Monday, November 27, 2023
Lately, a list-serv I have subscribed to has been a hotbed of political group-wide emails. It is not a political list-serv, so this volley is something of a surprise. The emails are about the war between Israel and Hamas-and they have been ugly. Am I a coward for not engaging in the group email chain but rather writing about it in a blog entry? Perhaps, but I contend that the professionals (that I suppose I can call colleagues) on this list-serv are engaging in behavior that they are absolutely free to engage in but is also demeaning and chilling. One thing some posters on the list do is launch personal attacks. Others basically argue that if you do not agree with them, it is because you are ignorant and uneducated about the subject area, so they offer a lot of links--some from questionable sources-and one, in a total twist of fate, written by my sister-in-law (a reputable source!). The same email accusing people of being essentially unintelligent is signed, “Yours in Solidarity…” Um, I am not going to actually agree with you that I am an imbecile because I don’t see things exactly as you do, so that’s a big nope on the solidarity.
Some of these posters could learn a lot from Academic Support folks about how to be collegial. That is why I am thankful this year for the amazing community of ASP folks who are the champions:
- We share well. ASP conferences are the best because we share everything. We share materials, techniques, statistics, joy, triumph, frustrations, and passion.
- We care about each other. I have had more people in this community inquire about my family in Israel than I ever anticipated. It actually brought me to tears.
- We care about our students. We always use the possessive when we talk about them-they belong to us and while we cannot help every single student, we would if we could (and they came to office hours, just saying).
- We celebrate and uplift each other’s work. Think of the work Louis does on this blog every Tuesday to announce recent scholarship-and that is just one example of how we amplify the community.
- We respect each other. We would never call each other names or require acquiescence to be deserving of solidarity.
- We are family. We know each other. We welcome newcomers with offers of help and materials.
- And even if you don’t agree with the above points, I still think the world of you and your intelligence and accomplishments.
Happy end of classes!
Monday, July 3, 2023
In the past week, the United States Supreme Court has solidified and endorsed institutional racism and the exclusion of LGBTQIA+ people from places of public accommodation. The 14th Amendment that the majority cited to end Affirmative Action is the same one that they failed to use in allowing a web designer to not only refuse to serve same sex couples, but to literally put up a sign telling them that are not welcome and why. We have seen these signs before. I actually googled some to post with this blog entry, but I could not bring myself to add one here. You know the ones I mean.
These two decisions are the like the Wonder Twins of exclusion and privilege (remember when they would unite on Saturday morning TV?) If united, these decisions basically say you cannot consider race (or I suppose any protected class) in making decisions about admitting students to colleges and universities but you can consider sexual orientation (or I suppose any protected class) in determining if they can enter your business (if you claim you are in the business of “speech”). So, the 14th Amendment requires absolute neutrality…except when it doesn’t!? So currently, equal protection offers neither equality nor protection. Sigh. The dissents were personal, angry, and bleak.
When I was a teenager and my most difficult moments were when friends would suddenly exile me from the friend group (much more innocuous before social media, thankfully), my mother would comfort me by saying that what goes around comes around. I found this to be little comfort at the time -- most likely because it required patience, which I lacked (and still do).
And it does not solve the problems created last week by the Court either-but there is a little to it here: if we are all spending so much time and intellectual effort figuring out how to work around the Court’s decisions, then the result could be that the Court’s decisions will be less meaningful over time. Perhaps the six member majority has essentially (but not immediately) rendered the Court’s opinions superfluous. Have they relegated themselves to mere consultants about the law rather than the arbiter of what is essentially Constitutional--a power they claimed in Marbury v. Madison, 5 U.S. 137 (1803)? Will this impotence be what comes around?
I’m unwilling to be patient and just sit back and wait. I don’t need friends like the ones who signed on or concurred in those decisions.
Monday, November 7, 2022
After last week’s onslaught of students with legal writing questions (and some tears), I was hoping to be less busy this week. Yet, this morning I received several requests for appointments from students who just got back their first midterms as 1Ls, so a calmer week is not in the cards here. I have to admit that I spent some quality time this morning trying to decipher why a doctrinal professor wrote question marks on some parts of an exam answer, but check marks on others. I did this without a grading rubric to look at-and to be honest, it was, at best, purely speculative. So here are some things you can do with students when discussing their midterms that does not involve the use of a crystal ball or calling your psychic friends (you can save these resources for determining what might be on the final…):
- Send the student from whence they came: not to their parents, but to the professor who placed the check and question marks on the exam. They might know what they meant-and most likely have a better idea than you do. Or even the TA, who most likely speaks the professor’s language fluently. Tell them to ask for the rubric-or even to just see it.
- Remind students about IRAC. Sometimes the reason a student got a B- on an exam that the rest of study group got an A on is (hypothetically) because they didn’t outline any rules upfront but rather let them accumulate throughout the answer.
- Remind students that we are not mind readers. Yes, your professor knows the rules they are testing, but no, they don’t know what you know unless you tell them. So, tell them, even it is seems obvious, or they think it should “go without saying.” Nothing should go without saying.
- A corollary of the prior rule is do not leave any analysis in your head. Yes, the answer is clear sometimes, but again, explaining why it is clear is where the points come from. The journey > destination.
- Be sure to tell students that midterm exams are a gift. A midterm means that the stakes are lower than just having a final for the entire assessment of the course and understanding what your professor is looking for is a huge amount of helpful information. This also makes the doctrinal professors who give them (and grade them!) incentive to continue this important practice.
