The Faculty Lounge

Oregon Supreme Court Set to Examine Alternative Pathways to Attorney Licensure

On July 7, the Oregon Supreme Court will consider recommendations from the Oregon Board of Bar Examiners (BBX) to adopt alternative licensure options. In sum, the BBX advanced a report issued from its Alternatives to Exam Task Force recommending adoption of an experiential learning pathway and, separately, a supervised practice pathway. For those who want it, the current iteration of the Uniform Bar Exam (UBE) would remain an option. It is important to note that all three pathways ultimately involve an “examination” of the applicant’s work by the BBX.  Here is summary breakdown of Task Force’s recommendations: 

• Oregon Experiential Pathway (OEP): As an alternative to  taking the traditional bar exam, the OEP would offer a two-year curriculum-based experiential pathway to licensure. Applicants applying for admission to the bar through the OEP would complete a set curriculum during law school, culminating in a capstone portfolio or examination assessed by the BBX . The curricular pathway would begin in students' 2L year, and could be completed by the time they graduate. This OEP option is primarily designed for students who attend law school in Oregon and want to practice in Oregon, though other ABA-accredited law schools could apply to participate. Jump to page 7 of the report for more detail about the OEP.
• Supervised Practice Pathway (SPP): As an alternative to the traditional bar exam or the OEP option, SPP applicants would establish their minimum competence for licensure by engaging in 1,000 to 1,500 hours of supervised legal practice and submitting for review to the Oregon Board of Bar Examiners proof of their work-product done during the applicant's supervised practice. The SPP option is designed for those who are graduates from a law school outside of Oregon who plan to practice in Oregon. Jump to page 14 of the report for more detail about the SPP.

A couple of procedural notes before proceeding further. The Court is accepting comments on the report until July 6 and all are welcome to submit a comment here. Note also that you can watch Wednesday’s public hearing, which is set for 1:30 pm PST/4:30 pm EST, here. 

Stepping back, how did we get here? 

2020 Bottom Ten List - America's Least Selective Law Schools

For the past few years, I have written a post listing the bottom 10 least selective ABA-accredited law schools.   (See, 2017 , 2018 , 2019  columns) 

The point of these columns was to try to draw attention to the exploitative admission practices of some ABA schools.  This public shaming, along with more aggressive enforcement of ABA Standard 316 by the ABA and other measures, such as tightening the bar pass standard, has resulted in the gradual decrease of the once widespread practice of admitting large numbers of poorly qualified students at many ABA-approved law schools. 

Things had improved enough with the entering class of 2019 that in last year’s column I raised the question:  “Is the era of exploitative admissions in law schools over?”  My conclusion?  Not quite.  But we're getting there.  This year, I am pleased to report again that even fewer law schools are admitting significant numbers of dubiously qualified students.  In fact, the numbers have improved so much that I am abandoning the Bottom 10 List this year altogether (reserving, of course, the right to bring it back again in future years, if needed).  Indeed, after reviewing the admissions numbers in the ABA’s Standard 509 Information Reports for academic year 2020-2021, there is only one law school which I consider to be currently engaging in admission practices that are clearly problematic -- Southern University.

America's Least Selective Law School - Southern University

John Dewitt Gregory, 1931-2020

John Dewitt Gregory, Distinguished Emeritus Professor of Law at Hofstra University, died peacefully in his West Village apartment in Manhattan on July 27, 2020. He was 89.

He was perhaps the first African-American appointed as Vice-Dean of a law school when he assumed duties at Hofstra in 1986. He was asked by founding dean Malachy Mahon to became a member of the faculty in 1971, in its second year, and he remained at Hofstra for his entire academic career. He held the Sidney and Walter Siben Distinguished Professor of Family Law chair from 1986 until his transition to emeritus status in 2013. He was the co-author of Understanding Family Law, and frequently wrote on child custody and visitation issues.

