Monday, September 24, 2007
Sunday, September 23, 2007
Robots
The flip side of the last post is to talk about how the students respond to the professors' questions. My estimate is that 90% of the time, students do not respond very well.
It seems as though almost everyone in law school has read the material before coming to class. Not only that, but many students have written up detailed briefs on each case; sometimes a paragraph or two, sometimes an entire page. (I know this because I can see their laptops open right in front of me, usually opened to a brief in a Word document, though frequently they're on Facebook or CNN headlines or random Dashboard widgets. One woman who sits in front of me particularly enjoys a Dashboard program that is apparently just a red rubber ball that you can click, drag, and toss across the screen.)
There are several ways to get grilled by your law school professor, including but not limited to:
1. Mr. McGregor, did you get a chance to read International Shoe v. Washington ? Can you tell us what happened? (Translation: I'm going to test to be sure that you read the assignment very closely.)
2. Mr. McGregor, what do you think about Justice Breyer's dissent in this case? (You'd better understand the opinion writer's critical thinking and be able to say why you think it does or does not work.)
3. Ms. Johansson, what do you think of Mr. McGregor's explanation? (Were you prepared for Question #2? Please address it and your classmate's answer to it.)
4. If the court were to rule on an act of Congress that banned partial-birth abortion, how would its ruling be impacted by the decision on medicinal marijuana in U.S. v. Raich? (Although this question is harder and has higher stakes -- and is more like what the exam will be testing -- it's easier to answer in class, because (a) there's more room for you to have your own reasoning than in #1-3, and (b) good answers to #1-3 have already been set forth by the professor and/or other students, so you have a foundation of answers on which to draw, even if you would have been clueless to answer such a question at the beginning of the discussion.)
Students say all sorts of weird things to any type of question, but what bothers me the most is when they rely too easily on their brief when answering question #1 and variations on question #1. They don't know anything about how to tell a story! A few posts back, I wrote about how the regurgitation of the case facts can get into way too much detail. After a few weeks, the professors (even Prof. Tambor) aren't as demanding about this. They naturally expect that you're going to leave some facts out when you retell the story; otherwise, why not just read the whole thing aloud in class? But this is essentially what so many students do! Even if the professor gives a specific prompt to cut to the chase, they'll ignore it!
Example:
Professor: Mr. HAL 9000, what was the dispute in Greiner v. Greiner?
HAL 9000: Peter Greiner died and, um, left a widow. He disinherited three sons and one daughter. One of the sons died. His widow, who had been favored in the will, took active measures to, um, land to two of the sons... [Hal talks nervously for the next 2 minutes, as he basically recites all of the facts of the case, while somehow managing to insert even more passive voice than the opinion writer himself had used.]
The question was: What was the dispute? The answer should begin with the words, "The dispute was about x"! If you need to backtrack to fill in the gaps, fine, but the students willfully or unconsciously -- due to nerves and a lack of public speaking skill -- resort to burying the focus of the original question under a mountain of detail. However specific the professor's question may be, the large majority of the students only want to hear: Please read me your brief of this case, and pause to say "um" at every punctuation mark.
Being prepared to give good explanations is difficult. In each class, there have been several cases for which I'm glad I wasn't in the hot seat. But reading from your brief doesn't make engaging conversation, and it hardly encourages everyone to pay attention. More importantly, it doesn't teach you how to argue. I'm selfishly happy that a lot of these smart students seem so bad at cutting to the chase, because I know that I'll be scoring points against them on exams while they're obfuscating their answers. Listening to some of these kids try to explain themselves makes clear the problem with the large-lecture model of the undergraduate university: I wonder how many of them ever had to talk in class before. You can tell that they know how to read and think (almost without exception, my law school classmates would be in the top 5% of my former students at Big Ten U. English Department), but a good 75% of those smart students are very unskilled at the Socratic method.
It seems as though almost everyone in law school has read the material before coming to class. Not only that, but many students have written up detailed briefs on each case; sometimes a paragraph or two, sometimes an entire page. (I know this because I can see their laptops open right in front of me, usually opened to a brief in a Word document, though frequently they're on Facebook or CNN headlines or random Dashboard widgets. One woman who sits in front of me particularly enjoys a Dashboard program that is apparently just a red rubber ball that you can click, drag, and toss across the screen.)
There are several ways to get grilled by your law school professor, including but not limited to:
1. Mr. McGregor, did you get a chance to read International Shoe v. Washington ? Can you tell us what happened? (Translation: I'm going to test to be sure that you read the assignment very closely.)
