ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

Monday, October 5, 2015

New in Print: Books from Carolina Academic Press

The Latest in Contracts!
Book Cover
Book Cover


A Context and Practice Casebook

Second Edition

Michael Hunter Schwartz and Adrian J. Walters

2015 | 818 pp | ISBN 978-1-61163-554-6 | casebound | $99.00
Electronic Teacher’s Manual available (PowerPoint slides available for adopters)

Every chapter in this innovative casebook places students in roles as practitioners handling simulated law practice problems; provides context in the form of an overview of the law, similar to that which an attorney would read before reading cases in a new subject area; includes questions designed to encourage students to find the applicable statutes and cases on point in the state where the student is planning to practice law; includes exercises, visual aids, and case reading scaffolds, designed to engage students with a wide range of learning styles; and ends with professionalism questions addressing ethical and professional identity questions suggested by the materials in the chapter.

The second edition retains the style, format, and teaching and learning goals of the first edition, but some cases have been replaced or re-edited, and many of the textual materials, problems, exercises, and case questions have been revised, supplemented, or updated. 

This book is part of the Context and Practice Series, edited by Michael Hunter Schwartz, Professor of Law and Dean of the University of Arkansas at Little Rock Bowen School of Law.

View the Table of Contents and more.


Contracting Law

Fifth Edition

Amy KastelyDeborah Waire PostNancy Ota, and Deborah Zalesne

 2015 | 948 pp | ISBN 978-1-59460-989-3 | casebound | $110.00

Student Workbook forthcoming 2016
Electronic Teacher’s Manual forthcoming

Revised and updated to 2015, the fifth edition of Contracting Law continues the clear explanations of contract doctrine, engaging cases, and thought-provoking cultural and historical materials that have made this casebook a favorite of students and professors. Students and faculty appreciate the fact that no separate statutory supplement is necessary. Selected provisions from the Restatement Second of Contracts and the Uniform Commercial Code are included in the casebook as appendices. The revised Student Workbook (purchased separately) is updated to complement the fifth edition with flow charts, vocabulary lists, problems and structured exercises to help students understand legal doctrines, case briefing, and synthesis. Students can use the workbook independently or exercises can be used in class discussions.

The fifth edition augments the cultural material with notes and questions showing the social contexts for specific contract doctrines. Many sections are shortened and reorganized for ease of use in 3-, 4-, or 5-credit courses, while UCC coverage is maintained for those courses designed to include sales law.

View the Table of Contents and more.

October 5, 2015 in Books, Recent Scholarship, Teaching | Permalink

Thursday, October 1, 2015

Contracts Limerick of the Week!


I know.  It's been a while.  I thought I had moved on, but just when I thought I was out, they pull me back in.

After we concluded our discussion of Mitchill v. Lath this week, my students demanded a Limerick.  I didn't have one.  I wrote most of the Limericks in my first few years of teaching, and I didn't start teaching Mitchill until a few years ago.  I've used all the easy rhyme schemes, so now any new Limericks I write will just feel recycled.  But then one of my students sent me the beginnings of a poem.  Her rhymes got my creative juices flowing (sort of) and this is the result.

As the Limerick suggests, I use Mitchill and Masterson v. Sine to illustrate the difference between Willistonian and Corbinian approaches to the parol evidence rule.

Mitchill v. Lath

In Mitchill's land deal with Lath,
He slipped down a cold primrose path.
That icehouse, it blights
His view, and his nights
Are consumed with Corbinian wrath.

October 1, 2015 in Famous Cases, Limericks, Teaching | Permalink | Comments (4)

Thursday, August 20, 2015

Teaching Again . . . and Thinking about Goods

We started up again this week, so I am once again having the pleasure of introducing students to the glorious realm of contracts law.  Today, we will be delving into Article 2 of the Uniform Commercial Code for the first time, starting with concepts like "goods" and "merchants."  I use Blum's Examples and Explanations as a supplement to the cases I use with my students.  He has a series of questions about whether various transactions are sales of goods.  One involves the sale of a cow.  