John was no stranger to the challenges of pioneering. He was born and educated in Glen Cove, Long Island, and he graduated from Howard University in 1952. He went on to serve in the Korean War, and eventually graduated Harvard Law School in 1959, at a time when minority enrollment was present in very small numbers. Before entering academia, he worked in private practice in Manhattan and served as an Assistant Attorney General for the State of New York. As the Executive Director of the Nassau County law Services Committee, he organized and staffed the program from its inception in 1966. From 1967 to 1971, he served as the Executive Director and General Counsel of the Community Action for Legal Services.

He served on several boards throughout his life, including the National Center on Law and Economic Justice (NCLEJ), New York and American Civil Liberties Unions, Legal Aid Society of Nassau County, and the National Advisory Board of the Black American Law Students Association. He was honored by the NCLEJ in 2009.

Anyone who has ever encountered John would agree that he was fearlessly opinionated. He suffered no fools and minced no words. He had no hesitation to throw his rich baritone voice in the dialectical and contentious pool of faculty meetings, and he was known for his directness in dealing with colleagues. Bennett Capers, a colleague at Hofstra, said, “You always knew exactly where you stood with John, and he often said things that others were too shy or fearful to say themselves.”

John Gregory embodied a classic professorial gravitas worthy of central casting. He regularly wore three piece suits topped off with Sigmund Freud glasses and a colorful bow tie, and in his later years, he leaned on a hand carved shillelagh for balance. He was one of the very few people that looked completely natural with steepled hands. He was an original cigar aficionado, until his favorite home health care worker, Princess, convinced him to quit. He deeply admired the creative works of Stanley Kubrick, James Baldwin, Derrick Bell, and Lin-Manuel Miranda, and he was a lifelong fan of all genres of dance. His favorite breakfast spot was Coppelia, a Cuban diner on 14^th street in Manhattan, where the waitstaff knew to greet him with a “Good morning, Professor.”

As he wrote about defining the parameters of the modern family, he also lived it. He is survived by one brother, Ronald Aldwin Gregory, a niece, Carol Gregory, a nephew, Curtis Gregory, and other relatives. He also surrounded himself with the regular company of Alafair Burke, Bennett Capers, Cheryl Wade, Kevin Maillard, and Ricardo Nelson. His closest and most devoted friend, Joanna Grossman, explained their relationship to disbelieving onlookers as “healthcare proxy.”   

John relished in measuring his own age to that of the Empire State Building, which opened for the first time a month after he was born on April 5, 1931. For nearly 40 years it reigned as the tallest building in the world, which was roughly the duration of John’s career as a law professor—a fitting measurement for a lifelong breaker of barriers.

-Written by Kevin Noble Maillard

-Photo credit: (c) Ricardo Nelson

The Law School Industry - Law and Technology @ US Law Schools

Digital technologies are an increasingly important phenomena in higher education and professional industries. Law schools have started to participate in rethinking how to train the next generation workforce/citizens at the interface of governance/technology. This post includes links to quantitative data for folks interested to learn more about the current law/tech situation in US legal higher education, and provides a few initial thoughts about the data. 

Here is an excel sheet formatted study with a wide range of data on current US law school efforts around 'Law and Technology': Download US Law and Technology Higher Education Law Schools - Haskell:Fish In addition, for an alternative visualisation for some of the information, see: https://app.flourish.studio/visualisation/2736840 

Note: The study was developed along with a PhD student, Jessica L. Fish, and funded by the University of Manchester Law School and its Law and Technology Initiative. Scholarship based partly on this data will be rolled out in the coming year, but the information provided is meant to be open sources/common for any colleagues however useful. 

A Few Thoughts... (see below)

What Law Faculty Want Students to Know

Shortly after the switch to online legal education, I surveyed the 99 students in my Corporations & Partnerships class about how they were doing generally and how they were experiencing online education. I included an open-ended question, "Is there anything you would like your professors generally to know?" Those results are here.

I recently surveyed an unrepresentative, unscientifically-selected group of U.S. law professors about their experiences of teaching in the pandemic. I solicited participants by emailing 61 local and national colleagues who I thought might be willing to respond. The colleagues taught at proverbial "T14" schools and schools of other ranks (measured by whatever conventional, if problematic, metric). I collected responses anonymously.

