Thursday, February 13, 2014

A Law Professor’s Detailed, Thoughtful, and Comprehensive ‘Local Rules’ for Class: A Response to "Above the Law"

We are happy to share with you a guest blog post from Louisa Heiny, Adjunct Professor of Law at the S.J. Quinney College of Law of the University of Utah.  It responds to a recent blog post on the website, Above the Law.


I admit it: I read Above the Law. I read it every day. It’s even on my Facebook feed. It’s sometimes snarky, often witty, and has published some of the most ridiculously funny cease and desist letters I’ve ever seen. I use material from Above the Law in class to show students what not to do. 

I’ll also admit that when I read the headline in Above the Law, “A Law Professor’s Detailed, Ridiculous, Condescending ‘Local Rules’ For Class,” I panicked. There was a serious possibility that I was about to read my own syllabus. I’m an adjunct, so there was also a possibility that I was about to be fired.

After a moment’s relief that I was not the target of ATL’s ire, I read the article. Written by Joe Patrice, the post skewers the “local rules” created by Santa Clara Law Professor Ray Bernstein for his legal writing class. While my own syllabus isn’t as detailed, Professor Bernstein has created a detailed, thoughtful, and comprehensive set of local rules designed to put students on notice of class requirements, as well as prepare them for the practice of law.

Let’s take a look at what Patrice finds detailed, ridiculous, and condescending: 

First, Patrice finds Bernstein’s rules overly long and persnickety, given that, in Mr. Patrice’s day, his alma mater “NYU didn’t even bother grading Legal Writing.” Patrice finds further irony in the fact that Bernstein “went to Yale Law — a school that doesn’t even bother with real grades.”

Objection: relevance.

The emphasis that NYU and Yale place on legal writing has zero bearing on the issue of whether Bernstein’s syllabus is overly detailed. Perhaps NYU and Yale ought to grade legal writing classes more strenuously; perhaps they shouldn’t. But a professor has both a right and a responsibility to teach students the importance of a subject.

Second, Patrice takes issue with Bernstein’s Local Rule 1(a): “No document with more than ten mechanical errors (spelling, typing, grammar, missing words, formatting, quoting, or Bluebooking) will be filed in this course . . . documents violating this rule will be returned to you without further feedback . . . .”

Frankly, I wish I had come up with this rule. 

In eleven years of teaching, I have worked with hundreds of bright, interesting, interested, hard-working law students. I consider it a privilege to spend my career helping them improve their skills and ready themselves for practice. I work hard to give students individual, timely, high-quality, useful feedback that helps them learn and improve with each draft.

But some days I want to bang my forehead on my keyboard. Repeatedly. 

The keyboard thump comes when I spend hours editing and correcting a twenty-page paper that the student author didn’t bother to edit or correct first. I take off up to ten points on a paper for spelling, grammatical, and Bluebooking mistakes, and sometimes students blow over that maximum—by a lot. My job is to help students, but I expect them to help themselves first. I don’t think it’s too much to ask a student to spellcheck a paper before turning it in.

Patrice admits, “It’s a legal writing class, so this makes some sense. That said, it’s also a class — so give them some feedback on their Bluebooking, for heaven’s sake.”

Right. I do. A lot of it.

I teach Bluebooking, and I’ll bet Bernstein does, too. I teach it before the paper is due, and I’ll bet Bernstein does, too. I only grade on the Bluebook rules I’ve taught, and I’ll bet Bernstein does, too. If Patrice would like professors to give their students credit for having basic sense, perhaps he should credit legal writing professors with the same. 

Third, Patrice disagrees with Bernstein’s suggestion that “[i]t is easier to submit papers on time than to write (or win) motions to get more time.” Patrice, tongue in cheek, says that tip is just bad advice. In the real world, he says, lawyers who delay and excessively bill clients for unnecessary work are rewarded. In the “real world” that Patrice purports to represent, that sort of behavior will get you sanctioned or fired. (Even if it doesn’t, you may find your work detailed in Above the Law.) I’d prefer to guide my students away from those particular consequences. 

