Wednesday, September 23, 2020

If you want to be impressed by student advocacy skills, volunteer as an American Moot Court Association judge

This past weekend, I had the pleasure of serving via Zoom as a moot court judge for a regional undergraduate moot court competition hosted by the U.S. Air Force Academy and sponsored by the American Moot Court Association. Until a few years ago, I didn't know anything about the intercollegiate moot court competition circuit run by the AMCA. But as a visiting professor at the Air Force Academy in 2016-17, I helped judge a few arguments for the cadets who have excelled at these competitions over the years. At the time, I was blown away by the quality of the student arguments I saw from everyone who participated. It was especially impressive to me because all the advocates are college students who, unlike their law school counterparts, are not totally immersed in legal studies but instead take law-related courses as only a small portion of their overall coursework. Yet these college students perform equal to, if not better, than many law school moot court teams I've seen. They argue and distinguish the facts of the precedents, handle questions from the bench, and know the factual record and relevant cases just like the pros.  

This past weekend was no exception. The students I saw were exceptionally well prepared and skilled advocates.  Consequently, I would wholeheartedly recommend the experience to any law professor, lawyer or even upper class law student. You'll be duly impressed and inspired by preparation and skill level of these college students. And you'd really be helping out since the organizers of these regional AMCA competitions are always looking for volunteer judges to fill the rounds. Since all the competitions are being held remotely via Zoom, you don't have to travel to judge a round or two. You can just roll out of bed and do it from the comfort of your home. 

Check out the schedule of remaining regional competitions here and consider volunteering as a judge (you may want to forward this post to the moot court teams at your law school as some members would really enjoy the experience; I know they'd be impressed and inspired by the skill level of these college students).

In particular there are regional competitions scheduled at Texas A&M University School of Law, on October 31-November 1, 2020 and at Fitchburg State University, in November 20-21, 2020 that still need volunteer judges.

Lastly, a big thanks and congratulations to Professor Doug McKecknie (USAFA) who's a logistical superstar for organizing last weekend's competition including coordinating with numerous volunteer judges across many time zones.  Excellent job, sir! 

(jbl)

 

September 23, 2020 | Permalink | Comments (0)

Monday, September 21, 2020

An Op-Ed from the L.A. Times: Why learning via Zoom is hard and what we can do to make it easier

The Op-Ed author, Professor Daniel Willingham, is a cognitive scientist at UVA (and wrote Why Don't Students Like School, among other books). He talks about some of the points I raised in an earlier post - that for both teacher and students the lack of physical cues while teaching via a videoconferencing platform like Zoom makes it more taxing and difficult to discern meaning. Teachers rely on visual cues and the body language of students to figure out whether they're following the material and students rely on the teacher's body language to learn. Because teaching by Zoom lacks the physicality of classroom teaching, everyone's working harder to learn and is more fatigued by the end of class. One of Professor Willingham's suggestions is something I started doing after a few unsatisfying classes at the start of the semester which is to use an actual, not virtual, whiteboard next to my desk that I write on, diagram, point to, and generally try to employ as much physicality in my teaching as the format allows. My students tell me that they appreciate a less slide-centric approach to online teaching since they're pretty fatigued by looking at screens all day. 

Here's an excerpt from Professor Willingham's Op-Ed:

Op-Ed: Why remote learning is hard — and how to make it easier

We knew in March that students wouldn’t learn much during lockdown, and they seem to be in for more of the same this fall. The problem isn’t just that teachers lack experience with remote instruction. For reasons scientists only partially understand, it’s demonstrably harder to learn via video than in person. Education Secretary Betsy DeVos and the rest of the Trump administration maintain that because online learning is hard, healthy kids should be in school. But research points to another solution to the video learning problem.

. . . . 

Different learning tasks capitalize on different social cues. We can make some reasonable guesses about when video makes learning difficult.

A class discussion requires conversational turn-taking, and eye movements play a central role. For example, if you are speaking and I break eye contact, that indicates I want a conversational turn. If I’m speaking, a prolonged gaze signals an intention to yield the floor.

These signals are lost in videoconferencing, both because internet lag disrupts their timing and because computer equipment makes eye contact difficult. I see your eyes when I look at my screen, but you see my eyes when I look at my camera. The disconnect is part of why Zoom meetings brim with interruptions and awkward pauses.

During lectures, eye contact matters less than gesture. Instructors support explanations with their hands, as when a math teacher unconsciously mimes a pan balance scale to explain equivalence. Gestures aid student comprehension, but they’re usually absent from videoconferencing. Teachers sit near the computer to control their keyboard and mouse, which means students see only their faces.

Many lectures require demonstrations, with the instructor and student directing attention to a graph or an online laboratory simulation. During these tasks a teacher tends to use another type of gesture: She’ll point, or as she gives the instruction “turn it,” she’ll gesture to show which way. Unlike the balance example, these gestures require having the other person’s perspective on the object. Researchers have found it challenging to give users this sense of shared space during videoconferencing.

Overcoming these obstacles is usually possible. If I can’t point with my finger, I’ll “point” verbally: If I want students to look at a large, blue section of a graph, I can say, “Look at the big blue section.” Devising such workarounds is trivial in a two-minute Zoom call. But the costs accumulate over hours of video expounding difficult academic content.

That’s one reason 80% of adults who start non-credit online courses fail to complete them. And it’s a reason a lot of students simply didn’t show up for remote lessons last spring.

So now what?

We can guess at some fixes. For example, instead of sitting at a desktop while lecturing, a teacher might stand and step back from the camera so that gestures are viewable. But researchers don’t know enough to guarantee solid learning improvements. The summer, which the federal government might have used to organize a “Warp Speed” effort to find solutions, has instead passed in a narcotic dream that fall would bring students back to school — the vision Secretary DeVos still hopes will triumph.

. . . . 

Continue reading here.

(jbl). 

September 21, 2020 | Permalink | Comments (0)

Even More On Patton Controversy: Chronicle of Higher Education

The controversy concerning the suspension of Professor Greg Patton has exploded this evening.  The Chronicle of Higher Education published "An anonymous survey of 105 professors at the University of Southern California's Marshall School of Business [conducted by the business school's Faculty Council]."  A summary of the survey is here.

Excerpts:

"An anonymous survey of 105 professors at the University of Southern California's Marshall School of Business [conducted by the business school's Faculty Council] suggests that many of them have lost confidence in the dean, and that they feel "livid," "betrayed," and "scared of students" after a fellow faculty member was "thrown under the bus," as several of them described it, following a controversy over his use of a Chinese word."

"Marshall faculty have expressed very strong emotions related to this event. Specifically, they reported being concerned for both Prof. Patton and the affected students. There was also an overwhelming sense of vulnerability, worry, insecurity, fear, and anxiety. Most faculty members felt like the same thing could happen to them any time due to a misunderstanding."

"Another theme that emerged was that they felt that Prof. Patton was not afforded due process, that harm was done to his reputation, and that he was not supported by the administration."