I received 37 responses from colleagues who taught in states on the West coast, East coast, and not-coasts. 36 respondents had recently finished teaching online during the Spring 2020 semester. One was scheduled to teach online this coming summer, but had not taught during the Spring 2020 semester.  Respondents' levels of experienced varied, perhaps skewed toward more senior faculty. Respondents included those with experience teaching 0-3 years (5.4%) and 35+ years (5.4%), with instructors having 25-35 years of teaching experience (29.7%) and 15-25 years of teaching experience (27%) well represented. Those with 3-7 years of teaching experience (10.8%) and 7-15 years of teaching experience (21.6%) rounded out the group.

Without making any claims about generalizability (the results decidedly are not generalizable), the responses are subjective snapshots of this particular time in American legal education.

Mirroring the question I had asked my students, I asked the (anonymous) faculty colleagues this open-ended question: "Reflecting about your personal experience or about the experience of faculty generally during the pandemic, are there things you would like your students in general to know?"  Representative responses appear after the fold.

Virtual Law and Society: A Response to Bridget Crawford

I was asked by the leadership of the Law and Society Association to post this letter responding to Bridget Crawford's posts about the LSA conference here and here.  That seems fair and here it is:

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We’re writing as the president, immediate past president and 2020 program co-chairs of the Law and Society Association to set the record straight about this year’s Law and Society Annual Meeting. Unfortunately, a number of Professor Bridget Crawford’s representations of LSA’s actions in her posts on the Faculty Lounge Blog are inaccurate.

The Law and Society Association’s Board of Trustees recently decided to cancel the annual in-person meeting which had been scheduled for late May, as have all other professional associations we know. But the Board didn’t want to lose the opportunity to bring our LSA community together as much as we could, so the Board decided at the same time to convert the in-person meeting into a virtual conference instead. We notified conference attendees as soon as the decision was made to replace an in-person meeting with a virtual one, so that they would know as much as we did, even though we didn’t have all plans in place for what the virtual conference would look like. We understand that the lack of concrete information has generated many questions among persons considering whether to not to participate in the virtual meeting, but we are working as fast as we can to provide more detail. We are all facing an unprecedented situation in which we all learning new technologies at a moment’s notice, and the Law and Society Association is no different. We ask for your patience as we feel our way in this new environment.

Let us tell you what we know so far.

ON REFUNDS: At the time that LSA made the announcement to go virtual, everyone who wanted to withdraw from the virtual conference was invited to do so and promised a full refund of the initial conference registration fee. That full refund offer still stands. The LSA office will refund all cancellations and, as of the week of 6 April, had already done so with all requests received by then. If a backlog of requests develops, the office will work to process and fulfil them as soon as possible. We hope that our conference attendees will recognize that an office staff of four people is processing numerous and varied requests relating to a meeting of nearly 2500 registrants, at the same time that it is gearing up to create a new program in a completely new format. We ask for your patience, but assure you that full refunds will be issued for those who choose not to join us in virtuality.

What Our Students Want Us to Know

This semester, I'm teaching 99 students in Corporations & Partnerships. The shift to online teaching has not been without its hiccups. Last week, I send out a survey asking my students how they are doing generally and how they are experiencing online education.

I included in the survey an open-ended question: "Is there anything you would like your professors generally to know?"  I reprint representative responses below. No law professor in this time of crisis will be surprised by any of the substantive comments, but they ground my perspective as I look at the calendar that includes four more weeks of teaching.

• It's extremely nerve wracking knowing that I will likely be graduating into a recession with $150K+ in student loan debt, and now I don't even know if I will still have a job this summer.

• Mental health-wise, my anxiety has been pretty bad but I have been doing my best to complete my school work and push through. I just wanted to point this out as it might not be seen as an extreme circumstance, it still has slightly disrupted how I normally am able to study in a library or have separation of school and home. 

• I live with an individual that suffers from various mental disorders. This means there are times that I have to tend to them because they have unpredictable outbursts. This may factor into my learning or the final exam.

• I would say mostly that it is difficult to learn from home especially that my wife is home as well. We live in a one bedroom with our two pets so not much space for me to be alone. It is hard for me to get quiet time. 

