ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Tuesday, December 8, 2015

Out with the Smart Aleck Professors, In with the Party Loyalists

A few days ago, I blogged here on an attempt by some university professors in California to unionize and to obtain better pay and working conditions in general.

In China, university reform is also underway, but, at least in part, with a much more troublesome intent and potentially dire effects for the nation and the world.

The Guardian reports that China’s education minister has vowed to “drive smart alecks, dissenters and thieves” from the country’s university classrooms. This is part of a wider anti-corruption campaign launched by President Xi three years ago.

The alleged misconduct ranges from action that seems reasonable (firing university leaders for filing fake expense reports and taking bribes from students) across the pitiful and almost laughable (punishing senior university officials for engaging in illicit acts of “hedonism” by, for example, driving luxury cars) to the outright shocking and extremely troublesome, seen with Western eyes. For example, several university chiefs have been toppled for “flouting Communist party rules.” Attempts are made to ban books that attempt to spread “Western values.” The education minister has also called for “greater political screening of academics before they are hired” and is worried that “enemy forces” are attempting to “infiltrate university campuses” in order to “turn young minds against the party.”

Liberal academics claim that the discussion and study of sensitive topics has generally become increasingly difficult under the leadership of President Xi.

All this is indeed very troublesome indeed. However, before we roll our eyes too much at these serious Chinese events, let us just remember that the United States academic world is far from perfect either. Recall, for example, the recent defunding of various law school and other university clinics on East Coast campuses for, at bottom, being too liberal and assisting the lower class in obtaining better pay and working conditions. A former senior faculty colleague personally told me once that one of my papers on (are you ready?) climate change was almost “too political” in Orange County, California. The article discussed mainstream factual aspects, including business and investment issues, of climate change that are now, just a few years later, being discussed in Paris by all media, including conservative outlets. Recently, numerous attempts at diversifying college campuses across the nation have shed light on potential elitism and racism in American universities. Nope, we are far from perfect ourselves. But when an entire nation deliberately and officially seeks to censor learning processes, there is indeed cause for alarm.

Last year, I had the great honor, joy and privilege of teaching international environmental law at a prime Chinese university. I brought up such “sensitive” topics as public participation in government law- and decision-making, climate change, and trade in endangered species. I was videotaped doing so (this is normal practice in China). I was also not invited back this past summer. Maybe my teaching is simply no good. Maybe more senior and “famous” lecturers were chosen.   I cannot blame the university for doing so at all. I know that I have a lot with which I can contribute to any educational institution, but I also bow to and honor the many experienced, learned and very well published colleagues on the “market” these days. However, hate to think that I was, perhaps, censored away. I don’t think that is the case. If it was, then I am nonetheless happy to have at least contributed with a few provocative, Western thoughts. Perhaps I was just too much of a smart aleck...


December 8, 2015 in Commentary, Current Affairs, Labor Contracts, Law Schools, Teaching | Permalink | Comments (0)

Saturday, December 5, 2015

Unionizing University Faculty

Five thousand part-time and non-tenure track professors working for the University of Southern California, a private university employing a total of 6,600 faculty, are petitioning the National Labor Relations Board to become unionized. If the petition is granted, the faculty will get a chance to vote on the issue with contract negotiations to follow soon thereafter.

Those of the faculty who support the move say that it could lead to better working conditions, more job stability and higher pay. Currently, part-time faculty teaching courses for USC earn an average of about $5,000 per course. Such faculty often have to piece together jobs teaching classes for several universities earning them the name “freeway flyers.” Parents are often getting upset that students are being taught by part-time adjuncts. Of course, the stress and uncertainty of not having a stable teaching job in one location may indeed affect the quality of the instruction provided by adjuncts and other non-tenured professors.

Nonetheless, USC Provost Michael Quick and other university representatives have warned the potentially unionizing faculty that their move may lead to “less collegiality on campus” because unions, in their opinion, rest on “an adversarial model.” 

