The Law Teacher - Institute for Law Teaching and Learning
The Law Teacher - Institute for Law Teaching and Learning
The Law Teacher - Institute for Law Teaching and Learning
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THE LAW<br />
TEACHER<br />
Inside...<br />
Remember the Water Buffalo .......................... 1<br />
Book Review: David Nadvorney <strong>and</strong> Deborah<br />
Zalesne, <strong>Teaching</strong> to Every Student:<br />
Explicitly Integrating Skills <strong>and</strong> <strong>The</strong>ory<br />
in the Contracts Class ................................. 3<br />
Old Professor Tricks ............................................ 4<br />
<strong>The</strong> Supreme Court Conference Room:<br />
Legal Writing as Legal Process ......................... 5<br />
Infusing Ethics into the Legal Writing<br />
Curriculum—<strong>and</strong> Beyond ............................. 7<br />
Book Review: How Children Succeed:<br />
Grit, Curiosity, <strong>and</strong> the Hidden Power of<br />
Character ........................................................... 8<br />
It’s OK to Leave <strong>Law</strong> School ............................ 10<br />
Crossword Puzzle ............................................... 11<br />
Eliminating the Blackacre Opportunity Cost:<br />
Using Real-World “Targeted Fact<br />
Environments” in First-Year<br />
LR&W Courses ................................................... 13<br />
Reflection, Reality, <strong>and</strong> a Real Audience: Ideas<br />
from the Clinic .................................................... 15<br />
Beyond the Legal Classroom: Leveraging<br />
Major Local Events to Engage Students <strong>and</strong><br />
Further an Interdisciplinary Approach to the<br />
Study of <strong>Law</strong> .................................................. 17<br />
<strong>Teaching</strong> Statute Reading Basics in a First Year<br />
Doctrinal Course: A H<strong>and</strong>out <strong>and</strong> Suggested<br />
Classroom Exercises ...................................... 18<br />
<strong>Law</strong> School Communities “Saving Social<br />
Security”— Imparting the Intangibles of<br />
Practice Readiness ......................................... 21<br />
Report from South Korea: My Experience<br />
<strong>Teaching</strong> <strong>Law</strong> Students at Seoul National<br />
University ........................................................ 23<br />
Passion is Necessary, Compassion is Priceless:<br />
A Message to the Clinical <strong>Law</strong> Student .... 25<br />
Introducing Students to Free On-line Legal<br />
Research Resources: An Interactive Class .... 26<br />
Happily Ever After: Providing Students With<br />
Epilogues <strong>for</strong> Cautionary Tales .................. 28<br />
Developing Classroom Authenticity: “Big<br />
Talk” Format ................................................... 29<br />
Adding a St<strong>and</strong>ardized Assessment Exercise to<br />
the Legal Writing Toolbox ........................... 31<br />
On the Importance of Subtle Distinctions: A<br />
Short Exercise in Close Reading <strong>and</strong> Critical<br />
Thinking .......................................................... 33<br />
Blogging: Reflection Spurs<br />
Students Forward .......................................... 34<br />
Classroom Justice: Beyond Paper-Chase<br />
Pedagogy ......................................................... 35<br />
Volume XIX, Number 2<br />
Remember the Water Buffalo<br />
By Katherine Silver Kelly<br />
Most of us keep personal<br />
mementos in our offices<br />
<strong>and</strong> on our desks: a mug<br />
emblazoned with our alma mater, a<br />
plant or two, a photo of our spouse,<br />
children, pets. <strong>The</strong>se items serve several<br />
purposes: they remind us why we<br />
work <strong>and</strong> they also<br />
provide a snapshot of<br />
our personalities <strong>and</strong><br />
let others (students)<br />
see that we are more<br />
than just the professor<br />
behind the podium.<br />
As <strong>for</strong> my desk, right<br />
next to the photo of<br />
my husb<strong>and</strong> st<strong>and</strong>s a<br />
photo of me — my 8 th<br />
grade school picture.<br />
My family calls it the<br />
“water buffalo picture,”<br />
<strong>and</strong> <strong>for</strong> good reason. I<br />
tried to straighten my very curly hair<br />
<strong>and</strong> parted it down the middle. I look<br />
like a water buffalo. Add a chipped front<br />
tooth, out of control eyebrows <strong>and</strong> an<br />
outfit that was meant to epitomize the<br />
prepster I thought I was (it was the 80s,<br />
so I refuse to take full responsibility)<br />
<strong>and</strong> the resulting photo is pretty awful.<br />
Eighth grade was not a good year <strong>for</strong><br />
me. I had a heightened sense of selfawareness<br />
thanks to the onset (or not)<br />
of puberty, <strong>and</strong> I desperately wanted to<br />
fit in. I thought I was the only one who<br />
SPRING 2013<br />
felt like this <strong>and</strong> wished I could be as<br />
cool as everyone else. My mother told<br />
me that things would get better <strong>and</strong> that<br />
everyone was going through the same<br />
thing. Although true, it did not make me<br />
feel any better.<br />
So, why do I keep such<br />
an unflattering photo of<br />
myself front <strong>and</strong> center<br />
on my desk? Why would<br />
I want to remind myself<br />
of such an awkward,<br />
confusing, <strong>and</strong> difficult<br />
time in my life? Because<br />
the student sitting across<br />
from me might very well<br />
be a water buffalo.<br />
<strong>Law</strong> students are smart,<br />
confident, <strong>and</strong> selfassured.<br />
And then they<br />
start law school. Suddenly<br />
everyone around you is a high achiever<br />
<strong>and</strong> used to being the best <strong>and</strong> now<br />
you are in competition with each other<br />
<strong>for</strong> grades, jobs, leadership positions.<br />
Rarely, if ever has a law student actually<br />
failed at anything. In fact, most don’t<br />
even consider failing (i.e., not being in<br />
the top 10%) a possibility. When reality<br />
hits, it can be very disconcerting <strong>and</strong> we<br />
see lots of water buffaloes around exam<br />
time <strong>and</strong> when grades are released.<br />
— continued on page 2<br />
THE LAW TEACHER | SPRING 2013 | 1
SPRING 2013<br />
Promoting the science<br />
<strong>and</strong> art of teaching<br />
<strong>The</strong> <strong>Law</strong> <strong>Teacher</strong>, Volume XIX,<br />
Number 2<br />
<strong>The</strong> <strong>Law</strong> <strong>Teacher</strong> is published twice a<br />
year by the <strong>Institute</strong> <strong>for</strong> <strong>Law</strong> <strong>Teaching</strong> <strong>and</strong><br />
<strong>Learning</strong>. It provides a <strong>for</strong>um <strong>for</strong> ideas<br />
to improve teaching <strong>and</strong> learning in law<br />
schools <strong>and</strong> in<strong>for</strong>ms law teachers of the<br />
activities of the <strong>Institute</strong>.<br />
Opinions expressed in <strong>The</strong> <strong>Law</strong> <strong>Teacher</strong><br />
are those of the individual authors. <strong>The</strong>y<br />
are not necessarily the opinions of the<br />
editors or of the <strong>Institute</strong>.<br />
Co-Editors:<br />
Tonya Kowalski, Michael Hunter<br />
Schwartz, <strong>and</strong> S<strong>and</strong>ra Simpson<br />
Co-Directors:<br />
Gerald Hess <strong>and</strong> Michael Hunter<br />
Schwartz<br />
Consultant:<br />
Sophie Sparrow<br />
Advisory Committee:<br />
Megan Ballard (Gonzaga)<br />
R. <strong>Law</strong>rence Dessem (Missouri-<br />
Columbia)<br />
Olympia Duhart (Nova<br />
Southeastern)<br />
Keith A. Findley (Wisconsin)<br />
Steve Friedl<strong>and</strong> (Elon)<br />
Barbara Glesner Fines (UMKC)<br />
Dennis Honabach (Northern<br />
Kentucky)<br />
Tonya Kowalski (Washburn)<br />
Paula Manning (Western State)<br />
Margaret Sova McCabe (New<br />
Hampshire)<br />
Nelson Miller (Thomas Cooley)<br />
Lu-in Wang (Pittsburgh)<br />
©2013 <strong>Institute</strong> <strong>for</strong> <strong>Law</strong> <strong>Teaching</strong> <strong>and</strong><br />
<strong>Learning</strong>. Gonzaga University School of<br />
<strong>Law</strong> <strong>and</strong> Washburn University School of<br />
<strong>Law</strong>. All rights reserved.<br />
ISSN: 1072-0499<br />
2 | THE LAW LAW TEACHER TEACHER | SPRING | SPRING 2009 2013<br />
Remember the Water Buffalo<br />
— continued from page 1<br />
<strong>Law</strong> professors are very proficient at<br />
spotting all species of water buffaloes.<br />
Some species are easy to spot. Those<br />
are the students who once exhibited<br />
an enthusiasm <strong>for</strong> learning but now<br />
sit in your class shoulders slumped,<br />
fearful of contributing to discussions.<br />
You know what is going through that<br />
student’s mind: “I worked so hard <strong>and</strong><br />
<strong>for</strong> what? My grades are awful <strong>and</strong> I’m<br />
never going to get a job.” <strong>The</strong> bar exam<br />
water buffaloes are also obvious. <strong>The</strong>y<br />
tend to shuffle around the law school<br />
looking unkempt with rather wild eyes<br />
<strong>and</strong> mumbling to themselves. <strong>The</strong>re<br />
are also some species of water buffaloes<br />
that are less obvious. For example, the<br />
student who acts confident but happens<br />
to stop by to say hello. What that student<br />
is really saying is, “Yes, I did well last<br />
semester but it must have been a fluke,<br />
<strong>and</strong> I don’t know how I’m going to do<br />
it again,” or “I know I’m going to fail<br />
because I did not underst<strong>and</strong> hearsay/<br />
habeas corpus/future interests, etc.<br />
but there is no way I am going to say<br />
anything because everyone else gets<br />
it.” What all these species have in<br />
common is that they have always been<br />
very successful, <strong>and</strong> the<br />
emotions they are<br />
now experiencing<br />
are completely<br />
unfamiliar. It is<br />
uncom<strong>for</strong>table,<br />
uncertain, <strong>and</strong> very<br />
disconcerting.<br />
Some professors<br />
react to the herds by<br />
ignoring them because<br />
those animals just<br />
need to “suck it up <strong>and</strong><br />
deal with it.” Others<br />
attempt to domesticate these wild beasts<br />
with excessive treats <strong>and</strong> coos like, “It<br />
will be fine. Trust me.” Both approaches<br />
have their benefits but neither really<br />
addresses the issue, which is that law<br />
school is about getting com<strong>for</strong>table<br />
being uncom<strong>for</strong>table. So what should a<br />
law professor do when she encounters<br />
a water buffalo? Un<strong>for</strong>tunately, just like<br />
the law, there is no perfect answer.<br />
Although there may not be an answer,<br />
there is certainly a response, <strong>and</strong> it is<br />
why I keep that awful picture of myself<br />
on my desk. That photo reminds me that<br />
the student will probably get through<br />
this but pretending not to see it or telling<br />
them the conclusion (“you’ll be fine”)<br />
without the analysis is not the solution.<br />
It reminds me that we all experience<br />
failure, uncertainty, <strong>and</strong> self-doubt<br />
throughout our lives, <strong>and</strong> it’s not so<br />
much the experience itself that matters<br />
but how you deal with it. It reminds me<br />
that even though I’m not in eighth grade<br />
(thank goodness), I still feel like a water<br />
buffalo on occasion, <strong>and</strong> if I’m feeling<br />
that way, chances are other people are<br />
too.<br />
Students invariably see the photo <strong>and</strong><br />
some of them ask, ”who is that boy?”<br />
I tell them it’s me (the polite ones act<br />
shocked) <strong>and</strong> explain why it’s there. I<br />
keep it on my desk to remind me where<br />
I came from <strong>and</strong> that life is not always<br />
easy, but if I could make it through<br />
that awful time, then I can<br />
get through anything. Does<br />
it immediately solve their<br />
problem? Of course not, but<br />
it does help them realize that<br />
underst<strong>and</strong>ing, accepting, <strong>and</strong><br />
learning from an experience is<br />
what defines you.<br />
____________<br />
So dig through your old<br />
school photos, find the worst<br />
of the worst, <strong>and</strong> display it<br />
proudly on your desk.<br />
Katherine Silver Kelly is an Assistant<br />
Clinical Professor of <strong>Law</strong> <strong>and</strong> Director<br />
of Academic Support at <strong>The</strong> Ohio State<br />
University Moritz College of <strong>Law</strong>.<br />
Contact her at kelly.864@osu.edu.
Book Review:<br />
<strong>Teaching</strong> to Every Student: Explicitly Integrating Skills <strong>and</strong> <strong>The</strong>ory in<br />
the Contracts Class by David Nadvorney <strong>and</strong> Deborah Zalesne<br />
By Gerry Hess<br />
Most law professors who<br />
teach first-year courses want<br />
their students to learn some<br />
combination of doctrine, theory, <strong>and</strong><br />
analytical skills. In <strong>Teaching</strong> to Every<br />
Student: Explicitly Integrating Skills <strong>and</strong><br />
<strong>The</strong>ory in the Contracts Class, David<br />
Nanvorney <strong>and</strong> Deborah Zalesne<br />
provide a valuable resource to help<br />
teachers <strong>and</strong> their students achieve those<br />
goals.<br />
Zalesne <strong>and</strong> Nadvorney designed their<br />
book to help teachers integrate three<br />
types of skills in first-year courses: (1)<br />
academic, (2) legal reasoning, <strong>and</strong> (3)<br />
<strong>and</strong> theoretical perspective. <strong>The</strong> book is<br />
divided into three sections accordingly.<br />
Each chapter addresses a specific subskill.<br />
Section I – Academic Skills<br />
Chapter 1 – Preparing <strong>for</strong> Class (Case Briefing <strong>and</strong> Beyond)<br />
Chapter 2 – Close Case Reading<br />
Chapter 3 – Note Taking <strong>and</strong> Active Listening<br />
Chapter 4 – Outlining<br />
Chapter 5 – Exams<br />
Section II – Legal Reasoning <strong>and</strong> Analysis Skills<br />
Chapter 6 – Working with Facts<br />
Chapter 7 – Working with Rules<br />
Chapter 8 – Issue Spotting<br />
<strong>The</strong> co-authors’ main goal is to provide<br />
teachers of first-year law students with<br />
practical methods to help student learn<br />
core skills essential to their success in<br />
law school <strong>and</strong> beyond. Consequently,<br />
each chapter begins with a background<br />
about the skill <strong>and</strong> its importance <strong>for</strong><br />
students’ success in law school, on the<br />
bar exam, <strong>and</strong> in practice. <strong>The</strong> heart<br />
of each chapter is detailed exercises<br />
teachers can employ to explicitly teach<br />
the skill along with legal doctrine. <strong>The</strong><br />
exercises can be assigned as homework,<br />
used in class, made part of an on-line<br />
supplement to the course, or become part<br />
of an academic support complement to<br />
the course.<br />
Teach to Every Student is directly<br />
applicable to teachers of Contracts<br />
Section III – <strong>The</strong>oretical Perspective<br />
Chapter 9 – Recognizing <strong>The</strong>oretical Perspectives in Judicial<br />
Opinions<br />
Chapter 10 – Portrayal of Parties<br />
Chapter 11 – Underst<strong>and</strong>ing <strong>and</strong> Critiquing the Role of Race, Class,<br />
Gender, <strong>and</strong> Sexual Orientation in Judicial Decision Making<br />
Chapter 12 – Integrating Issues of Race, Class, Gender, <strong>and</strong> Sexual<br />
Orientation Throughout the Course<br />
courses. <strong>The</strong> exercises are built around<br />
Contracts cases <strong>and</strong> appendices include<br />
a sample Contracts syllabus <strong>and</strong> edited<br />
version of each case addressed in the<br />
exercises.<br />
Nadvorney <strong>and</strong> Zalesne have lots to<br />
offer teachers of any first-year course.<br />
Most of the exercises are easy to<br />
adapt to another course, although the<br />
applicable cases would be different, of<br />
course. For example, in the Academic<br />
Skills section, exercises address briefing<br />
(including “margin briefs”), note<br />
taking guides, outline flow charts, <strong>and</strong><br />
practice exams. Likewise, the Legal<br />
Analysis <strong>and</strong> Reasoning section contains<br />
exercises dealing with fact analysis,<br />
rule synthesis, the role of policy,<br />
<strong>and</strong> issue spotting. <strong>The</strong> <strong>The</strong>oretical<br />
Perspectives section describes exercises<br />
in recognizing theoretical perspectives<br />
in judicial opinions <strong>and</strong> effectively using<br />
theoretical perspectives in advocacy.<br />
Finally, the sample syllabus, although<br />
in the context of a Contracts course, is<br />
an outst<strong>and</strong>ing illustration of how to<br />
make doctrine, skills, <strong>and</strong> theory equal<br />
partners in a first-year course.<br />
____________<br />
Gerry Hess is the Co-Director of the<br />
<strong>Institute</strong> <strong>for</strong> <strong>Law</strong> <strong>Teaching</strong> <strong>and</strong> <strong>Learning</strong><br />
<strong>and</strong> a Professor of <strong>Law</strong> at Gonzaga<br />
University School of <strong>Law</strong>. He is available<br />
at ghess@lawschool.gonzaga.edu.<br />
THE LAW TEACHER | SPRING 2013 | 3
Old Professor Tricks<br />
By Sharon Keller<br />
Occasionally I sit in on classes<br />
taught by my colleagues <strong>and</strong><br />
I’ve noticed certain practices<br />
<strong>and</strong> characteristics among those who<br />
have grown gray in the service of<br />
their subject. I share some of these<br />
observations below.<br />
Teach more, assign less. As you become<br />
more conversant with a subject, you can<br />
glean much more from cases than just<br />
what the casebook authors intended.<br />
You can assign fewer cases <strong>and</strong> use<br />
fewer fact patterns to cover more points.<br />
I remember reading a claim, hopefully<br />
apocryphal, that an old professor said he<br />
could cover the whole of Contracts I just<br />
using Wood v. Lucy, Lady Duff-Gordon.<br />
Even were this true I’m sure no one<br />
should try it. <strong>The</strong> trade-off <strong>for</strong> using<br />
fewer cases is confusion <strong>for</strong> students,<br />
especially first years, who fervently want<br />
to believe that each case st<strong>and</strong>s <strong>for</strong> only<br />
one rule. <strong>The</strong> balance I see old professors<br />
striking is to go through slightly fewer<br />
cases slower while reminding students<br />
of similarities with past cases <strong>and</strong> even<br />
with cases to come, which is my next<br />
point.<br />
Presaging. If a professor were a spotlight,<br />
some subject matter would be in bright<br />
relief in the center <strong>and</strong> some other<br />
material, past <strong>and</strong> future, would be in<br />
the penumbra. Old professors know<br />
what issue of the past they want to<br />
reiterate <strong>and</strong> what issue in the future<br />
they want to hint at. One must be careful<br />
to choose these issues wisely <strong>and</strong> seize<br />
upon them frugally. While it creates<br />
interest <strong>and</strong> excitement to anticipate<br />
coming developments, nothing will<br />
unfocus a discussion faster than too<br />
much w<strong>and</strong>ering down the byways of<br />
side issues.<br />
<strong>The</strong> bones of a subject. After one has<br />
taught a subject <strong>for</strong> a while one gets<br />
a sense of an internal structure <strong>for</strong> a<br />
course. This is a skeleton hidden in the<br />
body of the material that gives <strong>for</strong>m to<br />
the subject. We professors, being very<br />
bright, are sure that we can analyze<br />
4 | THE LAW TEACHER | SPRING 2013<br />
a subject <strong>and</strong> identify this structure<br />
in the abstract, but the truth of the<br />
matter is that you discover by practice<br />
what is effective <strong>for</strong> the purposes of<br />
teaching. That is, it is not only an abstract<br />
structure of the subject that you must<br />
divine; you must be attentive to the way<br />
that an abstract structure resonates<br />
with your experience, professional <strong>and</strong><br />
pedagogical, of what sounds in that area<br />
of the law. <strong>The</strong>re are points where you<br />
sense, somehow, that something just<br />
came together. This can be idiosyncratic<br />
– one old professor told me that <strong>for</strong> him<br />
one such epiphany was the mailbox<br />
rule. Can’t say that was true <strong>for</strong> me. One<br />
should make a note of such moments<br />
anyway. Your students are exploring a<br />
subject through your eyes while you are<br />
teaching. Where you had your personal<br />
breakthroughs well may be where you<br />
teach most clearly.<br />
Observation of the students is also<br />
a place to determine the teaching<br />
structure of a subject. Try different<br />
approaches <strong>and</strong> look <strong>for</strong> the relieved<br />
look of comprehension in the faces of<br />
your listeners. Make a note of that <strong>and</strong><br />
develop it more deliberately in your<br />
teaching. I even found useful hints upon<br />
rereading my class notes from my law<br />
school days <strong>for</strong> classes that I now teach;<br />
I made a special note of the graphs <strong>and</strong><br />
models I devised <strong>for</strong> myself to try to get<br />
the penny to drop be<strong>for</strong>e the exam.<br />
Repetition <strong>and</strong> repeating thematics. Nothing<br />
is taught by saying it once. Despite our<br />
remembrance of being deeply affected<br />
by something someone said to us once,<br />
things are learned because the seed fell<br />
where the ground was cultivated. Old<br />
professors repeat themselves during<br />
the lesson, <strong>and</strong> also during the week,<br />
the month, the semester, <strong>and</strong> their next<br />
course. Eventually one catches a look<br />
on the students’ faces that seems to say<br />
“I know that – get on with it you old<br />
warhorse!” when one has hit the nth<br />
repetition of a favorite premise. This is<br />
promising because it suggests that the<br />
students think they know what you<br />
mean. A few more repetitions <strong>and</strong> they<br />
actually will know what you mean.<br />
You do not have to repeat yourself in<br />
the same words – you can repeat a<br />
concept by looking at it from different<br />
angles. However, there is something<br />
to be said about actual repetition. At<br />
regular intervals in my contracts class<br />
I would reproduce a particular simple<br />
diagram that was intended to show<br />
some aspects of the contracting process.<br />
I would start by slashing a straight line<br />
on the blackboard <strong>and</strong> always saying<br />
as I did so “This is a timeline …” With<br />
some satisfaction I could hear a few<br />
students reciting the next few lines of the<br />
description with me.<br />
Another contracts professor I know<br />
balls up a sheet of paper from time<br />
to time <strong>and</strong> throws it to a student<br />
when returning to issues of offer <strong>and</strong><br />
acceptance. It is an effective symbolic<br />
statement of common law <strong>for</strong>mation,<br />
showing the accepting party accepting<br />
exactly <strong>and</strong> only what the offeror is<br />
pitching. <strong>The</strong>se mini-lesson repetitions,<br />
which I’ll call <strong>for</strong> convenience<br />
“thematics,” can be very effective. I<br />
suspect they arise most often as the<br />
inspiration of a moment in some class<br />
one taught. Do not <strong>for</strong>get them as they<br />
arise – make a note of them. Often they<br />
embody your own, personal grasp of<br />
the subject <strong>and</strong>, because of that, your<br />
explanations using your own thematics<br />
will be particularly <strong>for</strong>ceful. A small<br />
arsenal of these can be put to great use.<br />
Predictability – when rhythm replicates<br />
dynamism. When I was little my great<br />
gr<strong>and</strong>father used to go out at ten a.m.,<br />
sit by the grape arbor in his Adirondack<br />
chair <strong>and</strong> feed the birds. Although,<br />
or because, I was an antsy little child,<br />
I would like to go out with him <strong>and</strong><br />
play in my s<strong>and</strong>box at the same time<br />
because it was peaceful around him.<br />
Dynamism is good <strong>for</strong> classes but there<br />
is also something to be said <strong>for</strong> peaceful<br />
predictability.<br />
— continued on page 5
Old Professor Tricks<br />
— continued from page 4<br />
Starting classes with a predictable<br />
routine helps students settle into the<br />
learning groove. Ironically it also creates<br />
a sense of movement in the class because<br />
students feel they know how this will go<br />
<strong>and</strong> that they are now on their way. A<br />
review at the beginning of class putting<br />
the lecture of the day in a context is a<br />
good routine. Old professors seem to<br />
take their time with such reviews – they<br />
do not speed through them. Often they<br />
script their closings as well by including<br />
a tantalizing preview of things to come<br />
<strong>and</strong>/or some customary ending like<br />
announcements. I’ve seen other endings,<br />
<strong>for</strong> instance following a developing story<br />
in the news that implicates the subject.<br />
Such news stories are rarely first page<br />
news so there is little worry of repeating<br />
I<br />
teach at the Peking University School<br />
of Transnational <strong>Law</strong> in Shenzhen,<br />
China—our two-year Transnational<br />
Legal Practice curriculum is centered<br />
at the intersection of legal writing,<br />
common law method, <strong>and</strong> US legal<br />
discourse. <strong>The</strong> international posture<br />
of the course sequence thus fosters the<br />
student’s acculturation to the norms<br />
<strong>and</strong> traditions<br />
of the American<br />
legal system.<br />
Simulated<br />
networking<br />
events <strong>and</strong> notes<br />
on email etiquette<br />
share intellectual<br />
space with contract drafting <strong>and</strong><br />
appellate mooting.<br />
But if there is an ambition in educational<br />
psychology to contextualize learning,<br />
then I position the Supreme Court to be<br />
an ideal setting in which to explore the<br />
dramaturgy of the law. I suppose I tend<br />
something already in the students’<br />
awareness.<br />
Regrettably, you usually cannot use an<br />
Adirondack chair at the podium. But a<br />
steady, recognizable rhythm can gather<br />
the students’ attention, lend the class<br />
a sense of movement <strong>and</strong> encourage a<br />
feeling of engagement that rivals that of<br />
the dynamic speaker.<br />
Enjoy your job. On the down side, I recall<br />
an old professor from my first year of law<br />
school whom I cannot endorse. Although<br />
he managed some of the techniques<br />
I have described, his class was not a<br />
good one because of his constant bitter<br />
mutterings <strong>and</strong> his regarding us, his<br />
class, as though he were gazing into a<br />
bowl of hatching insect larvae. Where<br />
people hate their lives, or humanity<br />
<strong>The</strong> Supreme Court Conference Room:<br />
Legal Writing as Legal Process<br />
By Andrew Jensen Kerr<br />
to Walter Bagehot’s analysis that politics<br />
requires pageantry <strong>and</strong> symbolism if it<br />
is to have resonance. <strong>Law</strong> students also<br />
share this zeitgeisty appetite <strong>for</strong> gossip<br />
<strong>and</strong> myth. What could be more symbolic<br />
of the unmatched secrecy of the<br />
Supreme Court than its fabled Supreme<br />
Court Conference Room? Only the robed<br />
may cross its threshold while conference<br />
<strong>The</strong> tactile elegance <strong>and</strong> ritual of the<br />
Justices’ descriptions only add to the<br />
students’ eagerness to debate.<br />
is in session. Indeed, my students guffaw<br />
at the corollary—that Justices themselves<br />
are expected to per<strong>for</strong>m the custodial<br />
work. You mean, Justice Kagan has to<br />
fetch the coffee?!<br />
But I think the Conference Room as<br />
an intellectual construct has unique<br />
generally, teaching is not such a good<br />
job <strong>for</strong> them. It will take an ef<strong>for</strong>t to be<br />
open enough to learn from such teachers<br />
no matter how many tricks they know.<br />
So, the last point I want to make is that<br />
<strong>for</strong> your own sake, whether or not your<br />
school rewards the development of skill<br />
in teaching, experiment until you find<br />
some joy in teaching. That seems to<br />
be a key attribute of the venerable old<br />
professor.<br />
____________<br />
Sharon Keller is a Visiting Associate<br />
Professor <strong>and</strong> the Director of the Academic<br />
Success Program at the David A. Clarke<br />
School of <strong>Law</strong> of the University of the<br />
District of Columbia. Contact her at<br />
sharon.keller@udc.edu.<br />
pedagogical value as well—how does<br />
Court deliberation <strong>and</strong> diplomacy<br />
in<strong>for</strong>m how opinions are written? A<br />
major assignment <strong>for</strong> my students is to<br />
draft a judicial opinion in response to<br />
a hypothetical fact pattern. I frame our<br />
Supreme Court Conference as sort of an<br />
intermediate point in their legal research<br />
on the topic. <strong>The</strong>y’re familiar with the<br />
relevant precedent<br />
<strong>and</strong> have an instinct<br />
<strong>for</strong> how the case<br />
may turn. Still, they<br />
are to approach the<br />
conference with a<br />
humble sensibility<br />
<strong>and</strong> open mind—be<br />
ready to be persuaded by your peers’<br />
arguments. I link them to the Court’s<br />
own web narrative of what happens<br />
behind closed doors. <strong>The</strong> tactile<br />
elegance <strong>and</strong> ritual of the Justices’<br />
descriptions only add to the students’<br />
eagerness to debate. I also provide a<br />
— continued on page 6<br />
THE LAW TEACHER | SPRING 2013 | 5
<strong>The</strong> Supreme Court Conference Room: Legal Writing as Legal Process<br />
— continued from page 5<br />
scholarly article from political science<br />
that questions how things like median<br />
justices <strong>and</strong> concurrences shift the axial<br />
tilt of a majority opinion (Lupu <strong>and</strong><br />
Fowler, “<strong>The</strong> Strategic Content Model<br />
of Supreme Court Opinion Writing”).<br />
<strong>The</strong> article relays the usual process of<br />
the Conference Room – we mirror the<br />
procedure. First, each student meditates<br />
aloud <strong>for</strong> five minutes on law or facts<br />
they consider dispositive (I have the<br />
<strong>for</strong>tune of teaching small sections;<br />
if there is an even number I appoint<br />
myself the tiebreaker <strong>and</strong> feign Justice<br />
Kennedy’s wishy-washy tendencies).<br />
Questions or interruptions of any sort<br />
are not permitted during these opening<br />
statements. We then take a tentative vote<br />
as to who should win <strong>and</strong> intermission<br />
<strong>for</strong> a quick respite.<br />
<strong>The</strong> second half of class generally tracks<br />
two <strong>for</strong>ms of debate—close votes mean<br />
having to convince the median justice<br />
to join your side’s cause; less symmetric<br />
balances mean figuring out how to craft<br />
the opinion. In either event there will be<br />
discussion of which party deserves to<br />
win, <strong>and</strong> more importantly, why. What<br />
is the reasoning the court will use? A<br />
textual argument? Policy-based? By<br />
reference to the Constitution? A broad<br />
holding or narrowed to the idiosyncratic<br />
facts of the present context? I’ve found<br />
my students to be unusually voluble<br />
<strong>and</strong> perhaps even more profound in this<br />
student-centric classroom environment.<br />
It is underst<strong>and</strong>able that shy or selfaware<br />
students may fear questions from<br />
an authority figure such as a professor.<br />
But as hierarchies are flattened in this<br />
peer-driven space these same students<br />
are able to express their ideas with<br />
sophistication <strong>and</strong> panache.<br />
<strong>The</strong>re are also structural pedagogical<br />
benefits to the conferences. First,<br />
students cannot engage in the facile<br />
“black-white” distinction-making<br />
common to the Socratic Method.<br />
<strong>The</strong>y aren’t challenging a singular<br />
6 | THE LAW TEACHER | SPRING 2013<br />
prompt, but must articulate a more<br />
nuanced, uncertain <strong>and</strong> “grey” position<br />
contrasting the dozen other students<br />
in the classroom. This spectrum of<br />
variation often requires the student<br />
to <strong>for</strong>m arguments at higher orders<br />
of thinking—“maybe it’s wrong to<br />
frame the debate as a black-white<br />
issue, perhaps the question itself is<br />
misdirected.” Second, the arithmetic<br />
of the Supreme Court becomes more<br />
palpable in this classroom experience.<br />
<strong>The</strong> sum of how many justices are<br />
part of the majority or concurring or<br />
dissenting opinions can often make the<br />
governing holding obscure or ethereal<br />
<strong>for</strong> the first year student (especially<br />
in the kaleidoscopic fragmentation of<br />
the contemporary court). This math<br />
becomes more obvious in the drama <strong>and</strong><br />
vote counting of the session.<br />
Connected to this Supreme Court<br />
modeling is an initiation to the work<br />
of court clerks. I introduce their job<br />
description <strong>and</strong> ask the student to<br />
play the role of clerk in the process<br />
of accepting petitions <strong>for</strong> certiorari.<br />
After they have drafted their judicial<br />
opinion writing assignment, I invite<br />
them to my office to question them on<br />
more ontological matters – I ask them<br />
if this is a case that the Supreme Court<br />
should bother to accept <strong>for</strong> review.<br />
Alex<strong>and</strong>er Bickel praised the “passive<br />
virtues” of the Court <strong>and</strong> its sensitivity<br />
to political timeliness (see San<strong>for</strong>d<br />
Levinson’s article, “Assessing the<br />
Supreme Court’s Caseload: A Question<br />
of <strong>Law</strong> or Politics?”). Should the Court<br />
devote its scarce resources to more<br />
pressing issues? Maybe the common<br />
law can evolve at the trial or appellate<br />
level to find the most efficient solution?<br />
As Justice Br<strong>and</strong>eis famously enjoined<br />
in New State Ice Co v. Liebmann, let the<br />
states be the laboratories of democracy.<br />
This play on judicial process allows the<br />
student to consider opinion writing at<br />
first principles – should I write this <strong>and</strong>,<br />
if so, how?<br />
I attempt to structure my curriculum so<br />
that legal process tracks the discourse<br />
of legal writing. <strong>The</strong> opinion writing<br />
assignment is taught within the universe<br />
of the Supreme Court; appellate brief<br />
writing <strong>and</strong> mooting are taught as an<br />
introduction to the adversarial system<br />
(vis-à-vis the inquisitorial nature of<br />
the civil law). However, I think this<br />
general “conferencing” exercise is fairly<br />
fungible <strong>and</strong> can be applied to different<br />
parts of a legal writing curriculum;<br />
<strong>for</strong> example, as part of a section on<br />
memo writing <strong>and</strong> litigation strategy<br />
within a law firm. <strong>The</strong> conference is<br />
translated into an office setting where<br />
students posit different strategies <strong>and</strong><br />
their likely traction <strong>for</strong> a judge or jury.<br />
Again, the <strong>for</strong>gotten element of math<br />
in law is surfaced – students learn to<br />
think probabilistically. “Well, a statutory<br />
argument has a 60% chance of success;<br />
are these adequate odds to go to trial?”<br />
This kind of discussion also lends itself<br />
to another topic too absent from the 1L<br />
curriculum – the ubiquity of settlement<br />
in the American legal system.<br />
Role playing should be regarded as a<br />
uniquely experiential tool available<br />
to law teachers. Indeed, front-rank<br />
programs such as the NYU <strong>Law</strong>yering<br />
curriculum already make use of<br />
simulated instruction in negotiation<br />
<strong>and</strong> counseling exercises. I argue<br />
that the Supreme Court Conference<br />
is of similar value – the student<br />
becomes familiar with the institutional<br />
processes of opinion writing <strong>and</strong><br />
becomes empowered to speak with an<br />
authoritative voice on the law.<br />
____________<br />
Andrew Jensen Kerr is a Senior Lecturer<br />
at the Peking University School of<br />
Transnational <strong>Law</strong>. He can be reached at<br />
kerra@stl.pku.edu.cn. He thanks Eric Mao<br />
<strong>for</strong> his inspiration.