• I have a very limited study space at home and no ideal place to take exams - only a very small kitchen table in a shared apartment.

• When being home, there is more distraction especially since my younger siblings have begun online schooling as well. Being closer to school years than my parents (and more technology savvy) I feel responsible for helping my younger siblings and finding it harder to put my studies first.

• Student anxiety is much higher than usual. Having to worry about your family and loved ones during all of this makes it that much harder to focus on school. It is tough.

More Online Teaching Resources

To add to the current compilation of materials on how to move to remote teaching, I wanted to share the following SSRN links.

The first was posted this week by Prof Agnieszka McPeak (Duquesne) and is a straightforward, simple best practices guide to moving things online. Six pages, easy to read and great advice:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3553094

The second is a piece I wrote last year which is longer and focuses more on the costs and benefits of law schools moving to online teaching, but it also includes some practical observations on larger and smaller group teaching online:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3491427

Hopefully some of those struggling to get online quickly may make use of these pieces. I highly recommend Prof McPeak's thoughts.

 

Civ Pro Themed Hand Washing Guide

As we all know by now, handwashing is important. Just for kicks I created this Civ Pro themed handwashing guide for my students.

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The Great Mass Online Teaching Experiment

For many years, I've been fascinated by the possibilities of online teaching. Things like MOOCs and flipped classrooms seem to offer real opportunities to teach in new and better ways. All the same, I've been busy with other things, and actually making the leap to offering online instruction never quite made the list.

Then came Covid-19. My students are sequestered in apartments all across China, and the Peking University School of Transnational Law campus in Shenzhen is empty. I've chosen not to return to China after the spring festival, but have been hunkered down in Chiang Mai, Thailand, waiting for the situation to gain some clarity. The clarity that has gradually emerged is that we aren't going to be teaching face-to-face for at least a while, and we're taking all our classes online.

In going online, we're joining all kinds of schools all over China. I've got a cousin who has retired from K12 teaching in Canada and is running the international section of a large school on the east coast. They've taken all high school classes online, along with most similar schools. Teachers report that students locked down in house arrest tend to be highly prepared. At an expat event in Chiang Mai, I met two kindergarten teachers from an international school in another part of China. Although the ministry of education doesn't support online teaching for kids that young, in response to parental demands they have been teaching children as young as three years old online. While hugs are hard to deliver, they can record sing-a-long songs or record readings of English books and lessons, and comment on the responses the children's parents sent back to them. Possibly hundreds of millions of students have been shifted to online instruction in China, something that has not happened at that scale in the traditional educational environment anywhere before.

My students, fortunately, are a lot more self-sufficient and able than three-year-olds. It's been a challenge to move everything online, but it seems to be working. Here are some quick thoughts. As my experience deepens, I might be back with more thoughts.

Platforms. There seem to be a lot of good platforms out there. We are using Zoom, in both its webinar (better for classes over 100 in size) and meeting (better for smaller classes) sizes. I find Zoom pretty easy to use, although with each class I find some features and shortcuts I hadn't noticed before that make it still easier. I am able to call on students by name, put them on camera, share their video with everyone, and in general carry on pretty much as we do in a regular classroom. Our budgets tend to be pretty limited, and we aren't using some of the complementary software that enables things like seamlessly moving to pre-recorded snippets. So far, that seems to be ok.

Bandwidth. As you would expect, bandwidth is an issue, both for the students and the teachers. This week in order to renew my Thai visa I took a side trip to Luang Prabang in Laos, where the internet just isn't robust enough for online teaching. To deal with that, I went asynchronous for one class, recording a lecture before I came over. Students are also differently positioned, and some students experience issues with audio quality or dropped connections. To ameliorate, we are recording all classes, and students can download and listen to any difficult portions at their leisure. I find 20 megabits per second connections more than adequate and five megabits per second too low for full functionality. (Type internet speed test into Google to get a test that will tell you your connection speed).