- Be sure to remind students where they can find practice essay and multiple-choice questions. Law School exam success is like getting to Carnegie Hall: practice, practice, practice! A reminder of where the exam helpful resources are is always helpful. We have a hidden place on our law library website that is honestly full of great resources, but finding it is a little like looking for the room of requirement in Harry Potter. Since everyone needs these resources, be sure to share the links you know about with students!
As to the other midterms, please go vote. Or be proud that you already have.
"Our lives begin to end the day we become silent about things that matter."
- Martin Luther King, Jr
Monday, October 10, 2022
We all make mistakes. We have all made mistakes that have inadvertently or thoughtlessly hurt others and ourselves. In this season of atonement (Yom Kippur was on Wednesday), we are supposed to confess our misdeeds, ask for forgiveness, and most importantly forgive those who have apologized to us. Forgiveness is a power we all have, but unlike some other super-powers (like laser eyes and Hulk-like strength), it is one we should never use sparingly.
I spend a lot of time telling students to give themselves a little grace. I am guessing we have all told students that they need to stop beating themselves up over the circumstances (or actions-or omissions) that led them to academic distress. Owning whatever the issue was is a great first step but dwelling in the shame of it is not a productive way to achieve success. That being said, I also think that students who do not own their role in getting into academic distress--people who blame the professor, the administration, or anything else without taking on some of the accountability--are less likely, in my experience, to turn things around. We can only change what we control-and if the circumstances that led to academic distress are out of their control, they cannot plan to do better.
One of my favorite traditions of Yom Kippur is something called tashlich where we symbolically cast our transgressions of the past year (in the form of bread) into a body of water (for my family, the Muddy River in Boston). I always joke that our local geese are extremely cranky from having eaten all those sins. It is an exercise in physically controlling our errors and then not letting them take up space in our lives anymore. Does it mean that throwing bread into a river will change your life if you’ve, let’s say, committed murder? Absolutely not. But it does let you give yourself some grace from smaller errors-even where the person who was affected has not used their super-powers to forgive you.
To that end, I will throw my breadcrumbs of misdeeds out to you all and ask for forgiveness. And I will also engage my super-power to forgive others, even those who have not asked for it. I cannot control how others have behaved, but I can control whether or not I let it live in my head, so consider my forgiveness an eviction notice.
 I will also always answer the question of how my holidays were with, “Sho-far, sho-good.” You’ve been warned.
Monday, September 12, 2022
The attacks of 9/11/2001 were twenty-one years ago.
I probably have students who were born in 2001. I probably also have students (my undergraduates) who were not yet born when the events of 9/11 unfolded. I can tell you that I was standing in the hallway of my law school building looking up at multiple TV screens, watching planes crash into buildings over and over on a seemingly endless and tragic loop, some slightly out of sync-all against the backdrop of the bluest September sky. Thousands died that day, and what was most terrifying about it was that we didn’t think it could ever happen. It never dawned on us that we would be targeted this way. Were we blindsided because of optimism, privilege, pride? Possibly all, or none, of these things. Nonetheless, we were stunned.
Twenty-one years later, where are we? Sure, there are new buildings where the World Trade Center stood, but we have never been the same: we do not fly on airplanes or trust people as we did on 9/10/2001. But 9/11 also sent the fight against racial profiling back at least 30 years. We might be almost back to our 9/10 senses at this point, but that wasn’t a great place either. The Patriot Act seemed to allow law enforcement to do things that had been, at least on 9/10, held illegal. The immigration implications of 9/11 are still clearly visible in calls for bans and walls. Fear and anger are never good starting points for sweeping legislation. The desire to return to when things seemed “better” isn’t actually a plan for governance.
I look at the recent decision in Dobbs, and I wonder, is this also a sentimental journey back to when we, as Americans, thought we had more control? In 21 years, will we be getting close to recapturing the rights we held in 1973?
Or will we have another moment where we realize that the grief is now old enough to drink?
Monday, July 4, 2022
I am not celebrating today. I am not grilling, having a party, arranging fruit to make a flag, or planning to watch the fireworks (even on TV). I am just not doing it. And unlike other things, the government actually cannot make me....
As of last week though, I could be forced to carry a pregnancy to term over my objections and regardless of the fetus’ or my health. I could also be forced to send my kids to school knowing that someday a person with a concealed weapon could walk in and join them. When they opened the beautiful new STEM wing of our local high school, I went on a tour and saw that the classrooms are composed of two or three walls of glass-and all I could think of then (and this was during relatively safer times) was where would the children hide if an armed person was intent on shooting them? I hated to be the person whose mind immediately went there, but I was. And now this is not an irrational fear.
This week, the swearing-in of Justice Ketanji Brown Jackson made me so incredibly happy. It was a spot of intense light on a dark horizon. As attorneys, the Justices of the U.S. Supreme Court should be our celebrities. The Justices I’ve met or even watched on the bench turned me into a babbling fangirl at the time. I once almost got escorted out of the U.S. Supreme Court building for standing on a marble bench under the portrait of Justice Brennan (I was too short to get me and the painting in the same shot without the extra foot and half boost). For all I know, the U.S. Marshals have that picture in the backroom captioned, “trouble!!!” Yet, now when I think of the U.S. Supreme Court, I just sigh--not the dreamy fangirl sigh, more the elderly “things used to be better back in the day” sigh. I bet you just sighed too. The current majority on the court does not seem to have any respect for the rule of law or stare decisis—unless it suits their purposes. A court that is arbitrary and capricious in this way should not have the power to determine the constitutionality of anything.