Sample comments from the survey:

"Marshall (or the university) made an unjust decision. I have little confidence in the fairness of the process. The incident shows that even in the face of clear evidence to the contrary, Marshall's leadership will make the cynical choice to preserve Marshall's own reputation. That's discouraging. Marshall is willingto sacrifice a faculty member's reputation and maybe his future rather than challenge the complaining students' mistaken view of Greg's filler-word example. I have learned that under some equally innocent circumstance, I too would be unsupported. That's both discouraging and frightening."

"There was no judge, jury, or anything, only cancellation.”

"That the school leadership doesn't have our back. My impression is that a small number of students were offended by remarks that were in no way meant to be offensive, and that the result was destroying the reputation of a valued colleague."

"Unsafe -a misunderstanding can't be corrected and could end my career."

" I feel fear for myself, for my colleagues, and frankly for students who run the risk of inadvertently trivializing the importance of the monumental reckoning on racial injustice that our country is, I hope, experiencing at long last."

"In my view, the risk is that here, a professor is being punished on the assumption that the words spoken in class were almost as deliberately racist as a knee on the neck. This is very troubling."

""It makes me frightened to teach students who can have a faculty member removed for giving an innocuous example in another language. It makes me feel like the dean's office is willing to throw faculty under the bus in order the preserve the appearance of diversity and inclusion instead of opening up dialogues on both sides."

"I think the way it was handled is offensive to Chinese faculty and students. Given that Prof. Patton is using it in a totally appropriate context, the way it was handled suggests that the school thinks all Chinese faculty and students using this Chinese phrase "marginalize, hurt and harm the psychological safety of our students."

""Like the school has let cancel culture get out of control. It was a Chinese word that sounds like a racial epithet -it is not one.”

"Now, I don't dare engage with students when it is so fraught with unknown ways of unintentionally causing harm."

"I will avoid any diversity and inclusion topics and will strictly stick to safe topics, devoid of any potential land mines."

"Scared of students. Thisis no longer an educational institution where students respect faculty at all."

The comments go on and on and in.

(Scott Fruehwald)

September 21, 2020 | Permalink | Comments (0)

Faculty Silenced at USC Marshall: "A Climate of Terror"

I have previously reported on the discipline of Professor Greg Patton at USC Patton, who used a common Mandarin word in class that sounded like a racist word in English.  The Atlantic has a piece on how this has affected other business faculty at USC Marshall.

The Fight Against Words That Sound Like, but Are Not, Slurs.  "Colleges are torn apart when faculty are punished and publicly vilified for accidentally giving offense."

Excerpts:

"When the news began circulating on social media, many couldn’t believe it was true––that the Marshall School of Business at the University of Southern California would remove a longtime professor from a class because a Mandarin word he used correctly in a lesson sounded sort of like a racial slur. One skeptic warned that the “ridiculous sounding story” seemed like a “fabricated Reddit meme.” Another was suspicious that it so neatly fit a narrative of “wacky campus leftists repressing free speech.”

"Then angry faculty and alumni began confirming the story."

"The dean’s actions triggered an avalanche of criticism. A Change.org petition to reinstate Patton accumulated more than 20,000 signatures. CNN reported reactions of disbelief and ridicule in the Chinese-language media, diminishing USC’s image as a Pacific Rim university that values academic freedom. Ninety-four recent graduates of the MBA program, purporting to represent “more than a dozen nationalities and ethnicities,” wrote that “a few of us, but many of our parents, lived through mainland China’s Cultural Revolution. This current incident, and Marshall’s response so far, seem disturbingly similar to prevalent behavior in China at that time—spurious accusations against innocent people, which escalated into institutional insanity.”

"Scores of USC business faculty felt undermined by their dean––and many would only express their concern anonymously for fear of retaliation from students or administrators. “This situation has rocked the business school,” one faculty member told me. “Patton was thrown to the wolves, his reputation damaged, and his livelihood threatened. The dean’s letter … caused immeasurable damage.”

"On Instagram, a Black member of USC’s class of 2024 wrote that Patton is a “scapegoat” being used by USC administrators “as a performative way to show they’re progressive,” adding, “Every other black USC student I talked to wasn’t even offended … I’ve already seen people reference this situation and say we blow everything out of proportion when the majority of us never took issue with this situation.” On the letters page of the Los Angeles Times, various YouTube channels, and Twitter, multiple Black commentators agreed that Patton was being treated unjustly. “Use of the filler phrases is CRITICAL for fluid Chinese conversation,” Vic Marsh, a Black speaker of Mandarin, commented. “Take a deep breath, USC, and give the linguist back pay. We need everyone to stop doing silly things in the name of Black people.”

"To mollify some of its business students, USC was willing to undermine a professor in good standing. Academics elsewhere are watching. They see the majority of faculty, alumni, and outside observers saying, “This goes too far,” and the bureaucracy holding firm. So far, USC administrators have not admitted error. They have not apologized to Patton or reinstated him to his classes. And they have left business faculty so fearful and insecure that some are self-censoring to protect their positions."

"As one professor put it, the treatment of Patton is “farcical,” but part of a larger trend: “Fundamental values––freedom of speech, intellectual freedom, equality––have largely fallen out of fashion in most elite universities, including USC. This has created a climate of terror among faculty.”

"A Chinese American USC business student emailed me, “I couldn’t help but feel angry that the language that I first spoke is almost being demonized because the language contains an extremely common phrase that sounds remotely similar to something in English.”)

"Kim wondered if the students simply made an honest mistake in attributing ill intent. “My hope is that it was just a mistake. You know, mistakes can happen. But it’s unclear,” he said, to what extent they were trying to “frame the situation” to “have maximal influence on this person’s career.”

"But that professor believes USC’s response could hurt other students as well as professors, who will wonder, he said, “‘Well, if I say something that some group doesn’t like and they write a letter to the dean, will I get kicked out of class? Will the dean write a public letter vilifying me?’”

"That same year, when an aide to the mayor of Washington, D.C., was forced to resign for calling a city budget proposal “niggardly,” upsetting a Black colleague who misinterpreted the word as a racial slur, Salon characterized the matter as an absurdity that “opinion-makers right, left and center could universally agree on.” Julian Bond, then the head of the NAACP, told the Associated Press, “You hate to think you have to censor your language to meet other people’s lack of understanding.”

"But is honest, open dialogue at USC possible? Last Monday, the faculty council at the business school discussed the results of an anonymous survey on the Patton incident that 105 faculty members answered. According to a transcript I obtained, a member of the council described “an overwhelming sense of vulnerability, worry, insecurity, fear and anxiety” among faculty who worry that they could be “cancelled” anytime due to a misunderstanding. The faculty feel “anger, disappointment, betrayal, and outrage” at Patton’s treatment. They support “efforts to bring greater diversity and inclusion into our classrooms,” but “a large proportion” of faculty members mentioned that “given the atmosphere of fear and perceived lack of support, they think it is too risky for them to continue discussing certain topics with students. This includes topics related to diversity and inclusion, but it also includes such topics as politics and international relations.”

"Teachers are already altering their lessons to guard against hypothetical affronts to the most easily offended. Business-school administrators ought to treat that chilling effect, which threatens the education of all MBA students, as a more urgent problem than the passing utterance of a Mandarin word."

Conclusion: "When universities invoke “diversity, equity, and inclusion” to justify an action, the effect should never be to suppress widely held views. When well-meaning staff are punished for dissenting from left orthodoxy, let alone for wholly imaginary slights, the whole academic project is at risk."