I have a fantasy Socratic exchange about this example:

Me: Is a cow a good?
Student: Yes, it is a good.
Me: How do you know that a cow is a good?
Student: A cow is a good because UCC §2-105 defines "goods" to include all things moveable at the time identified for sale.  It also specifies that the unborn young of animals are goods, so it follows a fortiori that the animals themselves also must be goods.
Me: Interesting, but the answer I was looking for was "because it moooooooooves."

Blum then moves on to more difficult examples involving hybrid contracts.  The Contracts Listserv has been hopping with discussion of this very topic.  I remain puzzled by the preference for the preponderant purpose test.  As I argued here, the gravamen of the action test makes far more sense to me.

August 20, 2015 in Commentary, Teaching | Permalink | Comments (0)

Tuesday, August 4, 2015

A Justified Existence for Some California Law Schools?

A new Los Angeles Times investigation has revealed that nine out of ten students drop out of unaccredited law schools in California.  Of the few students that graduate, only one in five ultimately become a lawyer.  In other words, a mere 2% of the people that initially enroll in an unaccredited law school end up being attorneys.  Shameful at best.  One example of one person who did not make it as an attorney is former Los Angeles mayor Antonio Villaraigosa who went to “People’s College of Law” and took the bar four times, but never passed.

Unaccredited law schools are said to flourish in California. The state is one of only three in the nation that allow students from unaccredited law schools to take the bar test (the others are Alaska and Tennessee).  Unaccredited schools in California are held to very few academic standards by regulatory bodies and, by their very nature, none by accrediting agencies.

Most of the unaccredited law schools are owned by small corporations or even private individuals.  One, for example, is owned by a“Larry H. Layton, who opened his school in a … strip mall above a now-shuttered Mexican restaurant. He thought the Larry H. Layton School of Law, which charges about $15,000 a year, would grow quickly. But according to the state bar records, he has had six students since 2010.”  

Experts again say that action must be taken.  For example, Robert Fellmeth, the Price Professor of Public Interest Law at the University of San Diego School of Law, has stated that unaccredited schools “aren't even diploma mills, they are failure factories.  They're selling false hope to people who are willing to put everything out there for a chance to be a lawyer."  

As before, the problem goes beyond unaccredited law schools.  Several ABA accredited law schools also demonstrate both poor employment and bar passage statistics, although the problem seems to be the most severe when it comes to unaccredited schools. 

This story is not new to your or many others.  However, it serves as a reminder of the continued importance of both insiders and outsiders taking a renewed look at regulations for (and broader expectations of) law schools in California and beyond. As always, purchasers of anything including educational “services” (which, as the above other and many other studies show, can all too easily turn out to be disservices) should be on the lookout for what they buy. A great deal of naivety by new students seems to be contributing to the problem.  However, that does not justify the tactics and perhaps even the existence of some of these educational providers. Having said that, I also – again – cannot help ask myself what in the world some of these students are thinking in believing that they can beat such harsh odds. Hope springs eternal, it seems, when it comes to wanting to become a California attorney.

August 4, 2015 in Commentary, Contract Profs, Current Affairs, In the News, Law Schools, Legislation, Teaching | Permalink | Comments (0)

Tuesday, May 5, 2015

The Blogosphere Responds to Our Series on Legal Education

ScholarYesterday's post has inspired quite a bit of traffic here and elsewhere.  Over on Brian Leiter's Law School Reports, Michael Simkovic asks whether conditional scholarships are good for law students.  

Deborah Merritt responds on the Law School Cafe and answers the question in the negative.  She thinks conditional scholarships mostly help law schools, and they hurt students by creating a stressful competitive environment.

Michael Simkovic (again on Leiter) disagrees.  He argues that conditional scholarships motivate students to work hard in law school and cites to studies linking motivation and academic performance.

Deborah Merritt shoots back on the Law School Cafe.

And Michael Simkovic again responds on Leiter.  

It is hard for me to keep up with the pace at which these people blog.