2. Mr. McGregor, what do you think about Justice Breyer's dissent in this case? (You'd better understand the opinion writer's critical thinking and be able to say why you think it does or does not work.)
3. Ms. Johansson, what do you think of Mr. McGregor's explanation? (Were you prepared for Question #2? Please address it and your classmate's answer to it.)
4. If the court were to rule on an act of Congress that banned partial-birth abortion, how would its ruling be impacted by the decision on medicinal marijuana in U.S. v. Raich? (Although this question is harder and has higher stakes -- and is more like what the exam will be testing -- it's easier to answer in class, because (a) there's more room for you to have your own reasoning than in #1-3, and (b) good answers to #1-3 have already been set forth by the professor and/or other students, so you have a foundation of answers on which to draw, even if you would have been clueless to answer such a question at the beginning of the discussion.)
Students say all sorts of weird things to any type of question, but what bothers me the most is when they rely too easily on their brief when answering question #1 and variations on question #1. They don't know anything about how to tell a story! A few posts back, I wrote about how the regurgitation of the case facts can get into way too much detail. After a few weeks, the professors (even Prof. Tambor) aren't as demanding about this. They naturally expect that you're going to leave some facts out when you retell the story; otherwise, why not just read the whole thing aloud in class? But this is essentially what so many students do! Even if the professor gives a specific prompt to cut to the chase, they'll ignore it!
Example:
Professor: Mr. HAL 9000, what was the dispute in Greiner v. Greiner?
HAL 9000: Peter Greiner died and, um, left a widow. He disinherited three sons and one daughter. One of the sons died. His widow, who had been favored in the will, took active measures to, um, land to two of the sons... [Hal talks nervously for the next 2 minutes, as he basically recites all of the facts of the case, while somehow managing to insert even more passive voice than the opinion writer himself had used.]
The question was: What was the dispute? The answer should begin with the words, "The dispute was about x"! If you need to backtrack to fill in the gaps, fine, but the students willfully or unconsciously -- due to nerves and a lack of public speaking skill -- resort to burying the focus of the original question under a mountain of detail. However specific the professor's question may be, the large majority of the students only want to hear: Please read me your brief of this case, and pause to say "um" at every punctuation mark.
Being prepared to give good explanations is difficult. In each class, there have been several cases for which I'm glad I wasn't in the hot seat. But reading from your brief doesn't make engaging conversation, and it hardly encourages everyone to pay attention. More importantly, it doesn't teach you how to argue. I'm selfishly happy that a lot of these smart students seem so bad at cutting to the chase, because I know that I'll be scoring points against them on exams while they're obfuscating their answers. Listening to some of these kids try to explain themselves makes clear the problem with the large-lecture model of the undergraduate university: I wonder how many of them ever had to talk in class before. You can tell that they know how to read and think (almost without exception, my law school classmates would be in the top 5% of my former students at Big Ten U. English Department), but a good 75% of those smart students are very unskilled at the Socratic method.
Friday, September 21, 2007
Next question?
Law school professors are not necessarily skilled at moderating questions from the students. Nuclear Prof. is especially bad at this. Not all questions are equally worthy of elaborate answers, and students who've developed habits of asking unimportant hypothetical questions don't need to be called on at the same frequency as other members of the class. One student in the front row of our 80-person class raises his hand with a boring hypothetical question (and sometimes it's not even clear what the question is) about almost every case. Or he'll ask about the rationale behind the law -- "I don't think that is fair because of such and such... don't you think so?"
And Nuclear Prof. constantly calls on him! (He does the same thing in Con Law -- and probably every class, for that matter, but I only see him in these two -- and gets called on slightly less frequently.) Yesterday the topic in Torts was "duty of reasonable care" in negligence cases. The principle is pretty straightforward: if you're a business owner, you have to provide for the safety of your products and services in a way that a reasonable person in a similar circumstance would. If you're the only employee watching over a barge that's docked in the harbor, and you go on a bender and leave the barge unattended for 19 hours, and it gets rammed by the tugboat and sinks and dumps all of the flour onboard into the river, then you've acted unreasonably. If you were on watch and uncontrollable gale-force winds blew the tug into the barge, and you pumped and pumped water as quickly as you could and still couldn't keep the barge from sinking while providing for your own safety, then that's reasonable. To draw that line of reasonableness might be more difficult given different hypos (what if he left it alone for a half an hour to get some lunch? what about two hours? and so on...), but these hypothetical are infinite! And it follows that the class time we could spend answering them is also infinite!