Infusing Ethics into the Legal Writing Curriculum—<strong>and</strong> Beyond<br />
By Almas Khan<br />
As teachers of sequential courses<br />
that are increasingly spanning<br />
from the first year of law<br />
school into the second <strong>and</strong> third years,<br />
legal writing professors are uniquely<br />
positioned to underscore a component<br />
of the law school curriculum that until<br />
recent times shared legal writing’s<br />
subsidiary status—legal ethics.<br />
Be<strong>for</strong>e 1974, when the American Bar<br />
Association responded to the Watergate<br />
sc<strong>and</strong>al by enacting St<strong>and</strong>ard 303(a)<br />
(ii), which requires all ABA-accredited<br />
institutions to<br />
offer a m<strong>and</strong>atory<br />
course in<br />
professional<br />
responsibility,<br />
professional<br />
responsibility<br />
classes were<br />
a “cipher” in<br />
the curriculum of the law schools<br />
that offered them. In a story that may<br />
resonate with legal writing faculty,<br />
professional responsibility courses<br />
continued to languish after the<br />
st<strong>and</strong>ard’s adoption, often allocated<br />
minimal credits <strong>and</strong> assigned to<br />
adjunct faculty or new law professors<br />
as a rite-of-passage. To enhance the<br />
course’s reputation <strong>and</strong> entice student<br />
interest, professional responsibility<br />
teachers became curricular innovators,<br />
incorporating visual aids, role-play <strong>and</strong><br />
problem-solving exercises, <strong>and</strong> literature<br />
into their classes while coalescing into a<br />
scholarly community.<br />
Professional responsibility instruction<br />
now increasingly pervades clinical,<br />
doctrinal, <strong>and</strong> legal writing courses,<br />
<strong>and</strong> legal writing professors are<br />
optimally situated to introduce <strong>and</strong><br />
rein<strong>for</strong>ce ethical rules governing<br />
attorney conduct be<strong>for</strong>e first-year law<br />
students commence studies, during<br />
legal writing classes, <strong>and</strong> outside of<br />
class. Many law schools disseminate<br />
suggested summer reading lists <strong>for</strong> 1Ls,<br />
<strong>and</strong> books implicating an attorney’s<br />
professional responsibilities can readily<br />
be included in these lists; alternatively<br />
(or in addition), legal writing professors<br />
can assign these texts near the outset of<br />
the first semester, <strong>for</strong>egrounding legal<br />
ethics <strong>for</strong> impressionable law students.<br />
During orientation, legal writing faculty<br />
can collaborate with the Honor Council<br />
to emphasize the importance of seeking<br />
counsel when confronted with ethically<br />
challenging situations, reserving a more<br />
detailed discussion of professional<br />
responsibility in the legal writing<br />
context <strong>for</strong> class.<br />
Legal writing professors can employ<br />
variegated methods to incorporate<br />
ethical instruction in their courses<br />
from the first day of class (which may<br />
To enhance the course’s reputation<br />
<strong>and</strong> entice student interest, professional<br />
responsibility teachers became<br />
curricular innovators …<br />
coincide with orientation) onward. Scott<br />
Fruehwald covers three legal ethics<br />
topics in his first session with students:<br />
“the role of the lawyer, the duties of a<br />
lawyer to both the client <strong>and</strong> society,<br />
<strong>and</strong> how easy it is <strong>for</strong> an attorney to<br />
get into trouble.” Plagiarism is another<br />
imperative subject to introduce in this<br />
preliminary class <strong>and</strong> revisit as students<br />
develop familiarity with the distinction<br />
between legal writing conventions<br />
<strong>and</strong> attributions to authority in their<br />
undergraduate or graduate disciplines.<br />
Requiring students to read <strong>and</strong> attest<br />
to underst<strong>and</strong>ing the law school’s <strong>and</strong><br />
the legal writing course’s plagiarism<br />
policy, <strong>and</strong> demonstrating how the<br />
policy applies through progressively<br />
challenging exercises, can be effective.<br />
Also, beginning class with memorable<br />
ethical anecdotes related to the topics<br />
under discussion <strong>for</strong> the day (e.g.,<br />
accurately representing authority in a<br />
brief) can stimulate students’ interest<br />
in the subjects while highlighting how<br />
ethical considerations permeate legal<br />
writing. Assigned readings, such as<br />
Melissa Weresh’s book Legal Writing:<br />
Ethical <strong>and</strong> Professional Considerations,<br />
which includes case excerpts on ethical<br />
issues arising in legal writing, can<br />
instigate perceptive class discussions.<br />
Finally, integrating ethical concerns<br />
into problems analyzed <strong>for</strong> assignments<br />
can fulfill course objectives <strong>and</strong> instill<br />
appreciation <strong>for</strong> rules of professional<br />
conduct that will guide students’ legal<br />
careers.<br />
Coordinating ethics instruction with<br />
clinical <strong>and</strong> doctrinal faculty can ensure<br />
that legal writing students receive<br />
a relatively comprehensive (but not<br />
unduly repetitive) introduction to the<br />
subject, <strong>and</strong> partnering with the career<br />
services center to sponsor a guest<br />
speaker series centered on professional<br />
responsibility can<br />
complement class<br />
instruction. For<br />
example, during<br />
the fall semester,<br />
interactive panels<br />
with upper-division<br />
students <strong>and</strong><br />
attorneys can focus<br />
on ethical objective legal writing. In<br />
the spring semester, when most firstyear<br />
legal writing courses transition<br />
to persuasive writing <strong>and</strong> 1Ls seek<br />
summer employment, panels with<br />
judges, trial <strong>and</strong> appellate attorneys, <strong>and</strong><br />
upper-division students with summer<br />
internship experience may be apposite.<br />
Requiring students to prepare questions<br />
<strong>for</strong> the panelists <strong>and</strong> reflect on ethical<br />
insights gleaned from the presentations<br />
can generate a virtuous circle between<br />
legal writing courses <strong>and</strong> legal practice<br />
while inculcating the four values<br />
identified by the seminal MacCrate<br />
Report—competent representation;<br />
striving to promote justice, fairness,<br />
<strong>and</strong> morality; striving to improve<br />
the profession; <strong>and</strong> professional selfdevelopment—endemic<br />
to upst<strong>and</strong>ing<br />
lawyers.<br />
____________<br />
Almas Khan <strong>for</strong>merly taught legal writing<br />
at the University of Miami School of <strong>Law</strong><br />
<strong>and</strong> the University of La Verne College of<br />
<strong>Law</strong> <strong>and</strong> is currently a doctoral c<strong>and</strong>idate in<br />
English concentrating on law <strong>and</strong> literature<br />
at the University of Virginia. Contact her at<br />
bak4pr@virginia.edu.<br />
— continued on page 8<br />
THE LAW TEACHER | SPRING 2013 | 7
Infusing Ethics into<br />
the Legal Writing<br />
Curriculum—<strong>and</strong><br />
Beyond<br />
1 Mary C. Daly, Bruce A. Green & Russell<br />
G. Pearce, Contextualizing Professional<br />
Responsibility: A New Curriculum <strong>for</strong> a New<br />
Century, 58 <strong>Law</strong> & Contemp. Probs. 193, 194<br />
(1995).<br />
2 Id. at 194-97.<br />
— continued from page 7 By Devin Kinyon<br />
3 See, e.g., Scott J. Burnham, <strong>Teaching</strong><br />
Legal Ethics in Contracts, 41 J. Legal Educ.<br />
105 (1991); Margaret Z. Johns, <strong>Teaching</strong><br />
Professional Responsibility <strong>and</strong> Professionalism<br />
in Legal Writing, 40 J. Legal Educ. 501 (1990);<br />
Introduction to <strong>Law</strong>yering: <strong>Teaching</strong> First-Year<br />
Students to Think Like Professionals, 44 J. Legal<br />
Educ. 96 (1994).<br />
4 See generally Jamison Wilcox, Borrowing<br />
Experience: Using Reflective <strong>Law</strong>yer Narratives<br />
in <strong>Teaching</strong>, 50 J. Legal Educ. 213 (2000).<br />
5 Edwin S. Fruehwald, Legal Writing,<br />
Professionalism, <strong>and</strong> Legal Ethics 2 (Hofstra<br />
Univ. Sch. of <strong>Law</strong> Legal Studies Res. Paper<br />
Series, Res. Paper No. 0820, 2008), available<br />
at http://papers.ssrn.com/sol3/papers.<br />
cfm?abstract_id=1238484.<br />
6 See generally Terri LeClercq, Failure<br />
to <strong>Teaching</strong>: Due Process <strong>and</strong> <strong>Law</strong> School<br />
Plagiarism, 49 J. Legal Educ. 236 (1999).<br />
7 See Judith D. Fischer, <strong>The</strong> Role of Ethics in<br />
Legal Writing: <strong>The</strong> Forensic Embroiderer, the<br />
Minimalist Wizard, <strong>and</strong> Other Stories, 9 Scribes<br />
J. of Legal Writing 77 (2003-04) (classifying<br />
anecdotes).<br />
8 Melissa H. Weresh, Legal Writing: Ethical <strong>and</strong><br />
Professional Considerations (2d ed. 2009).<br />
9 See Philip M. Frost, Using Ethical Problems<br />
in First-Year Skills Courses, 14 Perspectives:<br />
<strong>Teaching</strong> Legal Res. & Writing 7 (2005).<br />
10 See John M. Speca, Panel Discussions as a<br />
Device <strong>for</strong> Introduction to <strong>Law</strong>, 3 J. Legal Educ.<br />
124 (1950-51).<br />
11 See Am. Bar Ass’n Section on Legal Educ.<br />
<strong>and</strong> Admissions to the Bar, Legal Education<br />
<strong>and</strong> Professional Development – An Educational<br />
Continuum, Report of the Task Force on <strong>Law</strong><br />
Schools <strong>and</strong> the Profession: Narrowing the Gap<br />
135-36 (1992) (deemed the MacCrate Report in<br />
honor of Robert MacCrate, chair of the blueribbon<br />
task <strong>for</strong>ce that issued the report).<br />
8 | THE LAW TEACHER | SPRING 2013<br />
Book Review:<br />
How Children Succeed: Grit, Curiosity, <strong>and</strong><br />
the Hidden Power of Character By Paul Tough<br />
I<br />
heard Paul Tough in an interview<br />
on This American Life, relaying one<br />
of the stories from his book, How<br />
Children Succeed: Grit, Curiosity, <strong>and</strong> the<br />
Hidden Power of Character. It’s the story<br />
of the marshmallow test, an experiment<br />
conducted in the 1960s at Stan<strong>for</strong>d on<br />
willpower. <strong>The</strong> test was administered<br />
to four-year-olds in a preschool. Each<br />
child was placed in a room with a desk,<br />
<strong>and</strong> on that desk was a plate with one<br />
marshmallow. <strong>The</strong> child was told that<br />
he or she could have the marshmallow<br />
now by ringing a bell to call in the<br />
experimenter, but, if the child could wait<br />
until the experimenter returned on his<br />
or her own, the child would receive two<br />
marshmallows.<br />
<strong>The</strong> radio show played an audio clip of<br />
a boy being subjected to the experiment<br />
by his parents at home. I was sold on<br />
Tough’s book when I heard that sound<br />
clip; in it you hear a child named<br />
<strong>The</strong>o saying over <strong>and</strong> over to himself,<br />
“ten minutes… ten minutes… TEN<br />
MINUTES!” <strong>The</strong>re are pangs of want in<br />
<strong>The</strong>o’s voice, doing anything he can to<br />
cope with waiting <strong>for</strong> the opportunity<br />
to get two “sweeties” instead of just<br />
one. You can watch the clip on YouTube.<br />
Spoiler alert: <strong>The</strong>o did last ten minutes<br />
<strong>and</strong> got two sweeties. And the reason<br />
<strong>The</strong>o could hold out seems to be his<br />
learned ability to control <strong>and</strong> distract<br />
himself, to be patient <strong>and</strong> cope.<br />
On the surface, the radio show seemed to<br />
imply that Tough’s book was a discussion<br />
of the character attributes of those who<br />
persevere in school <strong>and</strong> in life, kind of a<br />
Seven Habits of Highly Effective People <strong>for</strong><br />
the educational re<strong>for</strong>mer. What made<br />
Tough’s book more interesting to me,<br />
however, was how he put together so<br />
much research by doctors, psychologists,<br />
economists, <strong>and</strong> educators, experimental<br />
research in labs <strong>and</strong> observational<br />
projects in schools <strong>and</strong> communities.<br />
And that research seems to point in the<br />
direction that success in school <strong>and</strong> in<br />
life is tied to a child’s character. (Tough<br />
switches terminology throughout the<br />
book, using the terms “noncognitive<br />
behaviors” <strong>and</strong> “soft skills”)<br />
<strong>The</strong> book begins by introducing James<br />
Heckman, an economist at the University<br />
of Chicago who has done extensive<br />
research on the GED. Heckman’s<br />
research looked at those people who<br />
have passed the GED to see if their longterm<br />
outcomes are similar to people<br />
who graduate high school. <strong>The</strong>y are<br />
not. He had believed that the process<br />
of learning material to take <strong>and</strong> pass<br />
the GED, which tests basic math <strong>and</strong><br />
science, reading <strong>and</strong> writing, <strong>and</strong> social<br />
studies, was indicative of future success;<br />
that the cognitive development tested<br />
on the GED was the key to employment,<br />
family stability, <strong>and</strong> prosperity. But his<br />
research showed that those who passed<br />
the GED have the same future outcomes<br />
as high school drop-outs. This discovery<br />
took his work on a new path, raising the<br />
question of why some students can bear<br />
the tedium of high school <strong>and</strong> others<br />
can’t.<br />
Tough connects Heckman’s research<br />
to the earlier mentioned marshmallow<br />
experiment. About twelve years after<br />
the initial marshmallow tests, a different<br />
researcher tracked down the original<br />
study participants. Those who had been<br />
able to wait <strong>for</strong> the researcher to return,<br />
thereby receiving two marshmallows<br />
instead of one, had SAT scores that<br />
averaged 210 points higher than the<br />
subjects who’d gone <strong>for</strong> the single<br />
marshmallow. Like students who can<br />
survive high school, those who could<br />
wait to earn the second marshmallow<br />
— continued on page 9
Book Review:<br />
How Children Succeed<br />
— continued from page 8<br />
had some strength of character that<br />
propelled them <strong>for</strong>ward with lasting<br />
effects. This is the core question explored<br />
in How Children Succeed: why do some<br />
kids make it while others don’t?<br />
Poverty tends to be the default answer,<br />
<strong>and</strong> the research in Tough’s book points<br />
in that direction, but not <strong>for</strong> the obvious<br />
reason. He discusses a thread of public<br />
health studies regarding the stress<br />
that comes from “adverse childhood<br />
experiences,” a clinically-detached<br />
term <strong>for</strong> poverty, violence in the home,<br />
neglect, single- or no-parent families,<br />
<strong>and</strong> coping with addiction, mental<br />
illness, <strong>and</strong> incarceration. Living in this<br />
type of environment impacts the body’s<br />
internal hormonal balance. Humans’<br />
stress hormones came out in short bursts<br />
in pre-modern times, as in the need <strong>for</strong><br />
a shot of adrenalin to outrun a charging<br />
beast. But modern humans live under a<br />
continuous stream of stress hormones<br />
caused by the ongoing daily stressors<br />
in their lives. For children growingup<br />
in homes under continuous stress,<br />
their hormonal system is in overdrive.<br />
<strong>The</strong> researchers use the metaphor of a<br />
fire hose: effectively these children are<br />
flooded with stress hormones all day,<br />
every day. <strong>The</strong> principal impact of this<br />
stress hormone flood is the reduced<br />
ability to manage emotional behaviors<br />
leading to poor academic per<strong>for</strong>mance,<br />
<strong>and</strong> a likelihood of adult health problems<br />
ranging from heart disease <strong>and</strong> obesity,<br />
to smoking, depression, <strong>and</strong> risky sexual<br />
behaviors. Subsequent experiments<br />
show that when all other factors are held<br />
constant, weak learning outcomes by<br />
students who grew up in poverty are<br />
closely aligned with hormonal stress<br />
load. <strong>The</strong> researchers found that it isn’t<br />
poverty itself that is defeating these<br />
children; it’s the stress that goes along<br />
with it.<br />
To illustrate this distinction between<br />
poverty <strong>and</strong> stress, Tough interviews<br />
teachers at an elite private high school<br />
in New York State. <strong>The</strong>ir wealthy<br />
students are not subject to the same<br />
types of stressors as poor students.<br />
Notwithst<strong>and</strong>ing, the teachers still see<br />
similar gaps in the students’ character<br />
development. <strong>The</strong>se students, with<br />
extreme pressure to achieve <strong>and</strong><br />
succeed, display many of the same<br />
unhealthy outcomes as poor students.<br />
Tough reports on research showing that<br />
wealthy white suburban youth have<br />
comparatively higher rates of substance<br />
use <strong>and</strong> abuse, depression, <strong>and</strong> other<br />
mental health issues. <strong>The</strong> difference<br />
between the wealthy students <strong>and</strong> poor<br />
students is often a parent advocating<br />
on the wealthy student’s behalf, making<br />
dem<strong>and</strong>s on the school <strong>and</strong> ratcheting up<br />
the expectations of the student, further<br />
increasing the stressors in the student’s<br />
life. Instead of helping their children<br />
manage their stress, they paper over it,<br />
which further exacerbates it in the long<br />
run.<br />
<strong>The</strong> silver lining to Tough’s oftendepressing<br />
book is that high stress levels<br />
can be mitigated through intentional<br />
character-building activities. By helping<br />
students <strong>and</strong> children build their<br />
portfolio of noncognitive skills, teachers<br />
<strong>and</strong> parents can decrease the likelihood<br />
of the long-term negative outcomes. This<br />
is a lesson that shouldn’t be surprising<br />
to anyone who teaches, parents, or<br />
works with young people—it’s strong,<br />
supportive relationships that counteract<br />
much of the stress-caused character<br />
deficits. How Children Succeed highlights<br />
many such successful relationship-based<br />
interventions, primarily in schools <strong>and</strong><br />
youth programs. <strong>The</strong>re are lots of good<br />
ideas <strong>for</strong> teaching children how to wait<br />
to earn a second marshmallow.<br />
I know who <strong>The</strong> <strong>Law</strong> <strong>Teacher</strong>’s target<br />
audience is, <strong>and</strong> don’t imagine many<br />
of you torture your students with<br />
marshmallow experiments. But the entire<br />
time I was reading How Children Succeed,<br />
I was thinking about the law students I<br />
work with every day. I’m an academic<br />
support professor, so my work deals<br />
with students who aren’t per<strong>for</strong>ming<br />
well <strong>for</strong> one reason or another. Very<br />
often the students who come through<br />
my door or sit in my classroom reflect<br />
many of the problematic outcomes that<br />
Tough’s researchers observe. <strong>The</strong>re<br />
are those who have been so pushed to<br />
achieve by their families <strong>and</strong> own selfdrive<br />
that the slightest stumble reduces<br />
them to tears. And there are the students<br />
who overcame significant obstacles to<br />
make it to college <strong>and</strong> into law school,<br />
struggling to balance the old world they<br />
came from with the new professional<br />
class they are about to enter. I see in most<br />
of my students the impacts of the stress<br />
in their lives be<strong>for</strong>e they arrived on our<br />
campus, <strong>and</strong> the stress that is piled on<br />
each day. And while most of them will<br />
survive to join our profession, their stress<br />
will continue to intensify, leading many<br />
to substance abuse, mental health issues,<br />
<strong>and</strong> questioning why they chose to study<br />
the law in the first place.<br />
Tough’s book is an important reminder<br />
that helping a student lay out a<br />
thoughtful hearsay analysis, <strong>for</strong> example,<br />
isn’t likely to help him or her succeed<br />
in the long run if we don’t have other<br />
supports in place to nurture their soft<br />
skills. <strong>The</strong> students I’ve seen turn<br />
around from initial weak law school<br />
per<strong>for</strong>mance universally exhibit the<br />
noncognitive abilities that How Children<br />
Succeed explores. <strong>The</strong>y’ve learned to<br />
bounce back from defeat <strong>and</strong> to place<br />
their trust in supportive relationships<br />
with faculty <strong>and</strong> advisors. This book was<br />
a welcome reminder of how essential<br />
this work is, <strong>and</strong> that the development<br />
of character <strong>and</strong> interpersonal skills can’t<br />
be an afterthought in legal education.<br />
Successful law students <strong>and</strong> lawyers<br />
need soft skills.<br />
Paul Tough’s How Children Succeed<br />
certainly isn’t a roadmap <strong>for</strong> law schools<br />
(or schools <strong>and</strong> colleges, in general), <strong>and</strong><br />
leaves many questions to be researched.<br />
But <strong>for</strong> law teachers interested in<br />
thinking about how to support students<br />
<strong>and</strong> why they might be struggling, this<br />
book is a good place to start.<br />
____________<br />
Devin Kinyon is Assistant Clinical Professor<br />
of <strong>Law</strong> <strong>and</strong> Assistant Director of Academic<br />
Development at Santa Clara University<br />
School of <strong>Law</strong>. He can be reached at<br />
dkinyon@scu.edu.<br />
THE LAW TEACHER | SPRING 2013 | 9
It’s OK to Leave <strong>Law</strong> School<br />
A Note from an Anonymous Former Student, Sent to Professor Jan M. Levine<br />
I<br />
began law school teaching in 1980 as<br />
an adjunct, <strong>and</strong> I have been a fulltime<br />
professor since 1986. Because I<br />
teach legal writing, a course that is built<br />
upon much individualized interaction<br />
with my students, I get to know those<br />
students very well. <strong>The</strong> five law schools<br />
where I have taught have been unique<br />
institutions, located in diverse places,<br />
<strong>and</strong> with quite different types of<br />
students. Despite those variations one<br />
common event has been the discussion<br />
held with a first-year student who is<br />
considering departing from law school.<br />
Although there are many reasons <strong>for</strong><br />
a student to consider such a departure<br />
be<strong>for</strong>e the end of the first year, the most<br />
common include unhappiness with the<br />
study of law, growing dissatisfaction<br />
with new insights into law practice,<br />
<strong>and</strong> receipt of weak interim or mid-year<br />
grades.<br />
<strong>The</strong>se discussions are not easy ones <strong>for</strong><br />
either student or teacher, but I have been<br />
flattered <strong>and</strong> touched that these students<br />
have come to me in an ef<strong>for</strong>t to seek<br />
advice or unburden themselves. It is not<br />
common to hear from such students after<br />
they leave, but recently I did receive a<br />
note from one of my <strong>for</strong>mer students<br />
who left school in mid-year. His note<br />
was articulate <strong>and</strong> came straight from<br />
the heart, <strong>and</strong> he gave me permission<br />
to share his thoughts with others in the<br />
hope that it would be helpful to anyone<br />
struggling with the same circumstances<br />
he faced.<br />
Here is that note, edited slightly <strong>for</strong><br />
clarity from the original e-mail, <strong>and</strong> with<br />
the student’s identifying in<strong>for</strong>mation<br />
removed. We both hope you share it as<br />
you see fit.<br />
I’m not sure if you will remember this,<br />
but I was a 21-year-old student in your<br />
legal writing class many years ago.<br />
About two-thirds of the way through the<br />
fall semester, I had a bit of an existential<br />
crisis, <strong>and</strong> came to you looking <strong>for</strong><br />
advice. It was pretty apparent that if I<br />
sat <strong>for</strong> exams, I would not do very well; I<br />
knew I would per<strong>for</strong>m well below what<br />
I was capable of. I ultimately decided to<br />
10 | THE LAW TEACHER | SPRING 2013<br />
withdraw from school, knowing that I<br />
could start over the following year with a<br />
clean slate, if I was so inclined.<br />
Anyway, the reason I’m writing to<br />
you is because I remembered recently<br />
something you had said, that you rarely<br />
knew what happened to your students<br />
who were like me <strong>and</strong> decided to leave<br />
law school. I had wanted to write to<br />
you sooner, but honestly, I didn’t have<br />
much perspective to really say anything<br />
worthwhile.<br />
Honestly, talking to you made me feel<br />
like it was OK to leave law school, that<br />
it wouldn’t be the end of the world, <strong>and</strong><br />
that it was not a matter of life or death.<br />
I really needed to hear that. So I thank<br />
you. <strong>The</strong> school had graciously offered<br />
to let me re-matriculate the next year, but<br />
honestly, once I took a step back <strong>and</strong> let<br />
out a sigh of relief, I knew pretty much<br />
immediately that I would never go back,<br />
that I did not want to go back, <strong>and</strong> that I<br />
had absolutely no desire to be a lawyer.<br />
I didn’t rush to any decisions, but over<br />
the next few months it became more <strong>and</strong><br />
more undeniable.<br />
So I never went back to law school, a<br />
decision I never regretted <strong>for</strong> a second.<br />
I can’t say that my career was easy once<br />
I made that decision. I still didn’t have<br />
a clue what I actually wanted to do, <strong>and</strong><br />
spent several years working mediocre<br />
jobs I didn’t care about <strong>and</strong> made no<br />
money at, but didn’t really have to<br />
put much ef<strong>for</strong>t into. I actually got out<br />
there <strong>and</strong> saw what my options were,<br />
<strong>and</strong> figured out what I actually was<br />
interested in <strong>and</strong> cared about. I made<br />
an abortive attempt at graduate school<br />
soon after that, which didn’t pan out,<br />
but I did end up going back to graduate<br />
school again about a year <strong>and</strong> a half ago.<br />
I studied computer science, enjoyed it<br />
immensely, did awesome in my classes,<br />
graduated, <strong>and</strong> recently started a new<br />
job I am really excited about.<br />
I don’t know how helpful this e-mail<br />
will be, to anyone. My circumstances<br />
are somewhat unique, but most peoples’<br />
are. <strong>The</strong> prospects <strong>for</strong> legal jobs have<br />
changed enormously (I may have<br />
actually dodged a bullet, but that’s<br />
neither here nor there.) To those of<br />
you who are upset <strong>and</strong> agitated about<br />
their decision to go to law school,<br />
who are freaking out because they’ve<br />
based all these insane expectations<br />
on having brilliant legal careers, who<br />
are completely miserable <strong>and</strong> beat<br />
themselves up constantly, this is my<br />
advice: it will be OK. If you decide to<br />
leave law school, it’s not the end of<br />
the world. Putting all that pressure<br />
on yourself is just going to dig you an<br />
early grave. You can’t make yourself be<br />
passionate about something you don’t<br />
like. If you are really that miserable, it’s<br />
OK to take a step back <strong>and</strong> let yourself<br />
breathe; there is absolutely no reason to<br />
be embarrassed or self-conscious about<br />
it.<br />
<strong>The</strong>re is an awful tendency in humans<br />
to be terrified of failure, <strong>and</strong> to avoid it<br />
like the plague, above all else. <strong>The</strong> idiotic<br />
notion that if something doesn’t work<br />
you should just keep bashing your head<br />
against the wall, <strong>and</strong> the feeling of being<br />
so embarrassed over the quintessentially<br />
human act of making an honest mistake,<br />
just destroys people. Being realistic <strong>and</strong><br />
adaptable is one of the most important<br />
human qualities, not a dark secret to<br />
hide in shame.<br />
I don’t know if any of this was as helpful<br />
as what you told me. This has just<br />
been my experience. But if it helps just<br />
one student find their way, then I’ll be<br />
ecstatic. I’m sorry if it’s a bit wordy <strong>and</strong><br />
rambling; my writing isn’t as disciplined<br />
as it once was.<br />
I hope everything is going well <strong>for</strong> you.<br />
Thank you again.<br />
____________<br />
Jan M. Levine is an Associate Professor<br />
of <strong>Law</strong> <strong>and</strong> the Director of the Legal<br />
Research <strong>and</strong> Writing Program at<br />
Duquesne Univ. School of <strong>Law</strong>.<br />
Contact him at levinej@duq.edu.