These Justices have not, as intended by the folks who created the Court, remained independent, “[t]his independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
I know there are arguments that would take this particular quote and use it to say the Court should not have made some decisions to begin with—but Hamilton went on to say, “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”
So, with thanks to the Merriam-Webster Thesaurus, today could be considered: Dependence Day, or Subjugation Day, or even Unfreedom Day. But I am not celebrating these either.
 I do live in Massachusetts where I am safe from that fear, and I am happy to help anyone who needs to come visit to go “camping” here in the Bay State.
 Not today, luckily, because Massachusetts will wait until the litigation is over to change anything.
 I’ve met Justice Souter (briefly) and seen Justice Marshall on the bench.
 Hamilton, Federalist Papers no. 78.
Monday, June 20, 2022
“Juneteenth has never been a celebration of victory or an acceptance of the way things are. It’s a celebration of progress. It’s an affirmation that despite the most painful parts of our history, change is possible—and there is still so much work to do.” — Barack Obama
“Ours is not the struggle of one day, one week or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.” — John Lewis, “Across That Bridge: Life Lessons and a Vision for Change”
Happy Juneteenth. May we all soon celebrate progress that ends the struggle.
Tuesday, May 3, 2022
Did you see the headlines yesterday? In these ongoing unprecedented times, the fact that a draft of a Supreme Court opinion was leaked ahead of the decision is mind-blowing and surprising. The fact that the current U.S. Supreme Court would overturn Roe v. Wade given the opportunity is not. It is exactly like a tornado or tsunami warning: we can see it coming, and although we cannot be certain about where and when it will hit, it is going to hit. So here we are, huddled and waiting for the storm.
I’ve spent years telling my students that the belief in the rule of law is akin to a collective leap of faith, an almost spiritual way of looking at it. I have explained how the last administration made that leap a riskier venture. Today, the chasm we now need to navigate is wider and may even have sharks swimming in the murky area below. Sigh.
I will admit to thinking that the Roe decision was unnecessarily convoluted when I read it in Con. Law. The U.S. Supreme Court didn’t usually give such numerically bright line rules (the fertile octogenarian, anyone?). I thought such an important case should be clearly written and easily understood, but I loved what it stood for-I loved its place in the timeline of Griswold v. Connecticut, Eisenstadt v. Baird, Planned Parenthood v. Caseyand on to Lawrence v. Texas. But, in all honesty, the right to abortion was barely holding on after Casey, and here we are today.
My first reaction was to ask Amy Coney Barrett to turn in her uterus. I thought she should be banished from the sisterhood for her role in this-and then I stopped. Why am I blaming the only woman who signed on to this? Don’t get me wrong, she is not going to be invited to my birthday party this year (or any year, ever), but my hope that she was one of our own on the inside just because she is a woman wasn’t fair either. Assuming anything-- about anyone-- just because of their gender isn’t right. So, I will despise her actions exactly as much as I despise the actions of the four other justices who have purportedly signed onto this abomination.
I distinctly remember my eldest daughter asking me about abortion when she was about eight (she routinely asked me about really deep things at very inopportune times, usually while I was driving-which as you may know is already a fraught venture in Massachusetts). And I distinctly remember sitting on the edge of her bed, explaining what it was, and telling her that she would never need to worry about it because her body belonged to her.
And now I am a liar.
 Roe v. Wade, 410 U.S. 113 (1973).
 Griswold v. Connecticut, 381 U.S. 479 (1965).
 Eisenstadt v. Baird, 405 U.S. 438 (1972).
 Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992). This was the beginning of pulling the teeth of Roe out.
 Lawrence v. Texas, 539 U.S. 558 (2003).
Sunday, April 3, 2022
Remember Thanksgiving when you were a kid? The adults sat at one table with endless access to the stuffing and gravy while you sat with your cousins wondering why the potatoes never got to you. The kids’ table was a fixture, but when I was middle school age, I was certain I should be allowed to join the adults and enjoy the power of the serving spoon. Perhaps Academic Support has entered that part of our growth as well.
The 2023 Best Law Schools list was recently published by U.S. News & World Report. In determining these rankings, U.S. News looks at numerous factors in determining how and where schools are listed. According to U.S. News, they, “evaluate institutions on their successful placement of graduates, faculty resources, academic achievements of entering students, and opinions by law schools, lawyers and judges on overall program quality.” From time to time the importance and proportional value of the various criteria are tweaked. This year, for example, the value of Bar Passage was increased, with U.S. News noting that, “[a] key change for the 2023 edition involved U.S. News more comprehensively assessing the bar passage rates of first-time test takers. “ The actual overall value this year was 0.03 as opposed to previous years when it was 0.0225. This doesn’t seem like a big change in the scheme of math but consider that bar passage is valued more than the acceptance rate, student-faculty ratio, and debt at graduation.
The U.S. News rankings also include programs within law schools in the areas of (among others): Business/Corporate Law, Clinical training, Constitutional Law, Contracts/Commercial law, Dispute Resolution, Legal Writing, and Trial Advocacy. Academic support is neither considered in the overall rankings nor ranked independently as a program.