(Hypos are absolutely important in discussing the law, don't get me wrong. But hypos can be useful when they ask you to juggle two or three or more principles that may come into conflict; they are not useful when you're just making speculations on one principle over and over and over again. For example: a bus driver is driving schoolkids near a bend in the road that overlooks a cliff. A car veers over the center line and is headed directly for the bus. On the left side of the road are two children waiting for the bus; on the right side, it's the cliff. What should the bus driver do? Hit the car (and risk injuring the kids on the bus), swerve left (saving the kids on the bus but almost certainly killing the other two kids), or swerve right (and off the cliff). The hypothetical is pedagogically useful because it asks us to weigh different elements of liability: to hit the kids by the side of the road would be intentional, even if it would cause the least harm. To stay in the proper lane and hit the oncoming car would abide by the laws of the road, but would be the option that guarantees injury to multiple parties. To head off the cliff would certainly save everyone not on the bus, but it could be the most hazardous for everyone who is on the bus. My point is that there are hypos that can put one's understanding of various aspects of laws into practice, and then there are hypos that just try to classify random behaviors on one side of a particular line.)
The point of every case in our casebook is to provide some specific guidance towards establishing "black letter law" -- i.e., the standard elements that we can rely on when making a rule. Torts is the most straightforward class of the four classes in defining black letter law: there are a finite number of intentional torts, and each of which has a finite number of characteristics that have to be present. A case might be difficult, but the structural principles on which a case is decided are not. I don't really care whether front-row questioner understands this, but I do care that Nuclear Prof. indulges his misunderstanding by wasting all of our class time on his questions. I think it took me about two days of teaching to realize that there are students who are going to ask questions off point, and that the way to deal with those students is by spending less time (or no time) answering those questions. My law professors, to varying degrees, are not so good at this.
And Nuclear Prof. constantly calls on him! (He does the same thing in Con Law -- and probably every class, for that matter, but I only see him in these two -- and gets called on slightly less frequently.) Yesterday the topic in Torts was "duty of reasonable care" in negligence cases. The principle is pretty straightforward: if you're a business owner, you have to provide for the safety of your products and services in a way that a reasonable person in a similar circumstance would. If you're the only employee watching over a barge that's docked in the harbor, and you go on a bender and leave the barge unattended for 19 hours, and it gets rammed by the tugboat and sinks and dumps all of the flour onboard into the river, then you've acted unreasonably. If you were on watch and uncontrollable gale-force winds blew the tug into the barge, and you pumped and pumped water as quickly as you could and still couldn't keep the barge from sinking while providing for your own safety, then that's reasonable. To draw that line of reasonableness might be more difficult given different hypos (what if he left it alone for a half an hour to get some lunch? what about two hours? and so on...), but these hypothetical are infinite! And it follows that the class time we could spend answering them is also infinite!
(Hypos are absolutely important in discussing the law, don't get me wrong. But hypos can be useful when they ask you to juggle two or three or more principles that may come into conflict; they are not useful when you're just making speculations on one principle over and over and over again. For example: a bus driver is driving schoolkids near a bend in the road that overlooks a cliff. A car veers over the center line and is headed directly for the bus. On the left side of the road are two children waiting for the bus; on the right side, it's the cliff. What should the bus driver do? Hit the car (and risk injuring the kids on the bus), swerve left (saving the kids on the bus but almost certainly killing the other two kids), or swerve right (and off the cliff). The hypothetical is pedagogically useful because it asks us to weigh different elements of liability: to hit the kids by the side of the road would be intentional, even if it would cause the least harm. To stay in the proper lane and hit the oncoming car would abide by the laws of the road, but would be the option that guarantees injury to multiple parties. To head off the cliff would certainly save everyone not on the bus, but it could be the most hazardous for everyone who is on the bus. My point is that there are hypos that can put one's understanding of various aspects of laws into practice, and then there are hypos that just try to classify random behaviors on one side of a particular line.)
The point of every case in our casebook is to provide some specific guidance towards establishing "black letter law" -- i.e., the standard elements that we can rely on when making a rule. Torts is the most straightforward class of the four classes in defining black letter law: there are a finite number of intentional torts, and each of which has a finite number of characteristics that have to be present. A case might be difficult, but the structural principles on which a case is decided are not. I don't really care whether front-row questioner understands this, but I do care that Nuclear Prof. indulges his misunderstanding by wasting all of our class time on his questions. I think it took me about two days of teaching to realize that there are students who are going to ask questions off point, and that the way to deal with those students is by spending less time (or no time) answering those questions. My law professors, to varying degrees, are not so good at this.