1. This "international" company left a permanent<br />
footprint on the law of interstate jurisdiction.<br />
4. Advanced law degree.<br />
7. Criminal Prosecutions Limitations Act.<br />
11. Actor Neuman, who played lawyer in several films<br />
<strong>and</strong> television segments (Initials).<br />
12. International Union of United Automobile,<br />
Aerospace, <strong>and</strong> Agricultural Implement Workers of<br />
America.<br />
13. Fellow of the Royal Astronomical Society.<br />
JUDICIAL POWER<br />
(C) 1995 Ashley S. Lipson, Esq.<br />
Across<br />
14. Vehicles <strong>for</strong> the exercise of judicial power.<br />
18. One entitled to allegiance <strong>and</strong> service.<br />
19. King's knight's pawn.<br />
20. Impress.<br />
22. Famous ancient judge.<br />
24. Lower life <strong>for</strong>m but very rule-oriented, nevertheless.<br />
25. Set of tools.<br />
27. Continuously variable transmission.<br />
28. Environmental Impact Statement.<br />
— continued on page 12<br />
THE LAW TEACHER | SPRING 2013 | 11
29. Speech Association of America.<br />
31. <strong>Law</strong> firm's venue.<br />
32. Emergency equitable relief where there exists a<br />
threat of immediate <strong>and</strong> irreparable harm, without<br />
an adequate remedy at law.<br />
33. Guaranteed Student Loan.<br />
35. Globe.<br />
37. <strong>The</strong> right of the oldest member of a coparcenary to<br />
have first choice of share of an inheritance (English<br />
law).<br />
40. Part of the Federated States of Micronesia.<br />
1. Became associate justice of the Supreme Court in 1986.<br />
2. Argumentative, leading, privileged, vague, <strong>and</strong><br />
speculative questions.<br />
3. City in Nigeria.<br />
4. Unlawful state <strong>for</strong> motor vehicle operator.<br />
5. Criminal slang <strong>for</strong> money.<br />
6. Oscillated.<br />
7. UCC term indicating a price of goods which includes<br />
cost, freight, <strong>and</strong> insurance.<br />
8. Weak states shielded by stronger one.<br />
9. Local area network.<br />
10. Concur in an opinion.<br />
15. Meals.<br />
16. Legal furniture.<br />
17. Turns per inch.<br />
21. Environmental Impact Statement (Environmental law<br />
acronym).<br />
12 | THE LAW TEACHER | SPRING 2013<br />
JUDICIAL POWER<br />
Across — continued from page 11<br />
Down<br />
42. Form of money used in ancient Rome.<br />
44. A past perfect crunch.<br />
45. Verified.<br />
49. Spanish pot <strong>for</strong> holding water.<br />
50. Aborted fish eggs.<br />
51. Iron.<br />
52. Canadian revolutionary.<br />
53. St<strong>and</strong>ard Book Number.<br />
54. One who exercises his or her right to enjoy<br />
property.<br />
23. Intimidate.<br />
26. Mark evidence.<br />
30. Examine a witness.<br />
32. Frequently used by Einstein to transfer among<br />
coordinate systems.<br />
34. Personification of fire.<br />
36. New York based law book publisher.<br />
38. Feline.<br />
39. Measure <strong>for</strong> most statutes of limitation.<br />
41. Disorder.<br />
43. Self-impressed connoisseur.<br />
46. Underwriters Laboratories, Inc. (Environmental<br />
law acronym).<br />
47. Male name, <strong>for</strong>m of Salvatore.<br />
48. Number of the "states' rights" amendment.<br />
Crossword solution is on page 36
Eliminating the Blackacre Opportunity Cost<br />
Using Real-World “Targeted Fact Environments” in First-Year LR&W Courses<br />
By Charles E. MacLean<br />
Generations of law school<br />
students have wrestled with law<br />
school fact patterns regarding<br />
Blackacre, or Dewey, Cheatem, & Howe,<br />
<strong>and</strong> so on, as they learned to apply<br />
the law in one law school course after<br />
another. And first-year legal research<br />
<strong>and</strong> writing (“LR&W”) students are<br />
obliged to survive whatever more-orless<br />
vetted fact patterns the program<br />
or professor or text has provided that<br />
year. If a substantial portion of first-year<br />
LR&W assignments grew instead out<br />
of a single “targeted fact environment,”<br />
with real-world value, those first-year<br />
LR&W students would still learn the<br />
same legal research <strong>and</strong> writing skills<br />
<strong>and</strong> resources, but would also per<strong>for</strong>ce<br />
learn about the contours <strong>and</strong> depth of<br />
the targeted fact environment. And<br />
when that targeted fact environment<br />
is relevant to achieving a key part of<br />
the law school’s vision or mission, <strong>and</strong><br />
involves a real-world set of important<br />
legal issues confronting real people<br />
<strong>and</strong> institutions in our communities,<br />
that provides a springboard <strong>for</strong><br />
teaching all the same legal research<br />
<strong>and</strong> writing skills many have used<br />
Blackacre-type scenarios to transmit<br />
up to now, but also creates motivated<br />
first-year LR&W students, in<strong>for</strong>ms an<br />
entire cohort of students about critical<br />
legal problems in our communities,<br />
gives life to our law schools’ mission<br />
statement pronouncements that we are<br />
committed to diversity, pro bono service,<br />
community outreach, etc., provides<br />
important legal research to non-profit<br />
agencies <strong>and</strong> needy people in our<br />
communities, <strong>and</strong> fosters a student body<br />
that values pro bono service as a natural<br />
outgrowth of our profession rather than<br />
a chore or afterthought.<br />
To start on this critical path, a LR&W<br />
professor or program only needs: (1) a<br />
community constituency in need, (2) a<br />
substantial legal problem or set of legal<br />
problems confronting that constituency,<br />
(3) a cooperative LR&W director <strong>and</strong><br />
academic dean, <strong>and</strong> (4) enough time to<br />
craft or obtain a broad scenario on point<br />
<strong>and</strong> weave it into the LR&W assignments<br />
throughout the year. Failing to take this<br />
path is a decision to continue to pay the<br />
Blackacre opportunity cost.<br />
Why in LR&W Classes?<br />
Whatever pedagogical quest is realized<br />
within an upper level elective benefits<br />
only those few students who take the<br />
elective. On the other h<strong>and</strong>, every<br />
student in each cohort must take LR&W<br />
in the first-year curriculum. Thus,<br />
LR&W students are a captive audience.<br />
Whatever pedagogical quest one realizes<br />
in the first-year LR&W program benefits<br />
every student in that entire cohort. <strong>The</strong>re<br />
is a clear opportunity cost when we fail<br />
to achieve something a bit more gr<strong>and</strong><br />
in those first-year LR&W courses. <strong>The</strong><br />
answer lies in simply using targeted<br />
fact environments on which to base<br />
a good share of the first-year LR&W<br />
assignments instead of relying on the<br />
Blackacre fare many now use.<br />
Within a single “targeted fact<br />
environment” lies the source material<br />
<strong>for</strong> assignments useful in every LR&W<br />
course module: (1) statutory, rule,<br />
caselaw, <strong>and</strong> secondary research, (2)<br />
Bluebook or ALWD citations <strong>for</strong> that<br />
research, (3) predictive writing <strong>and</strong> oral<br />
presentation, (4) persuasive writing <strong>and</strong><br />
oral argument, <strong>and</strong> (5) every other topic<br />
<strong>and</strong> sub-topic in any LR&W course.<br />
Using such a targeted fact environment<br />
throughout the first-year LR&W<br />
curriculum would create a cohort of<br />
students, who, having taken that course<br />
with that “targeted fact environment,”<br />
will have developed all the same legal<br />
research <strong>and</strong> writing skills that would<br />
have been learned using the traditional<br />
r<strong>and</strong>om “Blackacre” fact pattern<br />
construct, but with a real <strong>and</strong> abiding<br />
knowledge of issues involved in that<br />
targeted fact environment. Sounds like a<br />
win-win.<br />
Sources <strong>for</strong> Targeted Fact<br />
Environments<br />
Once a program or professor chooses<br />
to use the targeted fact environment<br />
framework, the next task is to determine<br />
the target. Possible sources <strong>for</strong> targeted<br />
fact environments include: (1) the law<br />
school’s mission <strong>and</strong> vision statements,<br />
(2) the ABA St<strong>and</strong>ards, (3) local<br />
newspapers, <strong>and</strong> (4) area non-profit or<br />
governmental organizations serving the<br />
needs of area clients.<br />
From School’s Vision/Mission<br />
Statements:<br />
Let’s say the law school’s mission<br />
statement provides that the school is<br />
committed to serving “humanity,” <strong>and</strong><br />
“underserved rural communities in the<br />
Appalachian region.” In the light of the<br />
highlighted portions of that law school’s<br />
mission statement, the LR&W program<br />
or professor may choose to devise a<br />
targeted fact environment that focuses on<br />
an assemblage of legal issues <strong>and</strong> legal<br />
needs confronting rural communities<br />
in Appalachia, such as utility shut-offs,<br />
uninsured or underinsured medical<br />
care, homelessness, alcoholism <strong>and</strong><br />
drug abuse, social security, Medicaid<br />
<strong>and</strong> Medicare eligibility, SSI disability,<br />
workers’ compensation, <strong>and</strong> the like. In<br />
that way, in the first year, law students<br />
are confronting <strong>and</strong> learning about issues<br />
that may otherwise be covered in law<br />
school, if at all, only through electives<br />
touching only a small percentage of<br />
each cohort. Placing those issues, via<br />
the targeted fact environments, into<br />
first-year LR&W courses guarantees<br />
that every matriculant will be exposed<br />
to <strong>and</strong> will develop an awareness of<br />
those precise legal challenges the law<br />
school felt were important enough to<br />
incorporate into its vision or mission<br />
statements. Any key quest identified<br />
in any law school vision or mission<br />
statement can serve as a rich source of<br />
ideas <strong>for</strong> targeted fact environments.<br />
— continued on page 14<br />
THE LAW TEACHER | SPRING 2013 | 13
Eliminating the Blackacre Opportunity Cost<br />
— continued from page 13<br />
From ABA St<strong>and</strong>ards:<br />
One example will suffice to illustrate the<br />
concept. ABA St<strong>and</strong>ard 302 provides in<br />
part that each law school “shall” offer<br />
substantial opportunities <strong>for</strong> student<br />
pro bono activities, which may be creditbearing<br />
or not. Thus, a targeted fact<br />
environment in a credit-bearing LR&W<br />
course could focus on the real needs<br />
of persons <strong>and</strong> institutions in need in<br />
our communities. For example, a local<br />
social service agency serving homeless<br />
veterans or crime victims could benefit<br />
from legal research (even from first-year<br />
law students) on matters confronting<br />
their clients. <strong>The</strong> benefit to the outside<br />
agency is clear, but the benefit to our<br />
students is even clearer. Instead of<br />
rolling their collective eyes at yet another<br />
make-believe Blackacre scenario, those<br />
first-year LR&W students would be<br />
tasked to do what many of them came<br />
to law school to do – help others. This<br />
would energize <strong>and</strong> involve the LR&W<br />
students, <strong>and</strong> improve student learning<br />
outcomes. Another win-win.<br />
From Today’s News:<br />
As one recent example, a local explosion<br />
of sorts arose of late from a particularly<br />
egregious case of judicial misconduct<br />
in the Knoxville area. That could have<br />
yielded a number of real-world <strong>and</strong><br />
engaging targeted fact environments.<br />
<strong>The</strong> scenario played out as follows<br />
based on court findings. A trial judge<br />
routinely consumed 10-20 Oxycodone<br />
tablets on days when he was presiding<br />
in a series of high-profile murder trials<br />
over a period of several years. He had<br />
obtained some of those pills from a<br />
14 THE | THE LAW LAW TEACHER | SPRING | SPRING 2013 2013 | 14<br />
felony probationer he had himself<br />
sentenced. <strong>The</strong> Judge also obtained<br />
sexual favors from that probationer, at<br />
times in his chambers. <strong>The</strong> Judge even<br />
fell asleep during more than one of those<br />
murder trials. Eventually, the Judge was<br />
prosecuted <strong>for</strong> Misconduct in Office <strong>and</strong><br />
entered into a diversion agreement. <strong>The</strong><br />
successor judge, serving as thirteenth<br />
juror in a number of those murder trials,<br />
found structural error, <strong>and</strong> cast doubt<br />
on all the murder convictions, since the<br />
original Judge had not been competent<br />
to preside.<br />
<strong>The</strong> targeted fact environment could<br />
have addressed chemical dependency,<br />
right to fair trial, due process, structural<br />
error, professional responsibility, <strong>and</strong><br />
the like. <strong>The</strong>y would study the issues on<br />
one day, <strong>and</strong> read the latest news <strong>and</strong><br />
developments the next. Another winwin.<br />
From Collaborations with<br />
Non-Profits:<br />
Perhaps the most fool-proof way to<br />
obtain nearly all the advantages of<br />
using targeted fact environments in<br />
first-year LR&W classes can be realized<br />
by partnering with a non-profit agency<br />
serving persons in need in the areas<br />
around our law schools. Depending on<br />
the collaboration, the agency chosen,<br />
<strong>and</strong> the topics at issue, that approach<br />
would help achieve law school vision<br />
<strong>and</strong> mission statement goals, inculcate<br />
pro bono energy in our LR&W cohorts,<br />
serve our hinterl<strong>and</strong>s, energize a cohort<br />
of LR&W students by having them<br />
help real neighbors with real problems,<br />
Submit articles to <strong>The</strong> <strong>Law</strong> <strong>Teacher</strong><br />
<strong>The</strong> <strong>Law</strong> <strong>Teacher</strong> encourages<br />
readers to submit brief articles<br />
explaining interesting <strong>and</strong><br />
practical ideas to help law<br />
professors become more effective<br />
teachers.<br />
Articles should be 500 to 1,500 words<br />
long. Footnotes are neither necessary nor<br />
desired. We encourage you to include<br />
Please e-mail manuscripts to Barb<br />
Anderson at b<strong>and</strong>erson2@lawschool.<br />
gonzaga.edu. For more in<strong>for</strong>mation<br />
respond to <strong>and</strong> achieve ABA St<strong>and</strong>ards,<br />
<strong>and</strong> ensure that entire cohorts (<strong>and</strong> not<br />
just select students taking later electives)<br />
will be in<strong>for</strong>med about key issues <strong>and</strong><br />
constituencies selected by the school.<br />
Conclusion<br />
Using this targeted fact environment<br />
approach would create a more relevant<br />
first-year LR&W experience, in<strong>for</strong>m<br />
<strong>and</strong> energize an entire captive cohort<br />
on issues of import to our communities,<br />
provide a public service, help our<br />
students make a difference in the<br />
first year, <strong>and</strong> avoid or eliminate<br />
the Blackacre opportunity cost. And<br />
this path would further crystallize<br />
some of the recent literature on ways<br />
to incorporate LR&W into doctrinal<br />
courses, meld LR&W <strong>and</strong> clinical<br />
courses, create more practice-ready<br />
graduates, improve our relevance <strong>and</strong><br />
footprint in our communities, help meet<br />
enhanced ABA scrutiny, <strong>and</strong> enhance<br />
pro bono service mindsets. What Dean<br />
would oppose teaching the same skills in<br />
LR&W, while simultaneously gaining so<br />
many other benefits? <strong>Law</strong> schools cannot<br />
af<strong>for</strong>d the Blackacre opportunity cost<br />
any longer, so as part of the shift toward<br />
experiential learning <strong>and</strong> practice-ready<br />
graduates, law schools should adopt<br />
targeted fact environments <strong>for</strong> first-year<br />
LR&W courses.<br />
____________<br />
Charles E. MacLean is an Assistant<br />
Professor at Lincoln Memorial University-<br />
Duncan School of <strong>Law</strong>. Contact him at<br />
Charles.MacLean@lmunet.edu.<br />
contact the co-editors: Tonya Kowalski<br />
at tonya.kowalski@washburn.edu,<br />
<strong>and</strong> S<strong>and</strong>ra Simpson at ssimpson2@<br />
lawschool.gonzaga.edu.
Reflection, Reality, <strong>and</strong> a Real Audience: Ideas from the Clinic<br />
By Dana M. Malkus<br />
For a variety of reasons too<br />
numerous <strong>and</strong> complex to recount<br />
here, law teachers are increasingly<br />
expected to provide law students with<br />
more feedback <strong>and</strong> assessment. This<br />
is especially true <strong>for</strong> those who teach<br />
“doctrinal” courses. As a clinician,<br />
frequent feedback <strong>and</strong> assessment are<br />
common <strong>and</strong> essential parts of my<br />
teacher-student relationships. I believe<br />
the clinical model provides at least three<br />
simple—but important—lessons that can<br />
in<strong>for</strong>m all law teaching.<br />
First, law teachers should provide<br />
students ample opportunities to<br />
practice reflective self-assessment.<br />
Clinical legal education—like many<br />
other disciplines—places a high value on<br />
reflective self-assessment. At their core,<br />
lawyers are problem-solvers. In my view,<br />
effective <strong>and</strong> creative problem-solvers<br />
are those who admit to, <strong>and</strong> learn from,<br />
mistakes (rather than being held captive<br />
by the fear of making them). My goal is<br />
to help students learn to self-assess so<br />
that they can grow from each experience<br />
<strong>and</strong> continue to improve their skills in<br />
practice. I want self-reflection to become<br />
a habit <strong>for</strong> my students because I believe<br />
it will make them more competent<br />
problem-solvers <strong>and</strong> better professionals<br />
(whether they practice law or pursue<br />
some other work).<br />
Self-assessment is a useful tool that<br />
law teachers can employ <strong>for</strong> a variety<br />
of purposes, including (1) empowering<br />
students to take an active role in their<br />
own learning, (2) motivating students<br />
to more fully engage with the course,<br />
<strong>and</strong> (3) helping students develop into<br />
more competent professionals able to<br />
both tackle a variety of client problems<br />
<strong>and</strong> manage the consequences of their<br />
own (inevitable) mistakes. Reflective<br />
self-assessment is a skill that should be<br />
taught not only in the clinical setting,<br />
but throughout the entire curriculum.<br />
Here are three ideas <strong>for</strong> helping students<br />
develop this skill:<br />
1. In a course where written assignments<br />
(of any kind) are used, ask students to<br />
answer simple reflection questions as<br />
part of the assignment. For example:<br />
What do I like most about this work<br />
product? What am I most concerned<br />
about with respect to this work<br />
product? How much time did I spend<br />
on this assignment?<br />
2. Ask students to answer simple<br />
reflection questions when you h<strong>and</strong><br />
back any graded assignments. For<br />
example: What is one thing I did<br />
well on this assignment? What is one<br />
mistake I made that I will correct in<br />
future work product?<br />
3. Ask students to reflect on their<br />
experience with the course. For<br />
example: What should I start doing<br />
that I am not already doing? What<br />
should I stop doing that I am currently<br />
doing, but which is not working very<br />
well? What should I continue doing<br />
because it is working well?<br />
Second, law teachers should bring<br />
reality into the classroom whenever<br />
possible. In the clinic, I generally enjoy<br />
motivated students. Students are<br />
motivated—at least in part—because<br />
they are working on real matters<br />
with real clients <strong>and</strong> have real ethical<br />
responsibilities to those clients. In<br />
addition, they are interacting with real<br />
lawyers, making professionalism <strong>and</strong><br />
networking concrete realities. <strong>The</strong> “realness”<br />
factor also motivates me. I am<br />
motivated to give students frequent <strong>and</strong><br />
concrete feedback, not only because it<br />
is my professional duty to do so, but<br />
because they are practicing under my<br />
license.<br />
Here are two ideas <strong>for</strong> bringing more<br />
reality into the classroom:<br />
1. Collaborate with a clinician to<br />
generate a real world problem, <strong>and</strong><br />
associated real world documents,<br />
to use in the classroom (taking<br />
appropriate measures to preserve<br />
confidentiality). Ask students to come<br />
to class prepared to discuss their<br />
proposed strategy <strong>for</strong> addressing the<br />
problem, or do a simulation in class.<br />
Invite the clinician <strong>and</strong> the clinic<br />
students who worked on the problem<br />
to offer feedback as to the students’<br />
proposed approaches to the problem.<br />
2. Talk with a clinician or practicing<br />
lawyer about policy issues he or<br />
she sees affecting clients. Invite that<br />
person to class to present the issue to<br />
the class <strong>and</strong> have the class work on<br />
strategies <strong>for</strong> addressing the issue.<br />
Third, law teachers should help<br />
students internalize the concept of<br />
“audience.” In the clinic, I provide<br />
students with frequent individual<br />
feedback on written work. In addition,<br />
I help them prepare <strong>for</strong> client meetings<br />
by using role play <strong>and</strong> other techniques<br />
that allow them room to practice the<br />
upcoming client interaction. I have<br />
noticed that one aspect of this feedback<br />
process is particularly effective: helping<br />
students underst<strong>and</strong> <strong>and</strong> internalize that<br />
there is a real reader or listener on the<br />
other side of the communication.<br />
By asking questions that help students<br />
think about alternative choices (e.g.,<br />
other ways to interpret the statute,<br />
manage an identified risk, describe a<br />
problem, or build trust with the client)<br />
<strong>and</strong> underst<strong>and</strong> where I am confused,<br />
offended, doubtful, or surprised,<br />
students gain an awareness of audience<br />
<strong>and</strong> develop a greater sense of how to<br />
effectively speak to that audience. <strong>The</strong><br />
goal here is not to point out misspellings,<br />
grammar errors, or the overuse of “um”<br />
(though there certainly is a time <strong>for</strong> that).<br />
Instead, the goal is to help the student<br />
see the bigger picture. What is the<br />
communication trying to accomplish?<br />
Here are three ideas <strong>for</strong> helping students<br />
internalize the concept of audience:<br />
1. Ask students to prepare a short<br />
writing assignment related to the<br />
subject matter of the course (e.g.,<br />
draft a contract provision, write<br />
a client letter, or write a memo to<br />
— continued on page 16<br />
THE LAW TEACHER | SPRING 2013 | 15
Reflection, Reality, <strong>and</strong><br />
a Real Audience: Ideas<br />
from the Clinic<br />
the file). Choose a few to read<br />
anonymously in class, <strong>and</strong> give<br />
your impressions as the reader as<br />
you read them.<br />
2. Invite some practicing lawyers<br />
to visit your class, <strong>and</strong> explain<br />
to them your goal of helping<br />
students internalize audience.<br />
Assign students a short writing<br />
assignment to be completed prior<br />
to that class. Break the students<br />
into small groups, with one guest<br />
assigned to each group. Ask<br />
the guests to read the written<br />
product <strong>and</strong> offer brief “reader”<br />
impressions.<br />
3. Invite some practicing lawyers or<br />
a clinical faculty member <strong>and</strong> her<br />
students to visit your class, again<br />
explaining the goal of helping<br />
students internalize audience.<br />
Break students into small groups,<br />
with one guest assigned to each<br />
group. Provide a hypothetical<br />
scenario (based on the assigned<br />
course reading or on real problems<br />
the guests have seen in practice),<br />
<strong>and</strong> guide the groups through<br />
a role play of the scenario. At<br />
the end, ask each guest to share<br />
reactions he or she had during the<br />
role play to the communication<br />
coming from the students.<br />
Incorporating these kinds of<br />
learning strategies does not have to<br />
take an inordinate amount of time.<br />
By providing students with more<br />
opportunities to practice reflective<br />
self-assessment, apply doctrine to realworld<br />
problems, <strong>and</strong> communicate<br />
with an audience, law teachers can<br />
facilitate a more motivating <strong>and</strong><br />
productive classroom experience <strong>for</strong><br />
both student <strong>and</strong> teacher.<br />
____________<br />
— continued from page 13<br />
Dana M. Malkus is assistant clinical<br />
professor at St. Louis University School of<br />
<strong>Law</strong>. Contact her at millerdl@slu.edu.<br />
16 | THE LAW TEACHER | SPRING 2013<br />
Beyond the Legal Classroom:<br />
Leveraging Major Local Events to Engage<br />
Students <strong>and</strong> Further an Interdisciplinary<br />
Approach to the Study of <strong>Law</strong><br />
By Christie Stancil Matthews<br />
<strong>The</strong> topic of law school oftentimes<br />
elicits discussions of the Socratic<br />
Method, the pedagogical approach<br />
named <strong>for</strong> its originator, Socrates, that<br />
utilizes inquiry-based dialogue to help<br />
students think critically about issues of<br />
importance. 1 However, Socrates was also<br />
known <strong>for</strong> his interdisciplinary approach<br />
to learning, infusing discussions of<br />
religion, politics, arts <strong>and</strong> law to prepare<br />
his students to more effectively problemsolve.<br />
2 While Socratic dialogue remains<br />
a staple in many traditional law school<br />
classrooms today, there is a growing<br />
movement in legal education to also<br />
embrace more practical, experiential<br />
learning opportunities aimed at<br />
matriculating practice-ready <strong>and</strong><br />
professionally-mature attorneys. I think<br />
this paradigm shift particularly presents<br />
opportunities to employ the “other”<br />
Socratic Method—that is, embracing an<br />
interdisciplinary approach to learning<br />
the law.<br />
While many law schools are answering<br />
the call <strong>for</strong> practical learning by creating<br />
or <strong>for</strong>tifying clinical programs, law<br />
students can benefit as well from law<br />
schools leveraging newsworthy local<br />
events to further engage students in the<br />
larger community in which they will<br />
practice <strong>and</strong> to encourage studying the<br />
law in a real-world, interdisciplinary<br />
context. One such example is the<br />
Charlotte School of <strong>Law</strong>’s response to<br />
the Democratic National Convention<br />
(“DNC”) that took place September<br />
4-6 ,2012, in Charlotte, North Carolina,<br />
not five miles from our law school’s<br />
doorstep.<br />
In recognition of the unprecedented<br />
learning opportunity that the DNC<br />
presented, my school’s administration<br />
<strong>for</strong>med an internal ad hoc team<br />
whose goal was to identify <strong>and</strong> create<br />
opportunities <strong>for</strong> our students to engage<br />
in election-related legal discourse <strong>and</strong><br />
to participate in the democratic process<br />
through a variety of methods. I had the<br />
privilege of serving as co-chair of that<br />
non-partisan team, which we called the<br />
Civic Engagement Team, <strong>and</strong> took on<br />
the specific year-long responsibility of<br />
leading a group of 20 faculty, staff <strong>and</strong><br />
students in creating programming <strong>for</strong><br />
our student body that would achieve<br />
the team’s goal. Our team’s motto was<br />
“Engage. Explore. Advocate.” This<br />
slogan reflected our desire <strong>for</strong> students<br />
to explore the issues surrounding the<br />
presidential election <strong>and</strong> our recognition<br />
that such exploration could even spark a<br />
career interest in advocacy around some<br />
of these issues.<br />
While we could have easily chosen a<br />
less ambitious agenda, we instead took<br />
a robust, comprehensive approach that<br />
resulted in a plethora of opportunities<br />
<strong>for</strong> student engagement. We invited<br />
guest speakers like Judith Corley, general<br />
counsel of the Democratic National<br />
Convention, as well as Mark Davis,<br />
general counsel to then-North Carolina<br />
Governor Beverly Perdue. We organized<br />
<strong>for</strong>ums to further discussion on hotbutton<br />
political topics, including an<br />
Immigration Forum, Food <strong>Law</strong> Forum,<br />
<strong>and</strong> a Civic Engagement Forum that<br />
included election-related workshops<br />
with topics such as “<strong>Law</strong>yer as Leader”<br />
<strong>and</strong> “Grassroots Political Organizing.”<br />
— continued on page 17
Beyond the Legal Classroom<br />
— continued from page 16<br />
We arranged small group lunches<br />
<strong>and</strong> dinners <strong>for</strong> students to talk more<br />
intimately with various leaders, from<br />
local city councilmen to election law<br />
scholars to national government agency<br />
leaders. We held a political blogging<br />
contest <strong>and</strong> had the winners blog<br />
during the week of the DNC from a<br />
downtown social media office hub. We<br />
provided students with in<strong>for</strong>mation on<br />
internships <strong>and</strong> volunteer opportunities<br />
in the political arena, which resulted<br />
in our students working with many of<br />
the major players in the conventionorganizing<br />
process, serving as election<br />
poll watchers <strong>and</strong> registering voters. We<br />
worked with other groups in the school<br />
to promote, encourage <strong>and</strong> support their<br />
election–related initiatives, including<br />
an Election-<strong>Law</strong> Symposium organized<br />
by the law review. We held convention<br />
watch parties <strong>and</strong> invited an election law<br />
expert to speak be<strong>for</strong>eh<strong>and</strong>.<br />
Through these activities, students were<br />
able to tie the traditional legal theory<br />
to their socio-economic <strong>and</strong> political<br />
counterparts to provide a more realistic<br />
framework in which to learn the law. For<br />
example, students in an Immigration<br />
<strong>Law</strong> course were able to sit <strong>and</strong> dialogue<br />
with the Director of the U.S. Office<br />
of Immigration Review <strong>and</strong> attend a<br />
<strong>for</strong>um where they brainstormed with<br />
various community stakeholders on<br />
ways to address some of the more salient<br />
immigration dilemmas affecting the<br />
election. Discussions of legal re<strong>for</strong>m<br />
were interlaced with discussions of<br />
socio-economic concerns <strong>and</strong> political<br />
influences.<br />
Students were also able to engage in<br />
experiential learning opportunities.<br />
For example, some of our students<br />
interned in the offices of the Democratic<br />
National Convention Committee <strong>and</strong><br />
reviewed vendor contracts. Additionally,<br />
the opportunities created by the Civic<br />
Engagement Team provided avenues<br />
<strong>for</strong> students to use <strong>and</strong> develop skills<br />
that are not traditionally the focus in law<br />
school, such as blogging about political<br />
issues.<br />
<strong>The</strong> result of our Civic Engagement<br />
Team’s ef<strong>for</strong>ts was to leverage the<br />
excitement already felt by many of our<br />
students because of the proximity of the<br />
DNC <strong>and</strong> to further engage them in the<br />
legal learning process.<br />
While the DNC was the major local event<br />
that was the catalyst <strong>for</strong> the creation of<br />
these additional learning opportunities<br />
at Charlotte School of <strong>Law</strong>, other major<br />
events can provide equally engaging<br />
opportunities, such as the Olympics<br />
or Super Bowl, local summits or<br />
conferences organized by well-known<br />
national or international organizations,<br />
or nearby natural disasters. All of these<br />
events can provide opportunities to<br />
introduce other disciplines, including<br />
social science concerns, environmental<br />
matters, economic viewpoints, as well<br />
as political issues, <strong>and</strong> can help foster an<br />
interdisciplinary approach to learning<br />
the law.<br />
When these opportunities arise, we<br />
as law professors can best serve our<br />
students by finding ways to connect the<br />
material we teach in class to any broader<br />
initiative by the school. For example,<br />
many of my colleagues helped support<br />
the ef<strong>for</strong>ts of the Civic Engagement Team<br />
by either directly serving on the team<br />
or serving as workshop leaders. Still<br />
others identified experiential learning<br />
opportunities in convention-related<br />
activities or awarded students additional<br />
participation points <strong>for</strong> attending my<br />
team’s activities. Others were able to<br />
weave election-related material into<br />
their classrooms through references<br />
in hypotheticals <strong>and</strong> in lectures. In<br />
doing so, many were able to bridge the<br />
classroom with the larger world in which<br />
our students will soon practice <strong>and</strong>, as<br />
such, bolster our students’ interest in<br />
<strong>and</strong> learning of the material.<br />
We are training our students not to think<br />
in a vacuum but to become professionals<br />
