preferably involve integrating current legal writing faculty members into traditional classroom teaching) for integrating teaching doctrine and skills.
Let the innovations begin!
Links to Related Posts:
The Current Series
Related Posts form 2012:
Monday, April 20, 2015
When I was a law student, I knew what the core of my legal education was. It consisted of traditional legal courses like contracts, civil procedure, property, torts, constitutional law, criminal law and procedure, etc. In my second and third years, most of my courses continued to be core doctrinal courses. I had the option of doing a clinic in the third year, of course, and for some of my colleagues in law school, that was a central experience, but it was very much optional, especially since in those days, if I wanted real-world legal experience, I got it during the summers, and I could also work a bit during the school year. I don't think there was any doubt in anyone's mind that, for better or worse, doctrinal teaching was the core of legal education. Skills training was regarded as ancillary, and clinics were supplementary, or perhaps a capstone.
Today, I think the message is much more confusing. I have surveyed a number of websites of law schools outside of the top 50 and many push variations of the same themes: come to our law schools and we will give you a practical, hands-on experiential learning experience that will get you a job (or at least qualify or prepare you for one). If traditional doctrinal teaching is mentioned, it is usually in the context of bragging about small class sizes. These law schools do not generally emphasize traditional doctrinal teaching or scholarship.
This is completely understandable. Teaching contracts (and other first year courses) is not sexy. Since the first year curriculum is the same with respect to probably 75% of the subjects at all ABA accredited law schools, the folks who try to market individual law schools will not distinguish their institutions by emphasizing the things that all law schools do. They have to emphasize unique programs, and even if a school really has an outstanding doctrinal teaching faculty, such claims just come off as puffery.
But the problem is that students don't get much experiential education in the first two years of law school. So attracting them based on clinics and externships makes the doctrinal teaching that they get in the first two years seem, for some students, like some sort of ghastly hazing process. The situation reminds me a little bit of the Simpsons episode when Police Chief Wiggum confronts a new recruit who just wants a gun:
Chief Wiggum: All right, you scrawny beanpoles: becoming a cop is *not* something that happens overnight. It takes one solid weekend of training to get that badge.
Man: [screaming] Forget about the badge! When do we get the freakin' guns?
Chief Wiggum: Hey, I told you, you don't get your gun until you tell me your name.
Man: I've have it up to here with your "rules"!
My students don't want freakin' guns (or those that do already have them). They want their own freakin' clients. So when they reach the third year, or do externships in the second year, they think that those experiences are the core of their education and everyone should understand if doctrinal courses takes a back seat. So, for example, some students are non-plussed that their absences caused by clinical or externship obligations are not excused. Or they take it as self-evident that they can show up 15-20 minutes late for class because "a client meeting ran over." And this is not at all because clinicians encourage such attitudes. On the contrary. But students nonetheless pull this conclusion out of the ether.
I get it. In their position, I would do the same thing, but I had a job lined up as after my first summer, and my law school had a 95% or more bar passage rate when I graduated. Things are different in this era of declining bar passage rates. Clinical experiences are invaluable in all sorts of ways, but they do not seem to help with bar passage or with job placement. By the way, I am always surprised by the lack of a link between clinical education and bar passage, as I always assumed that students would really come to appreciate and thus be motivated to learn the law's subtleties when confronted with them in a live-client context. I have only come across a few studies, which tend to be small or idiosyncratic. I would love to see more empirical research in this area.
In addition, we are increasingly moving more skills training into the curriculum, both by devoting more time to skills courses and by introducing more skills training into the doctrinal programs. The candle is burning at both ends, and the class time devoted to traditional coverage of doctrine is shrinking. But the more worrying problem is that some students are unaware of how crucial doctrinal courses are for their future success. They may be led by our marketing efforts and our new curricula into the false hope that if they can actually "be good lawyers" in the clinical context, it could not possibly matter that they do not do well on traditional law school or on standardized exams.
Friday, April 17, 2015
I'm going to keep this one brief and provocative.