I have only a few quick points to make in response to Professor Merritt, whose remarks are largely critical of the position I have taken here:

  • It seems we are all agreed that the disclosure problems related to conditional scholarships have largely been addressed through the ABA website that enables students to comparison shop among scholarship offers from various schools and know their chances of retaining their conditional scholarships.  Some law schools routinely offer a lot of merit scholarships in the first year knowing that most students will not retain them thereafter.  But that information is now easily available, and we will see if students vote with their feet against such a model.
  • Professor Merritt properly chastises me for treating Wikipedia's listing of normalization curves as authoritative.  I think Wikipedia is a good place to start, but my main point is that information about normalization curves should be readily available for each school a student is considering attending.
  • I find the absence of curves in undergraduate grading perplexing, and I find it astonishing that anybody would think non-curves are better than curves.  I could easily design an exam that all my students would ace (above 90% correct) and an exam that all my students would fail (below 60% correct).  But there is nothing holy about base ten, and my aim should not be to design a test so perfectly calibrated that the difference between a 91% and an 89% is meaningful but the difference between 86% and 84% is not.  My aim in assessment is, among other things, to have a tool that helps me distinguish within a group of students who have had the same educational experience.  A curve helps me do that better than random divisions at every point at which the score passes a 0.  
  • Professor Merritt points to a study in which the J.D. placed only sixth in a  ranking of the best graduate degrees.  As if that were a bad thing!  Three of the degrees that ranked more highly are Ph.D. programs likely to take twice as long as the J.D. and the others likely require higher math or computer programming skills.  This extremely high ranking for the J.D. is terrific news.  By the way, the MBA, a frequent alternative to the J.D., ranked 14th.
  • Professor Merritt tells an anecdote about a student who decided not to pursue a J.D. when she learned of conditional scholarships.  She decided to take her graduate tuition dollars elsewhere, but where?  Unless she earned a Ph.D. in statistics, computer science or physics, or a Masters Degree in human computer interaction or  biostatistics, according to the study cited by Professor Merritt, she made a poor choice.

Professor Merritt's second post turns on an anecdote about teaching the same course (torts) the same way to different students and getting very different results.  As a consequence, she had to give students in the "smart section" who did better on the exam worse grades than some students who did worse on the exam in the weaker section.  Three thoughts:

First, one cannot step into the same river twice.  One semester when I taught history at the College of Charleston in the 1990s, I had four sections of Western Civ., all on a Tuesday/Thursday schedule (they were long days!).  Same readings, same outside materials, same assignments, same lecture notes.  Each section developed its own identity.  They were four different courses.

Second, in fifteen years of teaching at both the college and law school level, I have never had a similar problem.  An anecdote is not an argument.  No system of grading is perfect, and I can live with small injustices around the edges of grade normalization.  Whether or not a student retains a conditional scholarship is not determined by her performance in any one course.  

Third, consider the insight of Professor Merritt's plucky college student who decided against a J.D.  Knowing only undergraduate education, the student remarked, “It’s not like there’s a quota on the number of A’s or anything.”  In that world, the undergraduate professor gives A's to all of the students in the "smart section" who "earned" them according to some mysterious but fixed standard.  Outside of the STEM courses, the undergraduate professor can also give As to the best students in the weaker section, even though the same performance would have earned them a B in the "smart section."  Within the STEM courses, imagine the stampede of angry pre-med students from the weaker section who will decry the injustice that there were no A's in their section but eight in the other. I pity the department chair who has to sort out that mess.

Links to Related Posts:

The Current Series 

XI:Another Transparency Issue: Conditional Merit-Based Scholarships
X: Siloing: The Next Unneeded Import from Undergraduate Education
IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself? 

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

May 5, 2015 in Commentary, Teaching, Weblogs | Permalink | Comments (11) | TrackBack (0)

Monday, May 4, 2015

Another Transparency Issue: Conditional Merit-Based Scholarships

ScholarOne of the ways in which law schools are allegedly inadequately transparent is in the award of merit scholarships conditional on the students’ achievement of a certain grade point average (GPA), usually 3.0, in law school.  The New York Times set the ball rolling back in 2011, with this article about a law student who lost her scholarship when she only managed a 2.967 GPA.  Law school critics allege that such conditional merit scholarships are a “bait and switch.”  It is an odd claim.  Law schools offer conditional merit scholarships for the same reasons colleges offer them, and there are no claims that the terms of the scholarship are unclear.  Why are law students assumed to be incapable of looking into standard grade normalizations curves for the first year? 