(Scott Fruehwald)

 

 

September 21, 2020 | Permalink | Comments (0)

Sunday, September 20, 2020

From the Yale Law Journal - deadline for submitting articles & essays is Wednesday

This evening I received a nice email from Ms. Jenny Choi, the Executive Editor at the Yale Law Journal, who has asked editors at several law prof blogs to please spread the word that the deadline for submitting articles and essays for Volume 130 of the Journal is this Wednesday, September 23.  Should any of our readers be contemplating submitting an article or essay to the Yale Law Journal, you can go here to find out further details and submission guidelines. 

Thank you.

(jbl).

September 20, 2020 | Permalink | Comments (0)

Friday, September 18, 2020

Bulletin: Supreme Court Justice Ruth Bader Ginsburg dead at 87

CNN

September 18, 2020 | Permalink | Comments (0)

Thursday, September 17, 2020

Making more effective use of samples in an online legal writing course in the time of Covid

Providing students with helpful examples of the writing projects I assign in my legal writing course is a key part of my classroom pedagogy. In fact, I think it’s one of the best, most effective things I do as a teacher. Good, well-designed examples not only help communicate my expectations to students about the form, style, and organization of their writing assignments but embedded within my examples are also substantive lessons about how to do sound legal analysis.

In the fall, my focus is on teaching 1Ls to write an objective “office memo” based on the IRAC paradigm (other LRW profs use different acronyms like CREAC but we’re all teaching basically the same thing when it comes to organizing a written legal discussion). I rely heavily on several samples I’ve created over the years that relate to each step in the drafting process. I begin the semester with baby steps – I have students read, dissect and “brief” a couple of short cases that will eventually wind-up in the final office memo assignment that analyzes a couple of legal issues for a hypothetical client. After finishing that, the next step involves turning those “briefs” into textual discussions, what I call “case narratives,” which will serve as the “rule explanation” portion of IRAC. Students next complete an IRAC that incorporates those case narratives. After receiving feedback from me, the final step is to have students incorporate their IRACs into the capstone office memo assignment.

At each step along the way, I give students multiple examples of the assignment they’re working on at that particular stage. I also give them at least one example of the final office memo incorporating each of the smaller components to help them understand how each step in the process relates to the big picture. All of these examples also include annotations explaining how each sentence contributes to the overall purpose of that document. I further include cross-references to the relevant pages in our legal writing textbook should students want to read more about, for example, how to draft a good topic sentence. My examples are based on hypothetical problems I’d previously created for class but are now retired. With at least one of these examples, I even give students two short cases the problem is based on so they can try to understand the editorial decisions an author makes in boiling down a judicial opinion into a few pithy sentences that become the “case narratives” at the heart of IRAC. As I tell my students, “if you take the time to really study these examples, you’ll understand everything you need to know about what it means to ‘think like a lawyer’ and how to draft a good legal memo.”

What makes these samples even more effective, I think, is that in addition to serving as examples of each step in the drafting process, I’ve also designed them to be different enough from each other so that it discourages students from looking for any stylistic formula they can imitate in working on their own assignments. Indeed, I explain to students that I’ve purposely designed the examples to avoid stylistic similarities so they don’t assume there’s an easy, formulaic approach to drafting a good office memo. Rather, my examples are intended to show them there are many ways to skin a cat. I tell students they should instead look for the deeper, underlying patterns that are common to all the examples. Cracking that code, I say, will be the most helpful to them as they work on their graded assignments.  

While relying on these samples has always worked very well for me in the past, I’m struggling a bit this semester to adapt some of my methods to teaching by Zoom. As I’ve mentioned before, I don’t think Zoom is especially well-suited to what is otherwise a hands-on, practical skills course like LRW. Part of the problem is that Zoom requires students to toggle back and forth between the lesson being shared on the professor’s screen, taking notes, viewing whatever cases are being discussed as well as looking at any other handouts or materials referenced by the professor. All my students are using laptops; none have the large, dual monitor set-ups like their professors which makes it easier to view multiple materials at once. Moreover, the majority of my students don’t have printers at home so they can’t print and spread-out materials in front of them like they would in class while watching the lecture. Thus, Zoom actually encourages the kind of task-switching that we know undermines learning. It’s not the same learning experience as being in a classroom where students and teacher can take advantage of multiple modalities – the whiteboard, handouts, PowerPoints, etc. – to engage with the material.

If there’s a silver-lining to teaching by Zoom, it’s that it has forced me to look for ways large and small to more effectively communicate the material to students. One of the small changes I’ve made is to more thoughtfully organize the many samples I use on my course homepage. Others have noted the importance of being thoughtful in designing a syllabus so it doesn’t merely describe the readings and assignments but also makes it self-evident to students how all of those things relate to the overarching goals of the course. Likewise, I’ve now thought more deliberately about organizing my writing samples on TWEN in a way that communicates to students something important about the drafting process. While I used to organize these materials in folders on TWEN by type (i.e. putting all the sample case narratives together in one folder, ditto the sample IRACs, etc.), I’ve now created a series of vertical, nesting folders that require students to open and read them in the order that mirrors steps in the drafting process beginning with the briefing of cases, followed by case narratives, then examples of IRAC, and ending with a folder containing examples of a final office memo. Consequently, students are now required to access these examples in a way that is supposed to teach them something about the writing process itself.

This may be only a small change, but the devil is in the details. Given the challenges of teaching legal research and writing by Zoom, particularly the importance of keeping things simple and clear, re-organizing my materials on TWEN in a way that is intended to tell a story or communicate a lesson just like a well-designed syllabus should, is going to be more helpful to my students. I confess to not liking teaching by Zoom very much nor thinking it's very compatible with a skills course like legal writing. But insofar as it’s forcing me to be more thoughtful and deliberate about everything I do, even on my course homepage, it’s making me a better teacher this semester and for when this Covid mess is finally over.

(jbl).

September 17, 2020 | Permalink | Comments (0)

Wednesday, September 16, 2020

Report on the CSALE “2019-20 Survey of Applied Legal Education”

From Robert Kuehn:

The Center for the Study of Applied Legal Education (CSALE) is pleased to announce that the report on its “2019-20 Survey of Applied Legal Education” is now available on CSALE’s redesigned website:  https://www.csale.org/#results.

The report summarizes the collective survey responses from 95% of law schools and over 1,300 law clinic and field placement instructors. The 2019-20 survey, CSALE’s fifth tri-annual survey, provides the most comprehensive, accurate picture to date of clinical legal education programs, courses, and faculty.

In addition to the report, CSALE provides customized information on aspects of the data, such as how a school’s clinical courses or faculty compare to peer schools or more detailed sorting of survey question results. Requests for a customized report should be sent to administrator@csale.org.