Six years ago, when Law School Transparency (LST) came into existence, law schools had some problems with transparency. The problems were not actionable. As Michael Simkovic details here and elsewhere (and I will have many more positive things to say about Simkovic's and Frank McIntyre's scholarship in later posts), law schools have always disclosed employment outcomes in accordance with federal Bureau of Labor Statistics categories of employment and unemployment. Now, all law schools include on their websites 509 disclosures that are far more detailed about employment outcomes, as well as lots of other useful information about bar passage rates and the scores of incoming students (new 1Ls only, alas).
The fight is now mostly over debt loads, but again, as Michael Simkovic puts it:
Data from the U.S. Department of Education shows that law students, even at low ranked law schools, remain much less likely to default than most student borrowers. This is true even though law students typically graduate with higher debt levels.
While student debt loads are a huge concern, law students still are not defaulting on their loans.
So, at this point what exactly is the purpose of LST's campaign against law schools?
LST's website identifies its goals as Reform, Information and Accountability. I would say that LST has succeeded on Information and Accountability. Don't take it from me. Here is what Deborah Merritt, who has been quite critical of Simkovic and McIntyre, has to say on the subject:
[T]oday’s law schools publish a wealth of data about their employment outcomes; most of that information is both user-friendly and accurate.
As to LST's main claim on Reform: "American legal education is broken because it is systematically unfair and unaffordable," LST and I will have to agree to disagree. Still, two out of three ain't bad. LST can take credit for having contributed to an environment in which law schools are forced to provide information about student outcomes in a way that really helps students make more informed decisions about whether to go to law school or whether to choose a particular school.
Congratulations, LST. You've won. You've done some real social good. You and others have persuaded college graduates not to go to law school. Unfortunately, that might not be good advice, since Simkovic and McIntyre's research shows that students who go to law school are, on the whole, better off for having done so.
So you can now declare victory and move on to larger projects. Why not use your model to attack other sectors of the economy that, when compared with law schools, are much less transparent, much more important, far less inclined to self-criticism and far more resistant to outside calls for change?
Wednesday, April 15, 2015
Tuesday, April 14, 2015
I love my job. It is not high-paying, given the alternatives for people with my credentials. And I work very long hours. I work long hours on weekdays, and I work on most weekends as though they were weekdays. I take work with me when I go on vacation. There is rarely a day when I do not work, vacation days included.
Being a law professor has its perks. I have job security. I get to write about topics that interest me, and I get to share a learning experience with students who are motivated and, if I'm doing my job right, excited about the subject matter. I am part of an institution that I have a role in shaping and part of a community in which my expertise and commitment is valued.
But there are numerous forces that resent the legal academy and do all they can to make the working conditions of legal academics outside of the top tier look more like teaching high school. It is not that legal education ought to be impervious to outside criticism, but the solutions that I am seeing to the problems of legal education tend to be driven by anecdote rather than data and by educational models that are not appropriate for legal education.
My own students, with whom I am happy to say I have very good relationships, sometimes complain to me about how "the law school" or the "career planning center" or "the administration" doesn't do enough to get them jobs, or only cares about the Law Review students, etc. Their experience of my institution does not accord with my own, and since I was an administrator for a couple of years, I have intimate knowledge of the workings of every department in my law school.
Here's what I see. I see faculty and staff members who are dedicated -- if not obsessed -- with the institution for which they work. When we get together outside of the law school for social gatherings, we don't talk about sports or movies or the latest legal issues in our fields or before the Supreme Court. We talk about our students' prospects, about our curriculum and about legal education. My law school is a group of people dedicated to the success of our students. We are constantly experimenting to try to find ways teach students more effectively and to better prepare them for the practice of law. In our experimentation, we take wrong steps, but we monitor those steps and strive to correct them. The institution is filled with imperfections because the institution consists of people, and people have their limitations and faults.
In response to the crisis in legal education, my law school has dramatically increased faculty and staff work loads in order to deliver a revised curriculum, devised ways to reduce student debt loads, and greatly increased the resources and opportunities available for students. In my conversations with faculty members from other law schools, I find that while my law school has innovated in unique ways, most law schools are struggling with the same issues and redoubling efforts to meet student needs in new ways.