The real mystery is why conditional scholarships for law students come in for so much criticism when they seem to be generally regarded as valuable and successful on the undergraduate level.   The scholarships are, as their name suggests, conditional, and it would be completely unreasonable to continue to grant students merit scholarships when their performance in law school has been disappointing.  Students who lose their merit scholarship have gotten their first year of legal education for free, so what is their harm?  I think the claim for harm is derivative of the larger (and largely baseless) claim that law schools do not benefit their students.

 The Critique

Jerry Organ published an interesting article criticizing competitive scholarships and recommending best practices for the law schools that use them, including better disclosure of scholarship retention rates.  Law School Transparency proposed a new ABA standard that would require all law schools to publish on their websites data about the percentage of students who were able to retain their scholarships after the first year.  

As readers of this blog should know, disclosure is no panacea.  Professor Organ was able to find information about how scholarships work at 160 law schools.  That means that the information was out there.  Since Professor Organ was able to gather information about 160 law schools, it should not be difficult for students to gather relevant information about the one law school that they are considering attending.  Many students can find their law school’s curve by looking on Wikipedia.   Since a lot rides on the decision, one would expect students to investigate, especially since the investigation might not take more than a few mouse clicks.

If law schools were more aggressive and sat down with students offered conditional scholarships and walked them all through the statistics, would anything change?  Would a student choose not to go to law school because she had been told that there was a 50/50 chance that she would lose her scholarship after year 1?  I doubt it.  She would feel confident that she would be one of the successful students and, even if not, she would still have enjoyed a year’s free tuition.


Continue reading

May 4, 2015 in Commentary, Law Schools, Recent Scholarship, Teaching | Permalink | Comments (14) | TrackBack (0)

Thursday, April 30, 2015

Siloing: The Next Unneeded Import from Undergraduate Education

Silos, by Scott Davis

I don't know if this is a thing yet, and I hope it doesn't become one, but I have been hearing, here and there, from people involved in legal education reform, that we need to combat "siloing" in the law school curriculum.   You can find denunciations of siloing at lower levels of education here and here and here (for example), and a lot of the anti-silo rhetoric seems to be coming form the U.S. Department of Education.

To the extent that the war on siloing means that undergraduate education (or secondary school education) should be interdisciplinary and that academics should also build bridges across disciplines, I am all for it.  But what is its application to legal education?

The standard anti-siloing spiel in legal education goes something like this:

We teach our students in silos.  They learn contracts in one course and torts in another, property in a third, and civil procedure in a fourth.  But when the client walks into your office, she just has a story, and you have to recognize that all of the different doctrinal areas that you studied in law school could be relevant to that story.  You can't just compartmentalize legal scenarios into one doctrinal silo or another.

 That is obviously true, but it doesn't mean that we should just teach one amorphous course in the first year called Everything that Could Possibly Go Wrong and What to Do About It.  Doctrinal siloing is, in my view, the right approach, certainly in the first year.  Otherwise, students don't learn, for example, that the logic of contractual liability is very different from that of tort liability or that certain doctrines that have the same names work differently in different doctrinal areas.  There is, again in my view, plenty of time in the second and third years to make certain that students understand that one fact pattern can generate issues across the doctrines, but students should never lose sight of doctrinal boundaries and their importance.

A few examples:

  • The other day, I was teaching a bar prep course and going over assignments.  One of my students arrived at the wrong conclusion because he treated assignments according to agency rules.  I was impressed that the student remembered agency rules, but his answer was just wrong.  There was nothing to say except, "Sorry, assignment is different from agency."  
  • I have written here and (more pithily) here about how the state secrets privilege has gotten messed up because courts have applied a doctrine that arises in the contractual context (Totten) to cases that involve torts allegations against the U.S. government and its contractors.  A party to a contract may agree that the content of that contract is secret and therefore non-justiciable; a tort victim makes no such agreement.
  • Many of the craziest moments in the notorious OLC memos from the Bush Administration occur when very smart lawyers, eager to justify outrageous government conduct, draw on inappropriate analogies from other doctrinal areas.  So for example, they got their definition of "severe pain" from a statute that determines what constitutes an emergency medical condition for the purposes of entitlement to certain health benefits, and they consulted criminal law concepts of "necessity" and "self-defense," seemingly unaware of how limited those defenses are in the appropriate doctrinal context. 