<strong>and</strong> leaders that create pragmatic<br />
solutions <strong>for</strong> the betterment of their<br />
clients <strong>and</strong>, ideally, the community at<br />
large. By dovetailing involvement with<br />
major local events to the classroom <strong>and</strong><br />
experiential learning opportunities, law<br />
schools can exp<strong>and</strong> upon the Socratic<br />
tradition <strong>and</strong>, in the process, better heed<br />
the call to ground legal education in the<br />
practical world in which our students<br />
will serve.<br />
____________<br />
Christie Stancil Matthews is an<br />
Assistant Professor at Charlotte School<br />
of <strong>Law</strong>. You may contact her at<br />
cmatthews@charlottelaw.edu.<br />
____________<br />
1 Lisa R. Lattuca, Lois J. Voight, & Kimberly Q. Fath,<br />
Does Interdisciplinarity Promote <strong>Learning</strong>? <strong>The</strong>oretical<br />
Support <strong>and</strong> Researchable Questions, 28 Rev. High<br />
Educ. 23, 34 (Fall 2004).<br />
2 Mary L. Radnofsky, <strong>The</strong> Case <strong>for</strong> an Interdisciplinary<br />
Education, Socrates <strong>Institute</strong> (1995), http://www.<br />
socratesinstitute.org/research/treatise.html.<br />
THE LAW TEACHER | SPRING 2013 | 17
<strong>Teaching</strong> Statute Reading Basics in a First Year Doctrinal Course:<br />
A H<strong>and</strong>out <strong>and</strong> Suggested Classroom Exercises<br />
By Deborah Maranville<br />
Although dating back decades,<br />
the call to incorporate into legal<br />
education greater attention<br />
to statute reading has increased<br />
significantly in volume over the past<br />
decade, with the first year a special<br />
focus of concern. In recent years, many<br />
schools have adopted a first-year<br />
course designed to focus students on<br />
legislation <strong>and</strong> statutory interpretation.<br />
Nonetheless, in contrast to the deluge<br />
of study aids on how to brief cases,<br />
accessible guides <strong>for</strong> students on<br />
the basics of statute reading remain<br />
relatively rare.<br />
Likewise, the otherwise burgeoning<br />
literature on teaching techniques <strong>for</strong> law<br />
school is thin when it comes to strategies<br />
<strong>for</strong> helping students learn the basics<br />
of statute reading. Yes, legal analysis,<br />
research, <strong>and</strong> writing texts include<br />
chapters on statutory analysis, but<br />
these are typically detailed. 1 And upper<br />
division teachers of tax, UCC <strong>and</strong> other<br />
statute- focused courses purport to teach<br />
statute reading skills, but these upper<br />
division courses tend to be subject-matter<br />
specific in approach <strong>and</strong> to assume<br />
some basic ability to parse a statute.<br />
A review of resources on teaching law<br />
yielded little in the way of suggestions<br />
<strong>for</strong> how to incorporate the teaching of<br />
statute reading skills into a first-year<br />
course, apart from using problems that<br />
require careful statute reading in order<br />
to reach an answer. 2 Thus, I offer the<br />
following “h<strong>and</strong>out” <strong>for</strong> students as<br />
a basic introduction, along with brief<br />
suggestions <strong>for</strong> how to rein<strong>for</strong>ce the<br />
contents through in-class activities.<br />
18 | THE LAW TEACHER | SPRING 2013<br />
<strong>The</strong> H<strong>and</strong>out<br />
______________________<br />
How to Read a Statute: MAP It!<br />
By Deborah Maranville<br />
Introduction<br />
For the past century <strong>and</strong> more, the<br />
dominant approach to legal education<br />
has been the “case method,” in which<br />
students are said to learn the law, <strong>and</strong><br />
the glory of the common law system<br />
of precedent <strong>and</strong> stare decisis, by<br />
reading appellate cases. Because of this<br />
emphasis on appellate cases, especially<br />
in the first year of law school, many<br />
students graduate with skewed instincts<br />
<strong>for</strong> approaching a legal research task:<br />
they start their research by looking <strong>for</strong><br />
appellate cases.<br />
Yet we live in what <strong>for</strong>mer Yale <strong>Law</strong><br />
School Dean <strong>and</strong> Commissioner of<br />
Major League baseball Guido Calabresi<br />
termed “<strong>The</strong> Age of Statutes.” Statutes<br />
are everywhere, regulating everincreasing<br />
portions of modern life.<br />
Few legal areas are now immune from<br />
statutes. Thus, <strong>for</strong> the vast majority of<br />
legal problems, the primary source of<br />
law is statutory. As a result, learning<br />
how to read a statute has become at least<br />
a co-equal task with learning how to<br />
read a case. Although a veritable cottage<br />
industry has developed that purports<br />
to teach students how to “brief” cases,<br />
introductory resources on how to read a<br />
statute (or an administrative regulation,<br />
or codified court rule such as the Federal<br />
Rules of Civil Procedure) are more<br />
limited. Legal education lacks a short,<br />
snappy, introductory overview of the<br />
skill. <strong>The</strong> following pages attempt to fill<br />
that gap.<br />
Overview<br />
<strong>The</strong> basic stages of reading a statute can<br />
be summarized in three steps, easily<br />
remembered using the acronym MAP:<br />
M = Method<br />
A = Ambiguity<br />
P = Purpose, Policy, Protocols<br />
<strong>The</strong> Cardinal Rule<br />
But be<strong>for</strong>e you proceed to these three<br />
stages, you need to take a deep breath<br />
<strong>and</strong> remember the cardinal rule of<br />
statute reading: SLOW DOWN. Or, to<br />
emphasize the point in a different way:<br />
Slooooooooooooooowwwwwwwww<br />
Dooooooooooooooowwwwwwwwnnn.<br />
Many issues of statutory interpretation<br />
revolve around extremely picky<br />
questions concerning how the statute<br />
is organized, or just which word the<br />
legislature used. A classic example is<br />
“did the legislature say ‘<strong>and</strong>’? Or did it<br />
say ‘or’?” Thus, while you should always<br />
use your skimming skills to underst<strong>and</strong><br />
where a specific statutory provision fits<br />
into the larger whole, save your speed<br />
reading skills <strong>for</strong> another occasion.<br />
M - Method<br />
Once you have slowed down, your<br />
method <strong>for</strong> reading the statute will<br />
involve two steps: If you are lucky,<br />
you will have one or more professors<br />
in the first year who will go through<br />
this process with you in detail <strong>and</strong><br />
demonstrate their own methods <strong>for</strong><br />
reading a statute.<br />
Step 1. Orient yourself.<br />
Put your specific statutory provision in<br />
context by browsing the table of contents<br />
Be<strong>for</strong>e you even begin to read a<br />
particular statutory provision, first<br />
engage in a very quick “pre-reading”<br />
exercise by skimming the code’s table of<br />
contents. You will be able to underst<strong>and</strong><br />
a specific statutory provision much more<br />
easily if you have a sense of how it fits<br />
into the broader statutory scheme. If you<br />
are given an out-of-context excerpt of a<br />
— continued on page 19
<strong>Teaching</strong> Statute Reading Basics in a First Year Doctrinal Course<br />
statute in a casebook, quickly type in the<br />
citation in Lexis or Westlaw so you can<br />
see the table of contents surrounding<br />
that excerpted section.<br />
Step 2. Read the statute.<br />
Reread the statute. Diagram the statute.<br />
Take the statute apart <strong>and</strong> work with it<br />
word by word until you are confident<br />
you underst<strong>and</strong> what it says.<br />
What are you looking <strong>for</strong> as you read the<br />
statute? Approaches to statute reading<br />
vary, just as approaches to briefing<br />
cases vary. Some people try to break the<br />
statute into “elements,” the key activities<br />
that together will trigger a particular<br />
legal result. Others use an “If . . . then”<br />
structure, <strong>for</strong> the same purpose: identify<br />
the “ifs,” the predicates that trigger the<br />
statutory “thens.” A third approach is<br />
to diagram the statute much as English<br />
grammar teachers sometimes teach<br />
students to diagram sentences (or used<br />
to!), identifying especially the subjects<br />
<strong>and</strong> verbs, scrutinizing the conjunctions<br />
(<strong>and</strong>, or), <strong>and</strong> the modifiers with care.<br />
Once you know what you are looking<br />
<strong>for</strong> when reading a statute or rule, think<br />
about what technique might work well<br />
<strong>for</strong> your learning style. Options include:<br />
in a PowerPoint or word processing<br />
program, insert line breaks after each<br />
phrase or critical word, then increase<br />
the font size of important or ambiguous<br />
terms, or highlight them. Or, color code<br />
the language so that, <strong>for</strong> instance, the key<br />
ambiguities or all conjunctions are the<br />
same color. Any method is fine, if it gets<br />
you pulling the statute apart in a way<br />
that you can underst<strong>and</strong> it accurately.<br />
A - Ambiguity<br />
— continued from page 18<br />
Many lawsuits involve a dispute over<br />
the meaning of a statute. Typically<br />
these disputes arise either because the<br />
language of the statute is ambiguous in<br />
some way, or because the result reached<br />
through a literal application of the<br />
statute seems absurd, or inconsistent<br />
with what the legislature seems to have<br />
intended. Thus, in reading statutes the<br />
second step is to look <strong>for</strong> the ambiguities.<br />
Did the legislature use what might be<br />
uncharitably termed “weasel words,”<br />
that is words like “reasonable” or<br />
“substantial” that will predictably<br />
generate disagreement over their<br />
meaning? Is the statute grammatically<br />
ambiguous, perhaps because it is not<br />
clear what word a phrase modifies?<br />
For instance, in the Florida election cases<br />
from 2000, a significant question was<br />
how to interpret a statute that provided:<br />
“If [a] manual recount indicates an error<br />
in the vote tabulation which could affect<br />
the outcome of the election, the county<br />
canvassing board shall . . . .” Was the<br />
statute directed at all errors in the vote<br />
tabulation, because any errors might<br />
affect the outcome? Or was it aimed<br />
at limiting relief to a limited subset of<br />
errors so significant that the outcome<br />
could predictably be affected?<br />
Predicting when a court will find a<br />
statute to be ambiguous takes both<br />
experience <strong>and</strong> good judgment. As you<br />
read cases, be alert to the arguments<br />
parties make about when statutes are<br />
ambiguous, <strong>and</strong> how the courts respond,<br />
so you can hone your skills in this area.<br />
P - Protocols: Plain Meaning,<br />
Precedent, Purpose, Policy, etc.<br />
<strong>The</strong> third step in reading statutes is to<br />
learn the protocols, or “codes of correct<br />
conduct” that courts use in resolving<br />
ambiguities in statutes. Entire books<br />
are written on this subject <strong>and</strong> entire<br />
courses taught on it, <strong>and</strong> within the<br />
legal profession, we lack agreement<br />
on which approaches are “correct” or<br />
permissible. Thus, any brief introduction<br />
will inevitably oversimplify. <strong>The</strong> United<br />
States Supreme Court is divided as to<br />
which “protocols” are legitimate, but<br />
most advocates <strong>and</strong> lower courts will<br />
draw on all of them, as they seem useful.<br />
At this stage, you should become familiar<br />
with the following protocols, <strong>and</strong> the<br />
sources relied on by followers of each<br />
approach.<br />
• Protocol: <strong>The</strong> Plain Meaning Rule<br />
(also known as “textualism”). Sometimes<br />
a court will simply announce, by fiat,<br />
that no ambiguity exists, <strong>and</strong> claim<br />
that the “plain meaning” of the statute,<br />
typically using dictionary definitions,<br />
is unambiguous. (This can be amusing<br />
in a case that reaches the U.S. Supreme<br />
Court, where the court splits 5-4 <strong>and</strong><br />
reverses the lower courts.) Justice Scalia<br />
is particularly fond of this protocol.<br />
Sources: Dictionaries <strong>and</strong> Canons<br />
of Construction. In arguing “plain<br />
meaning,” lawyers often resort to rules<br />
of interpretation, known as canons of<br />
construction, that are usually referred<br />
to by their Latin names. A widely used<br />
example is expression unius est exclusio<br />
alterius. (<strong>The</strong> expression of one specific<br />
thing is the exclusion of another.)<br />
Karl Llewellyn, the famous legal<br />
realism theorist of the mid-twentieth<br />
century, argued that these canons are<br />
indeterminate, because they come in<br />
matched <strong>and</strong> contradictory pairs.<br />
• Protocol: Legislative Intent (also<br />
known as “originalism”). A second<br />
approach is to interpret the statute in the<br />
fashion that will best further the intent<br />
of the legislature. In trying to determine<br />
the intent of the legislature, a court will<br />
often look at the legislative history of the<br />
statute.<br />
Source: Legislative History. What<br />
did the committees that drafted or<br />
considered the statute say in committee<br />
reports? What claims did supporters<br />
make in legislative hearings, or debate<br />
on the floor of the legislature, about how<br />
the statute should be interpreted?<br />
• Protocol: Precedent. Sometimes,<br />
the court will interpret a statute in a<br />
particular way, because that’s the way<br />
it’s always been done. In other words,<br />
the court will rely on prior precedent.<br />
Sources: <strong>The</strong> cases in all those opinions<br />
you’re reading.<br />
• Protocol: Purpose. Often the court will<br />
engage in “purposive reasoning,” trying<br />
to identify the purpose <strong>for</strong> the statute<br />
by asking, “What was the legislature<br />
trying to accomplish?” <strong>and</strong> “What<br />
— continued on page 20<br />
THE LAW TEACHER | SPRING 2013 | 19
<strong>Teaching</strong> Statute Reading Basics in a First Year Doctrinal Course<br />
— continued from page 19<br />
interpretation will best further that<br />
purpose”?<br />
Sources: Historical context. What were<br />
the issues of the day when the legislature<br />
enacted the statute? What social<br />
problems was the legislature trying to<br />
address?<br />
• Protocol: Policy (often relied on by<br />
proponents of “dynamic” interpretation).<br />
Courts (<strong>and</strong> law professors asking their<br />
students to be pretend-judges) often<br />
ask “Which interpretation will lead to<br />
the ‘better’ result?” with “better” being<br />
evaluated in light of “policies,” such as<br />
certainty, predictability, efficiency, or<br />
fairness.<br />
Sources: Current contexts <strong>and</strong> public<br />
values. In evaluating policy, the courts<br />
will look at the current social context<br />
<strong>and</strong> evolution of societal values. For<br />
instance, they might evaluate how social<br />
<strong>and</strong> technological changes have altered<br />
the way a statute operates in practice.<br />
Should statutes or rules that specify<br />
how a lawyer must deliver court papers<br />
to an opposing lawyer be read broadly<br />
to permit delivery by e-mail or FAX<br />
technology? Or would that require a new<br />
or amended statute or rule?<br />
____________________________________<br />
Two Classroom Activities<br />
to Rein<strong>for</strong>ce the Lessons<br />
in the H<strong>and</strong>out<br />
<strong>The</strong> How to Read a Statute: MAP It!<br />
H<strong>and</strong>out can be usefully supplemented<br />
by classroom work. <strong>The</strong> following<br />
techniques can motivate students to read<br />
the h<strong>and</strong>out carefully <strong>and</strong> to develop<br />
basic statute reading skills.<br />
1. <strong>Teacher</strong> Demonstration<br />
With the use of presentation software<br />
such as PowerPoint or a document<br />
camera, you can easily demonstrate<br />
to the class one or more methods<br />
of breaking down a statute into its<br />
20 | THE LAW TEACHER | SPRING 2013<br />
component parts <strong>and</strong> identifying likely<br />
ambiguities. Begin with a reasonably<br />
short statutory provision projected on<br />
the screen, then demonstrate any of the<br />
techniques described in the h<strong>and</strong>out:<br />
break the statute down by inserting<br />
paragraph breaks, color coding,<br />
changing the font size, diagramming.<br />
When I taught Civil Procedure <strong>for</strong><br />
several years, I liked to start the course<br />
with diversity of citizenship subject<br />
matter jurisdiction, both in the course<br />
of a short march through the stages of a<br />
lawsuit, as well as the first in depth topic.<br />
This worked well <strong>for</strong> teaching both<br />
statute reading <strong>and</strong> initial case analysis,<br />
because the statute is reasonably short<br />
<strong>and</strong> accessible, <strong>and</strong> the casebook I used<br />
included relatively short <strong>and</strong> accessible<br />
cases (at least by comparison to personal<br />
jurisdiction!). Given the increasing role<br />
of statutes in the doctrine covered in<br />
the traditional first year courses, any<br />
of them could include some attention<br />
to statutes, <strong>and</strong>, in my view, at least<br />
several ought to do so. Most criminal<br />
law courses address the Model Penal<br />
Code, <strong>and</strong> contracts courses can include<br />
Uni<strong>for</strong>m Commercial Code provisions.<br />
Coverage of statutes in torts <strong>and</strong><br />
property courses is more variable, but<br />
suggestions from my own colleagues<br />
include a state l<strong>and</strong>lord-tenant act; the<br />
Civil Rights Acts of 1866 <strong>and</strong> 1964 <strong>and</strong><br />
a state human rights statute <strong>for</strong> the<br />
trespass section in property; <strong>and</strong> 230<br />
of the Communications Decency Act,<br />
which immunizes Internet plat<strong>for</strong>ms<br />
like Facebook <strong>for</strong> what users do <strong>and</strong> say<br />
on those plat<strong>for</strong>ms <strong>and</strong> is thus relevant<br />
background <strong>for</strong> torts committed via the<br />
Internet.<br />
2. Student Sharing<br />
As part of their class preparation assign<br />
students the task of breaking the statute<br />
apart. <strong>The</strong>n in class ask them to share<br />
their approaches with each other.<br />
Depending on the size of the class, you<br />
may wish to do this in small groups,<br />
with students then asked to share with<br />
the full class their observations about<br />
new techniques they learned <strong>and</strong> why<br />
they like them. Or, you may ask students<br />
to volunteer to demonstrate their<br />
approaches to the class as a whole.<br />
____________<br />
Deborah Maranville is a Professor of <strong>Law</strong><br />
<strong>and</strong> Director of the Clinical <strong>Law</strong> Program<br />
at University of Washington School of <strong>Law</strong>.<br />
Contact her at maran@uw.edu. <strong>The</strong> exception<br />
is Mary Barnard Ray, THE BASICS OF<br />
LEGAL WRITING (2006), pp. 54-61<br />
(Chapter 2: Reading Opinions <strong>and</strong> Statutes)<br />
<strong>and</strong> even that treatment runs to seven pages.<br />
____________<br />
Thanks to my colleagues Tom Cobb <strong>and</strong><br />
Sarah Kaltsounis <strong>for</strong> suggesting step 1 <strong>and</strong><br />
the heading to step 2.<br />
____________<br />
1 <strong>The</strong> exception is Mary Barnard Ray, <strong>The</strong> Basics<br />
of Legal Writing (2006), pp. 54-61 (Chapter 2:<br />
Reading Opinions <strong>and</strong> Statutes) <strong>and</strong> even that<br />
treatment runs to seven pages.<br />
2 A search by Alena Wolotira of the Gallagher <strong>Law</strong><br />
Library yielded only Stephen Sepinuck, <strong>Teaching</strong><br />
Statutory Construction through Reverse Problems<br />
<strong>and</strong> “Why” Problems in Hess & Friedl<strong>and</strong>, et. al,<br />
Techniques <strong>for</strong> <strong>Teaching</strong> <strong>Law</strong> 2 (2011),<br />
pp. 222-223.<br />
3 <strong>The</strong> current version of the casebook, Yeazell, Civil<br />
Procedure (8 th ed.2012) continues to be structured<br />
in a way that lends itself to this approach.<br />
4 Thanks to my colleague Linda Hume <strong>for</strong> sharing<br />
this idea.<br />
5 My colleagues Bob Anderson <strong>and</strong> Greg Hicks<br />
note that this material is covered in Joseph William<br />
Singer, Property: Rules, Policies <strong>and</strong> Practices<br />
(5th ed. 2010).<br />
6 My colleague Ryan Calo shared this example <strong>and</strong><br />
notes that the statute “makes intuitive sense to<br />
students <strong>and</strong> casts a shadow over virtually any tort<br />
committed on or through the Internet.”
<strong>Law</strong> School Communities “Saving Social Security”—<br />
Imparting the Intangibles of Practice Readiness<br />
By Kathy M. Morris<br />
<strong>Law</strong> school famously teaches<br />
students how to think like<br />
lawyers...but what trips them<br />
up earliest at work is not knowing<br />
how to present their thoughts—<strong>and</strong><br />
themselves—effectively in everyday<br />
professional situations. That skill is<br />
far less tangible <strong>and</strong> perhaps harder to<br />
teach than the traditional legal skills,<br />
but every bit as critical. <strong>The</strong> fact remains<br />
that law students too often graduate<br />
without having gained the interpersonal<br />
communication, poise, <strong>and</strong> social skills<br />
needed to build the foundation <strong>for</strong><br />
careers they can count on <strong>and</strong> enjoy.<br />
<strong>The</strong> good news is, each law school<br />
community can help its students enhance<br />
their “social security.”<br />
What skills do new lawyers, many of<br />
whom have spent innumerable hours<br />
alone in front of computers, lack?<br />
• <strong>The</strong> ability to mingle com<strong>for</strong>tably in<br />
the company of clients or to make<br />
small talk over a business meal with<br />
more senior colleagues<br />
• An instinct <strong>for</strong> artfully breaking into<br />
an active conversation to make a point<br />
in a meeting<br />
• <strong>The</strong> presence of mind to deliver<br />
in<strong>for</strong>mation effectively, on the spot<br />
• <strong>The</strong> knack <strong>for</strong> asking <strong>for</strong> feedback on<br />
their work <strong>and</strong> the aplomb <strong>for</strong> taking<br />
constructive criticism gracefully<br />
All these skills <strong>and</strong> others like them<br />
relate to communicating confidently, to<br />
conveying a professional persona....yes,<br />
to social security in the workplace.<br />
One innovative course, a class on<br />
Negotiation <strong>and</strong> ADR, develops<br />
workplace communication skills such<br />
as networking or delivering bad news,<br />
in part, through “adventure learning.”<br />
<strong>The</strong> course is described in full in a 2012<br />
Washington University Journal of <strong>Law</strong> <strong>and</strong><br />
Policy article on problem-solving in the<br />
first-year curriculum, subtitled “It’s Time<br />
to Get It Right,” by professors Bobbi<br />
McAdoo <strong>and</strong> Sharon Press.<br />
Another departure from traditional<br />
coursework in the first year is suggested<br />
by lawyer <strong>and</strong> writer Michael Serota<br />
in the Colloquy 2010 issue of the<br />
Northwestern University <strong>Law</strong> Review.<br />
He recommends a first-year course on<br />
personal values, career decisions, <strong>and</strong><br />
professional satisfaction.<br />
Rather than place the entire burden<br />
on the professors <strong>for</strong> all-new courses,<br />
however, there are ways to involve<br />
additional constituencies in addressing<br />
the wide-ranging dem<strong>and</strong>s on students<br />
to present themselves positively in<br />
today’s fast-paced legal profession.<br />
Some possible focal points <strong>and</strong><br />
approaches include:<br />
Making a first impression<br />
<strong>Law</strong> schools hold pre-interview season<br />
“Meet the Employers” gatherings to<br />
help students familiarize themselves<br />
with the local job market <strong>and</strong> to interest<br />
prospective employers in them. Or, they<br />
participate in public interest job fairs,<br />
bringing together organizations that<br />
wouldn’t otherwise recruit on-campus.<br />
Be<strong>for</strong>e these type of events, law schools<br />
could...<br />
• Host a workshop, sponsored by a<br />
local law firm <strong>and</strong> the career services<br />
office, at which effective ways to<br />
introduce oneself are modeled.<br />
Students could then break into tables<br />
of 6 students <strong>and</strong> 1 to 2 lawyers from<br />
the hosting firm to take turns starting<br />
a conversation, learn from each<br />
other’s introductory small-talk, <strong>and</strong><br />
gain feedback from the participating<br />
lawyer(s).<br />
• H<strong>and</strong>outs could also be provided on<br />
Do’s <strong>and</strong> Don’ts <strong>for</strong> making a positive<br />
first impression—as well as <strong>for</strong> seeing<br />
<strong>and</strong> seizing opportunity—at job<br />
fairs, Meet the Employers night, or<br />
employer-hosted cocktail parties. <strong>The</strong><br />
ability to make a positive impression<br />
is a skill that will continue to serve<br />
students well following graduation,<br />
from day one <strong>for</strong>ward.<br />
Interacting effectively. Not all<br />
communication challenges take place<br />
on campus or in the workplace. Callback<br />
interviewees, student clerks or<br />
summer associates, <strong>and</strong> new lawyers are<br />
called upon to chat <strong>and</strong> dine with other<br />
lawyers or clients, <strong>and</strong> those who are<br />
reticent are at a significant disadvantage.<br />
Be<strong>for</strong>e sending students out <strong>for</strong> their<br />
summer jobs, law schools could...<br />
• Call upon alumni/ae <strong>and</strong> adjunct<br />
professors to invite a student to lunch,<br />
bringing along a colleague or client <strong>for</strong><br />
the express purpose of sharing with<br />
the student the common missteps<br />
made early on by new professionals as<br />
they interact <strong>and</strong> converse in beyondschool<br />
environments. Humorous<br />
but instructive stories shared at<br />
these “Take a Student to Lunch”<br />
sessions could then be collected by<br />
the alumni office <strong>and</strong> made available,<br />
without attribution, to all classes <strong>and</strong><br />
recent graduates as cautionary tales<br />
regarding faux pas in work-related<br />
social settings.<br />
• <strong>The</strong> participating alums <strong>and</strong> adjuncts<br />
could then be invited to campus <strong>for</strong> a<br />
school-sponsored meal, where the fine<br />
art of conversing-while-consuming<br />
is in focus. Students who did not<br />
have an individual outing could also<br />
attend this group opportunity. Over<br />
dessert, a question <strong>and</strong> answer session<br />
could be held at each table, allowing<br />
the students to seek guidance on safe<br />
<strong>and</strong> savvy subjects <strong>for</strong> small talk with<br />
colleagues <strong>and</strong> clients, whether in a<br />
short encounter or during extended<br />
— continued on page 22<br />
THE LAW TEACHER | SPRING 2013 | 21
<strong>Law</strong> School Communities “Saving Social Security”<br />
— continued from page 21<br />
interactions, such as on business trips.<br />
It’s always good to mine experience,<br />
<strong>and</strong> there are never enough ways to<br />
be inclusive of adjuncts or involve the<br />
alumni in the ongoing enterprise of their<br />
alma mater.<br />
Indicating enthusiasm. Business schools<br />
have said the number one reason<br />
interviewees fail to l<strong>and</strong> jobs is a lack of<br />
projected enthusiasm. That same sense<br />
of neutrality—or worse, negativity—<br />
can also be fatal on the job. Saying<br />
“no” more than “yes,” passing up a<br />
stretch assignment, or remaining silent<br />
in meetings as students might in large<br />
lecture halls are missed opportunities<br />
<strong>and</strong> moments that could mistakenly be<br />
interpreted as reluctance to grow or a<br />
lack of enthusiasm <strong>for</strong> the job. Be<strong>for</strong>e<br />
graduating another class of students, law<br />
schools could...<br />
• Examine their curricula with an eye<br />
toward folding in more interaction,<br />
even in small moments in large<br />
classes, <strong>for</strong> students to move away<br />
from passivity or timidity. Professors<br />
might, from time to time, consider<br />
discouraging the practice of raising<br />
one’s h<strong>and</strong> to be recognized, so that<br />
students develop the sense of when<br />
<strong>and</strong> how to take the floor to interject<br />
a point or question.<br />
• Students can be spontaneously<br />
tapped to lead a part of the class<br />
discussion, in order to rein<strong>for</strong>ce that<br />
sound professional per<strong>for</strong>mance<br />
does not always permit advance<br />
planning or require perfection.<br />
• <strong>Teaching</strong> with a thorny<br />
hypothetical in an announced<br />
brainstorming mode, where no<br />
ideas are pronounced wrong <strong>and</strong> all<br />
participation is welcomed, can help<br />
students find their voice be<strong>for</strong>e they<br />
venture into their first job, which <strong>for</strong><br />
some may be their first encounter<br />
with a white collar workplace.<br />
22 | THE LAW TEACHER | SPRING 2013<br />
Communicating efficiently.<br />
Time is at a premium in the workplace,<br />
in both billable <strong>and</strong> non-billable contexts.<br />
Students whose instinct or habit has<br />
been to stay behind their computers<br />
in class, whether diligently typing<br />
notes or multitasking on Twitter, may<br />
have a harder time assuming the roles<br />
required <strong>for</strong> a successful transition from<br />
classroom to conference room. Busy<br />
lawyers have limited time to devote to<br />
mentoring <strong>and</strong> training, so it is critical<br />
that students <strong>and</strong> new lawyers know<br />
how to get to the point quickly when<br />
summarizing their research, how to<br />
convey a conclusion decisively, <strong>and</strong> how<br />
to seek <strong>and</strong> accept practice pointers well.<br />
To address this practical reality, law<br />
schools could...<br />
• Ask the librarian to draft <strong>and</strong><br />
distribute short research questions<br />
<strong>and</strong> answers to the emeritus<br />
professors <strong>and</strong> students, <strong>for</strong> use at an<br />
event akin to speed mentoring where<br />
students “report” on the research<br />
findings, as if they had per<strong>for</strong>med<br />
an assignment <strong>for</strong> a partner. <strong>The</strong><br />
timed interchanges will help students<br />
work on conversing articulately<br />
<strong>and</strong> succinctly with senior authority<br />
figures.<br />
• <strong>The</strong> Dean also could designate days<br />
when students sign up, in five minute<br />
intervals, to (re)introduce themselves,<br />
start up the conversation, <strong>and</strong> seek<br />
a top tip <strong>for</strong> enhancing professional<br />
communication.<br />
<strong>The</strong> more each part of every law school<br />
provides opportunities <strong>for</strong> their students<br />
to speak as well as to write <strong>and</strong> to engage<br />
as well as to listen, the more secure <strong>and</strong><br />
practice-ready their graduates will be.<br />
Let’s not blame the computer age or<br />
social media <strong>for</strong> the lack of “social<br />
security” skills among law school<br />
graduates. Many people who earn JDs<br />
are introverts; even the extroverts among<br />
them have not had to learn how to put<br />
their extroversion to effective use in<br />
professional settings. It should not be a<br />
surprise, then, that students, <strong>and</strong> many<br />
alumni/ae, need help with the elusive<br />
but key intangibles that add to early <strong>and</strong><br />
continued success in communicating<br />
in practice. Hopefully, law schools will<br />
embrace new possibilities <strong>for</strong> moving<br />
their students beyond professional<br />
pitfalls, thus contributing even more<br />
significantly to ensuring the value<br />
of a legal education <strong>and</strong> to realizing<br />
long-st<strong>and</strong>ing recommendations of the<br />
MacCrate <strong>and</strong> Carnegie Reports.<br />
____________<br />
Kathy M. Morris is a lawyer who has<br />
practiced law, been on both the faculty<br />
<strong>and</strong> in the administration of Northwestern<br />
University School of <strong>Law</strong>, <strong>and</strong> headed lawyer<br />
training <strong>and</strong> professional development<br />
initiatives at Sidley Austin, LLP <strong>and</strong> other<br />
law firms. While directing the American Bar<br />
Association Centers <strong>for</strong> Continuing Legal<br />
Education <strong>and</strong> Career Resources, she served<br />
on the ALI-ABA Adult <strong>Learning</strong> Study<br />
advisory committee, whose work resulted<br />
in the 1999 publication <strong>Teaching</strong> <strong>for</strong> Better<br />
<strong>Learning</strong>, reprinted in 2004. Ms. Morris<br />
founded <strong>and</strong> runs Under Advisement,<br />
Ltd., a career counseling practice <strong>for</strong><br />
lawyers, law students, <strong>and</strong> law firms, www.<br />
underadvisement.com. She earned a JD at<br />
Northeastern <strong>Law</strong> School in 1975 <strong>and</strong> a BA<br />
with Honors in 1971 from the University of<br />
Michigan.