Law schools are being squeezed. The ABA is creating new standards that will limit the flexibility that educators need to create the best possible learning environments in their classrooms. The legal profession is pressuring law schools to prepare students to practice when those students increasingly arrive at law school without the skills that they will need to succeed as attorneys. Such students need more time, not less, to master doctrine and legal skills, but the profession pushes us to focus on experiential learning, the most complex and expensive form of education, before students have the requisite skills to do so successfully, and at a time of dwindling resources when law schools cannot afford to keep the teaching staff they already have. And students arrive expecting us to hand them jobs when it simply has never been the case that a J.D. guaranteed every student the job of her dreams at the age of 25.
And how do legal academics respond to these attacks that come at them from every direction? With some rare exceptions, we respond with self-flagellation. This is the first of a series of posts in which I plan to defend my profession. Outside perspectives are welcome, but the truth is that we know our own business better than anyone, and we ought to be full-throated in defending those parts of our educational model that work for our students.
Future posts will defend legal pedagogy, including hiding the ball, legal scholarship, and the wisdom of investing in legal education. Stay tuned.
Tuesday, March 17, 2015
I have been traveling the past two weeks, leading a group of 25 of my law students on a two-credit course on International Humanitarian Law in Israel and Palestine. How does a U.S. contracts prof teach a course on the law of armed conflict in Israel? I get by with a little help from my friends. We teamed up with an Israeli law college, Sha'arei Mishpat Academic Center (SMAC), and I had the pleasure of c0-designing, co-directing and co-teaching the program with the very accomplished Professor Yaël Ronen (pictured). My students' experience was enriched by the fact that eight Israeli students from SMAC also participated in the course.
We partnered with Mejdi Tours, which provided us with two tour guides, one Jewish Israeli, one Muslim (Palestinian) Israeli. Together they gave us their versions of the dual narrative that continues to unwind, side-by-side, each informing the other even when the two sides do not acknowledge the other's perspective. Nothing beats teaching a course in the place where the subject matter of the course has been written and is being supplemented on a continual basis.
My students chronicled our trip as we went, and those chronicles are in the process of being posted on a Mejdi Tours blog. While we were teaching our students international humanitarian law, they gave me a lesson in the art of the selfie.
Thanks to Myanna Dellinger and Nancy Kim for keeping stuff happening on the blog while I was off on my frolic and detour. We now return to our regular programming. . . .
Wednesday, March 11, 2015
The Southeastern Association of Law Schools (SEALS) is pleased to once again offer its Prospective Law Professors Workshop as part of its annual meeting. This two-day workshop is for those seeking law teaching jobs in Fall 2015. The Prospective Law Professors Workshop will run on Tuesday, July 28, and Wednesday, July 29, at the Boca Raton Resort & Club.
The workshop will include practice interviews, practice jobtalks, guidance on drafting CVs and FAR forms, and several panel discussions geared toward prospective law professors. There is no supplemental fee to participate. Participants in the workshop need only pay the standard SEALS registration fee.
The number of participants will be limited. For more information on the program, including how to apply, please visit our website at http://sealslawschools.org/seals-prospective-law-professors-workshop/
Tuesday, March 3, 2015
Last year, Starbucks announced a new corporate-supported educational program that one year later is still viable: Starbucks will reimburse its full-time workers for taking online classes with Arizona State University. Partial tuition (58%) will be offered to freshmen and sophomores and full tuition for juniors and seniors as long as credits are earned within the past 18 months so as to keep students on track.
As you may have noticed if you are a Starbucks customer, very many of its employees appear to be college-aged. In fact, 70% of Starbucks’ workforce are either in school already or have had to drop out because of various personal difficulties.
This program seems to be a benefit to employees who cannot afford to go to school full time (or even part time), but who desire and education. What is remarkable is also how few “strings” are attached to the program. For example, the employees do not even have to stay with Starbucks after the completion of their degree. Said CEO Howard Schultz (still the CEO): "We want to attract and retain great people. We want to provide [our employees] with new tools and new resources to have advancements in the company.”