Just to be clear, I don’t like rankings: I even volunteered to be on a subcommittee that is examining our internal student ranking system. Yet, I understand that without a very complicated mathematical algorithm based on a long list of both objective and subjective criteria, law schools cannot brag, fundraise, um, see how we are doing overall. I get it: law schools need a way to be assessed.
But here’s the rub: I am a parent of a child with learning issues who had an IEP all the way from kindergarten through to college. They were “othered” by going to the learning center, they were sometimes bullied, and they came home feeling that they were intellectually inadequate often especially in the middle school years. I spent a lot of time explaining to her how school only measured certain types of intelligence while overlooking many others. Howard Gardner’s work on multiple intelligences was something we could both cite over the years to remind ourselves that school assessment isn’t the sum of who we are.
In the same way that schools tend to only assess a very limited number of student intelligences, I would argue that ignoring Academic Support Programs in ranking law schools similarly overlooks something important. Even worse, by assessing the consequential outcomes of good Academic Support programs--like employment rates and most obviously first-time bar passage rates--without looking at ASP itself means that ASP professionals are truly the unseen factotum in law schools. We are taxed without being represented because all the things ASP touches are considered or ranked, but ASP programs are not considered in any part of the formula.
There are, of course, some major downsides to having ASP ranked or considered in ranking without more job security (like tenure!). I wouldn’t want to outsource my yearly work evaluations to U.S. News especially if I had a contract that was up for renewal frequently (or worse yet, not have one at all). Nor would I want to be assessed based on criteria that I cannot control, like admissions decisions. Like all coins, this one has two sides.
And yet, wouldn’t it be nice to sit at the adult table sometimes?
 Where she is a junior who is regularly on the Dean’s List (my bragging).
 This is a real word. And so much fun! https://www.dictionary.com/browse/factotum
 Since my law school is located in Boston, this is a required complaint.
Monday, March 28, 2022
I don’t know about you, but the Academy Awards ceremony last night left me rattled. I have a lot of opinions, feelings, and questions about what happened between Will Smith and Chris Rock, and it is honestly just too soon to put any of them in a public space, because there is a lot I do not (and probably will never) know about it. And even if I magically had all the information, I am not sure that I should have a platform to express my conclusions or that my conclusions are remotely relevant. All I know is what I saw (and then heard, thanks to Australian TV not censoring anything) and that is clearly not enough to fully discuss it.
I remember this past fall using Alec Baldwin’s accidental shooting of cinematographer Halyna Hutchins on the set of the movie Rust as a hypo in class for at least a few weeks since it was a classic tort question-we even have a very similar, but entirely made up, question that we frequently use for student practice. In that tragedy, someone died, and I had no problem exploiting the tragic event for education. I know I am not alone in this, but saying it out loud now makes me cringe. Last night Chris Rock probably suffered no more than a stinging cheek and moment of shocked fear -- and yet I cannot see anything educational enough in the scenario to justify using it in class. I know my undergraduates will have questions tomorrow (my 17-year-old son certainly had them last night) and I can tell you right now that I am going to punt. I am going to say that I don’t know much about California law-which is currently true, and I will not research it to know more anytime soon. I will say that I do not condone violence. I will add that I hope these men can work it out and that Chris Rock has chosen to not file a report. And that’s it. I won't pretend it didn't happen or gloss over it, but I won't engage with it either. This is a situation with far too much nuance and emotion to be looked at only as a question of law and I cannot, therefore, look at it as only a law professor.
Now if they want to talk about how I liked Jessica Chastain’s dress more and more throughout the night, I will happily go there. It really grew on me.
Monday, February 28, 2022
While there are far more pressing and scary issues happening in the world-and in this country-like the war on Ukraine and a determination that needed and appropriate medical treatment for transgender kids is “child abuse” in Texas, I am also a bit frantic about the end of the masking mandates here in my little bubble of Massachusetts.
Let me start by saying I went to a science high school-actually the same high school that Neil deGrasse Tyson went to-so it isn’t that I don’t respect science-I certainly do (and I’m sure the char marks on the ceiling from my hijinks with a Bunsen burner there have been painted over since then). I trust the federal and state experts on epidemiology and public health. I am vaccinated, boosted, and still voluntarily get PCR tested every week (kudos to my school for making that available). I am thrilled at the numbers going down-way down-the New York Times has Massachusetts as a pale yellow on its map where if you are in a state that is shaded deep red, you are on COVID fire. I have no reasonably articulable reason for my fear and yet, I am consumed and a little paralyzed by it.
Here is what fuels my trepidation:
- I teach undergraduates as well-and for this entire semester, including the very first day, I haven’t had full class attendance because of quarantine, positive tests, and potential exposures.
- I teach classes in the evening division, and I have students who took their families on trips during the past week because it was public school vacation week-they’ll be back tonight-hopefully.
- Spring break is in two weeks and students, understandably, want to get away. And then come back.
- I have a child who is a high school student who will be in a building with kids who just spent their break traveling or competing in sports with kids from all over the state.
- There is always a person on the subway who has no mask on at all, or has a mask covering just their chin, or has zipped up their winter jacket to cover their nose and mouth just so they can get on the train….
- I cannot control what other people do or what risks they consider acceptable.
The last one is the ultimate truth for me--and everyone else. I have spoken with students who are also fearful, and it puts me in the position of trying to reassure them as much as I am trying to reassure myself. I’m not sure I’m being genuine in those moments-and I am not sure if sharing my true feelings is helpful either.