(Scott Fruehwald)

September 16, 2020 | Permalink | Comments (0)

Friday, September 11, 2020

Helping 1L law students find study groups during a time of online teaching

This semester at my school, some 1L courses are being offered only online (like the one I teach, legal research and writing), while for others (e.g., contracts, torts, and crim law) students have the option of either attending in person or synchronously from their computers at home (what our school is calling the “BlendFlex” model of learning). Based on an informal survey of my LRW students, many 1Ls are choosing to stay home for the entire semester and not set foot in the building at all. Whether that’s due to the convenience of taking classes at home in their pajamas, because of health concerns, or a combination of both, I don’t know.  As an aside, however, I myself was very worried about Covid at the start of the semester because of what I expected would be heavy foot traffic around the building. As it turns out, so many people are staying away (including faculty and staff), that our law school building has, ironically, become what seems like one of the safest “public” spaces in all of South Florida which is otherwise one of the world’s hotspots for Covid at the moment.

Given that so many 1Ls are staying away from the building for the entire semester, after we’d gotten a couple of classes under our collective belt, I asked my students if they wanted me to help them find classmates to form study groups or, more generally, did they need my help to meet each other outside of class.  I know other profs spend the first class of the semester doing icebreaking exercises intended to help students get to know each other but I’ve never been a fan of that sort of thing. While I understand why others do it, for me it just doesn’t fit my teaching style or philosophy. I’ve always felt pretty strongly that my job is to spend class time focused on substance. There already isn’t nearly enough time in the semester to get done what we need to accomplish. So I’ve always felt that it would be squandering that time to spend the first class playing camp counselor or matchmaker. Insofar as students are nervous on the first day of class about what to expect, I’ve also always felt that the best way to handle that is to dive right into the material rather than delay the inevitable any further.

Nonetheless, I feel even more strongly that having students form study groups is an absolutely critical part of the 1L learning experience. That’s true even though as a student myself I never liked group projects or homework assignments. For law students, though, it’s a key part of learning to “think like a lawyer” that they find a group of peers to collaborate with, use as a sounding board without fear of judgment, compare class notes, and brainstorm about outlines and study strategies. Obviously with so many 1Ls this year not even setting foot in the building due to Covid, finding a study group may be especially difficult for some of them. Related to that, they’re also missing out on the important opportunity to interact and connect with upper-class students who are a valuable source of intel, advice, and mentorship about their 1L profs, how to prepare course outlines, and exam-taking strategy among other bits of wisdom.

Thus, even though I don’t ordinarily believe in spending class time on student icebreaking exercises (under normal school conditions, most students seem to gravitate toward likeminded peers anyway), given the extraordinary circumstances of this semester, I’m more actively helping students connect with each other outside the classroom. First, I take a few moments at the start of class to check-in with them, make sure they’re doing OK in terms of their morale and spirits (I acknowledge with them the stress that months of social isolation is having on all of us). Then I ask if they want me to facilitate introductions or help them find a study group to work with, whether for my class or any other one. Specifically, I’ve told them to email me at any time during the semester if they’d like me to help them connect with their classmates or would like me to help them form study groups. It’s only been a couple of classes but so far I don’t have any takers. But the semester is still young so I’ll keep checking back with them. And while I still don’t believe in using precious class time for those icebreaking exercises, Covid is forcing me to rethink everything I do in the classroom. Perhaps going forward once this pandemic is over I’ll decide that the professor should take a more active role in helping students find a study group or simply help them connect with their classmates.

(jbl).

September 11, 2020 | Permalink | Comments (0)

More On The Controversy Concerning USC Marshall Professor Greg Patton

Earlier this week I posted about the suspension of Professor Greg Patton by USC for using a Mandarin word that sounds like an English racist word.  Yesterday, CNN called this situation an "international academic controversy."  (here)

Over 100 upset alumni sent a letter to the USC administration.  Excerpts:

"We represent more than a dozen nationalities and ethnicities and support the global inclusiveness Professor Patton brings to the classroom. Most of us are Chinese, some ethnically, some by nationality, and many others have spent extensive time in China. Most of us live in China. We unanimously recognize Prof Patton's use of 'nei ge' as an accurate rendition of common Chinese use, and an entirely appropriate and quite effective illustration of the use of pauses. Prof Patton used this example and hundreds of others in our classes over the years, providing richness, relevance and real world impact."

"A few of us, but many of our parents, lived through mainland China's Cultural Revolution (1966–1976). This current incident, and Marshall's response so far, seem disturbingly similar to prevalent behavior in China at that time—spurious accusations against innocent people, which escalated into institutional insanity. In the United States on 9 June 1954, the counsel for the U.S. Army, Joseph Welch, said to Senator Joseph McCarthy, 'have you no sense of decency?' Welch's question eloquently pointed attention toward McCarthy's misrepresentations and helped bring an end to the madness. It took courage to end the harm in both cases and we seek that from USC and Marshall."

"We also find the motivation behind these charges highly questionable. After many years of the example's use, and positive feedback, this year the example suddenly caused deep mental health consequences and mental exhaustion? It seems entirely appropriate that the person or persons who brought forth such abusive and dishonest charges should be reprimanded strongly by Marshall not only for the obvious Student Conduct and Integrity violation, but for demeaning the important cause they pretend to stand for."

"We are also deeply disappointed that the spurious charge has the additional feature of casting insult toward the Chinese language, the most spoken in the world, and characterized it and its usage as vile. We feel Marshall should be open to diversity in all areas—not only those areas convenient for the moment. We further suggest that any attempt to degrade this matter and suggest that a Chinese word different in sound, tone, accent, context and language itself is "exactly like" an offensive US term would be naive, a disgusting and intentional stretch and would further degrade important societal discussion."

Additional comments with the letter: ""If you had been in China long enough and learn more about how people act in so-called culture revolution 50 years ago, you will know it could be just someone hold a grudge with Prof. Greg and took the chance to ruin him."

""I went through Culture Revolution as a teenager. The fact of this becoming a concern to some and the handling by the Marshall management even if unwillingly, reminds me that crazy dark period in Chinese history."

"While not a native speaker of Chinese I lived and worked in China for over 12 years and become proficient in mandarin Chinese over this time. That being said, am absolutely dumbfounded by the school's decision to discipline Prof Patton for his use of an extremely common filler expression in Chinese within the context of the larger discussion around pausing or 'filling' during a conversation to collect ones thoughts or provide added message impact."

As I mentioned earlier this week, there is a petition on Change.Org calling for the reinstatement of Professor Patton.

For more details on this controversy, see The Volokh Conspiracy.

(Scott Fruehwald)

September 11, 2020 | Permalink | Comments (0)

Thursday, September 10, 2020

Putting Legal Education into Context: The Systems Approach to Teaching Business Associations

We have often stressed the importance of putting the law into context in legal education.  The following article does this very effectively for teaching business associations.

The Systems Approach to Teaching Business Associations by Lynn M. LoPucki and Andrew Verstein.

"The systems approach is an application of systems analysis to law. Over the past twenty-five years it has proven highly successful in both teaching and legal scholarship. This Article explains the authors’ application of the systems approach in a new casebook, Business Associations: A Systems Approach (forthcoming, Wolters Kluwer 2020).