What is in it for ASU? This has been said to be a coup for the university, which already has one of the nation’s largest and most highly regarded online programs. Of course, Starbucks has a large amount of employees with, presumably, many coming and going, so ASU now has access to a large database of potential students, something many universities – private and public - are craving in these competitive times.
For the students and the university, rates may be discounted. This is normal in this type of situation. What would truly make a difference would be if the rates could become so reduced for students that they would, in effect, have no out-of-pocket costs altogether.
What, to me, is interesting about this situation is that a public university has found out workable model for online classes and cooperation with a private business venture when many private universities have not.
The somewhat strange catch here is that ASU cannot enter into any other arrangement with a for-profit business for four years, but that Starbucks is free to advertise its partnerships with a few other schools.
See the contract at issue here.
See Starbucks’ description of the program here.
Thursday, February 12, 2015
This year, I am teaching a bar preparation course on contracts, which is being offered for the first time at my Law School. This is a lot of fun for me -- I like teaching contracts both semesters because it keeps my mind more focused on the subject. It's also fun to teach the material in a different way -- no cases, as some familiarity with the case law is assumed at this point, so I just give mini refresher lectures and then move on to the homework assignment.
So it's fun, but it's also a lot of work. I give my students four multiple choice questions each day, and they have to turn in their answers -- explaining why the right answer is wrong and the wrong answers are wrong. The idea is to both solidify their understanding of the doctrine and alert them to the strategy behind bar exam "distractors" -- that is, wrong answers that are trying to trick students into mistaking them for correct answers. Most days, they also have to write a short essay, designed to be akin to MEE questions.
Because I am teaching such a course myself, I read with some interest David Frakt's recent post on The Faculty Lounge on the value of in-house bar prep courses. But I was taken aback by the comments. The anonymous or pseudonymous commentators asked the following rhetorical questions:
- Does bar prep make students better lawyers?
- What good is passing the bar when there are no jobs for lawyers anyway?
- Don't law schools have an obligation to refrain from flooding the market with unemployable lawyers?
I think this is a case of massive anger that is massively misdirected. Students are in law school. They want to stay in law school and they want to become lawyers. I have met with many students facing dismissal from my Law School for poor academic performance. The ones I have spoken to all are willing to do whatever it takes to stay in, and they are furious with us when we dismiss them. So we put the time and the energy into bar prep courses because it is what our students need. Some of them need it because they won't do the work without the additional kick in the pants. Others need it because they have many natural gifts that will make them great lawyers, but excelling at standardized tests is not one of them. We are trying to get them over that hurdle so that they can have the careers for which they are otherwise qualified.
I certainly understand the anger of the unemployed law students. I was an unemployed Ph.D. before I went to law school. I know what professional devastation feels like. It seems like the "Law School Scam" crowd thinks the solution is to just shut law schools like the one I teach at. But how would throwing me, my colleagues, and our support staff out of work improve the situation? It certainly would not improve things for the students we serve, most of whom pass the bar, find work, and do better than they would have done without their degrees. Law school opened for me a range of career options that would have been completely unthinkable without my J.D. Why should that opportunity be denied to the current generation of potential law students?
Friday, January 23, 2015
We know that merchantability means passing without objection in the trade. If law review articles were goods, what would that trade be? For law professors, it seems like it is second and third year law students. At some level it would also reviewers of works when a professor is considered for promotion. Recently, though, a colleague of mine and I did a bit of research and began to wonder if acceptable in the trade -- as defined by law students and law professors -- is a meaningful strandard within the trade of academia.
Law professors who do research are generally spending the money of others. The actual buyers are, therefore, those who pay for the scholarship. Let's add that they have no idea what the standard is but would uniformly agree that every article should make someone or something better off and should reflect high quality research. Students and reviewers should be regarded as agents for those paying the bills.