And yet, this is like when students come to me about poor exam results, and we determine what about their exam performance they can pinpoint and refine for next time. Trying to predict a professor’s likely exam questions is not a good use of time you could otherwise spend doing what will give you the wherewithal to tackle what is coming. I advise students to be in control of what they can do because facing an exam with fear rather than a plan is not effective.
I suppose I also need to understand the same things about the great unmasking about to happen. There are always going to be unknowns in the world: politics, opinions, exam questions, and viruses you cannot see coming at you, but I know and teach that fear should not be the weapon I reach for when I encounter them. I’m going to go to make a plan....
Monday, January 17, 2022
On this (very rainy in Massachusetts) Martin Luther King, Jr. Day, we as law educators need to remember that every fight for civil rights was only a fight because there were lawyers on the side of denying civil rights. The people advocating for denying rights were trained lawyers who had been to law school (or the equivalent in some states) and were admitted to the bar to practice law. They had been taught basically the same subjects we teach students today. As we educate this new generation of lawyers, we need to be sure to remind them that lawyers, above all, should seek justice (which is not the same as law) and truth (again, not the same as law). Law is just a tool we can use to walk these paths.
Martin Luther King noted that, “[t]he function of education is to teach one to think intensively and to think critically. Intelligence plus character – that is the goal of true education.” Nelson Mandela added that, “[e]ducation is the most powerful weapon which you can use to change the world.”
The same way a construction worker, a surgeon, or a Jedi knight would be carefully trained to use equipment safely, we need to make sure our students know the consequences of unsafely operating the tools we are giving them -- as much as they know how to use the power.
As we start our new semester tomorrow, and while I am still reeling about the events in a Texas Synagogue this weekend, I renew my vow to engage in true education. Lawyers have an almost sacred relationship with truth and justice that should not be dismissed or forsaken. We need to teach our children well that, “[i]njustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly." (Martin Luther King, Jr., 1963).
Martin Luther King, Jr. on the Boston Common in 1965-also in the rain.
Monday, September 27, 2021
Our law school building was shut down as of 2:00 p.m. Wednesday. An email went out at 1:47 p.m. letting us know that we were going to be taking all classes online until, they then said, Monday at 7:00 a.m. Now, if I were reading this as someone who didn’t know more, I’d be reaching for the hand sanitizer (despite the fact we know that the internet transmits all kinds of virulent things, but not actually human viruses). I’ll wait a moment for your hands to dry before I go on.
Here’s the thing: it wasn’t COVID-19 that shut us down (but your hands are now clean and that’s never a bad thing). Our building had been having air conditioning problems for weeks. The classrooms I taught in last Monday afternoon and evening felt like, to add to your Yiddish vocabulary, a schvitz. The classroom I taught in that Wednesday morning felt like a rainforest. It was easily close to, if not above, 90 degrees in the classrooms and getting up there in my office as well. When I finally was able to get out of the building much later that afternoon, the subway station was refreshing (it was Park Street for you Boston familiar folks and you know if it was refreshing there, the building was bad). The air-conditioned train was my night in shiny greenish armor. Not many people say “aaah” when getting on a green line trolley, but there I was perking up as we meandered through the Back Bay. It turns out that the building will actually be closed until this Wednesday (we think) because the “chillers” have failed (and yes, I am imagining “chillers” as those folks in high school wearing a lot of flannel and playing hacky-sack).
But this blog entry is not about my escape from schvitz mountain-it is more about the fact that I realized that I wasn’t concerned about moving to remote teaching for a week. 2019 me would have been trying to remember how to record a Panopto video and reconfiguring all my slides for the small screen. 2019 me would probably have taught the classes wearing work pants and shoes. 2019 me would have tried to position myself somewhere the dog barking wouldn’t be audible (which, by the way, it turns out is nowhere in my house). In short, 2019 me would have panicked.
But 2021 me immediately created a Zoom link on the class BlackBoard site and emailed everyone to find it there. 2021 me already had the slides on my laptop (which 2019 me would have said was a crazy expensive investment-but 2019 me was wrong about that). 2021 me really enjoyed seeing my student’s faces for the first time this semester, and hoped they enjoyed seeing mine. And so, 2021 me started the class, shared the screen, and carried on. The only thing that made me sweat about the whole thing was that I was still stuck in my office because 13 minutes wasn’t enough time to get to a cooler place. 2021 me would have chuckled at the state of 2019 me (and, in all fairness, 2019 me would have been horrified to see my frizzing hair take up almost all of my 2021 Zoom rectangle).
COVID was certainly not the ideal way to learn how to quickly pivot and conduct classes even when we do not have access to a school building, but those skills are now honed.
We’ve come a long way.
Thursday, July 1, 2021
According to author Jesse Singal: "Power posing, grit and other trendy concepts are scientifically unproven but have become enormously popular by offering simple solutions to deeply rooted social problems."
In particular, Singal suggests "[b]ecause they promise so much reward for so little effort, social psychology fads often win attention and resources long before there is any evidence of their effectiveness." As evidence, Singal writes "only about half of all published experimental psychological findings are successfully replicated by other researchers." Singal, J., "The False Promise of Quick-Fix Psychology," WSJ (April 10, 2021).
While I haven't yet had a chance to dive into Singal's book, as a trained mathematician, I have my doubts regarding any research results making make singular claims about human nature because human nature, it seems to me, is just too complex to nail down to one variable of influence. Singal, J., The Quick Fix, Macmillian (2021).