Report from South Korea: My Experience <strong>Teaching</strong> <strong>Law</strong> Students at<br />
Seoul National University<br />
By Brent E. Newton<br />
In the summer of 2012, as a visiting<br />
law professor, I taught a lecture<br />
course on American criminal law <strong>and</strong><br />
procedure at Seoul National University<br />
(SNU) School of <strong>Law</strong> in South Korea. I<br />
arrived in Seoul with some trepidation.<br />
Although I had taught over three dozen<br />
law school courses in the United States at<br />
three different law schools, I had never<br />
be<strong>for</strong>e taught at a <strong>for</strong>eign law school.<br />
While I was assured by the law school’s<br />
administration at SNU that my students<br />
were proficient<br />
enough in English<br />
to take the course,<br />
I was concerned<br />
that they would<br />
generally<br />
lack sufficient<br />
knowledge<br />
about American<br />
law <strong>and</strong> society<br />
in a manner that would preclude an<br />
adequate underst<strong>and</strong>ing of complex<br />
issues such as what constitutes a<br />
“search” under the Fourth Amendment<br />
or how America’s history of federalism<br />
<strong>and</strong> racial discrimination has influenced<br />
the Supreme Court’s interpretation<br />
of the U.S. Constitution in criminal<br />
cases. I also had preconceptions of<br />
South Korean students as being highly<br />
competitive, overly-stressed workaholics<br />
who would make American law<br />
students – themselves known <strong>for</strong> their<br />
competitiveness <strong>and</strong> high stress levels –<br />
appear cool <strong>and</strong> calm by comparison.<br />
My class had 159 students <strong>and</strong> met <strong>for</strong><br />
a total of 30 hours. <strong>The</strong> course primarily<br />
focused on U.S. constitutional criminal<br />
procedure <strong>and</strong> covered the full range<br />
of issues typically taught in American<br />
law school courses commonly known<br />
as “Criminal Procedure: Investigation”<br />
<strong>and</strong> “Criminal Procedure: Adjudication.”<br />
Having only 30 hours to address the<br />
same issues normally covered in two full<br />
semesters in American law schools, I was<br />
constrained to provide less depth than<br />
I would have preferred. Nevertheless,<br />
because I wanted to expose my students<br />
to the entirety of the American criminal<br />
justice system, I taught the course in a<br />
comprehensive manner <strong>and</strong> at a rapid<br />
pace.<br />
As I discuss below, my students proved<br />
to be up to the challenge. <strong>The</strong>ir ability to<br />
follow my rapid pace <strong>and</strong> comprehend<br />
many novel legal <strong>and</strong> cultural concepts<br />
was a reflection of their country’s recent<br />
As part of its trend toward modernization,<br />
South Korea is in the midst of<br />
two major re<strong>for</strong>ms—one related to its<br />
legal system <strong>and</strong> the other related to its<br />
criminal justice system …<br />
history. South Korea has experienced<br />
a remarkable trans<strong>for</strong>mation in recent<br />
decades. A country with a long history<br />
<strong>and</strong> relatively stable culture—dating<br />
back over two thous<strong>and</strong>s of years—it<br />
suffered devastating blows during the<br />
first half of the twentieth century as a<br />
result of three decades of occupation<br />
by imperial Japan <strong>and</strong> three years of<br />
bitter fighting <strong>and</strong> destruction during<br />
the Korean War in the early 1950s. In<br />
the six decades following the end of the<br />
Korean War, however, South Korea has<br />
emerged as one of the strongest <strong>and</strong><br />
most resilient countries in the world in<br />
terms of both its socio-economic status<br />
<strong>and</strong> its commitment to democracy. Its<br />
economy, while adversely affected along<br />
with the rest of the world by the recent<br />
recession, has generally thrived. Huge<br />
<strong>and</strong> profitable international corporations<br />
such as Samsung, Kia, LG, <strong>and</strong> Hyundai<br />
are headquartered in Seoul <strong>and</strong> employ<br />
large segments of the workers in the<br />
country. South Korea has one of the most<br />
educated citizenries in the world. Its<br />
health care system is excellent, <strong>and</strong> its<br />
crime rate is low compared to the United<br />
States. Women have played an increasing<br />
role in the country’s government, private<br />
industry, <strong>and</strong> educational system. (Half<br />
of my students there were women.)<br />
Seoul, its capital <strong>and</strong> largest city (with<br />
ten million residents) is modern, clean,<br />
<strong>and</strong> safe. Since 1987, when its <strong>for</strong>mer<br />
military-dominated government<br />
gave way to a western-style tripartite<br />
government, the country has experienced<br />
increasing<br />
democratization.<br />
As part of its trend<br />
toward modernization,<br />
South Korea is<br />
in the midst of two<br />
major re<strong>for</strong>ms—<br />
one related to its<br />
legal system <strong>and</strong><br />
the other related<br />
to its criminal justice system—that<br />
were directly relevant to my teaching<br />
experience at SNU. First, three years<br />
ago, Korea’s system of legal education<br />
began its trans<strong>for</strong>mation from one of<br />
undergraduate legal education followed<br />
by rigorous selection <strong>and</strong> training<br />
process whereby only a tiny fraction of<br />
graduates ultimately became lawyers<br />
<strong>and</strong> judges to a system of Americanstyle<br />
graduate legal education <strong>and</strong><br />
a subsequent bar examination with<br />
a relatively high passage rate. <strong>The</strong>re<br />
currently are 25 South Korean graduate<br />
law schools. SNU is widely considered<br />
the most prestigious of those schools.<br />
It tends to attract the best <strong>and</strong> brightest<br />
students, although there are other<br />
excellent law schools as well.<br />
<strong>The</strong> country also is undergoing extensive<br />
change in its criminal justice system. Its<br />
traditional system, which was heavily<br />
influenced by both Japanese criminal<br />
law <strong>and</strong> the European inquisitorial<br />
— continued on page 24<br />
THE LAW TEACHER | SPRING 2013 | 23
Report from South Korea<br />
— continued from page 23<br />
system, has moved more towards the<br />
American adversarial model. Many of<br />
the traditional powers of police <strong>and</strong><br />
prosecutors have given way to new<br />
protections <strong>for</strong> criminal defendants.<br />
Although it does not yet use Americanstyle<br />
juries, South Korea very recently<br />
has started to have ordinary citizen<br />
involvement (along with judges) in<br />
the process of adjudicating criminal<br />
defendants’ guilt in some cases.<br />
After teaching a couple of classes<br />
at SNU, I quickly realized that my<br />
concerns about teaching South Korean<br />
law students had been unfounded.<br />
<strong>The</strong> typical law student in my course<br />
was stellar. Although many students<br />
were shy to speak in class – much like<br />
many American law students would<br />
be in a class of such a large size – my<br />
conversations with dozens of students<br />
after class <strong>and</strong> during my office hours<br />
<strong>and</strong> their overall excellent per<strong>for</strong>mance<br />
on the final examination revealed a solid<br />
comm<strong>and</strong> of oral <strong>and</strong> written English.<br />
<strong>The</strong> typical student also had a deep<br />
underst<strong>and</strong>ing of American culture<br />
<strong>and</strong> history. Most had studied English<br />
literature as part of their secondary <strong>and</strong><br />
higher education in South Korea. Many<br />
students also frequently had traveled<br />
to or even attended college in the<br />
United States, <strong>and</strong> they all had watched<br />
countless American television shows<br />
<strong>and</strong> movies. <strong>The</strong>y knew English idioms<br />
<strong>and</strong> “got” American humor. Many of<br />
the students also were fluent in several<br />
languages (including German, French,<br />
Japanese, <strong>and</strong> Chinese). Approximately<br />
half of my students also had completed<br />
a summer course on German law taught<br />
by a visiting professor from Germany.<br />
Several qualities particularly impressed<br />
me in addition to my students’ high<br />
24 | THE LAW TEACHER | SPRING 2013<br />
intelligence: their work ethic, maturity,<br />
respectfulness, good sense of humor,<br />
kindness, <strong>and</strong> community spirit.<br />
Towards the end of the course, I learned<br />
something that astounded me: over 70<br />
of the students – the ones most fluent in<br />
English – had collaborated to translate<br />
all 15 chapters of the assigned book<br />
into Korean <strong>and</strong> shared the written<br />
translation with the members of the<br />
class so that students would have both<br />
English <strong>and</strong> Korean versions. (I am the<br />
author of the book, so there was no issue<br />
concerning copyright infringement.) <strong>The</strong><br />
students presented me with a copy of<br />
the Korean translation of my book as a<br />
“souvenir” from my visit.<br />
To put my experience at SNU in<br />
perspective – <strong>and</strong> underst<strong>and</strong> just how<br />
impressive my students were – one need<br />
only imagine a law professor from an<br />
Eastern country coming to an American<br />
law school <strong>and</strong> attempting to teach a<br />
comprehensive survey course on some<br />
significant part of his or her country’s<br />
legal system entirely in his or her native<br />
language. At most, only a tiny fraction<br />
of the student body at even the most<br />
highly ranked U.S. law schools could<br />
successfully take a <strong>for</strong>eign law course<br />
taught in another Western language such<br />
as Spanish or French. Further imagine<br />
them trying to do it in an Eastern<br />
language.<br />
To offer a complete picture of my<br />
experience in Seoul, I feel compelled to<br />
offer one final observation. As I noted,<br />
Asian students are often stereotyped as<br />
highly competitive <strong>and</strong> as workaholics.<br />
Those two descriptions are ones that<br />
many South Koreans at SNU with whom<br />
I spoke used to describe themselves<br />
(often with a mixture of pride <strong>and</strong><br />
regret). Stress levels were very high as<br />
a result. Americans, however, should<br />
be wary in passing judgment on such<br />
qualities. Many Americans possess<br />
those same qualities – at least in the<br />
upper echelons of our educational <strong>and</strong><br />
professional sectors <strong>and</strong> most notably in<br />
the legal sphere. Americans, like South<br />
Koreans, tend to equate hard work <strong>and</strong><br />
consequent educational <strong>and</strong> professional<br />
success with personal fulfillment, even<br />
if personal unhappiness results from<br />
being so chronically driven. Rather than<br />
condemn this ethos of hard work <strong>and</strong><br />
high expectations outright, I would<br />
suggest that both our cultures might<br />
benefit by carefully considering the<br />
costs <strong>and</strong> benefits of being so driven<br />
<strong>and</strong> by trying to achieve a better balance<br />
between success <strong>and</strong> happiness. <strong>The</strong><br />
generation of students currently in the<br />
new graduate law schools in South<br />
Korea – who, like typical American law<br />
students, are mostly in their twenties –<br />
do appear to appreciate the importance<br />
of achieving such a balance but likely<br />
will struggle trying to do so.<br />
<strong>The</strong> administration at SNU indicated to<br />
me that SNU <strong>and</strong> other new graduate<br />
law schools in South Korea are interested<br />
in having other Western law professors<br />
teach courses on aspects of the American<br />
<strong>and</strong> European legal systems. In view of<br />
my positive teaching experience there, I<br />
would highly recommend it.<br />
____________<br />
Brent E. Newton is Deputy Staff Director,<br />
U.S. Sentencing Commission, <strong>and</strong> an<br />
Adjunct Professor of <strong>Law</strong> at Georgetown <strong>and</strong><br />
American Universities. He can be reached at<br />
ben5@law.georgetown.edu.
Passion is Necessary, Compassion is Priceless:<br />
A Message to the Clinical <strong>Law</strong> Student<br />
By Courtny Osterling<br />
Clinical education is a special<br />
opportunity <strong>for</strong> the law student.<br />
Having not yet been admitted to<br />
practice law you interview <strong>and</strong> counsel<br />
clients, draft <strong>and</strong> file court documents,<br />
argue with opposing counsel, <strong>and</strong><br />
appear as attorney of record in court<br />
proceedings.<br />
Un<strong>for</strong>tunately, what I see all too often<br />
is troubling. This great opportunity,<br />
<strong>and</strong> the inherent responsibility, does<br />
not always seem to resonate. However,<br />
if you enter the clinical opportunity<br />
with some common sense basics your<br />
experience will be much stronger,<br />
more meaningful, <strong>and</strong> the level of<br />
service provided to the client will be<br />
exponentially better.<br />
Don’t Worry About the Grade<br />
This educational mantra, one I’ve heard<br />
myself on numerous occasions, is often<br />
ignored. Admittedly, concerning oneself<br />
merely with underst<strong>and</strong>ing the course<br />
material rather than the grade achieved<br />
is generally unrealistic. <strong>Law</strong> students<br />
in particular need excellent marks <strong>for</strong><br />
scholarships, internships, or even to<br />
qualify <strong>for</strong> job interviews. But what<br />
normally may be of benign consequence,<br />
in the clinical setting this approach<br />
brings with it great risks never be<strong>for</strong>e<br />
attached to a student’s educational<br />
per<strong>for</strong>mance. Much like that of a licensed<br />
attorney, students have real clients with<br />
real legal issues <strong>and</strong> as such, have real<br />
influence on the outcome of the case.<br />
If the work only serves as a means to<br />
an end, inevitably the clinical course<br />
will be approached as you would any<br />
other, which it certainly is not. Most<br />
significantly, the outcome of your<br />
per<strong>for</strong>mance no longer just affects you.<br />
Consider your work in the traditional<br />
law class. If you don’t put enough<br />
time into preparing, it results in a less<br />
desirable grade. Not ideal, but the<br />
difference between an A <strong>and</strong> B won’t<br />
significantly disrupt your life. On the<br />
contrary, if proper attention is not paid<br />
to your client’s case, it may result in an<br />
undeserved criminal record, less visiting<br />
time with their child, or other undesired<br />
outcomes. <strong>The</strong> ramifications to your<br />
client’s life could be serious <strong>and</strong> long<br />
lasting.<br />
If as a student attorney you’re invested in<br />
the client’s case <strong>and</strong> not your prospective<br />
grade, I guarantee the academic return<br />
will indeed follow.<br />
<strong>Law</strong>yer with Compassion<br />
<strong>Law</strong>yering with just passion <strong>for</strong> the<br />
law is not enough; we must also lawyer<br />
with compassion <strong>for</strong> those we represent.<br />
This has proven difficult <strong>for</strong> the average<br />
clinical student. In large I believe this can<br />
be attributed to the difficulty the student<br />
has underst<strong>and</strong>ing <strong>and</strong> relating to the<br />
average clinical client.<br />
Whether it be race, gender, family<br />
history, country of origin, level of <strong>for</strong>mal<br />
education or economic background<br />
our society is a cauldron of diversity.<br />
Although we are taught differences<br />
should be celebrated, we are not<br />
taught how these differences can have<br />
a profound impact on someone’s life,<br />
how they produce different challenges,<br />
different thought processes, <strong>and</strong> different<br />
responses to everyday occurrences.<br />
So with many law school clinical<br />
programs designed to serve the<br />
impoverished populations, a typical<br />
clinical program client may have one<br />
grown up difficult living conditions<br />
inside <strong>and</strong> outside their home, have<br />
limited <strong>for</strong>mal education, <strong>and</strong> dealt<br />
with drug addiction <strong>and</strong>/or experience<br />
with family violence. So with the<br />
average clinical students never having to<br />
experience these challenges, how do they<br />
relate with a client who has?<br />
First <strong>and</strong> <strong>for</strong>emost, simply<br />
underst<strong>and</strong>ing that premise is a good<br />
start. Human thought processes,<br />
feelings, <strong>and</strong> reactions are finely tuned<br />
mechanisms built from a tapestry of<br />
personal life experiences. <strong>The</strong>re<strong>for</strong>e,<br />
if we have different life experiences it<br />
st<strong>and</strong>s to reason our values, our thought<br />
processes, <strong>and</strong> our responses to various<br />
situations will be different. Undoubtedly,<br />
you will encounter clients whose actions<br />
make you want to shake your head,<br />
but underst<strong>and</strong>ing how these decisions<br />
came about will offer insight into their<br />
situation <strong>and</strong> often help you shape your<br />
legal arguments.<br />
Second, <strong>and</strong> just as important, don’t<br />
pretend. A prime example occurred<br />
when a peer of mine attempted to<br />
counsel his client. This particular client<br />
was a 16 year old African-American<br />
female who was pregnant. While<br />
attempting to counsel her, he (being a<br />
27 year old white male from suburbia)<br />
stated, “I know exactly what you are<br />
going through.” To the credit of this<br />
young client, she read him the riot act.<br />
Regrettably, this also caused her to shut<br />
down emotionally making it impossible<br />
to effectively counsel her.<br />
So what could he have done differently?<br />
A simple change of words may have<br />
changed the course of their attorneyclient<br />
relationship. Perhaps, “I can’t<br />
even imagine what you are going<br />
through,” would have produced a<br />
better result considering there was no<br />
real way <strong>for</strong> him to underst<strong>and</strong> <strong>and</strong><br />
relate to the client on an intimate level.<br />
<strong>The</strong> linguistic change may be subtle,<br />
but the implication is not. To a client<br />
in crisis, this could mean a world of<br />
difference. Your clients are human, <strong>and</strong><br />
what humans can innately do is sense<br />
insincerity.<br />
You shouldn’t always expect to fully<br />
appreciate <strong>and</strong> underst<strong>and</strong> what your<br />
— continued on page 26<br />
THE LAW TEACHER | SPRING 2013 | 25
Passion is Necessary, Compassion is Priceless<br />
— continued from page 25<br />
client is experiencing (it doesn’t mean<br />
don’t try). Recognize the client is in<br />
crisis <strong>and</strong> is coming to you <strong>for</strong> help. As<br />
lawyers we don’t need to empathize, it<br />
is enough to appreciate the situation is<br />
stressful <strong>and</strong> have compassion.<br />
Don’t Expect a Pat on the Back<br />
On multiple occasions I have heard<br />
students complaining the client should<br />
be grateful because they are receiving<br />
free legal services. To say the least<br />
this sentiment is misguided. First, as a<br />
student attorney you should underst<strong>and</strong><br />
at this point your “legal prowess” is not<br />
as great as you may like to believe.<br />
Secondly, underst<strong>and</strong> that <strong>for</strong> the most<br />
part clients seek lawyers in times of<br />
crisis. Whether or not they brought it<br />
on themselves, it does not eliminate this<br />
factor. What we do as lawyers is help our<br />
clients resolve their problem to the best<br />
of our ability. What we generally do not<br />
do is completely eliminate the problem.<br />
<strong>The</strong> relevance in this, <strong>and</strong> what is<br />
extremely important <strong>for</strong> a clinical<br />
student to underst<strong>and</strong>, is that the client’s<br />
problem may still exist <strong>for</strong> years after<br />
our intervention. Our contribution is<br />
to obtain the most favorable outcome<br />
26 | THE LAW TEACHER | SPRING 2013<br />
possible, which often does not<br />
completely solve the problem. For<br />
example, in a custody dispute, the initial<br />
goal may be obtaining legal <strong>and</strong> physical<br />
custody <strong>for</strong> your client against a parent<br />
who abuses drugs. Even if a favorable<br />
outcome is obtained, your client will still<br />
need to deal with the continuing stresses<br />
of ongoing visitation with that parent,<br />
with putting a family back together,<br />
<strong>and</strong> all the trials <strong>and</strong> tribulations that go<br />
along with it.<br />
You sutured up a gaping wound, but<br />
that wound still needs to heal. So despite<br />
the great work you may have done, the<br />
client still likely faces years of disputes<br />
with that other party, not to mention a<br />
deconstruction of their family played<br />
out be<strong>for</strong>e lawyers, social workers, <strong>and</strong><br />
a judge. Consequently, even if the best<br />
possible resolution was obtained, there<br />
is a good chance your client will not see<br />
it that way. Clients will often enter with<br />
very specific expectations, <strong>and</strong> although<br />
they may not be legally feasible, seem<br />
reasonable to them. In their mind falling<br />
short means you failed.<br />
We all would love appreciation from<br />
people we help, but that is not why we<br />
do what we do. If you are continually<br />
expecting that pat on the back, <strong>and</strong><br />
that’s important <strong>for</strong> you as an attorney,<br />
then you will have a very unfulfilling<br />
career. Find joy knowing you did your<br />
best to place your client in the best<br />
possible position allowed under the facts<br />
<strong>and</strong> circumstances presented to you.<br />
Anything above that, consider icing on<br />
the cake.<br />
Final Thoughts<br />
Student attorneys are given a wonderful<br />
opportunity to use their unique set of<br />
skills to help others less <strong>for</strong>tunate while<br />
gaining invaluable practical experience.<br />
But just like many other great things in<br />
life, it comes with a great responsibility.<br />
Underst<strong>and</strong> that <strong>and</strong> embrace it. Take<br />
pride in your work <strong>and</strong> respect your<br />
client, no matter who they are. Use your<br />
clinical experience to better yourself not<br />
only as a future attorney, but a person as<br />
well.<br />
____________<br />
Courtny Osterling, Syracuse University<br />
College of <strong>Law</strong>, can be reached at<br />
cjosterl@syr.edu.<br />
Introducing Students to Free On-line Legal Research Resources:<br />
An Interactive Class<br />
By Eunice Park<br />
In the In<strong>for</strong>mation Age, as the trend<br />
away from the privatization of<br />
in<strong>for</strong>mation continues, we recognize that<br />
strict adherence to an electronic regimen<br />
of LexisNexis <strong>and</strong> Westlaw research<br />
may be inadequate <strong>for</strong> our students. At<br />
the same time, it can seem a daunting<br />
task to determine how to broach the<br />
vast array of on-line resources, some<br />
useful, others of dubious reliability.<br />
Our approach at Western State College<br />
of <strong>Law</strong> is to introduce students to<br />
free on-line legal research sites as<br />
resources that will become increasingly<br />
prominent <strong>and</strong> can pose valid, effective<br />
alternatives to costly, or merely more<br />
cost-effective, options. By familiarizing<br />
students with such sites, we enable<br />
them to become balanced, adept <strong>and</strong><br />
flexible researchers. This class also has<br />
the side benefit of introducing some<br />
practical fundamentals that a traditional<br />
curriculum does not always provide the<br />
opportunity to mention.<br />
Create a Map <strong>and</strong> Demonstrate<br />
We know that the ease of on-line research<br />
often makes it easy <strong>for</strong> our technologycom<strong>for</strong>table<br />
students to pounce on<br />
the keyboard without investing much<br />
preliminary thought into what is a<br />
desirable database or how the specific<br />
issue fits into the larger legal l<strong>and</strong>scape.<br />
Instantaneous results provide immediate<br />
legal research gratification, <strong>and</strong> the<br />
students feel they have accomplished<br />
— continued on page 27
Introducing Students to Free On-line Legal Research Resources:<br />
— continued from page 26<br />
something, notwithst<strong>and</strong>ing the<br />
sometimes questionable value of the<br />
results. <strong>The</strong> questionable value of much<br />
in<strong>for</strong>mation on the Internet compounds<br />
the risk of poor results.<br />
Thus, be<strong>for</strong>e letting our students loose<br />
into the wilderness that is the World<br />
Wide Web, we should provide them<br />
with tools to navigate the resources<br />
meaningfully. Our approach is to<br />
introduce the multitude of resources<br />
by setting <strong>for</strong>th four basic categories of<br />
sites: (1) General Legal Research; (2)<br />
Court Links;<br />
(3) Legislation<br />
<strong>and</strong> Regulation;<br />
<strong>and</strong> (4) Legal<br />
Periodicals.<br />
<strong>The</strong>se categories,<br />
then, create a<br />
framework,<br />
or “map,” <strong>for</strong><br />
organizing the<br />
lesson plan <strong>and</strong> in-class exercise. We<br />
have conducted this interactive class<br />
successfully <strong>for</strong> the last few years, <strong>and</strong><br />
this has been a popular class among our<br />
students.<br />
Within each category, I provided a<br />
sampling of reputable sites. For each<br />
site, in turn, I explained (1) its origins,<br />
domain or purpose <strong>and</strong> (2) what kind of<br />
in<strong>for</strong>mation it offers; <strong>and</strong> (3) provided<br />
the URL. After providing this overview, I<br />
pasted the URL directly into the browser,<br />
showed the students the actual site <strong>and</strong><br />
demonstrated live some of the features<br />
we had just discussed.<br />
For example, within the broadest<br />
category, General Legal Research, I<br />
discussed Cornell’s Legal In<strong>for</strong>mation<br />
<strong>Institute</strong>, Findlaw, <strong>and</strong> Google Scholar<br />
as a representative sampling of some<br />
different types of sites, namely, a law<br />
library website, a Thomson Reuters<br />
business website, <strong>and</strong> a search engine.<br />
Instructors can point out <strong>for</strong> the students<br />
that, like Westlaw or LexisNexis, the two<br />
websites include a searchable database,<br />
but they also offer unique kinds of<br />
in<strong>for</strong>mation, such as a communityedited<br />
legal dictionary <strong>and</strong> legal <strong>for</strong>ms<br />
available <strong>for</strong> purchase. Consider asking<br />
<strong>for</strong> a volunteer in the class to explain<br />
the difference between a web site <strong>and</strong> a<br />
search engine such as Google Scholar,<br />
which may be obvious to many of our<br />
students but, <strong>for</strong> those who are less techsavvy,<br />
beneficial to hear explicitly.<br />
With the Court Links category, the<br />
purpose is <strong>for</strong> students to realize that<br />
courts maintain such websites <strong>and</strong> that<br />
much in<strong>for</strong>mation is readily available to<br />
…it can seem a daunting task to<br />
determine how to broach the vast<br />
array of on-line resources, some<br />
useful, others of dubious reliability.<br />
the public. A good starting point is the<br />
website <strong>for</strong> the Administrative Office of<br />
the U.S. Courts, which provides links<br />
to all available federal court websites.<br />
Visiting this website additionally creates<br />
an opportunity to introduce students<br />
to PACER, so that students are aware<br />
that an internet-based public access<br />
service exists to locate cases <strong>and</strong> obtain<br />
docket in<strong>for</strong>mation. <strong>The</strong> U.S. Supreme<br />
Court’s official website is another good<br />
example of a court link, <strong>and</strong> instructors<br />
could even pull up <strong>for</strong> the students the<br />
Local Rules in order to rein<strong>for</strong>ce that<br />
often under-mentioned practitioner’s<br />
imperative. Consider demonstrating the<br />
features of your state’s court web sites, as<br />
well.<br />
<strong>The</strong> third category in the instructional<br />
framework is Legislation <strong>and</strong> Regulation.<br />
Here instructors can introduce students<br />
to THOMAS as the primary online<br />
source <strong>for</strong> federal legislative material.<br />
Students also can realize that the<br />
Government Printing Office, a frequently<br />
overlooked entity, maintains a website<br />
that provides free access to the CFRs<br />
<strong>and</strong> Federal Register. Finally, local state<br />
legislative <strong>and</strong> executive agency websites<br />
offer a wealth of in<strong>for</strong>mation. This<br />
category also provides an opportunity<br />
to remind students of the role<br />
legislative history can play in statutory<br />
interpretation.<br />
<strong>The</strong> fourth <strong>and</strong> final category of<br />
in<strong>for</strong>mation, Legal Periodicals, allows<br />
students to recognize that not just<br />
primary in<strong>for</strong>mation is available within<br />
free on-line legal research resources, but<br />
also that certain sites, such as American<br />
<strong>Law</strong> Sources Online<br />
<strong>and</strong> the Social Science<br />
Research Network,<br />
are dedicated to<br />
disseminating<br />
secondary materials.<br />
Students will enjoy<br />
seeing their own law<br />