Come again? So, some university folks may resent the fact that their low-paid, low-security, but hardworking colleagues for seeking out better working conditions for themselves and thus eventually the university students? That in itself sounds highly uncollegial and should be rethought. Perhaps some university faculty and leaders ought to consider assisting their colleagues in moving towards better working conditions and pay, as the trend is around the nation in both academia and beyond, not trying to retaining status quo. Unions have a sound role to play in this respect. Even without unions, many of us enjoy good working conditions and pay. However, many faculty may not individually be able to obtain such conditions. Unions have demonstrated their ability to assist workers in this respect. “Adversarial” is not the right word for that. It’s called bargaining power and leverage. It is what you make it.

As if this wasn’t insulting enough to the faculty, the university provost also encouraged the faculty to “read anything an organizer asks to you sign as you would read a legal document.” Duh! As one faculty said: “I almost feel like they’re insulting my intelligence.” Apparently, the intelligence of the faculty is recognized in some contexts (teaching), but not in others (reaching out for help to improve one’s working conditions).

By way of comparison: part-time and untenured faculty at both the University of California and California State University have long been represented by unions. That has not led to any reports of “less collegiality” or any other of the parade of horribles-scenarios so often invoked when it comes to employee versus employer bargains assisted by unions.

December 5, 2015 in Commentary, Current Affairs, Labor Contracts, Teaching | Permalink | Comments (0)

Wednesday, December 2, 2015

Contract Forms as Computer Viruses

A pithy piece over at  the Lawyerist makes the point that while lawyers tend to be well-educated and academically accomplished, those facts do not make them inherently good writers. One particularly unhelpful contribution to the problem by legal education is the fact that "law students spend their days reading legal writing that is often verbose, stilted, and chock full of legalese." While I suspect that statement was most directed toward classic-but-musty cases like Hadley v. Baxendale and Hawkins v. McGee, it got me thinking about the reading and drafting of contracts.

Whenever I teach a contract drafting course, proper use and evaluation of existing form provisions is a recurring theme. Clients will not want to pay for reinventing the wheel, and form documents help prevent needless reinvention. Indeed, drafting everything from scratch will tend to turn much transactional work into a sunk cost, the complete antithesis of the value-adding service lawyers need to provide in this automation age. At the same time, the murky and verbose language of so many forms has its own transactional cost: more lawyer and client time is required for every instance of deciphering poorly-drafted language. Unsurprisingly, many students will resolve this tension in favor of copying legalese instead of clarifying it. Pressures of real-life contract drafting are likely to reinforce this tendency in law practice.

Poor contract forms are much like computer viruses--once they are in the system, they will replicate themselves when given the opportunity. Only a lawyer who understands the deal underlying a contract and who has developed the judgment to discern between what to fix and what to keep can prevent the virus from spreading, but even then only once. The form is still out there.

One of the challenges of teaching contracts and commercial law in today's tight legal marketplace is guiding our students toward having understanding and judgment capable (among other things) of stopping contract viruses. Some think that building such transactional cognition is beyond the capacity of law schools, but for our students' sake, I disagree. The lawyers who will avoid being automated out of existence are the ones capable of making sound and complex judgment calls.

December 2, 2015 in Law Schools, Teaching | Permalink | Comments (2)

Monday, November 30, 2015

Farewell Post IV: Students and Tipping Points

OutliersI've been re-reading Malcolm Gladwell.  The sub-title of The Tipping Point is How Little Things Can Make a Big Difference.  That same idea is at the heart of some of his other works.  In Outliers, he reports on the importance of birth dates in Canadian hockey.  Boys who have birthdays in January and February tend to be hockey stand-outs, Gladwell argues, because in their early years when they are under ten years old, they are significantly older and more physically mature than the boys born towards the end of the calendar year.  As a result, the January and February kids get picked for all the travel teams and then all the all-star teams.  They get more practice in, they get the coaches' attention, and they also get to play in more challenging situations.  With each new experience, they improve incrementally, but eventually the differences between the January and February kids and the November and December kids are vast.*

I've been thinking about how students at unranked law schools like mine are like Gladwell's Canadian hockey players born in November and December.  But in the case of law students, the differences between the students who score 170 on the LSAT and those who score 145 on the LSAT are not as arbitrary as the Gregorian calendar.  They are often socio-economically determined. Obviously, this does not apply to all students who score below 150 on the LSAT; I am generalizing.  