So, if somebody starts denouncing "siloing" in the context of discussions of curricular reform, please consider the dangers of eliminating doctrinal silos.

Links to Related Posts:

The Current Series 

IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself? 

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

April 30, 2015 in Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Legal Education in the News and on the Blogosphere

I began this series with the question: Why Is the Legal Academy Incapable of Standing Up for Itself?  Paul Campos thinks we are doing far too much of that, going so far as to compare those of us who think legal education is worth defending with Holocaust deniers.   Fortunately for us, I suppose, this blog isn't on anybody's radar, but in any case I think it bears noting that I value the contributions of people who have shed critical light on legal education, although I don't agree that it is anything approaching a scam.  I have gained valuable insights from the work of Law School Transparency, Brian Tamanaha, Deborah Merritt, and Bill Henderson on our sister blog, The Legal Whiteboard, among others.

That said, there is another side of the story.  Legal education is constantly re-forming itself in fundamental ways.  Clinical education has only been with us since the 70s; legal writing programs took off in a major way in the 80s and 90s.  Both represent fundamental shifts in pedagogy in response to perceived deficits in the legal education model.  Those programs continue to develop and expand, now supplemented with robust ASP programs.  All of these things jack up the costs of legal education and all in the name of better preparing students for the profession.  Nobody is fiddling while our students burn.  In fact, at this point, it is clear that everybody in the debate passionately believes that they have the best interests of our students at heart, and I do not doubt their sincerity.  

Meanwhile, just when you thought it was safe to read what the New York Times has to say about legal education, we get another one-sided piece based on a few anecdotes and one piece of scholarship.  I thought I had a lot to say in response, but others have beaten me to it, so I will just provide the links:

Simkovic on Leiter

Stephen Diamond on his own blog

Brian Galle on Prawfsblawg

Deborah Merritt, on whose scholarship the piece relies, on The Law School Cafe 

Links to Related Posts:

The Current Series 

VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

April 28, 2015 in About this Blog, Commentary, In the News, Law Schools, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2015

On Issue-Spotting and Hiding the Ball

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. 

April 23, 2015 in Commentary, Contract Profs, Current Affairs, In the News, Law Schools, Teaching | Permalink | Comments (4) | TrackBack (0)

Issue Spotting: A Response to a Comment

Howard Law's Matthew Bruckner has posed some challenging questions for me in the comments to the second post in this series.  He writes:

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.

ScholarMatthew 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 

V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?

IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?

III: My Advice to Law School Transparency: Declare Victory and Move On

II: SLOs and Why I Hide the Ball (and Why You Don't Have To)

I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice

Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom

Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy

Thoughts On Curricular Reform III: The Costs of Change

Thoughts on Curricular Reform II: Teaching Materials

Thoughts on Curricular Reform I: The Problem

April 23, 2015 in Commentary, Teaching | Permalink | Comments (2) | TrackBack (0)

Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?

This is the fifth in a series of posts on reform in legal education.  Related posts are listed at the bottom of this post.

ScholarA 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 

IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?

III: My Advice to Law School Transparency: Declare Victory and Move On

II: SLOs and Why I Hide the Ball (and Why You Don't Have To)

I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice

Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom

Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy

Thoughts On Curricular Reform III: The Costs of Change

Thoughts on Curricular Reform II: Teaching Materials

Thoughts on Curricular Reform I: The Problem

April 23, 2015 in Commentary, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, April 20, 2015

What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?

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.

ScholarToday, 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.

April 20, 2015 in Law Schools, Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, April 17, 2015

My Advice to Law School Transparency: Declare Victory and Move On

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?