Disadvantages. Some of the issues involved in moving online are obvious, but others less so. For example, in our situation, library reserve - which I use heavily - is not available. In some courses, we have copies of the basic text or core readings for everyone available in the library. That doesn't work when students are scattered. For example, in my Law and Innovation class we have enough copies of the Susskind's The Future of the Professions to go around when we are all in Shenzhen, as well as enough copies of Thomas Morgan's PR book to go around when we cover specific ethical issues in the legal profession. We have no way of getting to those to students all over China. That requires adjustments in the course materials as a small subset of my students can buy whatever book I mention and others are financially constrained, so simply telling them to go to Amazon or JD is not a good solution. In some cases, the only solution has been for me to write substitute materials, which has been a huge time commitment.

You can't see the classroom as you talk in the same way you see them in a live classroom, so the skills you've developed in reading those cues aren't on point. 

There are lead time and set up issues. I use PowerPoint slides, and I've found it helpful to the students to circulate those before class so they can refer to them in a separate window. That requires having them locked down a day or so ahead of time. Online meeting links also need to be generated and circulated. I've also been designating a list of on-call students, something I don't always do in person, so that the students can be sure their cameras and microphones are ready to go. 

One thing I've not sorted out is assessment in my Civ Pro class. I typically give an exam with multiple choice and essay components. I'm not sure how I am going to do that if we are not back on campus by exam time. There are software solutions that will lock student's computers down, but we don't have them. For self-assessment, I'm using the same online quizzes on TWEN that I've used for years.

Advantages. Some of the advantages have been surprising as well. Zoom allows students to ask questions anonymously in the Q&A. This allows students to put things out there without losing face or seeming stupid, and it actually generates way more student commentary and questions than I get in a live class. I get so many comments in my Civ Pro class that keeping the flow of class moving ahead has become a bit of an issue.

Another advantage that I hadn't thought about in advance is that making the classroom non-physical opens up the world of guest panelists and speakers. I'm busy trying to pull in thought leaders and people with on-point experience to take a few minutes in both my Civ Pro and Law and Innovation classes. For example, in Law and Innovation, which has a large PR component, I'm bringing in a lawyer from Kentucky to talk about the devastation that was visited on the local community around Butcher's Hollow (yes, that Butcher's Hollow) when a corrupt local lawyer entered into a bribery deal with a social security judge to have his clients all approved as disabled. The upshot was that the Social Security Administration cut off benefits for all the clients of the corrupt lawyer, most of whom were in fact disabled, and who were neither aware of nor involved in the fraud, leaving many of them in perilous straits. I'm hoping that having live in the classroom someone who was involved in cleaning up a tragic situation caused by lawyer dishonesty will make the real-life consequences of lawyer misconduct more palpable. (By the way - feel free to volunteer to be a guest speaker).

My students, I think, are enjoying having all classes recorded and available for download. Setting aside technical problems, if they drift or lose focus for a moment, they can replay the section that did not quite make sense. If it does not make sense because I did not make sense, they can bring it up in online office hours. (Having every word recorded and distributed might be an issue for those of you with aspirations to sit on the Supreme Court or even just good reputations to protect, and if that's the case you can choose not to enable the recording feature.)

One obvious benefit of teaching online is that you can become a digital nomad and be someplace new and different. The attached photo is from my temporary office at a riverside cafe a few days ago.

As this goes forward, and I am only four classes in, I may post more. Comments on online teaching techniques are welcome. Comments reflecting your personal conspiracy theories on the origins and dispersion of the virus that causes Covid-19 will be deleted.

University of Iowa Reinstates Faculty Fellows Program

From our friends at the University of Iowa College of Law:

The University of Iowa College of Law is delighted to announce that it is reinstituting its Faculty Fellow program. Our program alums include Devon Carbado, Laura Beny, Cyndi Nance, Creola Johnson, Angela Gilmore, Sumi Cho, and Harold Rocha, among others.  We are specifically seeking candidates from diverse backgrounds. Please pass the word to your networks.  See the details at:

https://law.uiowa.edu/iowa-law-faculty-fellowship.