school’s law review<br />
journal included on<br />
American <strong>Law</strong> Sources Online, <strong>and</strong> they<br />
can recognize how inclusive the scope of<br />
in<strong>for</strong>mation can be.<br />
Provide an In-class Opportunity<br />
to Investigate<br />
Once instructors have run through this<br />
framework, the students will be eager to<br />
try the sites <strong>for</strong> themselves. At this point,<br />
the class can break up into small groups,<br />
<strong>and</strong> instructors can either designate a site<br />
<strong>for</strong> each group to investigate or allow<br />
each group to try multiple websites.<br />
Ideally, the students can research the<br />
memo or other problem on which they<br />
have begun working <strong>and</strong> already have<br />
some notions regarding important cases<br />
or statutes. This background provides<br />
the students with a construct <strong>for</strong><br />
appreciating the value of the in<strong>for</strong>mation<br />
they find in the free on-line sources<br />
compared to what they have already<br />
found via Westlaw, LexisNexis, or<br />
traditional print resources. Afterwards,<br />
I asked the students to share as a group<br />
their findings <strong>and</strong> observations, focusing<br />
— continued on page 28<br />
THE LAW TEACHER | SPRING 2013 | 27
Introducing Students to Free On-line Legal Research Resources<br />
— continued from page 27<br />
on advantages <strong>and</strong> disadvantages they<br />
noticed with each resource such as the<br />
ease of use or limitations in available<br />
in<strong>for</strong>mation, <strong>and</strong> how different sites<br />
led to the same or different kinds of<br />
in<strong>for</strong>mation.<br />
End-of-Class Goals<br />
At the end of the day, we want our<br />
students to be aware that the strong<br />
trend against the privatization of<br />
in<strong>for</strong>mation is going to continue; to have<br />
Happily Ever After: Providing Students with Epilogues<br />
<strong>for</strong> Cautionary Tales<br />
By Abigail Patthoff<br />
Stories of lawyers’ professional<br />
missteps are legion: misplaced<br />
commas causing millions<br />
in client losses, late court filings<br />
triggering malpractice claims, <strong>and</strong><br />
incomprehensible briefs meriting<br />
sanctions are just a few. Judicial<br />
opinions <strong>and</strong> articles featuring such<br />
transgressions can seem ready made<br />
<strong>for</strong> law professors. Cautionary tales<br />
help answer the question that naturally<br />
precedes each lesson we attempt to<br />
impart to our students: “Why does it<br />
matter?”<br />
Because these stories are perennial, they<br />
often carry a ripped-from-the-headlines<br />
urgency that catches student attention.<br />
Additionally, storytelling can be more<br />
effective at convincing the listener to<br />
adopt a behavior than overt persuasive<br />
ef<strong>for</strong>ts.<br />
Yet, despite these benefits, law professors<br />
have reason to be careful about using<br />
cautionary tales in the classroom. As<br />
stories go, cautionary tales are tragedies.<br />
Unlike conventional narratives, which<br />
feature a protagonist’s struggle <strong>and</strong><br />
ultimate resolution of that struggle, in a<br />
cautionary tale the protagonist does not<br />
28 | THE LAW TEACHER | SPRING 2013<br />
some sense of the kinds of free on-line<br />
resources that exist, how the in<strong>for</strong>mation<br />
is organized, <strong>and</strong> how to access it;<br />
<strong>and</strong> to know that, while they need<br />
to underst<strong>and</strong> how to use traditional<br />
resources, much of the same in<strong>for</strong>mation<br />
is available in valid free on-line sites,<br />
<strong>and</strong> students do not have to rely solely<br />
on those traditional resources. Students<br />
can feel empowered by the knowledge<br />
that they have access to much<br />
in<strong>for</strong>mation at their very own laptops.<br />
prevail. <strong>The</strong>se protagonists are attorneys<br />
with whom our students are supposed<br />
to identify. Thus, the primary emotion<br />
that cautionary tales are intended to<br />
arouse in a student is fear of failure.<br />
Although some fear is productive <strong>and</strong><br />
can motivate students to achieve, too<br />
much fear can be debilitating. A decline<br />
in well-being among law students,<br />
attributed to stress, has been welldocumented.<br />
Fear is one of the culprits<br />
contributing to this distress. <strong>The</strong> Socratic<br />
Method is famously intimidating, grades<br />
are often exclusively earned via one endof-the-semester<br />
make-or-break exam,<br />
<strong>and</strong> the news is replete with reports<br />
about dwindling job opportunities <strong>for</strong><br />
law graduates. <strong>Law</strong> students are not<br />
short on reasons to fear.<br />
In this environment, it is important that<br />
we scrutinize any additional fear that<br />
we introduce into our classrooms. In<br />
my own classes, I have learned to limit<br />
the number of cautionary tales that I<br />
use. When I do decide to tell one, I try<br />
to do it at a lower-stress moment in<br />
the semester, such as shortly after the<br />
submission of a legal writing paper. I<br />
do this not only because excess stress<br />
With an in<strong>for</strong>med perspective, our<br />
students can march into the constantlyevolving<br />
cyberspace wilderness as<br />
effective, self-sufficient legal researchers.<br />
____________<br />
Eunice Park is an Assistant Professor<br />
of <strong>Law</strong>yering Skills at Western State<br />
College of <strong>Law</strong>. Contact her at<br />
epark@wsulaw.edu.<br />
is mentally <strong>and</strong> physically unhealthy,<br />
but also because it impedes learning.<br />
In the past, when I have been less<br />
sparing with cautionary tales, students<br />
who are loaded down with law school<br />
anxieties seemed unable to project onto<br />
themselves a lawyer’s anxieties, which is<br />
necessary <strong>for</strong> them to identify with the<br />
protagonist in the story. Without this<br />
identification, students are much less<br />
likely to be persuaded that they should<br />
learn a behavior.<br />
<strong>The</strong> most meaningful change that I’ve<br />
made in the way that I use cautionary<br />
tales, however, is pairing the stories<br />
with explicit instructions about how<br />
to avoid the negative consequences in<br />
the story—my version of an epilogue.<br />
A student who hears a cautionary tale<br />
is likely to ignore it unless the student<br />
believes that she can realistically<br />
avoid the consequence suffered by<br />
the protagonist. So, <strong>for</strong> a student who<br />
believes that she’s “a bad legal writer,” a<br />
story about an attorney being sanctioned<br />
<strong>for</strong> filing an incomprehensible brief is<br />
— continued on page 29
Happily Ever After<br />
unlikely to motivate her. Because<br />
she doesn’t believe that she has the<br />
tools or the ability to avoid filing an<br />
incomprehensible brief herself, the<br />
story will not change her behavior.<br />
To minimize this defeated reaction, I<br />
give my students small, concrete steps<br />
they can take to avoid the negative<br />
consequence. Perhaps the brief was<br />
incomprehensible because it lacked<br />
organization. By walking my students<br />
though the brief <strong>and</strong> imposing<br />
CREAC (or IRAC) on it together, I<br />
offer them a tangible way to avoid<br />
the threat. <strong>The</strong> “bad writer” student<br />
doesn’t know where to begin to avoid<br />
filing an “incomprehensible” brief, but<br />
she can be confident that she knows<br />
the basic order that a legal audience<br />
expects an analysis to take.<br />
Although many of us use cautionary<br />
tales to introduce a particular topic,<br />
epilogues make the connection more<br />
explicit. Stories that arouse fear<br />
are, alone, counterproductive. But<br />
when paired with realistic measures<br />
<strong>for</strong> conquering the fear, they can<br />
motivate student learning. In this way,<br />
cautionary tale epilogues can help put<br />
students on the road to “happily ever<br />
after.”<br />
____________<br />
— continued from page 28<br />
Abigail Patthoff is an associate professor<br />
of legal writing at Chapman University<br />
School of <strong>Law</strong>. Contact her at<br />
patthoff@chapman.edu<br />
Developing Classroom Authenticity:<br />
“Big Talk” Format<br />
By Mark L. Perlmutter<br />
One of the things my students<br />
regularly tell me is that<br />
while they have plenty of<br />
opportunities to discuss intellectual<br />
topics in class, they rarely, if ever, have<br />
an opportunity to have an authentic<br />
conversation in which they get to know<br />
one another <strong>and</strong> learn something about<br />
themselves as “human beings who are<br />
becoming lawyers.” To remedy this,<br />
I’ve developed a structure to facilitate<br />
such conversations I call a “Big-Talk”<br />
<strong>for</strong>mat (as opposed to the “small talk”<br />
smothered in social defenses in which<br />
we ordinarily engage).<br />
This structure is particularly useful in<br />
discussing professional responsibility<br />
issues—not so much the rules<br />
themselves but the human factors that<br />
determine whether our students actually<br />
are able to meet ethical st<strong>and</strong>ards<br />
in practice. <strong>The</strong>se are their personal<br />
character traits <strong>and</strong> situational pressures<br />
such as financial exigencies, client<br />
relationships <strong>and</strong> loyalty, anger <strong>and</strong><br />
frustration with the opposition, among<br />
others.<br />
In a PR course, this <strong>for</strong>mat could be used<br />
with the following topics, listed in order<br />
of least threatening to most threatening<br />
<strong>and</strong> discussed in that order (but no more<br />
than one topic in an hour-long class):<br />
1. What does it mean to you to be a<br />
professional?<br />
2. What do you lie about? When is it<br />
okay to lie in your personal life <strong>and</strong><br />
as a lawyer?<br />
3. What is the role of money in your life?<br />
What ethical compromises are you<br />
concerned you might be pressured<br />
to make <strong>for</strong> money or that you have<br />
made <strong>for</strong> money? (If this one is hard<br />
to get going, try “What makes it hard<br />
<strong>for</strong> you to talk about money?”)<br />
To introduce the new structure, the<br />
instructor tells the class that this session<br />
is about “big talk” rather than small<br />
talk; that is, that we will be talking about<br />
important things. Explain that it’s not<br />
enough to learn the disciplinary rules to<br />
be an ethical lawyer. It’s also important<br />
<strong>for</strong> lawyers to look at other factors that<br />
will influence whether they’re able to<br />
follow the rules in real life—their own<br />
values, character, <strong>and</strong> pressures that may<br />
be brought to bear on them.<br />
Consider whether it may be helpful to<br />
begin this process by modeling how<br />
someone might respond, e.g., “I have to<br />
confess I’ve lied when my wife asks me<br />
whether a certain article of clothing she’s<br />
obviously attached to makes her look<br />
fat,” or “I can’t deny that when things<br />
got slow when I was in practice, I was<br />
tempted to nudge a client toward a more<br />
aggressive posture because I knew that<br />
would result in higher billings <strong>for</strong> me.”<br />
What we’re shooting <strong>for</strong> is an authentic<br />
conversation, <strong>and</strong> the best way to achieve<br />
it is to be authentic ourselves.<br />
<strong>The</strong> class should be seated in a circle<br />
or an ellipse so that everyone can see<br />
everyone else. <strong>The</strong>re should be no tables<br />
or other barriers inside the circle.<br />
It’s also essential to have a “talking<br />
object,” that is, something that can be<br />
easily passed from person to person or<br />
even thrown across the room like a small<br />
stuffed animal—the sillier looking the<br />
better. It’s also helpful to have a digital<br />
timer—such as those included in the<br />
clock utility on an iPhone.<br />
<strong>The</strong> group safety agreements, which<br />
should be displayed <strong>and</strong> covered with<br />
the class, are as follows:<br />
1. We agree to listen with respect <strong>and</strong><br />
without judgment as well as we can,<br />
— continued on page 30<br />
THE LAW TEACHER | SPRING 2013 | 29
Developing Classroom Authenticity<br />
— continued from page 29<br />
recognizing that people’s thoughts,<br />
feelings, <strong>and</strong> actions are a product of<br />
their life experiences.<br />
2. We agree to pursue underst<strong>and</strong>ing<br />
rather than persuasion.<br />
3. We agree to invite <strong>and</strong> honor<br />
diversity of opinion.<br />
4. We agree to speak what has personal<br />
heart <strong>and</strong> meaning <strong>for</strong> each of us.<br />
5. We agree to go <strong>for</strong> honesty <strong>and</strong> depth<br />
… without going on <strong>and</strong> on.<br />
6. We agree to respect the airspace of the<br />
person who holds the Talking Object;<br />
only the person with the Talking<br />
Object may speak at any given time.<br />
7. We agree to maintain strict<br />
confidentiality.<br />
8. We may pass if we choose.<br />
Each person should be asked to indicate<br />
assent to abide by the agreements by<br />
raising their h<strong>and</strong>s.<br />
<strong>The</strong> process then begins by the<br />
instructor’s announcing the topic. <strong>The</strong><br />
talking object is placed in the middle of<br />
the circle. (It’s best to put it on a small<br />
stool so that people don’t have to bend<br />
over too far to pick it up.) <strong>The</strong> group is<br />
then given three minutes of silence <strong>for</strong><br />
everyone to collect their thoughts on<br />
the subject matter so they can listen to<br />
others while awaiting their turns. At the<br />
end of the three minutes, the first person<br />
moved to speak retrieves the talking<br />
object, returns to the circle <strong>and</strong> begins<br />
speaking. It’s helpful to have a timer to<br />
limit each person to either one, two or<br />
30 | THE LAW TEACHER | SPRING 2013<br />
three minutes, depending on how much<br />
total time is available <strong>and</strong> the nature of<br />
the topic. But it’s also important not to<br />
let the timer itself become a distraction.<br />
<strong>The</strong> first person finishes speaking then<br />
chooses to pass the talking object to the<br />
person on either side <strong>and</strong> the speakingthen-passing<br />
continues in that direction<br />
until the talking object has made it<br />
around the circle. At that time, the<br />
instructor may choose to go in order <strong>for</strong><br />
another round or may allow people to<br />
request the talking object <strong>and</strong> then speak<br />
in r<strong>and</strong>om order as each is moved to<br />
speak.<br />
<strong>The</strong> critical task of the instructor is to<br />
create a safe place <strong>for</strong> personal disclosure<br />
by being supportive of all the students<br />
without judging. Also, the instructor<br />
should gently encourage the group to<br />
talk to one another (rather than focus<br />
on the instructor, which often occurs);<br />
to respect the holder of the talking<br />
object by not interrupting the speaker;<br />
<strong>and</strong> generally, to nudge members to<br />
comply with the rules when they stray.<br />
It’s not the instructor’s job to “correct,”<br />
or interrupt, or respond to others’<br />
comments.<br />
When witching from going around in a<br />
circle to r<strong>and</strong>om speakers, consider using<br />
“subgrouping,” that is, when someone<br />
makes a statement that others are likely<br />
to disagree with—the instructor is likely<br />
to feel electricity in the room—consider<br />
interrupting the flow <strong>and</strong> suggesting<br />
that be<strong>for</strong>e we entertain differences, let’s<br />
see who has similar thoughts or feelings.<br />
Have those people take turns speaking<br />
until that subgroup’s energy plays out.<br />
If no one has similar feelings, see if you<br />
can “subgroup” with the speaker by<br />
validating something that the person<br />
said. (This helps people feel safe.) <strong>The</strong>n,<br />
turn to those who may have a different<br />
point of view <strong>and</strong> have them discuss<br />
their views. In this way, each side of the<br />
issue gets explored more deeply, without<br />
judgment, <strong>and</strong>, generally, the two sides<br />
will be more open to seeing each other’s<br />
points of view than the usual way of<br />
doing things, i.e., point/counterpoint.<br />
See http://www.sctri.com/en-us/<br />
systems-centered.aspx <strong>for</strong> materials on<br />
“Functional Subgrouping.”<br />
Conversations conducted in the<br />
Big Talk structure not only produce<br />
authentic communication <strong>and</strong> personal<br />
introspection, but also have the effect of<br />
creating community among the students.<br />
<strong>The</strong>y begin to see they’re not alone with<br />
their fears <strong>and</strong> failings, <strong>and</strong> through this<br />
authenticity, they feel safer with <strong>and</strong><br />
more connected to one another. As their<br />
sense of safety <strong>and</strong> connection builds<br />
during the semester, they feel freer to<br />
be honest with themselves <strong>and</strong> with one<br />
another. And, of course, being honest<br />
with ourselves is the first step toward<br />
improving our ethical conduct.<br />
____________<br />
Mark L. Perlmutter is an Adjunct Professor<br />
at University of Texas School of <strong>Law</strong> <strong>and</strong> the<br />
University of Cali<strong>for</strong>nia Hastings College<br />
of the <strong>Law</strong>, <strong>and</strong> has practiced as a civil trial<br />
lawyer at Perlmutter & Shuelke in Austin.<br />
Contact him at mlp@civtrial.com.
Adding a St<strong>and</strong>ardized Assessment Exercise to the Legal<br />
Writing Toolbox 1<br />
By Kelley B. Poleynard<br />
Consider this exchange:<br />
Student: “What’s a digest?”<br />
Professor: “Well, as we discussed<br />
last semester <strong>and</strong> as was covered<br />
in the assigned reading . . . .”<br />
How many times has a similar scenario<br />
played out in your class?<br />
One day when the legal writing<br />
professors in our department sat down<br />
together, we all had the same lament:<br />
students continually asked questions in<br />
class to which they should have known<br />
the answer if they had completed the<br />
assigned reading (an e-book in our case).<br />
We also commonly noticed students<br />
seemed to “<strong>for</strong>get” basic concepts<br />
they already had learned earlier in the<br />
year. What could we do about this?<br />
We already administered a good faith<br />
research review exercise in the fall<br />
<strong>and</strong> a good faith citation <strong>and</strong> grammar<br />
diagnostic in the spring. How else could<br />
we impart the importance of reading the<br />
assigned text <strong>and</strong> the need to review <strong>and</strong><br />
recall previously learned skills?<br />
Our solution: a graded, year-end<br />
multiple-choice assessment exercise<br />
made up of twenty-five questions<br />
worth seventy-five points, covering<br />
research <strong>and</strong> writing skills taught in both<br />
semesters. Our goal was to provide an<br />
incentive to our students to read their<br />
text <strong>and</strong> to review the practice skills our<br />
students would need <strong>for</strong> summer or fall<br />
externships. We found the exercise not<br />
only served these purposes, but also<br />
in<strong>for</strong>med our teaching, helping us to<br />
pinpoint discrete areas needing more<br />
review in the classroom.<br />
<strong>The</strong> Exercise<br />
<strong>The</strong> st<strong>and</strong>ardized exercise we administer<br />
is based on fundamental in<strong>for</strong>mation<br />
students should glean from their<br />
assigned reading – <strong>and</strong> which has been<br />
covered during class time, too.<br />
<strong>The</strong> exercise covers three main categories<br />
of questions: use of legal authority, such<br />
as identifying m<strong>and</strong>atory vs. persuasive<br />
authority <strong>and</strong> choosing the best authority<br />
to cite; legal research, <strong>for</strong> example, types<br />
of sources <strong>and</strong> finding tools <strong>and</strong> where<br />
to begin legal research; <strong>and</strong> general legal<br />
writing principles, such as the parts of<br />
a memo or brief, persuasive writing<br />
techniques, <strong>and</strong> recognition of poor vs.<br />
good writing depending on the audience.<br />
We included a few very easy questions,<br />
a few more difficult questions, <strong>and</strong> some<br />
middle of the road questions.<br />
By assigning three points to each of the<br />
twenty-five questions, the seventy-five<br />
point value gives the exercise some<br />
“teeth” to encourage students to read<br />
when they should <strong>and</strong> to review their<br />
notes throughout the year. At the same<br />
time, requiring a graded, as opposed to<br />
a good-faith, exercise does not unfairly<br />
prejudice the good legal writer who is<br />
a poor test taker because the exercise is<br />
worth only approximately 11% of the<br />
total points possible during the spring<br />
semester. (Each semester of legal writing<br />
is worth 50% of the student’s grade. <strong>The</strong><br />
year-end grade is reported as the average<br />
of the two semesters.)<br />
Sample Questions<br />
<strong>and</strong> Results<br />
Did the exercise prove effective? Did<br />
the results demonstrate students had<br />
indeed read their text <strong>and</strong> notes; that<br />
they had reviewed the basic skills they<br />
would need after they ventured outside<br />
our classroom? Last year, my colleague,<br />
Robert Somers, <strong>and</strong> I per<strong>for</strong>med an<br />
in<strong>for</strong>mal statistical analysis of our<br />
students’ per<strong>for</strong>mance on the exercise. 2<br />
<strong>The</strong> sample totaled 114 students spread<br />
over four different sections. Below are<br />
samples of each category of questions<br />
from the exercise <strong>and</strong> what Professor<br />
Somers <strong>and</strong> I learned about our students<br />
from their responses.<br />
Example 1 – Use of Authority<br />
Which of the following citations refers<br />
to a source that could not be binding<br />
authority?<br />
a. 495 U.S. 320 (1990)<br />
b. 357 F.2d 890 (2d Cir. 1989)<br />
c. 61 A.L.R. Fed. 538 (1975)<br />
d. 325 P.2d 987 (Cal. Ct. App. 1999)<br />
Answer: (c). This question assessed<br />
students’ recognition of secondary<br />
sources as persuasive authority, as well<br />
as students’ knowledge of different<br />
court levels based on the reporter <strong>and</strong><br />
jurisdictional abbreviations. As expected,<br />
almost everyone in the sample answered<br />
correctly, 96% of 114 students.<br />
Example 2 – Use of Authority<br />
You are filing an appellate brief with the<br />
Ninth Circuit Court of Appeals. You find<br />
Case A on point, but Shepards/Keycite<br />
indicates that three more recent Ninth<br />
Circuit cases have distinguished Case A.<br />
<strong>The</strong>re<strong>for</strong>e, Case A:<br />
a. Can be cited only if you in<strong>for</strong>m<br />
the reader of negative treatment.<br />
b. Can be cited but only <strong>for</strong> issues<br />
that the subsequent cases did not<br />
distinguish.<br />
c. Should not be cited because it is<br />
no longer good law.<br />
d. Is good law <strong>and</strong> can be cited<br />
without limitation.<br />
Answer: (d). Although this was a more<br />
difficult question requiring students to<br />
think more deeply about the meaning<br />
of negative treatment, I was surprised<br />
that only 20% of the students sampled<br />
answered correctly. <strong>The</strong> majority of<br />
— continued on page 32<br />
THE LAW TEACHER | SPRING 2013 | 31
Adding a St<strong>and</strong>ardized Assessment Exercise to the Legal<br />
Writing Toolbox<br />
— continued from page 31<br />
students who answered incorrectly<br />
chose (b). On reflection, it appears<br />
students answered the question ultraconservatively,<br />
having been reminded<br />
throughout the spring semester of an<br />
attorney’s duty of c<strong>and</strong>or, including<br />
the need to cite to only good law <strong>and</strong> to<br />
in<strong>for</strong>m the court of adverse controlling<br />
authority.<br />
Example 3 – General Legal<br />
Writing Principles<br />
One writing technique <strong>for</strong> downplaying<br />
an actor’s involvement is<br />
a. Using the passive voice<br />
b. Using affirmative language<br />
c. Using plain English<br />
d. Using a short sentence<br />
Answer: (a). Not surprisingly, 85% of<br />
the sampled 114 students answered<br />
correctly, demonstrating their recall of<br />
the persuasive writing techniques they<br />
had learned in the spring semester.<br />
Example 4 – Legal Research<br />
Your firm represents R<strong>and</strong>y, a licensed<br />
Cali<strong>for</strong>nia Realtor. R<strong>and</strong>y has been sued<br />
in the Orange County Superior Court by<br />
the Buyer of his client’s house. <strong>The</strong> Buyer<br />
alleges R<strong>and</strong>y failed to disclose the<br />
home’s heating vents were contaminated<br />
with toxic mold. Your partner has asked<br />
you to research whether any statutes<br />
govern whether R<strong>and</strong>y violated any<br />
duties to the Buyer.<br />
Which index is the best place to begin<br />
your research?<br />
a. U.S.C.A.<br />
b. West’s Cali<strong>for</strong>nia Code<br />
Annotated<br />
c. West’s Cali<strong>for</strong>nia Digest<br />
d. U.S.C.<br />
32 | THE LAW TEACHER | SPRING 2013<br />
Answer: (b). <strong>The</strong> hypothetical<br />
corresponded to two separate questions<br />
(the second question asked students to<br />
identify the case that would constitute<br />
binding authority in this scenario).<br />
This particular question assessed the<br />
students’ ability to choose the right<br />
starting place to research a client<br />
problem based on the facts. Students<br />
had conducted independent research<br />
in both the fall <strong>and</strong> spring semesters,<br />
<strong>and</strong> I had expected most students to<br />
answer this question correctly. However,<br />
of the 114 students sampled, 62%<br />
answered correctly. Choice (c)—the<br />
Digest—was the most frequently chosen<br />
wrong answer. <strong>The</strong> hypothetical told<br />
students the jurisdiction, which most<br />
recognized, <strong>and</strong> also told students the<br />
type of authority to find. <strong>The</strong> choice of<br />
the Cali<strong>for</strong>nia Digest over the Cali<strong>for</strong>nia<br />
Annotated Code indicated confusion as<br />
to either the name of the correct finding<br />
tool or the type of authority contained in<br />
each finding tool.<br />
Conclusion<br />
Did the st<strong>and</strong>ardized assessment<br />
exercise enhance our legal writing tool<br />
kit? 3 Yes. <strong>The</strong> 114 sampled students<br />
averaged almost 80% correct answers,<br />
demonstrating students had reviewed<br />
the material <strong>and</strong> had an underst<strong>and</strong>ing<br />
of the skills they had learned throughout<br />
the year <strong>and</strong> how to apply them.<br />
Although I was relieved my students<br />
indeed were walking away with the basic<br />
knowledge they would need to survive<br />
on their own, I found reviewing the<br />
results more important to in<strong>for</strong>ming my<br />
teaching.<br />
My colleagues <strong>and</strong> I have always taught<br />
the concepts contained in the assessment<br />
exercise, but I find I now deliberately<br />
reiterate in class the concepts students<br />
had the most trouble with on the<br />
exercise, particularly those skills<br />
students learn in the fall <strong>and</strong> reapply in<br />
the spring. For example, after students<br />
have learned a digest is a finding tool<br />
<strong>for</strong> cases <strong>and</strong> the index to an annotated<br />
code is a finding tool <strong>for</strong> statutes in<br />
the fall, I re-emphasize the difference<br />
between the two in the spring, having<br />
learned my students confuse the two<br />
finding tools. Likewise, when teaching<br />
the lawyer’s duty of c<strong>and</strong>or, now I<br />
repeatedly remind students a case that<br />
has been distinguished is not bad law,<br />
<strong>and</strong> students may ethically cite to the<br />
case (unless other factors are at play).<br />
In the end, the exercise served our<br />
department’s purposes—it persuaded<br />
students to read <strong>and</strong> to review be<strong>for</strong>e<br />
hitting the summer break <strong>and</strong> has made<br />
us better professors of legal writing.<br />
____________<br />
Kelley B. Poleynard is a Professor of Legal<br />
Writing at Whittier <strong>Law</strong> School. She can be<br />
reached at kpoleynard@law.whittier.edu.<br />
____________<br />
1 This article is based on a presentation my<br />
colleague Professor Robert Somers <strong>and</strong> I jointly<br />
gave at the Western Regional Legal Writing<br />
Conference at the University of Oregon School of<br />
<strong>Law</strong>, August 9-10, 2012, “Killing Two Birds With<br />
One Stone: Using a St<strong>and</strong>ardized Review Exercise<br />
as a <strong>Teaching</strong> Tool <strong>and</strong> Assessment Mechanism.”<br />
2 Our analysis was based on twenty-two, rather<br />
than twenty-five questions. See note 3 infra.<br />
3 A st<strong>and</strong>ardized exercise such as this one also can<br />
serve as a vehicle <strong>for</strong> <strong>for</strong>mal assessment without<br />
requiring students to take – or professors to grade<br />
– an additional “test.” Last year the exercise was<br />
reduced to twenty-two multiple choice questions<br />
to make room <strong>for</strong> eight imbedded short answer<br />
“research path” questions, which the co-chairs<br />
of the law school’s Assessment Committee (the<br />
director <strong>and</strong> assistant director of our department)<br />
used to <strong>for</strong>mally assess our students’ ability to<br />
conduct legal research.