The systems approach is designed to directly prepare students for the practice of law. It does so by providing students with the information lawyers use to solve clients’ problems and asking the students to solve the problems of hypothetical clients in realistic settings. The approach differs from traditional casebooks in four principal respects. First, it provides information as simply and directly as possible instead of asking students to ferret it out or infer it from cases. Second, it explains the law in the context of the physical systems in which law is employed, including law offices, board rooms, courtrooms, legal documentation, and online voting, entity-registration, and information systems. Third, based on our conclusion that the four main entity types (partnership, corporation, LLC, and limited partnership) all perform the same functions, we have organized the material by function — financing, investor voting, manager voting, investor litigation, investment transfers, etc.— instead of by entity type. Lastly, the systems approach is largely a “flipped classroom” approach. Students learn and apply the material to problems prior to class. Class discussions are an opportunity for students to check their reasoning, reach more sophisticated solutions, and critique the system in light of the issues they encountered."

Key definition: "As applied to teaching law, the systems approach (1) explains the law in the context of the physical (as opposed to conceptual) systems in which it is applied, (2) organizes the law for study by grouping rules and concepts according to the functions they perform in those systems, and (3) enables students to apply the material provided to solve problems that require knowledge of how the system works. Each of these features is the subject of a separate Part of this Article."

Key passage: "The systems approach describes legal phenomena in the context of the physical systems in which they occur. The descriptions are concrete, not merely conceptual."

(Scott Fruehwald)

 

September 10, 2020 | Permalink | Comments (1)

Tuesday, September 8, 2020

The NYT on how Zoom interferes with student-teacher rapport and strategies for overcoming that

Related to my post yesterday about how Zoom pretty much obliterates the critically important kinesthetic aspects of teaching, this article from today's New York Times notes how Zoom also interferes with student-teacher rapport which negatively affects student engagement and motivation to learn. But the NYT article also offers some strategies for overcoming that phenomenon and how to reignite student interest and engagement. 

Kids Can Learn to Love Learning, Even Over Zoom

. . . . 

 

Whether students are in kindergarten or college, knowledge is always attainable. Teachers can and will catch kids up on their multiplication tables and periodic tables. But in school and in life, success depends less on how much we know than on how much we want to learn. One of the highest aims of education is to cultivate and sustain the intrinsic motivation to learn.

 

A classic study found that world-class artists, athletes, musicians and scientists typically had an early coach or teacher who made learning fun and motivated them to hone their skills. An analysis of 125 studies of nearly 200,000 students found that the more the students enjoyed learning, the better they performed from elementary school all the way to college. Students with high levels of intellectual curiosity get better grades than their peers, even after controlling for their IQ and work ethic.

 

Unfortunately, remote learning can stifle curiosity. For students, it’s easy to zone out. Staring at a screen all day can be exhausting. For teachers, transmitting excitement into a webcam is not a simple task: it can feel like talking into a black hole. Technical difficulties mean that key points get lost and even brief communication delays can make students seem disengaged, crushing rapport and killing timing.

 

Still, there are ways for teachers to nurture interest in learning — and they’re especially important in online classes. Three key principles are mystery, exploration and meaning.

 

Curiosity begins with a mystery: a gap between what we understand and what we want to find out. Behavioral economists argue that an information gap is like an itch. We can’t resist the temptation to scratch it. Information gaps can motivate us to tear through a whodunit novel, sit glued to the TV during a quiz show or stare at a crossword puzzle for hours. Great teachers approach their classes the same way: They open with a mystery and turn their students into detectives, sending them off to gather clues.

 

. . . . 

 

Given all the challenges of going online, it’s natural for teachers to focus on just getting through the material. But remote learning is perfectly suited to mystery — teachers need to find the right puzzles for students to solve.

 

If gaps in knowledge are the seeds of curiosity, exploration is the sunlight. Hundreds of studies with thousands of students have shown that when science, technology and math courses include active learning, students are less likely to fail and more likely to excel. A key feature of active learning is interaction. But too many online classes have students listening to one-way monologues instead of having two-way dialogues. Too many students are sitting in front of a screen when they could be exploring out in the world.

 

Leaving a desk isn’t just fun; it can promote a lasting desire to learn. In one experiment, researchers randomly assigned thousands of students to take a museum field trip. Three weeks later, when the students wrote essays analyzing pieces of art, those who had visited the museum scored higher in critical thinking than those who did not make the trip. The museum-goers made richer observations and more creative associations. They were also more curious about views that differed from their own. And the benefits were even more pronounced for students from rural areas and high-poverty schools.

 

When field trips aren’t possible, teachers can still take students on virtual tours and send them off to do hands-on learning projects. In the past few months, our kids have been lucky to learn from social studies teachers who challenged them to survey people about their stereotypes of the elderly, computer science teachers who invited them to design their own amusement parks, and drama teachers who had them film their own documentaries.

 

Meaning is the final piece of the motivation puzzle. Not every lesson will be riveting; not every class discussion will be electrifying. However, when students see the real-world consequences of what they are studying, they’re more likely to stay engaged.

 

Psychologists find that when college students have a purpose for learning beyond the self, they spend more time on tedious math problems and less time playing video games and watching viral videos. And high schoolers get better grades in STEM courses after being randomly assigned to reflect on how the material would help them help others. That’s a question every teacher can ask and answer, even over Zoom: Why does this content matter? When the answer to this question is clear, students are less likely to doze through class with one eye open.

 

. . . . 

 

The purpose of school is not just to impart knowledge; it’s to instill a love of learning. In online schools and hybrid classrooms, that love doesn’t have to be lost.

. . . . 

Continue reading here.

(jbl).

September 8, 2020 | Permalink | Comments (0)

Monday, September 7, 2020

"Have You No Sense of Decency?" Over 100 USC Marshall Alumni Respond to the Firing of Professor Greg Patton

Two posts below, I discussed the controversy at USC Marshall concerning Professor Greg Patton's suspension for using a common Chinese word in class that sounded like an English racist word.  Over 100 USC alumni responded with the following letter, published on the Volokh Conspiracy. The highlights are mine.

 

Dear Deans, USC Administration, the Marshall School of Business and Alumni;

We write to you with great concern about the apparent removal of Prof. Greg Patton from his teaching role in GSBA 542 Communication in the Marshall School of Business at USC and the false claims that continue to circulate about the events. We have the following observations:

  • All of us have gained enormous benefit from the academic leadership of Prof. Patton. His caring, wisdom and inclusiveness were a hallmark of our educational experience and growth at USC and the foundation of our continued success in the years following.
  • We represent more than a dozen nationalities and ethnicities and support the global inclusiveness Professor Patton brings to the classroom. Most of us are Chinese, some ethnically, some by nationality, and many others have spent extensive time in China. Most of us live in China. We unanimously recognize Prof Patton's use of 'nei ge' as an accurate rendition of common Chinese use, and an entirely appropriate and quite effective illustration of the use of pauses. Prof Patton used this example and hundreds of others in our classes over the years, providing richness, relevance and real world impact.
  • A few of us, but many of our parents, lived through mainland China's Cultural Revolution (1966–1976). This current incident, and Marshall's response so far, seem disturbingly similar to prevalent behavior in China at that time—spurious accusations against innocent people, which escalated into institutional insanity. In the United States on 9 June 1954, the counsel for the U.S. Army, Joseph Welch, said to Senator Joseph McCarthy, 'have you no sense of decency?' Welch's question eloquently pointed attention toward McCarthy's misrepresentations and helped bring an end to the madness. It took courage to end the harm in both cases and we seek that from USC and Marshall.
  • We fully support social and economic equality and justice, an end to police brutality, and necessary criminal justice reform in the United States. It is in part because those goals are so vital that we deplore what seems to be Marshall's response so far; such ignorant and false charges as those leveled against Prof. Patton demean the importance of those goals, subvert essential social change and are deeply counter-productive.
  • We also find the motivation behind these charges highly questionable. After many years of the example's use, and positive feedback, this year the example suddenly caused deep mental health consequences and mental exhaustion? It seems entirely appropriate that the person or persons who brought forth such abusive and dishonest charges should be reprimanded strongly by Marshall not only for the obvious Student Conduct and Integrity violation, but for demeaning the important cause they pretend to stand for.
  • We are also deeply disappointed that the spurious charge has the additional feature of casting insult toward the Chinese language, the most spoken in the world, and characterized it and its usage as vile. We feel Marshall should be open to diversity in all areas—not only those areas convenient for the moment. We further suggest that any attempt to degrade this matter and suggest that a Chinese word different in sound, tone, accent, context and language itself is "exactly like" an offensive US term would be naive, a disgusting and intentional stretch and would further degrade important societal discussion.