Saturday, September 8, 2007
Civ Pro and Con Law
I'll introduce the final three classes today: Lawyering I, Constitutional Law I, and Civil Procedure I. If you've studied Latin, you may have guessed that these classes all form the first part of a sequence; I'll finish the sequence by taking the second part of each in the spring, along with new exciting classes such as "Property" to fill the void left after finishing Torts and Contracts.
LAWYERING is the class that's the most unlike other law school classes, but it's the class that's the most like the actual practice of being a lawyer. In Lawyering, we don't have to read very much -- and I've been skipping most of what we've been assigned -- but we do have actual assignments beyond reading. We have to go to the library, learn some library-science-ish approaches to identifying keywords for looking up cases in case indexes, learn what all the different symbols mean in a citation (such as: 31 C.F.R. § 515.329 (2005), with lots of additional superscripts and symbols that I don't yet know how to reproduce on my own keyboard), which states' cases are listed in which case reporters' volumes, and lots of little but necessary technical information. We've been given a hypothetical case for which we need to look up and summarize a number of different cases which might be useful, and then look up the times that those cases have been cross-referenced, and then look up and read and (I know this is coming) summarize those too.
There's more tangible work to be done in this class, but it's more laid-back. No one comes to class in fear that the professor will ask you which states are in the Southwest Reporter. It's a good change of pace.
CIVIL PROCEDURE is the class that focuses on minute technicalities of the law. The first topic of the semester is "personal jurisdiction," which is about which state hears a case when the parties involved are from different states, or when one is a corporation that may have a headquarters in one state but transacts business in others. Our first case of the semester, Pennoyer v. Neff, involves an Oregon lawyer who did some legal work for a California settler who wanted to apply for a federal discount on available land in Oregon. California guy goes back to California without paying his legal fees, and Oregon lawyer sues him to recover the balance of the bill. The problem is that Oregon lawyer doesn't know California settler's address, so he just takes out an ad in the local Portland Oregonian to serve notice. As you can guess, California dude doesn't see the notice (he's also illiterate, but I'm trying to simplify the case by leaving out some additional important details). So CA dude doesn't show up to court, and OR lawyer wins judgment by default. The default judgment allows the state of Oregon to confiscate CA dude's land and give it to OR lawyer. When CA dude eventually reappears in OR, he's pissed about this and sues to get his land back. And the question is: did the Oregon court have the right to jurisdiction over a California resident? And even if so, what constitutes appropriate notice?
These kind of complicated scenarios get asked over and over again: what about a St. Louis shoe company that has independent salesmen selling its products in Seattle -- does the company have to pay Washington state employment taxes? When a New York couple buys an Audi at their local dealership that bursts into flames in Oklahoma in the middle of their move to Arizona, where can they sue? (The question of where it's most advantageous to sue is usually easy, which is why so much is at stake with jurisdictional questions.)
Civ Pro Prof. is a new professor -- he still lives two hours away, and his syllabus changes every day, so I don't really know what we're studying after personal jurisdiction. He's nice, slightly nervous, unintimidating; stocky build, light brown skin, nice navy-blue suits. Kind of looks and talks like Jared the Subway guy. He's told us less of his biography than most professors, so I'm not sure exactly what kind of expertise prepares one to teach Civ Pro. I think that it means that you've specialized in federal cases (of what, I'm not sure) and so you're familiar with those rules more than individual state cases or statutes. More to come about this class.
CONSTITUTIONAL LAW has a lot of familiar elements from U.S. history: the Federalist Papers (and their vertically-challenged authors, Jemmy Madison and Alexander Hamilton), the Articles of Confederation, ratifying conventions, and the articles and amendments of the big C itself. We're reading fewer cases in this class and talking more about the contexts in which those cases were decided, and the precedents that they set. For example, most Americans -- at least the ones who read even the most ordinary newspaper or watch Katie Couric's evening news -- probably know that the U.S. Supreme Court can smite down unconstitutional laws. But it's not as if all of our contemporary constitutional law is explicitly written into the Constitution. It gives some guidelines, and the Supremes themselves interpreted those words, and a couple hundred years later, we have a set of tested, semi-reliable practices.
Con Law I is about the structure of the government and how power is distributed within it; Con Law II is supposed to be more about individual freedom. The professor is a dryly funny guy who's written briefs in the Guantanamo detainees cases (info that he didn't tell us, but I googled him), so it's easy to make the comparisons between the separation of powers in the era of G.W. and Jemmy and the current G.W. and Cheney. It's the most historical of any of my classes -- and more connected to what I've been doing for the past five years -- but remains a fun class.