On the Importance of Subtle Distinctions: A Short Exercise in Close<br />
Reading <strong>and</strong> Critical Thinking<br />
By Jay Sterling Silver<br />
To stress the importance to 1Ls of<br />
close reading <strong>and</strong> critical thinking,<br />
I h<strong>and</strong> out the following, two-part<br />
exercise, followed by the answer sheet<br />
below it, in a fifteen- or twenty-minute<br />
segment of class sometime in the first<br />
semester:<br />
Critical Thinking<br />
Exercise<br />
Anyone can spot a clear distinction.<br />
As a lawyer, you’ll earn your keep<br />
by evaluating <strong>and</strong> articulating subtle<br />
differences between the facts of your<br />
case <strong>and</strong> a case cited by opposing<br />
counsel, <strong>and</strong> by underst<strong>and</strong>ing the<br />
effect of punctuation, conjunctions,<br />
<strong>and</strong> other aspects of grammar <strong>and</strong><br />
syntax on the meaning of a statute or<br />
contract. Like a wolf in sheep’s clothing,<br />
critical differences in meaning can<br />
masquerade as minutiae. Parts I <strong>and</strong> II<br />
<strong>and</strong> the answer sheet that follows will<br />
underscore this lesson.<br />
____________<br />
Answer to Critical<br />
Thinking Exercise<br />
<strong>The</strong> correct answer to Question 1 is<br />
D, <strong>and</strong> the correct to Question 2 is<br />
B. Question 1 calls <strong>for</strong> you to select<br />
“the second sentence below in which<br />
the following phrase appears.” As<br />
you correctly answered, option D is<br />
the second sentence containing those<br />
particular words. While Question<br />
2 is almost the same as Question 1,<br />
a comma has been added between<br />
“below” <strong>and</strong> “in which,” creating a<br />
nonrestrictive clause. <strong>The</strong> difference?<br />
<strong>The</strong> nonrestrictive clause merely helps<br />
describe what is in “the second sentence<br />
below,” which is option B, adding<br />
nonessential in<strong>for</strong>mation. <strong>The</strong> effect<br />
of the comma is to change the task<br />
from selecting the second sentence that<br />
contains particular language to simply<br />
Student Name: ___________________________________________<br />
PART I. Fill your name in on the line above <strong>and</strong> read the following as closely as<br />
you can, answering both questions be<strong>for</strong>e you proceed to Part II.<br />
Question 1.<br />
Circle the letter corresponding to the second sentence below in which the<br />
phrase “Punctuation <strong>and</strong> conjunctions can” appears.<br />
A. Punctuation <strong>and</strong> conjunctions must be given close attention.<br />
B. Punctuation <strong>and</strong> conjunctions can drastically alter the meaning of a<br />
sentence.<br />
C. Punctuation, rather than the absence of the word “can,” will dictate the<br />
correct answer to this very question.<br />
D. Punctuation <strong>and</strong> conjunctions can, as you will see when we review this<br />
exercise, make all the difference in the world.<br />
Question 2.<br />
Circle the letter corresponding to the second sentence below, in which the<br />
phrase “Punctuation <strong>and</strong> conjunctions can” appears.<br />
A. Punctuation <strong>and</strong> conjunctions must be given close attention.<br />
B. Punctuation <strong>and</strong> conjunctions can drastically alter the meaning sentence.<br />
C. Punctuation, rather than the absence of the word “can,” will dictate the<br />
correct answer to this very question.<br />
D. Punctuation <strong>and</strong> conjunctions can, as you will see when we review this<br />
exercise, make all the difference in the world.<br />
PART II. <strong>The</strong> answer Question 1 is different from the answer to Question 2. In<br />
this part, think about <strong>and</strong> explain on the lines provided below exactly why the<br />
answer is different.<br />
selecting the second sentence, which,<br />
as the nonrestrictive clause that follows<br />
indicates, happens to contain certain<br />
language. Think about it, <strong>and</strong> don’t<br />
assume that subtle distinctions are of<br />
minor importance.<br />
In your study of law <strong>and</strong> throughout<br />
your career, the points you overlook<br />
or think are too small to worry about<br />
may well come back to haunt you.<br />
Remember: good lawyers read closely<br />
<strong>and</strong> think carefully.<br />
____________<br />
Jay Sterling Silver is a Professor of <strong>Law</strong><br />
at St. Thomas University School of <strong>Law</strong>.<br />
Contact him at jsilver@stu.edu.<br />
____________<br />
1 For a more detailed explanation of the grammatical<br />
conventions discussed in this exercise, see://grammar.<br />
about.com/od/basicsentencegrammar/a/restrnonradjc03.<br />
htm.<br />
THE LAW TEACHER | SPRING 2013 | 33
Blogging: Reflection Spurs Students Forward<br />
By Am<strong>and</strong>a L. Smith<br />
Journaling cultivates a habit of<br />
reflection essential to the learning<br />
process. Rather than have students<br />
keep journals, I ask them to blog. Like<br />
Facebook <strong>and</strong> Twitter, blogs are avenues<br />
of expression familiar to students. I have<br />
found that when I present journaling as<br />
blogging, students are enthusiastic about<br />
the reflection process. This past spring,<br />
my students not only blogged about the<br />
past, but also captured inspiring words<br />
<strong>for</strong> the future.<br />
Blogs are places where students can<br />
discover more about themselves as<br />
learners <strong>and</strong> future lawyers. I set up<br />
a password-protected <strong>for</strong>um to house<br />
each student’s blog. This allows every<br />
student to write with the assurance that I<br />
will be the only reader. I set up a regular<br />
blogging schedule <strong>and</strong> provide students<br />
with general topics as each entry comes<br />
due. Oftentimes, I prompt students<br />
to reflect upon their experiences after<br />
completing major assignments <strong>and</strong> to<br />
anticipate upcoming challenges.<br />
Last January, the due date of a blog<br />
entry fell within days of when my firstyear<br />
students received their first set<br />
of grades. Not wanting them to dwell<br />
on GPAs, I asked my students to write<br />
about what motivated them to come to<br />
law school. Also, because I was teaching<br />
in the evening program,<br />
I suggested that they<br />
write about what keeps<br />
them going as they juggle<br />
full-time jobs, families,<br />
<strong>and</strong> law school.<br />
34 | THE LAW TEACHER | SPRING 2013<br />
One afternoon, I sat down at my<br />
computer to read these blogs. Click.<br />
First blog. A student wrote that her<br />
daughter’s tenacity motivates the<br />
student to succeed in law school. She<br />
described how her daughter had been<br />
bullied while playing on a sports team.<br />
In an ef<strong>for</strong>t to protect her daughter, my<br />
student offered to let her daughter quit<br />
the team. <strong>The</strong> daughter refused because<br />
she could not let the bullies get the best<br />
of her. My student, inspired by her<br />
daughter, vowed not to allow law school<br />
to get the best of her but to give her best<br />
to law school.<br />
Click. Second blog. This student said that<br />
she feels like a superhero while sitting<br />
in her law school classes. She works as<br />
a paralegal <strong>and</strong> had a client recently<br />
refer to her as “<strong>Law</strong> Girl.” Now, on her<br />
toughest days, she envisions herself<br />
st<strong>and</strong>ing tall on a mountain top. Her<br />
cape blows in the wind. One fist rests<br />
on her hip while her other first is raised<br />
high into the air. “<strong>Law</strong> Girl” echoes in<br />
the valley below.<br />
Click. Click. Click. I did not simply read<br />
these blogs; I devoured them. I found<br />
each one more compelling than the last.<br />
While I had suggested that students<br />
write 225 words, most poured out over<br />
1,200 words. <strong>The</strong> students’<br />
stories of challenge <strong>and</strong> resolve<br />
were so precious that I set out<br />
to preserve them.<br />
I treated the blogs<br />
like treasured<br />
photographs <strong>and</strong> framed them. I placed<br />
pieces of each student’s blog into his or<br />
her own 5 x 7 frame. I added graphics<br />
<strong>and</strong> color to make the words come alive.<br />
I took the frames to the last class meeting<br />
of the year because, much like the blogs,<br />
the final class involves reflection on<br />
lessons learned with an eye toward the<br />
future. In that last class, we talked about<br />
how much the students had learned<br />
during their first year of law school. We<br />
also discussed the challenges they would<br />
face in the future, both as students<br />
<strong>and</strong> attorneys. During difficult times,<br />
I encouraged them to remember why<br />
they wanted to become lawyers. <strong>The</strong>n,<br />
I walked around the room, placing a<br />
frame into the h<strong>and</strong>s of each student.<br />
After giving my students’ words back<br />
to them, they gave me nods, smiles, <strong>and</strong><br />
tears. Through blogging, my students<br />
learned that reflecting on the past not<br />
only helps learning in the present, but<br />
can also be motivating in the future.<br />
____________<br />
Am<strong>and</strong>a L. Smith is an Associate Legal<br />
Methods Professor at Widener <strong>Law</strong> School’s<br />
Harrisburg campus. Contact her<br />
at alsmith9276@widener.edu.<br />
____________<br />
Thank you to the two students mentioned<br />
<strong>for</strong> giving me permission to share pieces<br />
of their blogs.
Classroom Justice: Beyond Paper-Chase Pedagogy<br />
By SpearIt<br />
<strong>The</strong> film, <strong>The</strong> Paper Chase, is<br />
famous <strong>for</strong> its depiction of the<br />
rigors of law school at an elite<br />
institution. It tells the story of Hart,<br />
a 1L at Harvard <strong>Law</strong> School, <strong>and</strong> his<br />
experiences with Professor Charles<br />
Kingsfield, a professor whom he<br />
both idolizes <strong>and</strong> finds frightening.<br />
Despite his scholarly brilliance <strong>and</strong><br />
regal namesake, Kingsfield is hardly<br />
the model instructor. He is heavy<br />
h<strong>and</strong>ed <strong>and</strong> his tactics, intentionally<br />
intimidating <strong>and</strong> authoritarian. Despite<br />
being dated by nearly half a century,<br />
this film is still relevant today, since<br />
this style of pedagogy survives in law<br />
school teaching across the country;<br />
<strong>and</strong> although many would disavow<br />
the film as an excessive portrayal of<br />
legal education, many of Kingsfield’s<br />
techniques persist to the present. This<br />
is ironic since, by the film’s end, the<br />
superstar professor learns a great deal<br />
from the student. <strong>The</strong> subtext is that<br />
students are not empty vessels <strong>and</strong><br />
professors, fountains of knowledge—<br />
rather, they are partners in learning.<br />
What follows advocates a critical<br />
approach to law school teaching<br />
called “classroom justice,” as a foil to<br />
Kingsfield’s paper-chase pedagogy.<br />
This concept may be understood as a<br />
subspecies of critical pedagogy, which<br />
seeks to devise more equitable methods<br />
of teaching than traditional models of<br />
legal education. Predicated on the need<br />
<strong>for</strong> re<strong>for</strong>m, the approach also aims to<br />
provide legal educators with a moral<br />
compass to provide greater agency to<br />
students in their legal education <strong>and</strong> to<br />
help students underst<strong>and</strong> the power at<br />
play in the acquisition of knowledge.<br />
In theory, classroom justice begins with<br />
the student-teacher dialectic. It derives<br />
from the baseline proposition that a<br />
teacher’s identity is inextricable from<br />
the student’s, <strong>and</strong> indeed, depends on<br />
it; there is no such thing as a teacher<br />
without a student, as the identity of one<br />
is bound up in the other. A dialectical<br />
approach grounds teaching in a principle<br />
of equality since each cannot exist<br />
without the existence of the other. In<br />
practice, reflective teachers cultivate<br />
this underst<strong>and</strong>ing by recognizing<br />
teaching as an opportunity <strong>for</strong> learning.<br />
Such teachers sit in the middle of<br />
contradiction, existing both as teacher<br />
<strong>and</strong> student.<br />
This dialectical approach is especially<br />
relevant to the law school setting, since<br />
legal education is characterized by rigid<br />
hierarchies <strong>and</strong> student alienation. <strong>The</strong><br />
culture of legal education creates some<br />
of the problem through the use of strict<br />
grading curves, which put students in<br />
zero-sum competition <strong>for</strong> the highest<br />
grades. And although instructors may<br />
benignly admonish students to “work in<br />
groups,” the grading policies may make<br />
isolation seem a better option than trying<br />
to help one’s peers.<br />
Sometimes the hierarchies result from<br />
the professor’s approach. For example,<br />
teachers à la Kingsfield may use<br />
authority-invested tactics like insisting<br />
on being called “professor,” wearing<br />
suits on teaching days, <strong>and</strong> employing<br />
a host of power-ridden techniques,<br />
including “cold calling,” use of seating<br />
charts, <strong>and</strong> inquisitorial regimes garbed<br />
under the “Socratic method.” <strong>The</strong>re is<br />
much at a teacher’s disposal to create a<br />
chasm between teacher <strong>and</strong> student.<br />
Un<strong>for</strong>tunately, however, sometimes<br />
it is necessary <strong>for</strong> professors to create<br />
space, especially <strong>for</strong> non-traditional law<br />
professors. For these professors, these<br />
very tactics may be part of a strategy <strong>for</strong><br />
dealing with the type of student who<br />
lacks professionalism <strong>and</strong> sincerity, or<br />
worse, lacks faith in the instructor’s<br />
competence. When employed as a part<br />
of a program to instill professionalism in<br />
students, these strategies may advance<br />
justice; under paper-chase pedagogy,<br />
however, they do the opposite.<br />
Classroom justice can in<strong>for</strong>m the<br />
learning ecology, class policies, methods<br />
of evaluation, as well as include students<br />
in deciding some of the content of<br />
the course. In my criminal law class,<br />
<strong>for</strong> example, students vote on how<br />
participation will work, as well as help<br />
determine some of the course content, as<br />
the last few lectures are reserved to cover<br />
particular crimes in which students have<br />
affirmed an interest. In my corrections<br />
law class, students can choose from<br />
several options <strong>for</strong> developing a policy<br />
project, including a wiki project, written<br />
policy report, or memor<strong>and</strong>um of law.<br />
Offering options to students might seem<br />
like a small gesture, but to students it<br />
can make a world of difference <strong>and</strong> give<br />
them greater agency in their education,<br />
as well as reward skills beyond good<br />
test-taking. Moreover, in my corrections<br />
class, it provides an opportunity <strong>for</strong><br />
service learning, since many of the final<br />
projects are posted online <strong>for</strong> public<br />
viewing.<br />
Taken wholly, classroom justice st<strong>and</strong>s<br />
<strong>for</strong> the proposition that justice is more<br />
than a concept from a casebook—it is a<br />
goal to be attained in the classroom, too.<br />
Instead of creating oppressive learning<br />
environments, intentional or otherwise,<br />
professors should strive to teach law<br />
school classes where justice is taught <strong>and</strong><br />
actually lived, in productive learning<br />
environments free from fear, unfairness,<br />
<strong>and</strong> other hostilities.<br />
____________<br />
SpearIt is an Assistant Professor of <strong>Law</strong><br />
at Saint Louis University School of <strong>Law</strong>.<br />
Contact him at spearit@slu.edu.<br />
THE LAW TEACHER | SPRING 2013 | 35
36 | THE LAW TEACHER | SPRING 2013<br />
JUDICIAL POWER<br />
Solution<br />
— continued from page 11
4:30 ‐ 7:00 p.m.<br />
5:00 ‐ 7:00 p.m.<br />
8:00 ‐ 8:45 a.m.<br />
8:45 ‐ 9:15 a.m.<br />
9:30 ‐ 10:30 a.m.<br />
Concurrent Workshops 1<br />
10:30 ‐11:00 a.m.<br />
11:00 a.m. ‐ 12:00 noon<br />
Concurrent Workshops 2<br />
12:00 ‐1:15 p.m.<br />
1:15 ‐ 2:15 p.m.<br />
Concurrent Workshops 3<br />
2:15 ‐2:45 p.m.<br />
2:45 ‐ 3:45 p.m.<br />
Concurrent Workshops 4<br />
3:45 ‐ 4:15 p.m.<br />
4:15 ‐ 5:15 p.m.<br />
Concurrent Workshops 3<br />
5:15 p.m.<br />
5:15 ‐ 6:30 p.m.<br />
6:30 p.m. ‐ ?<br />
Summer 2013 Conference<br />
Hybrid <strong>Law</strong> <strong>Teaching</strong><br />
Friday, June 7, 2013<br />
Registration<br />
Welcome Reception [2nd Floor Lobby] (heavy appetizers will be served)<br />
Saturday, June 8, 2013<br />
Registration <strong>and</strong> Breakfast [First Floor Commons]<br />
Opening [Room 100]<br />
[Room 102] [Room 150 (Clinic)] [Room 125 (Library)] [Room 114]<br />
[A]<br />
[B]<br />
[C]<br />
Jalae Ulicki: "How to Effectively Use<br />
Bradley Charles <strong>and</strong> Heather Michelle Hook Dewey: "<strong>The</strong> Upside‐<br />
[D]<br />
Responseware in Asynchronous <strong>and</strong><br />
Garretson: "Applying the <strong>Law</strong>: Down Classroom: How the Flipped Ezra Ross: "<strong>The</strong> Hybrid Clinical<br />
Synchronous <strong>Learning</strong><br />
Examples <strong>and</strong> Exercises that Bridge Lecture Model Can Be Used in Legal Course: Applied Trial Advocacy"<br />
Environments to Meet the Needs of<br />
Legal Writing <strong>and</strong> Doctrine"<br />
Education"<br />
Digital Natives"<br />
[Room 102] [Room 150 (Clinic)]<br />
Break [First Floor Commons]<br />
[Room 125 (Library)] [Room 114]<br />
[A]<br />
Stephen Gerst: "Building the Bridge<br />
to Practice Using Letters to Student<br />
<strong>Law</strong>yers"<br />
[B]<br />
John Worley: "Integrating Bar Exam<br />
Preparation into Upper‐Division<br />
Doctrinal Courses"<br />
[C]<br />
Michael Vitiello: "Integrating<br />
Experiential <strong>Learning</strong> in Traditional<br />
Classrooms"<br />
[D]<br />
Craig T. Smith, Jon McClanahan,<br />
Katie Pryal, <strong>and</strong> O.J. Salinas: "Hybrid<br />
<strong>Teaching</strong> Beyond the Traditional<br />
Course"<br />
[Room 102] [Room 150 (Clinic)]<br />
Lunch [Room 100] (provided)<br />
[Room 125 (Library)] [Room 114]<br />
[A]<br />
Roberto Corrada: "Ill‐Structured<br />
Whole‐Course Simulations <strong>for</strong><br />
Upper Level Courses"<br />
[B]<br />
(cancelled)<br />
[C]<br />
Emily Grant <strong>and</strong> Will Foster:<br />
"Analogical Exercises <strong>for</strong><br />
Transactional Drafting"<br />
[D]<br />
Brett Brosseit: "Applied Critical<br />
Thinking <strong>and</strong> Legal Analysis"<br />
[Room 102] [Room 150 (Clinic)]<br />
Break [First Floor Commons]<br />
[Room 125 (Library)] [Room 114] [Room 100]<br />
[A]<br />
Simon Canick <strong>and</strong> Jim Hilbert:<br />
"Technology in <strong>Law</strong> Schools <strong>and</strong> the<br />
Profession: Narrowing the Gap"<br />
[B]<br />
Emmy Reeves: "Killing Three Birds<br />
With One Stone: Doctrine,<br />
Academic Support <strong>and</strong> Bar Passage<br />
to Boot"<br />
[C]<br />
Paulette J. Williams: "A Nonprofits<br />
Seminar/Clinic"<br />
[D]<br />
Benjamin Madison <strong>and</strong> Natt Gantt:<br />
"Cultivating Professional Identity<br />
Formation in Doctrinal Course"<br />
[Room 102] [Room 150 (Clinic)]<br />
Break [First Floor Commons]<br />
[Room 125 (Library)] [Room 114]<br />
[A]<br />
Angela Upchurch, "Flipping the <strong>Law</strong><br />
School Classroom: Optimizing the<br />
<strong>Law</strong> School Classroom"<br />
[B]<br />
Aaron Dewald <strong>and</strong> Bonnie Mitchell<br />
(tentative), "Considerations in<br />
Designing <strong>and</strong> Implementing a<br />
Hybrid Course in Legal Education"<br />
[C]<br />
Jennifer Gundlach <strong>and</strong> Kennisha<br />
Austin, "Putting Legal Doctrine Into<br />
Practical Context"<br />
Adjourn <strong>for</strong> the Day<br />
Visit Brown v. Board of Education National Historic Site (optional)<br />
Dinner on your own<br />
[D]<br />
Timothy Casey, "Integrating Ethics<br />
<strong>and</strong> Skills: <strong>The</strong> STEPPS Program"<br />
[E]<br />
Aliza Kaplan: "Pushing <strong>for</strong><br />
Preparation: '<strong>The</strong> Need <strong>for</strong> <strong>The</strong>ory<br />
<strong>and</strong> Skills‐Based Pedagogy With a<br />
Personal Touch in Public Interest<br />
<strong>Law</strong> Courses'"
8:30 ‐ 9:00 a.m.<br />
9:00 ‐ 9:15 a.m.<br />
9:30 ‐ 10:30 a.m.<br />
Concurrent Workshops 6<br />
Summer 2013 Conference<br />
Hybrid <strong>Law</strong> <strong>Teaching</strong><br />
[Room 102] [Room 150 (Clinic)]<br />
Breakfast [Room 114]<br />
Re‐Opening [Room 100]<br />
[Room 125 (Library)] [Room 114]<br />
[A]<br />
Jeremiah Ho: "Hybrid Within a<br />
Hybrid: Integrating Academic<br />
Success in Upper‐Level Capstone<br />
Courses"<br />
[B]<br />
Sarah Ricks: "A Casebook Designed<br />
to Integrate the <strong>Teaching</strong> of Skills<br />
<strong>and</strong> Doctrine: Current Issues in<br />
Constitutional Litigation: A Context<br />
<strong>and</strong> Practice Casebook"<br />
Sunday, June 9, 2013<br />
[C]<br />
Hillary Burgess: "Using Multiple<br />
Choice Questions to Teach Writing<br />
<strong>and</strong> Diagnose Critical Thinking<br />
Deficiencies"<br />
[D]<br />
Jennifer Spreng: "Clark v. Jones, <strong>The</strong><br />
Great Civil Procedure Shootout, <strong>and</strong><br />
Creating <strong>Law</strong> School Classroom<br />
Communities"<br />
10:30 ‐ 11:00 a.m.<br />
Break [First Floor Commons]<br />
[Room 102] [Room 150 (Clinic)] [Room 125 (Library)] [Room 114]<br />
[A]<br />
[B]<br />
11:00 a.m. ‐ 12:00 noon<br />
Concurrent Workshops 7<br />
Cynthia Ho: "Implementing the Julie St. John: "What the Flip? How<br />
Carnegie Apprenticeships of to Flip a <strong>Law</strong> School Class Using<br />
Knowledge <strong>and</strong> Practice: A 'Mystery Videos to Deliver Lectures Outside<br />
Statute' Approach to Substantive of Class, Freeing up Class Time <strong>for</strong><br />
[C]<br />
Joy Radice: "Criminal <strong>Law</strong> &<br />
<strong>Law</strong>yering Skills"<br />
[D]<br />
Deborah Borman: "Incorporating<br />
<strong>Teaching</strong> Professional Identity into<br />
the Curriculum"<br />
Knowledge <strong>and</strong> <strong>Law</strong>yering Skills"<br />
Active <strong>Learning</strong>"<br />
12:00 ‐1:15 p.m.<br />
Break [First Floor Commons]<br />
[Room 102] [Room 150 (Clinic)] [Room 125 (Library)] [Room 114] [Room 100]<br />
1:15 ‐ 2:15 p.m.<br />
Concurrent Workshops 8<br />
2:15 ‐ 2:30 p.m.<br />
[A]<br />
Nancy Soonpaa & DeLeith Gossett:<br />
"Moving Towards Legal Practice:<br />
Why <strong>and</strong> How All Courses Should<br />
Integrate Academic Support<br />
Principles, Doctrine, Practice Skills,<br />
& Legal Writing"<br />
[B]<br />
Michael Bloom: "Incorporating<br />
Practice into Contracts"<br />
[C]<br />
Sarah Morath, Elizabeth A. Shaver<br />
[D]<br />
<strong>and</strong> Richard Strong: "Motions in Olivia Farrar <strong>and</strong> Martha Ertman:<br />
Motion: Incorporating the Carnegie "Co‐<strong>Teaching</strong> Deal‐making <strong>and</strong> Deal‐<br />
Apprenticeships into a Legal<br />
drafting"<br />
Drafting Course"<br />
Break [First Floor Commons]<br />
[E]<br />
Dr. Keith Wilder: "Lost in<br />
Translation: 'Effective Techniques<br />
<strong>for</strong> <strong>Teaching</strong> International <strong>Law</strong><br />
Students <strong>and</strong> Inter‐Disciplinary<br />
Students'"<br />
2:30 ‐ 3:00 p.m.<br />
Closing [Room 100]<br />
3:00 p.m. Adjourn
Hybrid<br />
<strong>Law</strong> <strong>Teaching</strong><br />
<strong>Institute</strong> <strong>for</strong> <strong>Law</strong> <strong>Teaching</strong> <strong>and</strong> <strong>Learning</strong> Summer Conference<br />
June 7-9, 2013<br />
Washburn University School of <strong>Law</strong>, Topeka, Kansas<br />
<strong>The</strong> <strong>Institute</strong>’s summer 2013 conference,<br />
“Hybrid <strong>Law</strong> <strong>Teaching</strong>,” features 34<br />
workshops with 47 presenters <strong>and</strong> will<br />
explore ways in which participants can create<br />
hybrid law school courses.<br />
<strong>The</strong> conference will be June 7-9, 2013, at<br />
Washburn University School of <strong>Law</strong> in<br />
Topeka, Kansas.<br />
Structure of the<br />
Conference: Tailor the<br />
Conference to Suit Your<br />
Interests<br />
<strong>The</strong> conference includes eight workshop<br />
sessions. During each session, four or<br />
fi ve workshops will run simultaneously.<br />
Participants will be able to tailor the<br />
conference to fi t their individual interests<br />
by choosing which workshop to att end<br />
during each session. <strong>The</strong> workshops will<br />
deal with:<br />
• Innovative materials;<br />
• Alternative teaching methods;<br />
• New technologies;<br />
• Ways to enhance student learning in<br />
all types of courses;<br />
• Techniques to bett er prepare<br />
students <strong>for</strong> their bar exams;<br />
• Means of restructuring legal<br />
education to foster practice-ready<br />
lawyers.<br />
Each workshop will include materials<br />
that participants can use during the<br />
workshop <strong>and</strong> when they return to their<br />
campuses, <strong>and</strong> all the presenters will<br />
model eff ective teaching methods by<br />
actively engaging the participants.<br />
Benefi ts to Participants:<br />
Improve <strong>Teaching</strong> <strong>and</strong><br />
<strong>Learning</strong><br />
During the conference, participants<br />
can expect to encounter many new<br />
ideas about a wide variety of ways in<br />
which they can create hybrid law school<br />
courses. In addition, the conference is<br />
intended to facilitate in<strong>for</strong>mal interaction<br />
among creative teachers who love their<br />
work with students.<br />
Participants should leave the conference<br />
with both inspiration <strong>and</strong> the<br />
in<strong>for</strong>mation they need to seamlessly<br />
integrate skills, doctrine, <strong>and</strong> values in<br />
their teaching, to bridge traditional law<br />
school categories, such as legal writing<br />
<strong>and</strong> doctrine, clinics <strong>and</strong> skills courses,<br />
<strong>and</strong> academic support <strong>and</strong> doctrinal<br />
courses, <strong>and</strong> even to fl ip their classes.<br />
<strong>The</strong> ultimate goal of the conference<br />
is to help the participants improve<br />
their teaching, improve their students’<br />
learning, <strong>and</strong> further their school’s<br />
eff orts to off er att ractive, eff ective<br />
courses that prepare students to practice<br />
law.<br />
Registration <strong>and</strong> Fees<br />
Att endance is limited to 100 participants<br />
to facilitate small-group experiences. <strong>The</strong><br />
roster will be fi lled in the order that the<br />
<strong>Institute</strong> receives the registration <strong>for</strong>m<br />
<strong>and</strong> conference fee:<br />
• $450 <strong>for</strong> non-presenters<br />
• $200 <strong>for</strong> presenters.<br />
Make check payable to Washburn<br />
University or provide Visa/MasterCard<br />
in<strong>for</strong>mation on the registration <strong>for</strong>m.<br />
Refunds<br />
Att endees must notify the <strong>Institute</strong> to<br />
receive refunds. If notice is received on<br />
or be<strong>for</strong>e May 23, 2013, a full refund will<br />
be provided. No fees will be refunded if<br />
notice is received after May 23, 2013.<br />
Meals<br />
<strong>The</strong> following meals are included in the<br />
registration fee:<br />
• Saturday, June 8:<br />
Light breakfast <strong>and</strong> lunch.<br />
• Sunday, June 9:<br />
Light breakfast <strong>and</strong> lunch.<br />
As of 4/26/2013. For most up-to-date in<strong>for</strong>mation, visit lawteaching.org/conferences/2013
Welcome Reception<br />
(Optional)<br />
We invite participants to pre-register<br />
<strong>and</strong> begin gett ing acquainted at the law<br />
school during an optional Welcome<br />
Reception at Washburn University<br />
School of <strong>Law</strong>. Registration will start<br />
at 4:30 p.m. <strong>and</strong> the welcome reception<br />
will be 5:00-7:00 p.m. on Friday, June<br />
7. Heavy appetizers will be served.<br />
Afterwards, please feel free to explore<br />
Topeka <strong>and</strong> its great dining options,<br />
either individually or in groups.<br />
Lodging; Transportation<br />
Please visit<br />
lawteaching.org/conferences/2013<br />
<strong>for</strong> transportation <strong>and</strong> lodging<br />
in<strong>for</strong>mation.<br />
Session 1 Workshops<br />
Saturday, June 8, 2013 – 9:30-10:30 a.m.<br />
[A]<br />
How to Eff ectively Use Responseware<br />
in Asynchronous <strong>and</strong> Synchronous<br />
<strong>Learning</strong> Environments to Meet the<br />
Needs of Digital Natives<br />
Jalae Ulicki, Phoenix<br />
Online teaching as well as classroom<br />
teaching requires active participation<br />
by digital learners. In this session<br />
participants will learn how to use<br />
responseware to increase active<br />
engagement by students. <strong>The</strong>y will learn<br />
how to make immediate changes in<br />
the learning environment at the lesson<br />
level <strong>and</strong> how to use data to refl ect<br />
<strong>and</strong> incorporate changes in the course<br />
level. Online teaching denotes a shift<br />
from teacher-centered instruction to<br />
student-centered learning. It aff ords law<br />
professors the opportunity to refl ect not<br />
only on their own teaching methodology<br />
but to refl ect on the changes <strong>and</strong><br />
opportunities brought into law school<br />
environments by technology.<br />
[B]<br />
Applying the <strong>Law</strong>: Examples <strong>and</strong><br />
Exercises that Bridge Legal Writing <strong>and</strong><br />
Doctrine<br />
Bradley Charles, Thomas M. Cooley <strong>Law</strong><br />
School <strong>and</strong> Heather Garretson, Thomas<br />
M. Cooley <strong>Law</strong> School<br />
“Because I said so” is a reason - but not a<br />
reasoning technique.<br />
Often our students give an answer -<br />
but not a reason <strong>for</strong> it. Our teaching<br />
method eliminates the gap between<br />
the answer <strong>and</strong> the reason. During the<br />
workshop, we will discuss our method of<br />
teaching the nine reasoning techniques,<br />
demonstrate how fi rst-term students in a<br />
doctrinal class work with the techniques<br />
throughout the term, <strong>and</strong> divulge their<br />
greatest benefi t - reasoned writing.<br />
Participants will get the nine reasoning<br />
techniques, a chance to apply them, <strong>and</strong><br />
an underst<strong>and</strong>ing of how the techniques<br />
can be used in any class.<br />
[C]<br />
<strong>The</strong> Upside-Down Classroom: How the<br />
Flipped Lecture Model Can Be Used in<br />
Legal Education<br />
Michelle Hook Dewey, University of<br />
Illinois<br />
<strong>The</strong> Flipped Lecture Model draws<br />
on such concepts as active learning,<br />
student engagement, <strong>and</strong> hybrid course<br />
design. By placing expository lecture<br />
content outside of the classroom, class<br />
time can be used <strong>for</strong> application of<br />
knowledge <strong>and</strong> experiential learning.<br />
<strong>The</strong> workshop will model the Flipped<br />
<strong>for</strong>mat by providing a brief pre-recorded<br />
10 minute lecture <strong>for</strong> participants to<br />
view in advance. During the workshop,<br />
participants will engage in discussion<br />
<strong>and</strong> h<strong>and</strong>s-on activities building on the<br />
lecture. Participants will be prepared to<br />
begin designing <strong>and</strong> implementing their<br />
own fl ipped course after the workshop.<br />
[D]<br />
<strong>The</strong> Hybrid Clinical Course: Applied<br />
Trial Advocacy<br />
Ezra Ross, University of Cali<strong>for</strong>nia,<br />
Irvine, School of <strong>Law</strong><br />
Most law schools teach trial advocacy as<br />
a one-semester skills-based simulation<br />
course. By contrast, many law school<br />
clinics throw students into actual<br />