We earnestly hope that our collective voices in this matter will help Marshall reach the ethically required decision in this matter: complete exoneration of Prof. Patton, and probably a reprimand to the ignorant-at-best instigators of such deplorable and false accusations. Below our list of names, you may see some of our individual comments about this matter….

Sincerely, Alumni of the University of Southern California & The Marshall School of Business

[102 signatory names, graduation dates, and geographical locations omitted. -EV]

(Scott Fruehwald)

September 7, 2020 | Permalink | Comments (0)

Petition To Reinstate USC Marshall Professor Greg Patton

Directly below I explained the controversy at USC Marshall concerning the suspension of Professor Greg Marshall for saying a common Chinese word that sounds like a racist word in English.  His supporters have started a petition to have him reinstated at Change.Org.  Please sign this petition if you believe in free speech and tolerance.

(Scott Fruehwald)

September 7, 2020 | Permalink | Comments (3)

USC Marshall Suspends Professor for Using Common Chinese Word that sounds like Racial Slur

USC Marshall has suspended a popular professor for using a common Chinese word that sounds like a racial slur.  From the LA Times:

"A business professor at USC is no longer teaching his communications course after Black students complained that a Chinese-language example he used during class sounded like a racial slur and harmed their mental health.

Marshall School of Business professor Greg Patton was giving a Zoom lesson in his “Communication for Management” class on Aug. 20. The course, a three-week intensive, is part of the core requirements for first-year master’s of business administration students. . . .

That day’s lesson focused on building confidence and improving presentation skills, according to a class syllabus. When Patton, who is white, began discussing the use of filler words like “um” and “er” in speech, he offered an international example.

“Like in China the common word is ‘that’ — ‘that, that, that, that,’” he said, according to video recordings of the class circulated on social media. “So in China it might be ‘nèi ge’ — ‘nèi ge, nèi ge, nèi ge.’ So there’s different words that you’ll hear in different countries, but they’re vocal disfluencies.”

Patton was referring to 那个,which in Mandarin is commonly pronounced nèi ge (NAY-guh) or nà ge (NAH-guh). He was using the former pronunciation.

To some students, the word sounded like the N-word in English. The next day a group of Black master’s candidates in the class of 2022 wrote a letter to Marshall Dean Geoffrey Garrett. . . .

The students said their mental health had been affected and they were unable to focus on their studies.

“To expect that we will sit through two more weeks of this class, knowing that the professor lacks the tact, racial awareness and empathy to lead and teach an audience as diverse as ours is unacceptable,” they wrote.

Chinese speakers say the Mandarin word is widely used as a place filler like the English “um.”

The school reacted quickly and decisively:

"In an email to all MBA students on Aug. 24, Garrett said that Patton “repeated several times a Chinese word that sounds very similar to a vile racial slur in English.”

“Understandably, this caused great pain and upset among students, and for that I am deeply sorry,” Garrett wrote. “It is simply unacceptable for faculty to use such examples or language in class because they can marginalize and harm you and hurt your feelings of psychological safety. As a school, we must and we will do better.”

He said he would work with vice deans and other administrators to address any problems of bias, microaggressions or inequities.

In a statement, the school said . . . . We acknowledge the historical, cultural and harmful impact of racist language ... USC is committed to building a culture of respect and dignity where all members of our community can feel safe, supported, and can thrive,” the statement said."

"This week a group of nearly 100 USC alumni, most of whom are Chinese by ethnicity or nationality, wrote to the school’s administration in support of their professor, saying his use of the Mandarin word for “that” was accurate and “an entirely appropriate and quite effective illustration of the use of pauses.”

The alumni said they were “deeply disappointed that the spurious charge has the additional feature of casting insult toward the Chinese language, the most spoken in the world, and characterized it and its usage as vile.”

(Scott Fruehwald)

 

September 7, 2020 | Permalink | Comments (0)

Caveman teaching in the time of Covid

Speaking with several colleagues and friends who are teachers, from law school to high school, it seems that many of us are struggling to adapt our courses to teaching via Zoom (or comparable online platforms). Count me as one of them too. And that’s despite the fact I’ve previously taught semester-long online courses and developed some experience with Zoom in particular last spring when all courses at my law school went online toward the end of the semester.

But those experiences didn’t really prepare me for the unique challenges I’m facing now teaching brand new, completely green 1L students in my legal writing course this semester. My prior experience teaching online was through a Masters of Law program here at my school which involved primarily purveying information to non-law students rather than engaging in the type of “brain surgery” we undertake on 1Ls (to borrow a phrase from Professor Kingsfield in “The Paper Chase”). As a die-hard classroom teacher, truth be told I have never loved online teaching but for some programs and courses, it can be an efficient and effective way to deliver information to busy, adult students seeking a credential to advance their careers. And teaching via Zoom last spring didn’t prepare me for the challenges I now face with new 1Ls. That’s because by the time we made the switch from face-to-face classroom teaching to going fully online, I’d already established a good foundation with my students. They were already “thinking like lawyers” by the time we made the switch in March, they knew my expectations by that point, and we’d developed the kind of rapport and shorthand methods of communicating that occurs when teacher and students hit their stride. For that reason, I think the switch to Zoom will be less troublesome for upper class law students who already have a good foundation in critical thinking and know what to expect and how to prepare for class. I’m more worried about the 1Ls.

As I recently explained to a friend, trying to teach skills like writing and legal research to completely green 1Ls via a computer screen is a bit like trying to explain to someone how to change a tire over the phone. I’ve never worked harder as a teacher yet at the same time feel like I’m being less effective. Each class requires a tremendous amount of pre-planning because teaching via Zoom lacks much of the spontaneity of good classroom teaching where, based on 20+ years of experience, I can read the class in a nanosecond (literally) and respond or make adjustments as needed.