That being said, I do share with my students research about growth mindset and grit, for instance, and the empirical claims about associations with learning effectiveness.
Nevertheless, I'm not sure that growth mindset and grit is something that you can just call upon on command. Rather, I see our roles as educators to come along side our students, in community with them and with others, to help them see themselves as valuable members of our educational community. In sum, I sense that growth mindset development is more the result of a sense of well-being and belonging within the academic community, which for many of our students, is often felt lacking.
So, rather than focus on pep talks about growth mindset and the power of grit, I think that it might be more valuable for our faculty and staff to get to know our students, to hear them out, to let them express themselves. With summer well in swing, one possibility for beginning that project is to form a one-evening book or movie club this summer with a handful of staff and faculty members and a few entering law students, current law students, and alumni members too.
Closer to home, with bar prep in full swing, this past week, I've been hosting a number of zoom chats focused on reviewing mock bar questions with them. My first questions, almost without exception, are about their passions for the law and about how they are doing. With close to 200 students this summer, I sometime feel like I just don't have time for the so-called "niceties," But without the "niceties" of life, there really is not much to life because it's the "niceties" of life, the opportunities to learn, grow, and discovery together, that really make life well-lived. And, I'm not so sure that my role as as an educator is to fix people but rather to live with them in community, something that has seemed to be particular difficult in the midst of this pandemic.
So, as we appear to be turning a page on the pandemic, I am looking forward to meeting and working with students, faculty, and staff together again, and in person, too! And, I look forward to seeing you again at a conference or other event! Cheers! (Scott Johns).
Thursday, June 17, 2021
According to a recent article, research suggests that changing the way curriculum is presented and taught can improve retention of underrepresented minorities in STEM programs. Berman, Jillian, How to Get More Women Into Technology: A Number of Programs Have Tried to Steer Women Into Step--Here's What Works, WSJ (Jun 1, 2021)
The article focused on a number of programs within the STEM fields in trying to increase representation and graduation in STEM majors of women and underrepresented minorities. The overall trends are not promising. For example, the percentage of women earning computer science degrees has decreased in the 20 year period from 1998 to 2018, and the percentage of Black women earning computer science or engineering degreee has likewise decreased during the same time period 1998 to 2018. Nevertheless, one comment in particular caught my eye and it has nothing to do with programs but with a person - a person making a difference.
In the article, Dr. Cara Gomally laments that courses, particularly introductory biology courses, are often taught as a "march through content with no connection of why you should care." Id. Sounds a bit like some introductory law school courses to me.
That lack of connection, of a nexus to purpose, the article suggests, leaves some people behind, particularly in the STEM fields. To remedy the deficit, Dr. Gomally is designing curriculum to focus not just on content but on the broader connections and uses one can make with the content, such as exploring questions with students as to how antidepressants work or whether students should participate in genetic testing. Id.
Those sorts of "why-questions" are filled with life; they create space for people to see how what they are learning can make an impact for them and for their communities and the world at large. It's in those opportunities in exploring the why of what we are learning that we start to see ourselves, as I understand the article, as valuable participants in the enterprise of, in this case, science. Id.
This summer, we are working with a number of recent law school graduates preparing for next month's bar exams who, for the most part, will not practice constitutional litigation or contract law or the law of future interests or defensible fees. Consequently, much of bar prep seems like rote memory and regurgitation, without making connections or exploring meanings to something greater than the mere content and skills in which they are tested by bar examiners.
To the extent that our graduates fail to make such connections with what they are learning to their future lives as legal practitioners, I think we are doing a disservice to them. Because many of our graduates want to practice immigration law, I like to explore connections to the word of immigration law within the midst of the bar exam content and skills. Let me share a few examples.
First, take the definition of a refugee - one who has a well-founded fear of persecution based on a protected characteristic with the government unable or unwilling to protect them.
That sounds a lot like a type of tort, perhaps both an intention tort and also a bit like negligence with the state unable or unwilling to protect the person fleeing persecution.
Second, take an article this week from the southern border about the U.S. government's decision to ask non-governmental organizations (NGO's) to designate some asylum applicants as especially vulnerable and therefore eligible to enter the U.S. to proceed with their asylum claims while leaving others behind.
That raises at least two constitutional issues, both of which are tested by bar examiners. First, there's a question as to whether vulnerability determinations by the NGO's constitute state action. Second, there's a question as to whether vulnerability classifications used by individual NGO's violate the equal protection principle. That's just getting started. What about procedural due process and substantive due process considerations?
Recently, I talked with a graduate, heading into criminal defense work as a public defender, who shared that they were not doing very well on contracts multiple-choice questions. As to why, the content just didn't excite the person; it seemed irrelevant - totally unconnected - to their future practice as criminal defense counsel.
In reflection, I asked whether there might be any connections b between contracts and the person's future work as a public defender. It's just a hunch, we surmised, but we suspected that guilty pleas are contracts, which would ostensibly be governed by common law contract principles, such that if a government withheld exculpatory evidence, that would not only be a constitutional violation but also a contract defense of unconscionability.
To cut to the chase, the graduate said that in some ways contract law might actually reinforce the person's future clients' constitutional protections.