If that is the measure of merchantability (and why wouldn't it be) then editors and reviewers should apply that standard in their own decisions. Clearly they do not and left to their narrow and inappropriate standard for merchantability we have massive amounts of scholarship that, let's face it, is written to justify being granted tenure. There is little verification that most, no matter how carefully done or clever, actually benefits anyone. Some of it -- a small percentage -- is cited but rarely for the substantive points made as opposed to piggy-backing on a fact asserted in the first work. Morever the research is often sloppy. Here is an example. I recently read an article that makes the claim that a certain area of law is now consistent with empirical studies. I looked at the cite and it was to another professor who had not actualy done any empirical work and did not quite say what was claimed. And the work cited by that professor was not on the point made in the first article. In fact the most frequent cite is the hearsay cite in which the author makes a claim because someone else made the same claim.
I expect readers of this will disagree but shouldn't the test of merchatability mean making someone or something (even if a fish) better off and shouldn't documentation be careful and accurate? Don't misunderstand, much of scholarship meets these standards. But much of what currently passes in the trade without objection does not.
Monday, December 15, 2014
The ABA has embraced the idea of student learning outcomes (see Standard 302). I have no objection to the rule as stated. If law schools are not striving to graduate students who are competent in the areas identified by the ABA, they deserve to lose their accreditation.
But I am hearing noises of a much more aggressive version of student learning outcomes (SLOs) which entails identifying in one's syllabus specific SLOs for each class session. I see great potential in this version of the SLO movement for tension with my pedagogical approach (illustrated at left).
I already provide a great deal of guidance to my students on my syllabus. On the day that the word "consideration" appears on the syllabus, I expect them to learn the substantive law of consideration. On the day "promissory estoppel" appears on the syllabus, I expect them to forget everything they learned about consideration and think that all promises that are relied on ential contractual obligations. And by the end of the course, I expect that everything will fall back into place, and that they will be able to deploy the reading comprehension, analytical, and analogical skills that they have been developing all semester (in my course and others) to answer MBE-style final exam questions and essay questions in which I will ask them to apply substantive doctrines to a fact pattern with which they could not possibly be familiar because I have invented it as a test of the skills identified above.
Apparently, some think I need to go further and identify on the syllabus precisely what skills and doctinal areas will be covered in each 50-minute hour. There's just one problem.
I don't wanna.
And it's not just because I am a typical academic who begrudges anyone or anything that might force me out of my Socratic comfort zone. Telling students what they are looking for undermines the basic premise of my pedagogical approach, which I think is a common pedagogical approach because it is a very good, legitimate approach to legal education.
Yes, I hide the ball.
If I show my students the ball every day, they will fetch it. But I am not trying to train spaniels; I'm trying to train attorneys, and attorneys need to be able find things when nobody tells them in advance what they are looking for. They also need to know that this is something that they can do (or learn to do) with nothing more than their own internal resources. Every teaching day, in every Socratic exchange with a student, I try to get the student to a question she thinks she cannot answer and then, through a series of prodding questions, none of which provide the student with facts or information she did not already have from reading the text, I try to bring her to a place where she can formulate the answer that she thought she did not have. When the method works, the student has learned both doctrine and a skill -- and hopefully she has gained a great deal of confidence in her own native abilities.
Or, when I ask the student a question, she could just consult the SLOs in the syllabus and recite the learning objective for the day, and one of us would leave the class under the impression that she had learned something valuable.
I am not really afraid that the aggressive SLO movement augurs the end of legal education as we know it, because I know that students pay very little attention to what is on the syllabus (and they'll pay even less if it contains 10-12 pages of detailed SLOs). I just resent the drain on pedagogical resources that could be spent innovating rather than figuring out how best to march in lock step.