 

 

The 2019 Law School Bar Pass Hall of Shame

As I wrote in a recent column about America's least selective law schools, the days of widespread predatory admissions practices by ABA-accredited law schools seems to have come largely to a close.  The schools that engaged in these practices have either gone out of business (Whittier, Valparaiso, Charlotte School of Law, Arizona Summit) converted to State-Accredited Schools (Thomas Jefferson, University of LaVerne) or have been sufficiently chastened by ABA sanctions that they have largely reformed their ways (Florida Coastal, Ave Maria, Atlanta’s John Marshall, Texas Southern, Appalachian, North Carolina Central, Western Michigan (formerly Thomas Cooley). 

But although law schools are no longer admitting large numbers of unqualified students, the legacy of the years of these irresponsible and unethical admission practices carries on in the form of atrocious bar pass rates at the schools that engaged in these reprehensible practices.  The worst admissions abuses occurred between 2013 and 2016, so law school are still feeling the effects today.  Most students who matriculated in 2016 graduated in 2019, but many part-time students admitted in 2016 will be graduating this year.  

The ABA has recently released comprehensive bar pass statistics, including first year bar pass statistics for 2019 and ultimate bar pass rate statistics for 2017.  UBP measures the percentage of graduates who pass the bar within two years of graduation.  You can find the ABA’s spreadsheets here.   Overall, these statistics are up, and that is good news.  Nationwide, 89.5% of 2017 law graduates who sat for a bar exam passed it within two years of graduation.  This is up from the 2016 UBP rate of 88.64%. And the 2019 first time pass rate was up substantially, at 79.64%, a nearly five percent increase from 2018, when it was 74.83%.   But these aggregate statistics mask, to some extent, how dire the situation still is at the bottom.    

Eight of the nearly 200 ABA-Accredited Law Schools failed to meet the current ABA Standard 316, which has just gone into effect. (Incredibly, no law school ever was found out of compliance with the old Standard 316)

The current ABA Standard 316 is very simple:  “At least 75 percent of a law school’s graduates who sat for a bar examination must have passed a bar examination administered within two years of their date of graduation.”

The 2019 HALL OF SHAME

2019-20 Bottom Ten List

I am pleased to report that the exploitation of unqualified students by law schools is no longer the widespread practice that I have been bemoaning since 2014.  Is the era of exploitative admissions in law schools over?  Perhaps not quite, but the recent Standard 509 admissions data released by the ABA (abarequireddisclosures.org) reveals that the problem of admitting woefully underqualified students at ABA accredited law schools has dramatically decreased. 

By now, readers of The Faculty Lounge are very familiar with the LSAT risk bands that I developed in 2014.   I have reproduced it here for your convenience.

David Frakt’s LSAT Score Risk Bands 

156-180           Minimal Risk

153-155           Low Risk

150-152           Modest Risk

147-149           High Risk

145-146           Very High Risk

120-144           Extreme Risk

These risk bands have become widely accepted as guideposts for law school admissions at less selective law schools.  The “risk” reflects the risk of failing to successfully complete law school and/or failing to pass the bar within two years of graduation.  

I have argued that “opportunity” law schools seeking to comply with ABA Standards 501 and 306 should shoot for an LSAT 75%/50%/25% of 151/149/147 and certainly no school should go lower than 150/148/146.   I recommend that students at or below 144 on the LSAT only be admitted in very rare cases where they have demonstrated through strong academic performance (i.e. college grades) that their LSAT score does not reflect their true aptitude.

A Brief History of the Admissions Crisis

In 2010, only 8 accredited law schools (out of nearly 200) accepted a class with 25% or more students at 146 or below.  But as law school applications dropped by double digit percentages in 2011, 2012, 2013 and 2014, almost every law school in American lowered their admission standards, including many that were already accepting students with marginal aptitude for the study of law.  By 2014, 45 law schools accepted classes with 25% or more students at 146 or below, and 18 law schools accepted classes with a median LSAT of 146 or below.  In other words, at least half the student body at these schools was at very high or extreme risk of failure.  I believed that all of those schools were engaged in unethical admissions practices.  I also predicted that the massive drop in admission standards would result in a crisis in drop in bar passage rates.   This prediction proved to be accurate as bar passage rates plummeted nationwide in 2015-17, prompting several states to lower their bar passage standards.