In short, there can sometimes be more to the content than just mere rote learning. Perhaps one day, somehow and someway, something from bar prep will lead to a new way of looking at how the law applies, really applies, to best protect rights and freedoms. And, in the course of exploring those possible connections with our students and graduates today, we might just be able to help them see that they belong in the legal field, that their experiences count, that they have more than what it takes to be attorneys. (Scott Johns).
Friday, March 26, 2021
M. Griggs (Washburn) & D. Rubenstein (Washburn), It’s Time to Re-Set the Bar for Online Proctoring (Bloomberg Law, March 24, 2021).
ASP's own Professor Marsha Griggs and her colleague ask crucial questions here. Everyone in ASP should be aware of these troubling issues.
From the intro:
Online bar exams administered during the pandemic were marked by controversy around the use of proctoring using artificial intelligence and allegations of cheating that mostly were proved false. Washburn University School of Law professors David Rubenstein and Marsha Griggs say regulation and best practices are needed, since online exams appear to be here to stay.
(Louis Schulze, FIU Law)
Thursday, February 25, 2021
This week the Association for Academic Support Educators ("AASE") published Best Practices for Online Bar Exam Administration. AASE President, DeShun Harris, says that the best practices advocate for "procedures that ensure a fairer test for online test takers." The organization, established in 2014, urges state high courts and bar examiners to adopt these procedures. The AASE Bar Advocacy Chair, Marsha Griggs, says "many of the best practices that we identified are things that bar examiners are already doing." Yolonda Sewell, Vice President for Diversity, adds that in addition to the great strides that bar examiners have made in deploying an online exam, we seek to make sure that the online administration does not unfairly disadvantage any bar applicant on the basis of skin tone, race, gender orientation, biophysical conditions, disability, need for test accommodations, or socio-economic resources. The Best Practices are aimed to level the playing field, both among applicants of varied backgrounds, and between the online and in-person versions of the exam."
One of several effects of the COVID-19 pandemic, was that bar examiners and bar applicants questioned the wisdom and feasibility of administering in-person exams in the traditional large group format. In response to COVID-19 limitations, the first online bar examinations in the United States were administered between July and October 2020.
With but a few exceptions, the online exams were remotely proctored using artificial intelligence technology provided by a commercial vendor. As the exam dates approached many issues surfaced surrounding the use of facial recognition software and remote proctoring. One prominent issue was the number of complaints voiced from students who are people of color, asserting that the software did not recognize them. During and after the exam, other complaints sounded, ranging from data breaches, and poor technical support, to "flagging" hundreds or thousands of applicants for alleged cheating or "testing irregularities." At the extreme, some applicants reported having to sit in their own waste—as the exam instructions warned applicants about being out of view of the camera except during scheduled breaks—for fear of failing the exam. Additionally, there were reported issues with the technical delivery, submission, and scoring of the Multistate Performance Test, and jurisdictional scoring errors that wrongly identified applicants who earned passing scores as exam failures, and falsely notifying others who failed the exam that they had passed.
AASE lauds the efforts of bar examiners at the local and national levels for their flexibility and willingness to provide options for remote administration. While we defer to the proven expertise of the test-makers in determining matters related to exam content, scoring, accommodations and character and fitness eligibility, we add our collective expertise in assessment delivery, performance application, and enhancement pedagogies for non-traditional test takers. We recognize that online bar exam delivery will outlive the pandemic and current circumstances. We also believe all who play roles in the process of creating and delivering a bar exam, want the exam to be fair and effective. In light of those dual goals, we think the time is ripe for adoption of additional policies that are more than performative gestures toward a more diverse legal profession.
(Association of Academic Support Educators)
Tuesday, February 2, 2021
Sarah Schendel, Listen! Amplifying the Experiences of Black Law School Graduates in 2020, __ Nebraska L. Rev. __ (forthcoming 2021).
From the abstract:
Law students graduating in 2020 faced a number of unusual challenges. However, perhaps no students faced more emotional, psychological, logistical, and financial challenges than Black law school graduates in 2020. In addition to changes in the administration of the bar exam (including the use of technology that struggled to recognize Black faces) and delays in the administration of the exam that led to anxiety and increased financial instability, Black communities were concurrently being disproportionately impacted by the COVID-19 pandemic. The pandemic led to increased care-taking responsibilities for many, concerns over the health of family members, and a lack of quiet and reliable space to study. Black law school graduates already struggling to juggle these challenges were also confronted with a rise in anti-Black police brutality, and the racist words and actions of politicians. As a result of this unprecedented series of stressors, many Black law graduates struggled to focus on studying for the bar, with some choosing to delay or abandon sitting for the bar altogether. Many expressed anger, disappointment, and betrayal at the profession they have worked so hard to enter. This Article summarizes the survey responses of over 120 Black law students who graduated in 2020 and were asked how the COVID pandemic and increased anti-Black violence impacted their health, education, and career aspirations. It seems likely that the impact of 2020 on the presence and wellbeing of Black lawyers in the legal profession will be felt for years to come. As professors, deans, lawyers, and policymakers reexamine the function of the bar exam and confront inequalities in legal education, we need to listen to these graduates’ experiences.
Foundational ASP Scholarship:
Paula Lustbader, From Dreams to Reality: The Emerging Role of Law School Academic Support Programs, 31 U.S.F. L. Rev. 839 (1997)
From the abstract:
Reviews the history, rationale, development, and different program structures of Law School Academic Support Programs; briefly summarizes learning theory and explains how ASP can implement those theories to teach academic skills; and suggests that notwithstanding the significance of helping students develop solid academic skills, probably the most important work that ASP professionals do is to provide the non-academic support by making the human connection to students and believing in them.