Fourth, Patrice argues against Bernstein’s rule that “[w]hen in class, you may not disturb me or your classmates with irrelevant computer or phone activities.” Penalties include a public announcement of the problem and mention of the students who are breaking the rule. What Bernstein should have written, says Patrice, is “when I observe conduct that suggests I’m not engaging the class I will announce a reminder about the problem.”

Thus, according to Patrice, any misuse of computers in the classroom is the fault of the boring law professor. Unable to compete with social media’s tiny, constant dopamine hits, the professor should let the rude and disruptive behavior continue without comment or consequence. I envision a shamed law professor trudging out of class, head down, wondering how to work “jazz hands!” into a lesson on the Bluebook.

Even my third-grader knows that a student’s bad behavior is not the teacher’s fault. My third-grader is required to sit still and listen in class. If she passes notes or throws paper airplanes or giggles with her friends, no one suggests that it is because the teacher isn’t making grammar class sufficiently entertaining. She’s called out for the bad behavior and punished accordingly. I’m not sure why we expect less from doctoral students.

Finally, Patrice “applaud[s] [Bernstein’s] motivation if not his methodology,” but claims that “there is something to be said for substance over style.” I quite agree. In a perfect world, with perfect students, at a perfect school, most of these rules would go unsaid. Law students would intuitively understand that they must proofread, turn in work on time, and show good manners in class. Local rules would be unnecessary. Professors would have the flexibility to appropriately ding grades when students fail to use common sense.

However, I’m guessing that each of Bernstein’s rules reflect behavior and arguments made by many students, many times, over many years. I’m guessing they are also designed to deflect the siren call of the struggling student: “But you didn’t tell me that!” Ask any law professor from any school. We all have stories that begin with, “You didn’t tell me that!” (My tales include a student who argued that he hadn’t been given proper notice that cheating on an exam would both violate the honor code and result in an ‘F’ in the course.) Sadly, too many administrators have listened sympathetically to such inane arguments. Some administrators even encourage professors to carefully detail all aspects of the course in the syllabus, treating it as something of a contract between professor and student. The savvy law professor saves lots of time and headaches with a simple phrase: “It’s in the syllabus.”

I hope Patrice will now return to his posts about third-tier law schools, ridiculous seminar topics, deadbeat professors, cease and desist letters, and students who are admitted to law school but shouldn’t be.

I’ll read them all. Every day.

Louisa Heiny, Adjunct Professor of Law at the S.J. Quinney College of Law of the University of Utah

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Kudos to Prof. Heiny for identifying a problem that has become endemic in education at all levels: the belief that if students are not behaving, it’s because the teacher is boring and not “engaging” the student. Teachers hear the “engage them” mantra constantly, and the kids know it -- well, maybe not the third graders, but by middle school they do. So when the actor Tony Danza took up high school teaching for a reality TV show, the “engage them” mantra was ringing in his ears. On his first day, he read the mantra on a student’s face: “Engage me, man. See if you can.” This and other comedic/tragic anecdotes are contained in Danza’s book, I'd Like to Apologize to Every Teacher I Ever Had: My Year as a Rookie Teacher at Northeast High. That book is an eye-opener. My eyes, however, had already been opened when I made a career change to teaching after 17 years of lawyering (University of Utah College of Law, 1982).

I took legal writing in 1979 at the University of Utah College of Law. My teacher -- who was a practicing lawyer named Russ Lowe -- told us that mechanical errors in our briefs would undermine our credibility with judges, clients and other lawyers. I learned to proof my papers over and over until I could no longer find any little mistakes -- a more laborious process in the pre-computerized world. Of course, the content of our papers -- reasoning and analysis -- was critical, too. Russ didn’t have any written class rules that I recall, but he set the standard and, in that antique time, we never questioned him. We simply worked to meet his standards. It was stressful, but I’ve been grateful ever since for Russ and all that I learned in Legal Writing.

Posted by: Catherine Caldwell | Feb 20, 2014 12:08:58 PM

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