But I am thinking of students from economically stressed families.  Their parents work all the time and/or their parents are divorced, adding additional economic stress and uncertainty to the family environment.  The parents may not have been to college or they may have gone but not pursued a serious course of study.  In any case, higher education takes a back seat in many families to more immediate concerns: children over 18 (or over 16) have to work.  Children have to look out for their siblings while the parents take care of other responsibilities.

Many of my students worked their way through college.  Many took five or six years to graduate because they needed to work or because they had to interrupt their studies for various reasons.  They ran out of money, they needed to care for a sick parent or grandparent, or they weren't performing well in college for reasons ranging from homesickness to immaturity to undiagnosed medical conditions exacerbated by the stress of a strange environment.  They went to small, struggling colleges or to branch campuses of state universities.  Their instructors tried diligently to help them, but they were in need of remedial courses, and they were in environments that did not encourage concentration on the development of the sorts of critical reasoning skills that comprise the basic building blocks of legal education.  Their undergraduate teachers were satisfied if they followed directions, committed instructional materials to memory and then re-created thought processes that were covered in class or in readings.

By the time these students arrive at law school, they seem less intelligent, less dedicated, less disciplined, less professional and less mature than students at higher ranked schools.  Standardized tests tells us this is the case.  They are none of those things.  They are bright, ambitious people who were born in December.  They never got the training that the students born in January got.  They never were asked to compete on the same level.  They never got the same encouragement.  They sat out entire seasons due to outside pressures that prevented them from focusing on their own careers.  

And now they arrive at law school, and nothing as changed.  The vast majority of students just go to the "best" law school that accepts them (or the best law school that accepts them and offers them money).  Geography may play some role, but US News rankings determine the outcome of regional contests.  A law school may tout its experiential learning programs or its program in entrepreneurship, but it will attract students in a rather narrow band of LSAT scores and undergraduate GPAs.  Students with strong LSATs and UGPAS go to the highly-ranked schools.  Students with the weakest LSATs and UGPAs go to unranked schools, where their peers are other students like them who have never had the opportunity to develop the study skills, the discipline, the critical thinking skills, the maturity and the professionalism that are the hallmarks of the successful pre-professional.

In addition, they are still subject to the same outside pressures that prevented them from getting the most out of their college educational experiences.  I once had a student miss a contracts class because she had to pick up her father at the airport.  Her family did not think it was a big deal for her to miss class.  No matter how many times we tell them that being a law student is a full-time job, the message does not sink in for students from families who think of school as a part-time endeavor supplemented with a "real job."  Many of my students work 20 hours a week, and they resent the fact that we have opted to keep the 20-hour rule when the ABA has abandoned it.  They would work more if they could.  When I confronted my students in a bar prep course on contracts last year with evidence showing that almost none of our graduates who worked while studying for the bar passed the bar exam, they responded with outraged exclamations: "Well, I've gotta eat!"

Ray Bourque
Ray Bourque, Hall of Fame Class of 2004. 
Born December 28, 1960

All of this (and more) suggests to me that we might be facing a tipping point phenomenon at law schools with median LSATs below 150.  This is not about failing law schools or about failing law students.  It is about small differences adding up incrementally to a sudden plummet in bar passage rates.  If I'm right, I don't think the solution is anything that law schools can undertake on their own.   Malcolm Gladwell's conclusion is that Canada is missing out on a lot of hockey talent by benching players born after July.  I think the legal profession (and thus society) will miss out on a lot of untapped legal talent if we don't continue to find a way to train the students who have the drive, the grit and the commitment, but not the preparation, for law school.  As I indicated in the previous post in the series, I don't think the legal profession or our society as a whole benefits from excluding the students whose pre-law-school predictors suggest that they will struggle to pass the bar examination the first time they take it.  After all, while January and February produce more NHL hockey players than any other month, on average, according to, they are not the best.  The January players score an average of 105.4 points over their NHL careers.  October payers score an average of 128.3, and December players best them all at 138.8!