And because teaching skills through a screen is indeed very much like explaining how to change a tire over the phone, I’m putting a tremendous amount of forethought into figuring out how to simplify my lessons and explanations so they translate well in this platform. I’m also finding myself utterly exhausted after each class, more so than I can ever recall due to my attentional bandwidth being stretched to the limit. Between monitoring student engagement, watching the chatbox for questions, toggling between documents and sharing screens, periodically checking in to make sure students are seeing on their screens what I intend, troubleshooting the myriad tech glitches and screw-ups that occur in every class, by the end of my two hour session, I’m totally wiped out while also feeling less than confident that the class was a success. One colleague confided in me that for the first time since she was a new teacher, there’s a pit in her stomach before each class due to worries that it’ll go off the rails for one reason or another.  

So I thought I’d blog a bit about some of the particular challenges I’ve faced teaching a skills course during the time of Covid, the work-arounds I’ve developed and perhaps it will help others reading this or, instead, you’ll suggest something in the comments that’s a better solution than what I’ve come up with.

For today, I thought I’d talk about a real conundrum for me – how to translate the physicality of classroom teaching to Zoom. As I’ve written before, despite the myths and popular stereotypes about so-called “digital natives,” all of us are essentially cavemen living in a digital world when it comes to how we think and learn. We’re still using the original factory equipment of our ancient ancestors whose brain evolved to serve the needs of the deeply social creatures that we are.  Indeed, our brains are specifically designed to receive and communicate a tremendous amount of information by reading body language, facial expressions, and other physical cues that often occur below the level of consciousness. Teaching in particular is an especially social activity. It’s not just that teachers receive a great deal of feedback from students in the form of physical cues about whether they’re getting it or not, we’re also communicating a tremendous amount of substantive information about the material through our own body language and physical cues.

I recall vividly one of the best lectures I ever saw in any context was an evidence video decades ago in law school by the legendary Professor Irving Younger on the art of cross-examination (e.g., “Good cross-examination is not the invasion of D-Day!  It’s a commando raid! You’re in, you’re out!”) which I think was not even delivered in a classroom but instead in the middle of a forest to a group of students sitting around a campfire (!). One of the things that made it so effective (aside from the brilliant metaphor) was Professor Younger’s intense passion, his crazed delivery, and wild gesticulating which really sold the material. It turns out that studies show that watching a teacher move across the stage while simultaneously listening to the lecture is experienced by students both kinesthetically and aurally which in theory engages them better because it involves two modalities of learning. Many great teachers throughout history have intuitively understood this phenomenon including Aristotle who famously lectured to students while he walked with them.

Yet teaching via Zoom completely obliterates that. Just as social media isn’t a replacement for the in-person human interaction our brains were specifically designed for (we now know that spending too much time on social media ironically makes us more isolated and depressed rather than fulfilling the false promise of greater connectedness which might also help explain why those Zoom “happy hours” that seemed so novel last spring got old really fast) teaching through a computer screen isn’t a substitute for the physicality of face-to-face classroom teaching.  

I guess I should explain that here at my school, our legal writing courses are being taught entirely online this year. Due to the demand on classroom space because of social distancing requirements for those classes offered using a hybrid model (I’m teaching one of those too this semester), all the LRW profs are confined to teaching in front of a computer screen either at home or in the office (for me, it’s the latter). And while Zoom has a whiteboard feature, frankly I think it sucks in terms of meeting my particular needs for a couple of reasons. First, it’s a bit balky to write and edit on though I also find in general the whole process of sharing screens a bit balky insofar as it interrupts the flow of conversation between teacher and students as I search for the slide, check to make sure students are seeing what’s intended, etc. When I’m in the classroom, even when I’ve got my back to students while writing on the board, I’m always looking over my shoulder, making eye-contact with them, assuring myself they’re still with me. In the classroom, I’ve learned to walk and chew gum at the same time but Zoom is taking much more of my attentional bandwidth to make sure all the functions are working properly and students are seeing what they’re supposed to which creates breaks in the conversation and dead spots that otherwise wouldn’t be there.

But what I really don’t like about Zoom when it comes to the whiteboard, sharing screens, showing slides, etc. is that students wind up looking at a screen while hearing my disembodied voice in the background. For me, it doesn’t feel like an effective way to communicate the information; I want all of us to be making eye-contact while we talk together about what’s on the screen. Students have always told me that I’m a very passionate teacher. I rely on that passion to help communicate and sell the material. I’m constantly roaming the front of the classroom, moving from the podium to the board, projecting slides onto the screen and then editing or diagramming with students what’s being projected, venturing out among them, and using demonstrative body language to emphasize key points. But all of that is lost when you’re reduced to a talking head on a video screen or, worse, you’re nothing more than a disembodied voice behind the curtain like the Wizard of Oz.

What I’ve done to address this is buy an easel (only $18 (!) on Amazon) and some whiteboards (only $17 and $24, respectively, on Amazon for a large and small one) which I’m using rather than Zoom’s whiteboard so that I can be on camera while I’m writing lessons and diagramming points for students. I want them to be able to see me as I write and to be able to talk with them directly to keep tabs on their engagement. So far I’ve found using a physical whiteboard helps eliminate some of those pesky dead-spots and uncomfortable silences in the flow of our classroom  conversation.

But it’s hardly an ideal workaround. For one thing, I still have to sit at my desk while I teach since I have to be in close proximity to my desktop to do a Zoom session (I bought a standalone video camera on a tripod specifically for teaching but logistically it isn’t possible to use a wall-mounted whiteboard while operating my desktop given the layout of my office). So instead I’ve placed the easel next to my desk and I have a couple of whiteboards that I can switch in and out if I run out of room or, alternatively, I’ll prepare a board ahead of time, show it during class, and then diagram or add to it as the conversation warrants. Of course this requires much more planning and class prep than classroom teaching where I’m able to leverage decades of experience to spontaneously respond to sticking points as they arise and employ the many tools at my disposal like PowerPoint, the chalkboard, giving students handouts to mark-up, etc. (Sheesh – it turns out that many in my class - perhaps most (?) -  don’t even have printers at home so having them print hardcopies and edit with me in real time like I do in the classroom is not even an option).

The feedback from my students so far is that they prefer my use of the physical whiteboards to Zoom’s version insofar as they like seeing me talk about what’s on the board, diagram and edit, and the associated body language that helps communicate the material. But I’m not entirely satisfied with this workaround either, yet so far it’s the best thing I’ve come up given that I’ve confined to a desktop to teach legal skills. I do think it’s better than Zoom’s whiteboard for many situations but I’m also interested in hearing what others are doing to compensate for the lack of physicality that's inherent in online teaching. Or maybe you don’t find that to be a drawback at all in which case I’d be interested in hearing about that too.  

(jbl).

September 7, 2020 | Permalink | Comments (0)

Wednesday, September 2, 2020

Free Download Sample Chapter: Think Like A Lawyer (2020)

Last month, I issued an expanded edition of my book, Think Like A Lawyer: Legal Reasoning for Law Students and Legal Professionals.  I have upload the Preface, Table of Contents, and A Sample Chapter to SSRN.

(Scott Fruehwald)

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September 2, 2020 | Permalink | Comments (0)

Monday, August 24, 2020

John Dewitt Gregory, 1931-2020

I just heard the sad news that retired Hofstra law professor John Dewitt Gregory has passed away.  Kevin Maillard has a wonderful tribute on the Faculty Lounge.