That's the expository material; now hopefully these characters and plotlines will develop throughout the semester...
LAWYERING is the class that's the most unlike other law school classes, but it's the class that's the most like the actual practice of being a lawyer. In Lawyering, we don't have to read very much -- and I've been skipping most of what we've been assigned -- but we do have actual assignments beyond reading. We have to go to the library, learn some library-science-ish approaches to identifying keywords for looking up cases in case indexes, learn what all the different symbols mean in a citation (such as: 31 C.F.R. § 515.329 (2005), with lots of additional superscripts and symbols that I don't yet know how to reproduce on my own keyboard), which states' cases are listed in which case reporters' volumes, and lots of little but necessary technical information. We've been given a hypothetical case for which we need to look up and summarize a number of different cases which might be useful, and then look up the times that those cases have been cross-referenced, and then look up and read and (I know this is coming) summarize those too.
There's more tangible work to be done in this class, but it's more laid-back. No one comes to class in fear that the professor will ask you which states are in the Southwest Reporter. It's a good change of pace.
CIVIL PROCEDURE is the class that focuses on minute technicalities of the law. The first topic of the semester is "personal jurisdiction," which is about which state hears a case when the parties involved are from different states, or when one is a corporation that may have a headquarters in one state but transacts business in others. Our first case of the semester, Pennoyer v. Neff, involves an Oregon lawyer who did some legal work for a California settler who wanted to apply for a federal discount on available land in Oregon. California guy goes back to California without paying his legal fees, and Oregon lawyer sues him to recover the balance of the bill. The problem is that Oregon lawyer doesn't know California settler's address, so he just takes out an ad in the local Portland Oregonian to serve notice. As you can guess, California dude doesn't see the notice (he's also illiterate, but I'm trying to simplify the case by leaving out some additional important details). So CA dude doesn't show up to court, and OR lawyer wins judgment by default. The default judgment allows the state of Oregon to confiscate CA dude's land and give it to OR lawyer. When CA dude eventually reappears in OR, he's pissed about this and sues to get his land back. And the question is: did the Oregon court have the right to jurisdiction over a California resident? And even if so, what constitutes appropriate notice?
These kind of complicated scenarios get asked over and over again: what about a St. Louis shoe company that has independent salesmen selling its products in Seattle -- does the company have to pay Washington state employment taxes? When a New York couple buys an Audi at their local dealership that bursts into flames in Oklahoma in the middle of their move to Arizona, where can they sue? (The question of where it's most advantageous to sue is usually easy, which is why so much is at stake with jurisdictional questions.)
Civ Pro Prof. is a new professor -- he still lives two hours away, and his syllabus changes every day, so I don't really know what we're studying after personal jurisdiction. He's nice, slightly nervous, unintimidating; stocky build, light brown skin, nice navy-blue suits. Kind of looks and talks like Jared the Subway guy. He's told us less of his biography than most professors, so I'm not sure exactly what kind of expertise prepares one to teach Civ Pro. I think that it means that you've specialized in federal cases (of what, I'm not sure) and so you're familiar with those rules more than individual state cases or statutes. More to come about this class.
CONSTITUTIONAL LAW has a lot of familiar elements from U.S. history: the Federalist Papers (and their vertically-challenged authors, Jemmy Madison and Alexander Hamilton), the Articles of Confederation, ratifying conventions, and the articles and amendments of the big C itself. We're reading fewer cases in this class and talking more about the contexts in which those cases were decided, and the precedents that they set. For example, most Americans -- at least the ones who read even the most ordinary newspaper or watch Katie Couric's evening news -- probably know that the U.S. Supreme Court can smite down unconstitutional laws. But it's not as if all of our contemporary constitutional law is explicitly written into the Constitution. It gives some guidelines, and the Supremes themselves interpreted those words, and a couple hundred years later, we have a set of tested, semi-reliable practices.
Con Law I is about the structure of the government and how power is distributed within it; Con Law II is supposed to be more about individual freedom. The professor is a dryly funny guy who's written briefs in the Guantanamo detainees cases (info that he didn't tell us, but I googled him), so it's easy to make the comparisons between the separation of powers in the era of G.W. and Jemmy and the current G.W. and Cheney. It's the most historical of any of my classes -- and more connected to what I've been doing for the past five years -- but remains a fun class.
That's the expository material; now hopefully these characters and plotlines will develop throughout the semester...
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