*Gladwell might be wrong about Canadian hockey players. He has his critics but also his supporters.

November 30, 2015 in Commentary, Teaching | Permalink | Comments (4)

Monday, November 23, 2015

Farewell Post III: Misplaced Anger

Rage of AchillesA lot of people are angry at the legal academy.  They are angry about falling bar passage rates and limited career opportunities.  They are angry that law schools do not do enough to prepare them for the bar or for practice and that tuition is too high given what traditional legal education can accomplish.  The anger, to the extent that it comes from law graduates who worked hard and still cannot find satisfying work as attorneys, is understandable.  Directing that anger at law professors is also understandable but in most cases unjustified.  

We did not create the market conditions.  We, for the most part, are not even the architects of the policies that determine admissions standards or tuition.  We are very limited in the extent to which we can innovate because we are subject to ABA educational guidelines that increasingly (and often unhelpfully) micro-manage our operations.  Almost every innovation that would improve legal education would also make legal education more expensive.  

I want to outline two arguments in this post.  First, legal academics and administrators at unranked law schools are people of good will who are trying to continue to serve people who ardently aspire to become attorneys.  Second, the legal profession is also full of people of good will, but collectively the legal profession is behaving as professions always do in times of economic contraction: they are raising barriers to entry so as to protect their incomes and their self-created monopoly in the provision of specialized services.

What is going on at unranked law schools is pretty simple.  For decades, such law schools accepted students who, for the most part, could not have gotten in to more highly-ranked law schools.  For decades, the overwhelming majority of such students went on to pass the bar and enter the legal profession.  As Michael Simkovic and Frank McIntyre have shown, those students are financially better off for having done so, and without the lower-ranked schools, they never would have had the careers they now have.  Unranked law schools started dipping deeper into the applicant pool when that pool shrunk considerably in size, believing that they had the ability to identify students who could succeed in law school and in the legal profession and that they could address the needs of the academically underprepared with beefed-up academic success programs and curricula more geared towards bar preparation.  

Evidence is mounting that law schools were overly sanguine about their ability to help students in the bottom quartile of the national LSAT pool.  But evidence is also beginning to suggest that the pool has bottomed out and begun to grow again.  That should mean that unranked law schools that are competing for students may have a larger pool of students to compete over, and so long as schools learn their lesson and keep growth and costs down, that should mean that they can begin to increase their admissions standards back towards where they were a decade ago.  In five years, the crisis may well have passed and the law schools over which the sword of Damocles currently hangs will be crowing about gaudy bar passage and employment rates.  

This result is far preferable to shutting down existing law schools.  Right now, we have overcapacity, but it law schools disappear, they are unlikely to reappear.  And if, as seems likely, the law schools that close are the unranked law schools, the losses will hit underserved communities the hardest.  I will have more to say about who those communities are and why keeping them out of the legal profession is a big problem in the next post in this series.

The ABA is the guardian of our profession.  What do professions and professional organizations do?  Following Magali Sarfatti Larson, we can conceive of the legal profession as a group of trained experts attempting to establish a monopoly over a market in services.  The key to control over a market for professionals becomes control over the production of producers. By limiting the supply of credentialed practitioners, professionals assure themselves a favorable bargaining position in the market for their knowledge and services. (Magali Sarfatti Larson, The Rise of the Professions: A Sociological Analysis 29-30 (1977)). As Larson points out, professions do not so much meet existing needs as shape or channel the needs of consumers  (id. at 58).  In order for a profession to succeed, it needs to convince the members of society as a whole that its services are necessary and that only people with a certain kind of expertise and credentialing are qualified to provide such services.   

And so, when the going gets tough, barriers to entry rise.  Recent trends of (often steeply) lower bar passage rates and the steady drumbeat calling for greater scrutiny of law schools viewed as underperforming are consistent with how Larson's model predicts professional organizations will respond to economic pressures.  But it also threatens to add a new and ugly chapter to the history of the ABA.