I knew John at Hofstra. He was a mentor and a wonderful friend. He will be missed.

(Scott Fruehwald)

John DeWitt Gregory

Here is John's biography from the Hofstra website:

"Professor Gregory, a former vice dean of the Law School, teaches primarily in the areas of matrimonial and family law. He is an elected member of the American Law Institute, and served as an adviser to the Institute's Principles of the Law of Family Dissolution: Analysis and Recommendations. He is a fellow of the American Bar Foundation and the New York Bar Foundation, and a member of the board of editors of the Family Law Quarterly. He is the author of The Law of Equitable Distribution; Understanding Family Law (with Swisher & Scheible); and Property Division in Divorce Proceedings: A Fifty State Guide (with Richards and Wolf); and he has written extensively in the areas of juvenile law, family law and constitutional law. He is a former chair of the Section on Family and Juvenile Law of the Association of American Law Schools and of the Section on Minority Groups.

Following the general practice of law in Harlem and an association with a New York City firm specializing in commercial and labor law, Professor Gregory served as an assistant attorney general in the Litigation Bureau of the New York State Department of Law. Subsequently, he was assistant to the commissioner for departmental legal affairs in the Nassau County Department of Public Welfare and later served as executive director of Nassau Law Services, Inc. Professor Gregory is the former general counsel and executive director of New York City's Community Action for Legal Services, Inc., the largest legal services program in the nation. Following his appointment to the Hofstra faculty, he was among the initial directors of the Community Legal Assistance Corporation, the school's neighborhood law office and first clinical program, where he worked as an attorney.

Professor Gregory has held appointments as lecturer in Law and Social Welfare at the School of Social Work at Adelphi University and at New York University School of Continuing Education. He is a director and vice chair of the National Center for Law and Economic Justice, and former chair of the Committee on Matrimonial Law of the Association of the Bar of the City of New York. Professor Gregory received the Law Faculty Distinguished Service Award for 1978-79, and in 1982 received the Outstanding Faculty Award presented by the Law School's chapter of the Black American Law Students' Association for his untiring dedication and service. In 1984 he was selected to deliver the third annual Hofstra University Distinguished Faculty Lecture."

August 24, 2020 | Permalink | Comments (0)

Sunday, August 23, 2020

A Message From Pepperdine Caruso Law Dean Paul Caron: Our New Academic Year

Pepperdine Dean Paul Caron has sent an inspiring message to his law school community: A Message from Dean Paul Caron: Our New Academic Year

Excerpt:

"But this is not a normal year. Our world has been upended by a global pandemic, thrusting everything we know into disorder. Our nation has grappled with sweeping protests against racial inequality, violence in many of our cities, and political polarization in advance of the 2020 election. It is true that our ability to excel with respect to rankings through the quality and performance of our students is of great importance; it represents a promise fulfilled to each student who comes to Pepperdine Caruso Law in the hope of graduating and embarking on a promising legal career. But what has made me so proud in recent months goes well beyond those metrics. It is about our ability to model faith and wisdom, leadership and resilience. And to remind a world teetering on the edge that meeting such challenges demands that we 'do justice, love kindness, and walk humbly with our God.' (Micah 6:8)"

(Scott Fruehwald)

August 23, 2020 | Permalink | Comments (0)

Tuesday, August 18, 2020

The Five Types of Legal Reasoning and Argument

Five Methods of Legal Reasoning (and Argument)

1. Rule-Based Reasoning:

Rule-based reasoning is the most important type of legal reasoning. In rule-based reasoning, you take a rule (a statute or a case holding) and apply it to a set of facts. (This is a type of deductive reasoning.) Richard Neumann has stated that rules have at least three parts: "(1) a set of elements, collectively called a test; (2) a result that occurs when all the elements are present (and the test is thus satisfied); and (3) . . . a causal term that determines whether the result is mandatory, prohibitory, discretionary, or declaratory." (Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition, some rules have "one or more exceptions that, if present would defeat the result, even if all the elements are present." (Id.) An example of a rule would be that intentional infliction of emotional harm occurs if 1) the defendant’s conduct is outrageous, 2) the defendant’s conduct is intentional, 3) the defendant’s conduct causes, 4) severe emotional distress. The rule would be satisfied if the facts of the present case satisfies all the elements of the rule. For example, if an ex-boyfriend calls an ex-girlfriend several times in the middle of the night to harass her (outrageous conduct; intentional conduct) and this causes (causation) her severe emotional distress (element 4), intentional infliction of emotional distress has taken place.

2. Reasoning by Analogy

Reasoning by analogy concerns finding similarities. Reasoning by analogy in the law occurs when one argues that the facts of the precedent case are like the facts of the present case so that the rule of the precedent case should apply to the present case. (A is like B, so the rule from A applies to B.) An example of reasoning by analogy is that the rule that one who keeps a wild animal, like a tiger, on her property is strictly liable for any damage caused by that animal also applies to pit bulls because a pit bull, although not a wild animal, is inherently dangerous just like a wild animal. The two cases are never exact; reasoning by analogy is a question of degree. The writer must convince the reader that the facts of the two cases are similar enough that the rule from the precedent case should apply to the present case.

3. Distinguishing Cases

Distinguishing cases is the opposite of reasoning by analogy. In distinguishing cases, one argues that the facts of the precedent case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case. For example, a toy poodle is not like a wild animal because toy poodles are not inherently dangerous so that the rule from the wild animal cases that an owner of a wild animal should be strictly liable for any damage caused by that wild animal should not apply to toy poodles.

4. Reasoning by Policy

With policy based-reasoning, the writer argues that applying a particular rule to a case would create a precedent that is good for society. For instance, in early products liability cases, lawyers argued for strict liability when a product injured a consumer because manufacturers could better spread the cost of injuries than consumers. Policy-based reasoning can also be combined with reasoning by analogy. For instance, one can argue that the policy behind the rule in the precedent case also applies to the present case so the rule in the precedent case should also apply to the present case.

5. Inductive Reasoning

Inductive reasoning is reasoning from the specific to the general. Lawyers use inductive reasoning to synthesize rules. In other words, lawyers take the holdings from several cases and by synthesizing those specific cases, they come up with a general rule. To synthesize a rule look at the similarities among the facts of the precedent cases and the differences among the facts of the precedent cases. Also, look at the reasoning behind the holdings.

Case 1 holding: A person who owns a tiger that escapes and causes personal injury is strictly liable for that personal injury.

Case 2 holding: A person who owns a tiger that escapes and causes property damage is strictly liable for that property damage.

Case 3 holding: A person who owns a pit bull that escapes and causes personal injury is strictly liable for that personal injury.

Case 4 holding: A person who owns a toy poodle that escapes and causes personal injury is not strictly liable for that personal injury.

Synthesized rule: A person who owns an inherently dangerous animal that escapes and causes personal injury or property damage is strictly liable for that personal injury or property damage.

Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be aggressive, are inherently dangerous, while toy poodles are not. When two innocent parties are involved, the law usually holds the party liable that keeps dangerous things, like wild animals. The rule applies to both personal injury and property damage.

Update:  For more on legal reasoning and other keys to law school success, see my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (2020).

 

(Scott Fruehwald)

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August 18, 2020 | Permalink | Comments (0)