representations without fi rst providing<br />
a thorough grounding in skills-based<br />
instruction. But what if students could<br />
have the combined benefi ts of both<br />
approaches? Couldn’t a hybrid course<br />
provide students a semester of targeted<br />
skill instruction <strong>and</strong> then have those<br />
students apply those skills to real cases<br />
the following term? Using a detailed<br />
case study <strong>and</strong> multiple interactive<br />
“brainstorming” sessions, this workshop<br />
will explore precisely how instructors<br />
can provide highly coherent blended<br />
skills/clinical instruction in a year-long<br />
<strong>for</strong>mat.<br />
Session 2 Workshops<br />
Saturday, June 8, 2013 – 11:00 a.m.-Noon<br />
[A]<br />
Building the Bridge to Practice Using<br />
Lett ers to Student <strong>Law</strong>yers<br />
Stephen Gerst, Phoenix<br />
This session will present an innovative<br />
teaching method using the “Lett er to<br />
a Student <strong>Law</strong>yer.” Participants in<br />
Professor Gerst’s “class” will experience<br />
how responding to a lett er in writing<br />
makes learning easier <strong>and</strong> more exciting.<br />
<strong>The</strong>y will also engage with fellow<br />
“students” to collaborate in small groups<br />
while creating a responsive lett er that<br />
contains in<strong>for</strong>mation that is accurate,<br />
<strong>and</strong> useful. Participants will also learn<br />
how the reading assignment becomes a<br />
research tool <strong>for</strong> the in<strong>for</strong>mation needed<br />
to improve writing skills <strong>and</strong> experience<br />
the joy of knowing that what you have<br />
been learning has application to common<br />
situations.<br />
[B]<br />
Integrating Bar Exam Preparation into<br />
Upper-Division Doctrinal Courses<br />
John Worley, South Texas College of <strong>Law</strong><br />
As of 4/26/2013. For most up-to-date in<strong>for</strong>mation, visit lawteaching.org/conferences/2013
Session 3 Workshops<br />
[C]<br />
[D]<br />
Integrating Experiential <strong>Learning</strong> in<br />
Traditional Classrooms<br />
Saturday, June 8, 2013 – 1:15-2:15 p.m.<br />
Applied Critical Thinking <strong>and</strong> Legal<br />
Analysis<br />
Michael Vitiello, University of the Pacifi c<br />
Participants: your boss has instructed<br />
you to prepare <strong>for</strong> an interview with a<br />
new client whom you are about to meet.<br />
[A]<br />
Ill-Structured Whole-Course<br />
Simulations <strong>for</strong> Upper Level Courses<br />
Roberto Corrada, University of Denver<br />
Brett Brosseit, Ave Maria<br />
Recent studies, such as those presented<br />
in Academically Adrift, have highlighted<br />
widespread defi cits in critical thinking<br />
Your client has learned that a journalist <strong>The</strong> goals of this workshop are to engage skills <strong>and</strong> dispositions among college<br />
intends to publish a story claiming that professors, fi rst, to see that ill-structured graduates. As these students pursue<br />
when she worked <strong>for</strong> a prominent judge, whole course simulations <strong>for</strong> upper level legal education, educators must assess<br />
police found child pornography on her students help law students to be more their learning skills <strong>and</strong> develop eff ective<br />
offi ce computer. Your research suggests practice-ready <strong>and</strong>, second, that these ways to help them overcome potential<br />
your client has no right of action under simulations are doable by any professor defi cits. Participants will discover a new<br />
New York law (where you practice) who has had some practice experience model to help students strengthen their<br />
but may under Connecticut law (where <strong>and</strong> has been teaching any doctrinal learning <strong>and</strong> problem-solving skills <strong>and</strong><br />
the journalist works). After reviewing subject <strong>for</strong> 3-5 years. Methods include develop the dispositions, or habits of<br />
that case law, you will interview your some lecture around theory/structure, mind, necessary <strong>for</strong> success in the study<br />
client <strong>and</strong> determine where to sue <strong>and</strong> h<strong>and</strong>s-on engagement to generate <strong>and</strong> practice of law, <strong>and</strong> explore ways to<br />
whether you can act in time to save her ideas <strong>for</strong> doing these simulations in employ the model to help optimize their<br />
reputation.<br />
participants’ doctrinal classes (we will students’ per<strong>for</strong>mance.<br />
[D]<br />
Hybrid <strong>Teaching</strong> Beyond the<br />
Traditional Course<br />
Craig T. Smith, University of North<br />
Carolina; Jon McClanahan, University of<br />
North Carolina; Katie Rose Guest Pryal,<br />
University of North Carolina; <strong>and</strong> Oscar<br />
J. Salinas, University of North Carolina<br />
brainstorm together, based on ideas<br />
developed in the session), <strong>and</strong> h<strong>and</strong>s-on<br />
engagement by participants developing<br />
ways to grade these courses (rubric<br />
templates are supplied <strong>for</strong> participants to<br />
adapt <strong>for</strong> their own use).<br />
[B]<br />
(cancelled)<br />
Session 4 Workshops<br />
Saturday, June 8, 2013 – 2:45-3:45 p.m.<br />
[A]<br />
Technology in <strong>Law</strong> Schools <strong>and</strong> the<br />
Profession: Narrowing the Gap<br />
Simon Canick, William Mitchell <strong>and</strong> Jim<br />
Hilbert, William Mitchell<br />
This workshop focuses on cooperative<br />
hybrid teaching: collaboration by teams<br />
of professors to address students’<br />
[C]<br />
Analogical Exercises <strong>for</strong> Transactional<br />
Drafting<br />
Technology is trans<strong>for</strong>ming the<br />
practice of law, with profound eff ects<br />
in case management, collaboration,<br />
learning needs both within <strong>and</strong> beyond Emily Grant, Washburn University <strong>and</strong> virtual practice, <strong>and</strong> communication,<br />
the framework of traditional courses. For Will Foster, Washburn University among other things. Yet in law school,<br />
example, teams of professors in UNC’s<br />
Writing <strong>and</strong> <strong>Learning</strong> Resources Center<br />
share teaching strategies <strong>and</strong> materials;<br />
partner with librarians <strong>and</strong> legalresearch<br />
vendors; cooperate to enhance<br />
the timeliness <strong>and</strong> att ractiveness of<br />
academic support <strong>for</strong> relevant students;<br />
<strong>and</strong> blend online learning with optional<br />
individual meetings to help students<br />
improve their writing. Participants will<br />
engage in: 1) articulating their teaching<br />
challenges; <strong>and</strong> 2) exploring how<br />
cooperative hybrid teaching might help<br />
students in additional contexts.<br />
Eff ective lawyers anticipate<br />
contingencies <strong>and</strong> structure clients’<br />
aff airs to provide fl exibility <strong>for</strong> the<br />
predictably unexpected. By developing<br />
classroom exercises that incorporate<br />
everyday contingencies, teachers can<br />
hone students’ abilities to anticipate<br />
factual <strong>and</strong> legal contingencies, <strong>and</strong><br />
accordingly, to be eff ective planners <strong>and</strong><br />
drafters. In this session, presenters will<br />
model an analogical exercise in which<br />
participants brainstorm contingencies<br />
involved in coordinating a social<br />
function. <strong>The</strong> exercise then incorporates<br />
technology is only seen as a productivity<br />
tool, or as a means of achieving<br />
classroom objectives. What if we view<br />
technology as a set of competencies<br />
that students need to master in order<br />
to succeed in practice? In this session<br />
participants <strong>and</strong> presenters will: identify<br />
key technologies <strong>for</strong> lawyers; discuss<br />
gaps between technology in practice <strong>and</strong><br />
what we teach; <strong>and</strong> propose methods <strong>for</strong><br />
professors to use technology in ways that<br />
model critical skills <strong>and</strong> practices.<br />
[B]<br />
Killing Three Birds With One Stone:<br />
the anticipated contingencies into Doctrine, Academic Support <strong>and</strong> Bar<br />
contract <strong>for</strong>mat. Participants will work Passage to Boot<br />
in groups to identify other analogies Emmy Reeves, University of Richmond<br />
that incorporate the use of familiar<br />
contingencies to teach students to<br />
anticipate legal contingencies <strong>and</strong> draft<br />
client documents accordingly.<br />
Students learn skills more eff ectively<br />
when taught in context. This workshop<br />
will explore the potential synergy in<br />
learning skills <strong>and</strong> doctrine in a single<br />
course. We will do exercises that<br />
As of 4/26/2013. For most up-to-date in<strong>for</strong>mation, visit lawteaching.org/conferences/2013
demonstrate eff ective integration of<br />
skills <strong>and</strong> doctrinal instruction, while<br />
maximizing student engagement,<br />
such as use of clicker technology <strong>and</strong><br />
self- <strong>and</strong> peer-editing. Participants will<br />
leave this session prepared to design<br />
a course combining academic support<br />
with doctrinal instruction <strong>and</strong> also<br />
laying the foundation <strong>for</strong> bar passage;<br />
equipped with specifi c experiential<br />
teaching techniques to reach various<br />
types of learners <strong>and</strong> maximize student<br />
engagement; <strong>and</strong> ready to meet the<br />
potential challenges of such a course.<br />
[C]<br />
A Nonprofi ts Seminar/Clinic<br />
Paulett e J. Williams, University of<br />
Tennessee<br />
<strong>The</strong> workshop will include an overview<br />
of the combined clinic/seminar taught by<br />
Professor Williams <strong>and</strong> a short exercise<br />
done by her students at the beginning<br />
of each semester. Using a PowerPoint<br />
presentation she will briefl y present<br />
the steps to incorporating a group <strong>and</strong><br />
obtaining a tax exemption. Participants<br />
will do a roleplay as the CEO or a<br />
member of the board of directors of<br />
a nonprofi t or as one of the att orneys<br />
representing the group in becoming a tax<br />
exempt organization <strong>and</strong> will refl ect on<br />
<strong>and</strong> debrief the simulation experience.<br />
[D]<br />
Cultivating Professional Identity<br />
Formation in Doctrinal Course<br />
Benjamin Madison, Regent University<br />
<strong>and</strong> Natt Gantt , Regent University<br />
This workshop is designed to help<br />
participants bett er underst<strong>and</strong><br />
professional identity <strong>for</strong>mation <strong>and</strong> how<br />
the results of such <strong>for</strong>mation benefi t<br />
students. <strong>The</strong> workshop will discuss<br />
techniques instructors can use in any<br />
course to teach professional identity<br />
<strong>for</strong>mation <strong>and</strong> to encourage students<br />
to refl ect on their values <strong>and</strong> on how<br />
they will incorporate those values into<br />
their approach to the practice of law.<br />
<strong>The</strong> workshop will provide interactive<br />
exercises so that participants consider<br />
how the concept of professional identity<br />
<strong>for</strong>mation should be defi ned at their<br />
institution <strong>and</strong> how it should be taught<br />
in the specifi c courses taught by the<br />
participants.<br />
[E]<br />
Pushing <strong>for</strong> Preparation: <strong>The</strong> Need<br />
<strong>for</strong> <strong>The</strong>ory <strong>and</strong> Skills-Based Pedagogy<br />
With a Personal Touch in Public<br />
Interest <strong>Law</strong> Courses<br />
Aliza Kaplan, Lewis & Clark<br />
<strong>Law</strong> schools hope to att ract prospective<br />
students with certifi cates, courses,<br />
externships <strong>and</strong> clinics in public interest<br />
law. Yet, we are still not doing a good<br />
enough job of off ering courses that<br />
address both the history <strong>and</strong> theory of<br />
public interest lawyering or that teach<br />
the professional skills necessary to be<br />
successful in these careers. We also do<br />
litt le to prepare our students emotionally<br />
<strong>and</strong>/or with the life skills required<br />
<strong>for</strong> a career in the public interest. In<br />
this workshop, in addition to off ering<br />
productive models of public interest<br />
courses currently in practice, Professor<br />
Kaplan will discuss her hybrid course<br />
“Public Interest <strong>Law</strong>yering: <strong>The</strong>ory<br />
<strong>and</strong> Practice.” Through audience<br />
participation, she will examine ways to<br />
engage students in theory, skills <strong>and</strong><br />
the ethical/personal/emotional issues<br />
confronting public interest lawyers.<br />
Session 5 Workshops<br />
Saturday, June 8, 2013 – 4:15-5:15 p.m.<br />
[A]<br />
Flipping the <strong>Law</strong> School Classroom:<br />
Optimizing the <strong>Law</strong> School Classroom<br />
Angela Upchurch, Capital University<br />
A “fl ipped” classroom turns the<br />
traditional teaching paradigm on<br />
its head - altering the roles of both<br />
the professor <strong>and</strong> the students, both<br />
in <strong>and</strong> out of the classroom. In this<br />
workshop, we will explore how to bring<br />
the “fl ipped” classroom into our law<br />
schools. Att endees will participate in<br />
“fl ipped” simulations of a large doctrinal<br />
class <strong>and</strong> of an individual student<br />
paper conference. We will also discuss<br />
strategies <strong>for</strong> designing a fl ipped class<br />
<strong>for</strong> your own course <strong>and</strong> will put these<br />
strategies to work in an interactive group<br />
exercise.<br />
[B]<br />
Considerations in Designing <strong>and</strong><br />
Implementing a Hybrid Course in Legal<br />
Education<br />
Aaron Dewald, University of Utah <strong>and</strong><br />
Bonnie Mitchell, University of Utah<br />
<strong>The</strong>re is a buzz surrounding legal<br />
education regarding the use of hybrid<br />
learning as a teaching <strong>and</strong> learning<br />
strategy. Un<strong>for</strong>tunately, there is also a<br />
perception that utilizing hybrid learning<br />
involves long hours in front of a camera,<br />
or that it requires incredible computer<br />
skills to get started. This is not the case.<br />
This workshop will off er a few simple<br />
heuristics <strong>for</strong> participants to consider<br />
when designing <strong>and</strong> implementing a<br />
hybrid learning methodology as part<br />
of their curriculum. <strong>The</strong>se heuristics<br />
will cover pedagogy, technology, <strong>and</strong><br />
learning sciences.<br />
[C]<br />
Putt ing Legal Doctrine Into Practical<br />
Context<br />
Jennifer Gundlach, Hofstra University<br />
<strong>and</strong> Kennisha Austin, Hofstra University<br />
This presentation will focus on how law<br />
faculty can exp<strong>and</strong> their thinking about<br />
appropriate learning outcomes <strong>for</strong> the<br />
doctrinal curriculum, with particular<br />
emphasis on lawyering skills. <strong>The</strong><br />
presenters will share how they have<br />
worked collaboratively with colleagues<br />
to introduce new learning objectives to<br />
their Civil Procedure course <strong>and</strong> how<br />
students’ per<strong>for</strong>mance in achieving those<br />
objectives is assessed. Discussion will<br />
emphasize the importance of using an<br />
integrated, interdisciplinary approach<br />
to teaching black lett er doctrinal law,<br />
as well as ethics <strong>and</strong> lawyering skills.<br />
<strong>The</strong> session will include an interactive<br />
exercise <strong>and</strong> a demonstration of a webbased<br />
modular law offi ce case fi le.<br />
As of 4/26/2013. For most up-to-date in<strong>for</strong>mation, visit lawteaching.org/conferences/2013
Session 7 Workshops<br />
[D]<br />
[B]<br />
Integrating Ethics <strong>and</strong> Skills: <strong>The</strong><br />
STEPPS Program<br />
A Casebook Designed to Integrate<br />
the <strong>Teaching</strong> of Skills <strong>and</strong> Doctrine:<br />
Sunday, June 9, 2013 – 11:00 a.m.-Noon<br />
Timothy Casey, Cali<strong>for</strong>nia Western<br />
<strong>The</strong> innovative STEPPS Program (Skills<br />
Training <strong>for</strong> Ethical <strong>and</strong> Preventive<br />
Practice <strong>and</strong> career Satisfaction), a<br />
required second-year course in ethics,<br />
professionalism, <strong>and</strong> lawyering skills,<br />
integrates many of the principles from<br />
the literature on curricular development.<br />
Current Issues in Constitutional<br />
Litigation: A Context <strong>and</strong> Practice<br />
Casebook<br />
Sarah Ricks, Rutgers University–Camden<br />
[C]<br />
Using Multiple Choice Questions to<br />
Teach Writing <strong>and</strong> Diagnose Critical<br />
Thinking Defi ciencies<br />
[A]<br />
Implementing the Carnegie<br />
Apprenticeships of Knowledge <strong>and</strong><br />
Practice: A ‘Mystery Statute’ Approach<br />
to Substantive Knowledge <strong>and</strong><br />
<strong>Law</strong>yering Skills<br />
Cynthia Ho, Loyola University of<br />
Chicago<br />
<strong>The</strong>se principles can be applied to<br />
enhance the learning environment at<br />
other institutions. Participants will<br />
engage in a series of active exercises<br />
designed not only to promote a<br />
discussion of curricular innovation, but<br />
also to demonstrate specifi c teaching<br />
techniques.<br />
Session 6 Workshops<br />
Sunday, June 9, 2013 – 9:30-10:30 a.m.<br />
[A]<br />
Hybrid Within a Hybrid: Integrating<br />
Academic Success in Upper-Level<br />
Capstone Courses<br />
Jeremiah Ho, University of<br />
Massachusett s–Dartmouth<br />
This presentation addresses many of the<br />
concerns <strong>and</strong> ideas facing law teachers<br />
who want to integrate academic success<br />
instruction more fully in an upperlevel<br />
doctrinal course <strong>and</strong> to do so<br />
Hillary Burgess, Charlott e<br />
In this session, participants will discuss<br />
ways <strong>for</strong> faculty to expose students<br />
to, <strong>and</strong> have them practice, good<br />
legal discourse using multiple choice<br />
questions to both diagnose students’<br />
writing, provide individual feedback<br />
to students, <strong>and</strong> help students bett er<br />
underst<strong>and</strong> the expectations of legal<br />
discourse. By using these techniques,<br />
professors can provide multiple<br />
assessments that incrementally increase<br />
the diffi culty level <strong>for</strong> students <strong>and</strong><br />
incrementally increase their mastery<br />
over doctrine, thinking, <strong>and</strong> discourse<br />
skills. Techniques <strong>for</strong> creating extensive<br />
writing opportunities without increasing<br />
professor grading will be discussed.<br />
[D]<br />
Clark v. Jones, <strong>The</strong> Great Civil<br />
Procedure Shootout, <strong>and</strong> Creating <strong>Law</strong><br />
School Classroom Communities<br />
Do you teach a class that focuses<br />
on statutes, rules, or code? Are you<br />
frustrated that students seem resistant to<br />
deciphering such language on their own<br />
(without study aids), even though this is<br />
what they need to do as att orneys? If so,<br />
this workshop is <strong>for</strong> you! <strong>The</strong> goal is to<br />
provide teachers with a tool to improve<br />
student underst<strong>and</strong>ing of statutory<br />
language. <strong>The</strong> emphasis is on an active<br />
learning approach that should teach<br />
students a key lawyering skill that they<br />
can then apply to any code or statute,<br />
including a “mystery” statute that they<br />
have never seen be<strong>for</strong>e.<br />
[B]<br />
What the Flip? How to Flip a <strong>Law</strong><br />
School Class Using Videos to Deliver<br />
Lectures Outside of Class, Freeing up<br />
Class Time <strong>for</strong> Active <strong>Learning</strong><br />
Julie St. John, University of Detroit<br />
Mercy<br />
using a capstone course as the doctrinal<br />
foundation. Much of the presentation<br />
will uncover reasons why capstone<br />
courses lend themselves particularly<br />
well <strong>for</strong> upper-level academic success<br />
instruction, approach course design<br />
issues that integrate skills <strong>and</strong> capstone<br />
doctrine, <strong>and</strong> share what to do in the<br />
capstone classroom to help students<br />
maximize both a deeper learning of<br />
doctrine <strong>and</strong> specifi c acquisition of<br />
academic success skills. <strong>The</strong> presentation<br />
will outline ways to approach course<br />
design <strong>and</strong> execution of this kind of<br />
hybrid class <strong>and</strong> illustrate how to<br />
manage both the hybrid nature of<br />
teaching skills <strong>and</strong> doctrine, while<br />
that doctrine is itself, at the same time,<br />
a hybrid of sorts. Att endees should<br />
expect to leave the presentation with a<br />
methodological approach <strong>for</strong> designing<br />
<strong>and</strong> implementing this type of hybrid<br />
Jennifer Spreng, Phoenix<br />
Legal education is gett ing the message:<br />
learning communities provide unique<br />
pedagogical opportunities while<br />
mirroring most students’ professional<br />
futures. Classroom community<br />
mixes culture with carefully crafted<br />
elements that nurture a shared past,<br />
current interpersonal ties, <strong>and</strong> future<br />
commitment. In this workshop,<br />
participants will design their own<br />
community building element <strong>for</strong> one of<br />
their courses next year within a model<br />
of intergenerational collaboration.<br />
Whether participants select an antihierarchical<br />
vocabulary, infuse a favorite<br />
activity with a creative mythology, or<br />
design their own Great Civil Procedure<br />
Shootout!!!, all will leave with a concrete<br />
foundation <strong>for</strong> their future community in<br />
a classroom.<br />
[C]<br />
Criminal <strong>Law</strong> & <strong>Law</strong>yering Skills<br />
Joy Radice, University of Tennessee–<br />
Knoxville<br />
Participants will work on developing<br />
<strong>and</strong> critiquing an interactive lawyering<br />
component <strong>for</strong> a criminal law course.<br />
Over the course of the semester, this<br />
criminal law/lawyering hybrid course<br />
covers the basic legal doctrine <strong>and</strong> uses a<br />
“Simulated Case File” to engage students<br />
in four diff erent lawyering exercises:<br />
interviewing a client; conducting a<br />
preliminary hearing; writing a legal<br />
memo; <strong>and</strong> plea bargaining. Participants<br />
will be presented with an exercise using<br />
the legal research memo assignment<br />
as an example. <strong>The</strong>n in small groups,<br />
participants will talk about practical<br />
solutions to the obstacles that a<br />
course.<br />
As of 4/26/2013. For most up-to-date in<strong>for</strong>mation, visit lawteaching.org/conferences/2013
<strong>Law</strong>yering-Criminal <strong>Law</strong> hybrid course<br />
presents. At the end the workshop a<br />
TWEN site created to share the course<br />
materials <strong>for</strong> hybrid criminal law courses<br />
will be introduced.<br />
[D]<br />
Incorporating <strong>Teaching</strong> Professional<br />
Identity into the Curriculum<br />
Deborah Borman, Northwestern<br />
University<br />
In Educating <strong>Law</strong>yers, the Carnegie<br />
Foundation identifi ed three<br />
apprenticeships necessary in professional<br />
legal education: thinking (legal analysis),<br />
per<strong>for</strong>mance (practical skills), <strong>and</strong><br />
professional identity. Clinicians, skills,<br />
<strong>and</strong> research faculty can contribute to the<br />
development of students’ professional<br />
identity without overhauling the<br />
curriculum via short additional<br />
assignments or by tweaking existing<br />
assignments. In this interactive session<br />
participants will defi ne “professional<br />
identity,” <strong>and</strong> working in groups use<br />
their defi nitions as a springboard to<br />
design <strong>and</strong> present one creative lesson<br />
plan or multi-class module to the group.<br />
<strong>The</strong> presenter will then identify three<br />
short assignments she uses to encourage<br />
the development of professional identity.<br />
Session 8 Workshops<br />
Sunday, June 9, 2013 – 1:15-2:15 p.m.<br />
[A]<br />
Moving Towards Legal Practice: Why<br />
<strong>and</strong> How All Courses Should Integrate<br />
Academic Support Principles, Doctrine,<br />
Practice Skills, <strong>and</strong> Legal Writing<br />
Nancy Soonpaa, Texas Tech University<br />
<strong>and</strong> DeLeith Gossett , Texas Tech<br />
University<br />
Why don’t the LRW profs teach my<br />
students how to write? Why doesn’t the<br />
academic support director teach them<br />
how to study? Why didn’t the contracts<br />
prof teach them about covenants so<br />
they could write my memo assignment?<br />
Surprise. <strong>Teaching</strong> our students is<br />
both an individual AND collective<br />
responsibility. We should ALL teach<br />
them skills, <strong>and</strong> doctrine, <strong>and</strong> basic<br />
learning techniques. We are the village,<br />
<strong>and</strong> they are ours. Anyone can, <strong>and</strong><br />
everyone should, incorporate into their<br />
classes short exercises that cross all of<br />
our artifi cial turf-defi ning lines. This<br />
workshop will show you how to do it.<br />
[B]<br />
Incorporating Practice into Contracts<br />
Michael Bloom, University of Michigan<br />
Legal practitioners, as a collective pool,<br />
have virtually every relevant expertise,<br />
skill, <strong>and</strong> level of experience to off er<br />
a law school class. <strong>The</strong> challenge <strong>for</strong><br />
the professor lies in incorporating the<br />
practitioner in a way that eff ectively<br />
serves classroom learning objectives.<br />
Through this workshop, participants<br />
will develop: 1) a catalogue of potential<br />
methods <strong>for</strong> incorporating practitioners<br />
into the classroom (with specifi c, but<br />
not exclusive, focus on contracts-related<br />
classes); <strong>and</strong> 2) a bett er underst<strong>and</strong>ing of<br />
what is likely to lead to successful (<strong>and</strong><br />
unsuccessful) incorporation.<br />
[C]<br />
Motions in Motion: Incorporating the<br />
Carnegie Apprenticeships into a Legal<br />
Drafting Course<br />
Sarah Morath, University of Akron;<br />
Elizabeth A. Shaver, University of Akron;<br />
<strong>and</strong> Richard Strong, University of Akron<br />
This workshop will review an upperlevel<br />
litigation course that emphasizes<br />
the three apprenticeships identifi ed in<br />
the Carnegie Report: Participants will<br />
actively review <strong>and</strong> discuss the course<br />
materials, including brainstorming ideas<br />
<strong>for</strong> appropriate course hypotheticals.<br />
In addition, participants will engage in<br />
classroom exercises that will allow them<br />
to grapple with the basis <strong>for</strong> a motion<br />
in limine <strong>and</strong> put together a persuasive<br />
approach <strong>for</strong> the respective sides, as well<br />
as evaluate judicial opinions <strong>for</strong> judicial<br />
persona <strong>and</strong> voice. Participants will leave<br />
the session with several useful tools<br />
<strong>for</strong> designing a course that will help<br />
students transition from the classroom to<br />
the courtroom.<br />
[D]<br />
Co-<strong>Teaching</strong> Deal-making <strong>and</strong> Dealdrafting<br />
Olivia Farrar, Howard University<br />
Olivia Farrar <strong>and</strong> Martha Ertman<br />
(University of Maryl<strong>and</strong>) collaborated<br />
on teaching a course merging their<br />
backgrounds in doctrinal law [Ertman]<br />
<strong>and</strong> transactional drafting [Farrar],<br />
to teach students how to realistically<br />
“paper a deal.” Using the example<br />
of their course’s hybrid model, this<br />
presentation begins with choosing a<br />
realistic fact scenario [in this case, the<br />
deal was a non-profi t LLC needing to<br />
buy <strong>and</strong> fi nance a medevac], teach the<br />
substantive law required by the deal<br />
[in this case, advanced contracts <strong>and</strong><br />
secured transactions], <strong>and</strong> the skills<br />
necessary to serve the client’s needs<br />
[here, the students created the entire<br />
portfolio that would properly capture<br />
their complex deal].<br />
[E]<br />
Lost in Translation: “Eff ective<br />
Techniques <strong>for</strong> <strong>Teaching</strong> International<br />
<strong>Law</strong> Students <strong>and</strong> Inter-Disciplinary<br />
Students”<br />
Dr. Keith Wilder, University of Cologne<br />
<strong>and</strong> the University of Bonn (Germany)<br />
This workshop focuses on the challenges<br />
of eff ectively teaching international<br />
students, <strong>and</strong> in particular non-native<br />
English speakers, legal vocabulary <strong>and</strong><br />
theory. However, many of the techniques<br />
that will be discussed could also be<br />
easily adapted to make the training of<br />
non-law students from other academic<br />
disciplines more dynamic, enjoyable<br />
<strong>and</strong> eff ective. <strong>The</strong> workshop itself will<br />
introduce the participants to the pitfalls<br />
of one-to-one translation <strong>and</strong> selfreferencing<br />
defi nitions. Participants will<br />
take part in various inter-active activities<br />
that highlight the diffi culties arising<br />
in this area, <strong>and</strong> will be introduced to<br />
various learning tools <strong>and</strong> methods that<br />
have proven eff ective in overcoming<br />
these challenges.<br />
As of 4/26/2013. For most up-to-date in<strong>for</strong>mation, visit lawteaching.org/conferences/2013
Hybrid <strong>Law</strong> <strong>Teaching</strong><br />
<strong>Institute</strong> <strong>for</strong> <strong>Law</strong> <strong>Teaching</strong> & <strong>Learning</strong><br />
Summer Conference: June 7-9, 2013<br />
Name: _________________________________________________________________<br />
Phone: _________________________ Fax: __________________________<br />
<strong>Law</strong> School: ___________________________________________________________<br />
Address: ______________________________________________________________<br />
City/State/Zip: ________________________________________________________<br />
E‐mail: ________________________________________________________________<br />
Circle letters <strong>for</strong> the workshops/events you wish to attend (only one per session):<br />
Session 1: A B C D Session 5: A B C D<br />
Session 2: A B C D Session 6: A B C D<br />
Session 3: A B C D Session 7: A B C D<br />
Session 4: A B C D E Session 8: A B C D E<br />
Saturday early evening tour of Brown v. Board NHS: Yes No<br />
Conference price includes breakfast <strong>and</strong> lunch on Saturday, June 8 <strong>and</strong> Sunday, June 9. Please let us<br />
know at the time of registration if you have special dietary needs.<br />
Payment In<strong>for</strong>mation: ___ $450 ‐ Attending as non‐presenter<br />
___ $200 ‐ Attending as presenter<br />
___ Enclosed is a check payable to Washburn University<br />
___ Please charge my: __ Visa __ MasterCard<br />
Card No: _______________________________________ Security Code (back of card): ___________<br />
Expiration Date: ____ / ______<br />
Print name (as it appears on card): _____________________________________________________________<br />
Address: ____________________________________________________________________________________________<br />
Return this <strong>for</strong>m with your check or credit card in<strong>for</strong>mation to:<br />
<strong>Institute</strong> <strong>for</strong> <strong>Law</strong> <strong>Teaching</strong> & <strong>Learning</strong><br />
Washburn University School of <strong>Law</strong><br />
Attn: Donna Vil<strong>and</strong>er<br />
1700 SW College Avenue<br />
Topeka, KS 66621<br />
Washburn University federal ID<br />
number: 48-6030115<br />
See ILTL website (URL below) <strong>for</strong> W-9<br />
For in<strong>for</strong>mation, contact Donna Vil<strong>and</strong>er at donna.vil<strong>and</strong>er@washburn.edu or (785) 670‐1105<br />
See also: http://lawteaching.org/conferences/2013/ (4/12/2013)