Friday, October 31, 2014
As I noted about a month ago the problem for the 2015 International Commercial Artbitration Moot is wonderful for those who like crossword puzzles, solving problems, reading mysteries, or doing detective work. There are facts, deadends, and read herrings galore. No one goes for a big sleep as far as I can tell but there is the dreaded issue of "fundamental breach." In fact, that appears to be the centerpiece of the problem. Just to make it a little twisty, the fundamental breach is by the buyer whose letter of credit may not conform to the contract. Since even that would be too simple, there is a second letter of credit that may or may not conform but which came after the first arguably non comforming one. There are phone calls, emails, letters, accusations, and even an emergency arbitration that, maybe, should not have occurred at all.
At my school 32 students are now writing briefs for the claimants side of the case and preparing for their oral arguments next week. There is something here even for profs not involved in the Moot. Just reading the problem will spark all kinds of ideas for exam questions suitable for the basic contracts course.
Monday, October 6, 2014
The problem is up for the 22nd Annual International Commerical Arbitration Moot. Between now and early December, teams will write the brief for the Claimant. In mid January the brief for the Respondent is due. And then, in March, 200-300 teams from law schools around the world will gather in Vienna for the competition.
There is no limit to the number of students on a team but they must argue in pairs. Typically one student handles the procedural issues and one the substantive or the CISG issues. There are 4 rounds to start with the 64 highest scoring teams moving on to a single elimination tournament.
The problems identify an actual arbitration agency whose rules govern the procedures, This year the procedural issues center around whether the Claimant the right to make an emergency appeal to the arbitration agency and whether the Respondent may join the parent company of the Claimant for purposes of its counterclaim. In one of those puzzles that charactizes the Moot, the parent company "endored" the contract at issue but claims not to be a party do it.
The substantive issue concerns a letter of credit which does not conform (or does it?) to what was called for in the contract. The buyer attempts to "cure" in a sense but the seller says "too late, we have already avoided the contract." Thus, it raises avoidance and cure isssues under the CISG.
This is, at best, a first cut on the problem. As the weeks pass, the problem will reveal itself as the layers are peeled off.
I am happy to trade notes and views with other interested profs.
[In the meantime, try to find the third man.]
Tuesday, September 23, 2014
On today's show, we read our homeowners insurance policy.
The details are amazing. Lava! Vermin! Falling objects! And, hiding in all the fine print, the story of how insurance works — and what makes it break.
The episode happens to have relevance to our ongoing symposium and even features a conversation with Daniel Schwarcz, one of the symposium contributors. If you listen, you'll hear Prof. Schwarcz admit that, to be sexy, insurance law might just need a little airbrushing.
Monday, September 8, 2014
I am sure most readers know what the CISG is. I was surprised to learn that some are not aware of the International Commercial Arbitration Moot (ICAM) held in Vienna annually over the weekend and then into the week just prior to Easter. It is maybe the most rewarding experience I have had as a teacher. The organizers of the Moot release the problem on the first Friday of October. It is usually a spawling but somewhat realistic fact pattern, Typically there are procedural issues and substantive issues dealing, obviously, with international contract law. Over two hundred teams from around the world gather for 4 days of prelims. The top 64 then go into a single elimination tournament.
At my school, like others, we organize a course around the Moot. In the fall, the students first have 5 weeks of regular class sessions on the CISG followed by an exam. After that, the problem comes out and they have 4-6 weeks to write their briefs. Finally, there are oral arguments. From those exercises, 4 to 6 students are selected to be on the team. (all students earn 3 credits whether they make the team or not) Those students must prepare a claimant's and a respondent's brief and practice twice a week until the competition. It requires dedication.
There are a couple of drawbacks. First is it expensive to send students and a coach to Vienna. At Florida we have been fortunate to have support from the International Section of the State Bar, private donors, and the Law School. Second, the judging in Vienna can be hit and miss. In the four day premlinary period the abitrators (3 each per session) may apply different standards and are sometimes not well prepared. Thus, the goals be for the students must be to learn at much as they can, network, and enjoy, for a few days, interacting with students from all over the world. The winning teams are always superb but some left out of the tournament may also be superb.