Many have written about the racist bias underlying the establishment of the ABA (e.g., Daria Roithmyer, Deconstructing the Distinction between Bias and Merit, 85 Cal. L. Rev. 1449, 1476 (1997)).   I do not think there is any such intentional bias at work today, but the organizations so eager to mete out death sentences to law schools that serve underrepresented minorities and the academically underprivileged need to think about what the legal profession will look like in 2025 if their wishes all come true.   

November 23, 2015 in About this Blog, Commentary, Teaching | Permalink

Wednesday, November 18, 2015

Farewell Post II: Still Crazy About Blogging after All These Years

BeforeI'm not stopping because I'm burned out.  I still love blogging, and I wouldn't be surprised if, after a hiatus, I want to come back to blogging in some form.  I'm stopping because I think I've maxed out on the benefits I can derive for myself and my law school from this enterprise, and it is time for me to find new ways to contribute.  Also, look how blogging has aged me, as evidenced in these photographs of me taken before I started blogging (left) and after (right).

ShinerMoving on feels especially urgent given what is going on in the legal academy and in unranked law schools like mine in particular.  Posts III and IV in this series will elaborate on that subject.  Given the challenges that my current students face and that I face in teaching them, I am contemplating a complete re-tooling of my approach to teaching contracts.  I have requested a year off from teaching contracts next year so that I can teach a couple of legal writing/legal reasoning courses and get better insights into where my students are at in those areas when they get to law school.  I also need to learn from my skills-training colleagues so that I can better incorporate skills training into doctrinal teaching when I go back to teaching contracts, as I very much hope to do.  

At the same time, at age 52, I am beginning to think about what remains of my career as an academic and what sort of an impact I think I can have in the 10-15 years that remain to me as an active scholar and teacher.  It is already clear to me that my most important impact is going to be in the classroom.  Although I would like to think that I have original ideas and can contribute to an academic debate that can move the law or inform policy decisions, the likelihood of that is small, as it is for most of us mortals.  Still, perhaps out of vanity, I have three book projects that I think will keep me occupied into my sixties.  One is an edited collection on Hans Kelsen, which is under contract and which I hope will come out next year.  The second is an intellectual history of originalism in constitutional adjudication, as a judicial practice, an academic approach and a popular movement.  The third will be on theories of public international law,  I have a typology of public international law theories that I use in presenting the material to my students.  I've always wished there were a book that did this the way it needs to be done. Oona Hathaway and Harold Koh edit a collection which is very useful, but for some reason they have not decided to organize the material the way I organize it.  I'm kidding.  My organization is unique, and I will only know if it makes sense once the book is well underway.  So, I have assigned myself the task of writing that book.

None of these projects relates to contracts law, and so the prospects for me returning to contracts scholarship before retirement are remote.  I expect that I will continue to follow the blog, use it as a resource, refer students to it, and feel pride that I contributed to it for nearly a decade.  But I need to allocate my dwindling intellectual energies elsewhere.  Producing a book every five years is something I think I can still handle while focusing on Job 1, which is helping my students pass the bar and prepare for their legal careers.

November 18, 2015 in About this Blog, Commentary, Teaching | Permalink | Comments (0)

Monday, November 16, 2015

Farewell Post I: Why Junior Faculty Members Should Blog

I have told my co-bloggers and the Blog Emperor that I intend to step down from the blog at the end of the semester.  I am leaving things in good hands.  Nancy Kim will continue as a contributing editor, and Myanna Dellinger has agreed to step up as editor.  I hope that this post will aid Myanna in her efforts to attract new contributors.  The more different voices we feature on the blog, the more we can attract new readers and move others from occasional to habitual readers.  

Before I go, I have a few things to get off my chest, and I will do so in a final series of posts.