April 17, 2015 in Commentary, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

SLOs and Why I Hide the Ball (and Why You Don't Have To)

TeachingThe ABA, and I hear, I other accreditation bodies are now looking for faculty members to identify student learning objectives and student learning outcomes (SLOs) on a class-by-class, hour-by-hour basis.  I have been told that there are model syllabi circulating that include such learning objectives and learning outcomes, and that they are 12-14 pages long. 
I have Googled the subject and everything the literature I have seen on student learning outcomes and objectives strikes me as thoughtful, sophisticated, and completely misguided as to the nature and purposes of legal education.  Sophisticated schools like Stanford and the University of Connecticut circulate complex documents with graphs and charts and tables about how to draft the perfect SLOs.   These documents are clearly oriented towards undergraduate education.
The model syllabi (and PowerPoints) that Hastings Law provides on the subject provide about as much information about SLOs as I typically include in a course description.  But I don't put that course description in my syllabus because it is more usefully placed in our Bulletin, which students look at when they are deciding what course to take.  I could cut and paste the same information into a syllabus, but students will not read it if it is on the syllabus, and I will just waste paper in distributing it.  What really amazes me about the model syllabi that Hastings supplies is that they lack the things that I think make a syllabus valuable: daily schedules of assigned readings, assignments due and topics to be discussed on a given day (which is my preferred version of SLOs).
ScholarYou are not a great educator because you announce student learning objectives and student learning outcomes or because you use the words formative and summative assessments to refer to periodic quizzes, homework assignments and a final exam or because you use the word intentional as an adjective usually preceded by "more" when intention is not really a matter of degrees.  All of that jargon just demonstrates that you have drunk the Kool-Aid and not that your students can pass the bar and function as lawyers.
Students already cannot be relied on to read my 3-5 page syllabus.  They certainly would not read a 12-14 page syllabus, so adding SLOs to my syllabus just wastes effort and trees.  But that is not my main objection to SLOs.  My main learning objective is to teach law students how to figure out on their own what lessons they are supposed to be deriving from reading cases, statutes, treaties, regulations, deposition testimony or a news story, etc..  Telling students the SLOs undermines my pedagogy.
And hiding the ball is part of the pedagogy.  Unless they are dealing with corporate counsel, my students' clients will not come into their offices and say, "I have a contract dispute and I need you to research how these three jurisdictions (the only three that could possibly matter) will deal with different terms under UCC § 2-207."  Even if corporate counsel did say that, a good lawyer will usually have to look over the entire transaction and see if there are additional issues worth looking at.  But the usual situation is that your client tells you a version of the facts and you have to find the legal issues in a fluid situation in which you discover through the use of your legal skills that your client did not tell you the full story.  The process of dealing with that world has to begin in law school, and it will not begin well if I tell my students  at the beginning of every hour what skills or doctrine they are supposed to develop in the next 50 minutes.  
Fellow educators: Perhaps you disagree with me.  Perhaps you had terrible experiences as a law student with professors who never told you what you were supposed to be accomplishing in a course, and you would never teach the way you were taught.  To you I say, fine.  If you have found a way to teach that enables you to transmit the material to your students, and your students emerge enriched and empowered, keep doing what you are doing.  My way would not work for you, and your way might not work for me.  But legal education will not be enriched if we replace one system in which everybody teaches the same way (the myth of the Socratic drone faculty) with another system in which everybody teaches law school as if it were college (or high school).

April 15, 2015 in Commentary, Teaching | Permalink | Comments (7) | TrackBack (0)

Tuesday, April 14, 2015

Why Is the Legal Academy Incapable of Standing Up for Itself?

ScholarI 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.

April 14, 2015 in Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Back in the Saddle

Yael_ronenI 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.

Selfie Lesson

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. . . .

March 17, 2015 in About this Blog, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

Seals Workshop for Aspiring Law Professors


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

March 11, 2015 in Conferences, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 3, 2015

Want a Class with that Barrista Job?

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.

March 3, 2015 in Commentary, Current Affairs, E-commerce, Food and Drink, Labor Contracts, Teaching, True Contracts | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Bar Prep Teaching

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?

February 12, 2015 in Commentary, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Merchantability Applied to Legal Scholarship

Katowice Fair Building Collapse graphic


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. 

January 23, 2015 in Commentary, Current Affairs, Law Schools, Miscellaneous, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)