I realize there are maybe only a handful of people out there who do not know of this opportunity but I've found it to be very worthwhile (and also hardwork)
Friday, August 29, 2014
- I have all the cases, as well as links to Restatement and UCC sections and exercises that I use in the class (and then some), edited to my tastes and available to the students whether or not they have their hard copies with them;
- Cuts the costs of buying course materials from $150-200 to $15;
- Enables me to change the readings for my course in ways that I choose rather than in ways that casebook editors choose;
- Much easier to deal with (for me and my students) than Blackboard (the Voldemort of educational technology); and
- Provides helpful links to CALI guides, other study aids, contracts videos, and old exams
But the good news is that Debra Denslaw (pictured) is now helping us to keep the LibGuide up to date.
I would welcome suggestions for ways to improve the LibGuide. If you have free materials that would be helpful for first year students to which we could link, please let me know, and we will try to find a place for them on the LibGuide. Anyone who would like to use the LibGuide for their teaching is welcome to do so.
For fans of the blog who find it hard to find those memorable blog posts relevant to the cases you can teach, we gone through the blog and placed below each case links to posts that relate to that case.
Monday, August 11, 2014
Here are the basics:
The practicum is designed to give students a taste for real world contract drafting on behalf of clients. Students are randomly assigned to one of two roles --either representing an employer or a recently hired employee. They negotiate and memorialize the terms of employment their respective clients have already agreed upon. Students will be assigned counterparts within their classes and will negotiate the terms of the contracts through an online portal.
The practicum is set up so that all of the logistical work is done by the software and Professor Eigen. For instance, the software will pair students and email them information about their counterparts. Instructions, participants’ confidential role information, and general instructions will be available through the portal. After student pairs upload their contracts, the software will analyze their work product. Students and professors will receive analytical results in case you wish to spend class time discussing their performance. That is, there is very little work for you if you wish to run it, and you can use almost no class time on it if you wish. Professor Eigen provides a “Professor’s Guide” offering more information including some suggested class discussion points.
There is also an interesting technology-related component of the practicum. If you contact Professor Eigen directly, he will provide more detailed information about it to you.
Instructors who would like to know more about this practicum, and are considering using it in their classrooms this fall should contact Professor Eigen directly: email@example.com
Thursday, June 26, 2014
Thanks to Miriam Cherry (left) for sharing this one:
I love this fact pattern: as reported in the National Law Journal, a student who received a D in contracts is suing the law school he attended, as well as his contracts professor, claiming that the professor deviated from the syllabus by counting quizzes towards the final grade. He claims $100,000 in harm because the D in contracts resulted in his suspension from the law school. He could not transfer to a different law school because he was ineligible for a certificate of good standing.
The case is a cautionary tale. It appears that the syllabus indicated that the quizzes would be optional. The professor then announced in class that the quizzes would actually count. The plaintiff claims to have been uanaware of the change or at least adversely affected by it. I say it is a cautionary tale because I sometimes make changes to my syllabus, usually in response to student feedback. I make sure to e-mail all students to make certain that everyone is aware of the changes and I obsessively remind students of the changes because I worry about precisely what happened here. It may well be that the defendant contracts prof did the same, although the National Law Journal article states that the change was evidenced by the handwritten notes of another student.
There is an interesting exchange on the merits of the case in the comments to the ABA Journal article on this subject. Apparently, there is some case law stating that a syllabus is a contract. For the most part, I think such a rule would benefit instructors. No student could complain about my attendance or no-technology policies because I could tell them (doing my best Comcast imitation) that by continuing to attend my course, they had agreed to my terms. But many of the commentators think that written contracts can never be orally modified. I don't think a syllabus is a contract because I don't think there are parties to a syllabus and I don't think there is intent to enter into legal relations. Things might be different if the syllabus identified itself as a contract and informed students of the manner of acceptance of its terms.
Friend of the blog, Peter Linzer (right), chimes in (comment #13) and succinctly dismisses this notion that a contract not within the Statute of Frauds cannot be orally modified. In any case, he thinks the claim is best understood as sounding in promissory estoppel, and plaintiff's claim fails because, in short, he cannot claim to have reasonably relied on a promise just because he missed class or did not pay attention when that promise was retracted.