SnyderFirst come the thanks (and they will come again at the end).  Nearly ten years ago, I sent a Limerick to Frank Snyder (pictured) and asked him if he would be interested in posting it on this blog.  He responded by inviting me to become a regular contributor.  He showed me the ropes and roped me in to the contracts law community, and for that service, I owe him continual thanks, as the benefits continue to accrue.  While on the blog, I have had many great colleagues, who have helped keep the blog going and added new and interesting perspectives.  Two such colleagues, Nancy Kim and Meredith Miller, merit special thanks because of their long tenure on the blog and because their contributions moved the blog in new directions, both scholarly and quirky, that expanded our readership in ways we could not otherwise have done.  Both served me as sounding boards both in my contracts scholarship and in connection with issues that arose on occasion relating to the blog.  It is a bit odd to describe as friends people you have only spoken with face-to-face on a handful of occasions.  Yet, in unreflective moments, when I confess that I like to go to the International Conferences on Contracts because I get to see my friends there, I have Frank, Meredith and Nancy (and others) in mind.

Which brings me to the second subject I want to tackle in this post.  When I started blogging, I was untenured, and there were a few articles circulating (as well as many more blog posts) suggesting that it might not be a great idea for junior faculty members to blog.  The main concern was that blogging would interfere with serious scholarship.  Based on my own experience, I think this is nonsense.  Blogging can certainly spur scholarship, but I have never been much of a contracts scholar (with the exception of my forthcoming article so-authored with Nancy Kim, my publications tend not to be about contracts).   But blogging also is scholarship, and it is scholarship that is much, much, much more widely read than are law review articles.  This blog gets about 300 unique visitors A DAY.  I think I am doing well if one of my articles gets to 300 downloads TOTAL on SSRN.

And my posts on this blog have been cited in law review articles.  It doesn't happen all that often, but when it does, it is always for the unique substance of the blog post.  My law review articles are sometimes cited for that purpose, but probably more often, my law review articles are cited for some proposition that the author could have found in ten other law review articles.  

But the benefits of blogging to a junior faculty member can also lie elsewhere.  Blogging has certainly kept me on top of new developments in a field in which I teach.  But beyond that, blogging has helped me establish connections with contracts professors throughout the country and sometimes even internationally.  Through our online symposia, I have gotten to work with contracts scholars who are doing the most exciting work in the field.  I hope for better and not for worse, I am known as a contracts professor in ways that I think other contracts professors at "unranked" law schools generally are not, and I expect that my being known (for better and not for worse) also redounds to the benefit of my law school.  By way of contrast, I am not equally well known in the field of international law, although that is where I do most of my writing, and in the community of American scholars who work on Hans Kelsen . . . .  Just joking, all six of them know me.

On the more personal and less professional level, I have had innumerable, rewarding conversations with contracts professors at various conference and gatherings.  Often, these conversations begin with something like, "I saw your post about . . . ." or "Oh yes, I know you from the blog . . . "  We academics are awkward people.  The blog provides a ready ice-breaker, and so I have the blog to thank for providing the gateway to many rewarding exchanges.

For years, I have introduced myself to students as "the editor of the ContractsProf Blog, the official blog of the AALS Section on Contracts."  As I look out at their impassive faces, I tell them that they have now heard my best pick-up line.  I love the joke, especially since I don't know what it means to be the official blog of the AALS Section on Contracts.  I also love it because I think my students think it might be an impressive thing but also that my joking about suggests that I don't take myself too seriously.  

They are dead wrong about that.  When my teenage daughter gets too sassy, I remind her that I am a famous contracts professor.  I sign various school forms "D. A. Jeremy Telman, FCP," and I explain that FCP stands for famous contracts professor. "Dad," my daughter groans, "you are not a famous contracts professor."  "Oh yeah?" I counter.  "Can you name one who is more famous?"

She cannot, and now I have a plaque (Fathers' Day 2015) to prove it!


November 16, 2015 in About this Blog, Commentary, Teaching | Permalink | Comments (0)

Thursday, November 12, 2015

Library Fines, Oliver Wendell Holmes and Libertarian Paternalism

NickelIn The Path of the Law, Holmes wrote that “[t]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,—and nothing else.”  