(Louis N. Schulze, Jr., FIU Law)
Tuesday, January 12, 2021
When I was a kid, I saw an episode of the TV series Maude that was broadcast on November 1, 1976 – the day before Election Day. Maude, the assertive main character, was trying to convince everyone to write in Henry Fonda for President. When her featherbrained neighbor Vivian asked Maude why she was in such a rush to get the idea out, Maude looked at her severely and explained that the election was happening tomorrow.
“Tomorrow?!” exclaimed Vivian. “And it seems like only yesterday it was Halloween!”
Well, today, with the results of the October bar exam barely in hand for many examinees, we have leapt right back into preparation for the February exam. Perhaps the final casualty of the Endless Summer is the strict reduction of time to process the relationship between all that happened before the exam and the results that came out of it. Individuals who just found out in late December or early January that they did not pass have had to decide very quickly whether to register for the February exam. A California repeat examinee could still register next week, with as few as 32 days left before the exam is administered. And while many states and law schools have seen an increase in bar pass rates compared to July of 2019, we have entered the February bar study period without some of the data we might ordinarily use to assess the reasons for any changes in passage rates. At least here in New York, some of the granular data about subject-matter performance on the MBE portion has not been provided, and information about statewide trends have only been reported in the most general terms. This makes it harder to determine the effects of the delay, of the changes in format and delivery, and of strategies adopted or resources provided in response.
Tomorrow is February?! It seems like only yesterday it was October!
Thus, even though the February bar exam represents a great stride towards “normalcy” in many jurisdictions – in that it will be delivered on a traditional set date, with typical full UBE content – this will still be an unusual administration, affected by ripples of the pandemic. Some repeat examinees will be facing a compressed study period, although I have observed that a least a portion of them, perhaps spurred to greater-than-normal pessimism under the circumstances, began preparing prophylactically even before scores were announced. In any case, those of us who work with repeating graduates may be asked to provide additional support.
More frustrating to me is having to determine what aspects of the support provided to our examinees over the five months between graduation and the October bar would be most advantageously replicated over the next two months. The extended prep period was, I felt, grueling for all involved, but it provided time and motivation for examinees and teachers alike to try new strategies. Based on our results, some of these strategies appear to have beneficial. But which ones? And are they replicable between now and the end of February, or were they successful because, and not in spite of, the long stretch of time before the October administration? Without all the information I wish I had, this feels in some ways similar to what many of us had to do this summer: reacting to a novel situation without certainty, and ending up (very likely) relying in part on intuition and extraordinary effort.
Hopefully, knock on wood, fingers crossed, things won't feel this way come summer 2021. For now, the one thing I am fairly certain played an important part in my examinees' performance that is likely replicable now was the increased sense of camaraderie and support that they reported as a result of the very high-touch summer and fall. With so many changes so frequently, and with unbelievable levels of anxiety among bar studiers (who on the whole are not typically known for tranquil, detached attitudes), I initiated what would turn out to be bi-weekly (or more frequent) Zoom meetings to pass along news, share strategies, and provide opportunities for feedback. Already feeling isolated by the pandemic, the students reported that these meetings helped them feel connected to each other and to the school, and it appears they took more advantage of the resources we made available (including lots of one-on-one meetings with me). This was kind of a form of intrusive counseling. It seems to have worked, at least under those recent conditions, which in some ways are still ongoing. So, while I am still hoping to develop more clarity about how other specifics contributed to examinees' performance, this is one lesson I took from yesterday that I can apply today to help my examinees prepare for tomorrow.
Thursday, December 10, 2020
According to a recent article, law school applications are up 35 percent at this point in the admission cycle in comparison to the previous year. https://news.yahoo.com/law-school-applications-rise-means-150112132.html
As cited in the article:
"Reginald McGahee, associate dean of admissions and student affairs at the Howard University School of Law in the District of Columbia, explains that people who have been contemplating law school for a long time had more time for soul-searching during quarantine. With that time and space for introspection, some individuals realized that they wanted to become lawyers, McGahee suggests. 'The pandemic has forced a number of people to really take stock of the fragility of life and the importance of doing things that are fulfilling and nurture you and advance the goals that you set for yourself,' he says. He adds that because people had to 'slow down' during the pandemic, they couldn't distract themselves from big questions about what a good life is. 'We've been able to focus on those things that are really important to us, and I think that a lot of people are reconnecting with the idea that, if I'm going to work, let me add something to society that I didn't really think that I was adding before,' McGahee says." Id.
Dean McGahee's points are worth remembering. Students are drawn to legal education to pursue purposeful lives. That's something that I need to remember when I meet with my students.
I sometimes think that many (if not most) academic issues are not really at the heart academic issues at all. Rather, I find that many students who are so-called underperforming are really underperforming because we - as legal educators - are not always measuring up to helping connect their educational experiences with the heartfelt desires that brought them to law school in the first place, i.e., to make the world a better place.
One of the questions that's been circulating around is what sort of guidance one might start with in meeting with students or bar takers who have not performed as they hoped. I always try to start by asking them to tell me about their passion in life. What brought them to law school? How have their law school experiences related to their purposes? Is law school not just shaping them but are they shaping law school for the better? Those are big questions, and most of our students have come to law school with big questions on their minds with big hearts of passion to enrich the world for the better. (Scott Johns).