I was thinking of that dictum this morning as I renewed an overdue library book (on CD, to be honest).  The librarian graciously renewed the item but noted that I owe a five cent fine because I renewed one day late.  I threw a hissy fit.  Yesterday was Veterans Day!  The library was closed.  How could I renew when the library was closed?!?  I'm a poor law professor on a very fixed income! Have you no sense of decency, sir, at long last? Have you left no sense of decency?

No, I didn't.

My public library seems to understand that there is no moral opprobrium associated with a breach of this kind of implied promise.  Since I became addicted to listening to books on CD in the car, I have borrowed well over 100 such books from my public library.  Almost invariably, I have to renew them, as it takes me more than two weeks to finish them.  Only once have I had to return a book that I wanted to renew because it had been requested by another reader (listener).  My delict is de minimis and likely harms nobody.

But here's the rub.  I used to always return/renew my library materials on time.  But a few times I've held on to the items a few extra days so that I could finish them and make just one trip to the library to renew and pick out a new book.  That saves me time, which I value more than the five cents a day.  Still I feel a bit guilty about this new habit (that's why I am busy rationalizing my behavior), and I wish my library would charge me $1/day for overdue books.  I can afford it, but it would hurt enough to nudge me into being a better citizen.

November 12, 2015 in Commentary, Teaching, True Contracts | Permalink | Comments (2)

Friday, November 6, 2015

The Way We Teach Now

TeacherThe other day, I had lunch with a friend who is preparing to teach a course for the first time.  I asked him how his preparation was going, and he told me that he was reading a book by a law professor on the subject matter of the course.  That is a perfectly reasonable way to prepare to teach a  course.  

But it's not what I do.

After our conversation, it occurred to me that I now increasingly bifurcate my mind between subjects about which I write and subjects that I teach.  In cases where I write about what I teach, I read one set of materials for scholarship and another set to prepare for teaching.  There is very little overlap.  

In order to write scholarship, I read books and law review articles, as well as case law and other relevant primary sources of law.  In order to teach, I review the cases I am teaching, as well as the supplementary material that I assign -- usually a treatise or a book from the Examples & Explanations series, (or something similar) and then spend most of the rest of my preparation time designing exercises and reading students' work product.  Of course, I have various electronic news feeds that keep me abreast of developments relevant to the fields I teach, but it is rare that developments in the law change my approach to teaching contracts.  I still read books and law review articles about contracts in pursuit of a scholarly agenda (and for fun!), but what I read rarely affects the way I present the material.  

I spent the evening after my conversation with my friend giving myself a 40-question multiple choice exam on contracts.  The questions were provided by a vendor with which my law school has contracted.  The vendor provides bar-style questions to help our students review material.  I wanted to make certain that the questions were appropriate for my students and that the test-designers understood the material the same way I did.  Of the 40 questions, I found that 22 were appropriate for my students, and so I decided to warn them away from just jumping into the quiz bank.  Too many of the questions related to sales topics not covered in the first year course or to other topics that I don't get to in a four-credit course.  Instead, I edited the 40 questions I reviewed in order to come up with two practice quizzes for my students.

This approach to teaching has become mine through a slow process that I did not notice until I spoke with my friend and then later reflected on how it had struck me as quaint that he was preparing to teach a new course by reading a book of scholarship with a distinctive and unorthodox take on the subject matter.  I remember that the doctrinal courses that I took in law school were not just about doctrine; many of my teachers were able to teach me doctrine in the context of a semester-long or year-long sustained argument incorporating overarching themes that my professors used to organize, understand and critique the doctrine.  They were not just teaching the law; they were teaching an approach to the law, and they were trusting us to sort things out.

Perhaps I do so as well, and I don't read scholarship in connection with teaching anymore because, twelve years into teaching, I have read enough scholarship on contracts to suffice for a lifetime of 1L teaching.  But I think slipping bar passage rates are also a factor in the transformation of my approach to teaching.  I worry that introducing critical perspectives and theoretical approaches will confuse more than enlighten.  I still encourage students to engage critically with the case law, but I tend to do so by asking them to think about the facts and the law from each party's perspective rather than by encouraging them to question the doctrines.

November 6, 2015 in Commentary, Teaching | Permalink | Comments (1)

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)