Miranda basics & the interrogation of James Holmes

Last week’s post dove into the controversial story of the West Memphis Three, focusing on how the interrogation of Jesse Misskelley offers a strong tool in the criminal procedure classroom for teaching the Fourteenth Amendment’s voluntariness doctrine. This week, in the final post of our series, we return to July 20, 2012, to the interrogation of James Holmes—just hours after he opened fire on a movie theater audience in Aurora, Colorado.

The West Memphis Three & Fourteenth Amendment Voluntariness

Last week’s post told the story of two New York rappers whose separate traffic stops demonstrate how officers rely on the automobile exception to the Fourth Amendment’s search warrant requirement. Today we shift gears—and Amendments—to enter the interrogation room in order to discuss how the internationally-known story of the West Memphis Three makes for an incredibly powerful tool for teaching students the Fourteenth Amendment’s voluntariness doctrine.

TF Mafia & the Automobile Exception

Last week’s post considered how just a slice of the investigation into Steven Avery—widely known from the true-crime documentary series, Making a Murderer—makes a compelling tool for teaching students the basics of search warrants. This week, we shift gears to explore the tale of two New York rappers whose stories both setup and explain how the automobile exception works in modern practice.

Steven Avery & Search Warrants

Last week’s post discussed how the initial investigation into Aaron Hernandez presents a compelling opportunity for students to learn the Fourth Amendment’s plain view doctrine. This week, we explore just a slice of the investigation that led to the arrest of Steven Avery—widely known from the true-crime documentary series, Making a Murderer.

In summer 1985, Steven Avery was twenty-two years old and a resident of Manitowoc, Wisconsin. Avery worked at his family’s salvage yard, Avery Salvage, which his family had operated since 1965. On July 29, 1985, a fellow Manitowoc resident named Penny Ann Beernsten was jogging along Lake Michigan when she was brutally attacked and raped. During the investigation that followed, Beernsten described her attacker as a white male, approximately 5′6′′, stocky, with brown eyes and long sandy hair, and dressed in a black leather jacket. Manitowoc County Deputy Sheriff Judy Dvorak overhead Beernsten’s description and commented, “[that] sounds like Steven Avery.”

Avery was ultimately arrested, charged, and convicted for the forcible rape of Penny Beernsten. He was sentenced to serve thirty-two years in prison. After eighteen years of that sentence, DNA testing revealed evidence that both exonerated Avery from the rape charge and implicated a man named Gregory Allen, a suspect in similar rape investigations at the time of Avery’s arrest. Avery was released from prison on September 11, 2003. Thirteen months later, he filed a lawsuit for 36 million dollars in damages as compensation for his wrongful imprisonment.

Alex Levin & the Fourth Amendment’s Exclusionary Rule

Last week’s post discussed how bringing the investigation of John Wayne Gacy into the investigative criminal procedure classroom benefits teaching the material on probable cause. We shift gears this week to discuss how the federal government’s investigation into Alex Levin makes for a fantastic discussion (and illustration) of the Fourth Amendment’s exclusionary rule. Compared to the defendants featured in prior posts, Alex Levin is no Adnan Syed or OJ Simpson in terms of pop culture fame, but that’s largely because the government’s methods to investigate Levin stole the show.

In Operation Pacifier, the government embodied the phrase “it takes a thief to catch a thief” by operating a child pornography server as part of a wide-ranging child pornography investigation that caught hundreds of users—including, Alex Levin. Investigative methods aside, Levin’s case grew in prominence because his victory at the motion to suppress stage gave other defendants hope—if just for a while.

But we’re getting ahead of ourselves.

John Wayne Gacy & Probable Cause

In last week’s post, we explored how the 1994 investigation into OJ Simpson offered an excellent real-world example of how the exigent circumstances doctrine worked in the first moments of a high-profile homicide investigation.

This week, in my fourth post of this series, we explore how the issuance of two search warrants for the home of John Wayne Gacy broke open the investigation into one of our country’s most horrific and notorious serial killers. Specifically, the second of those two warrants led to the discovery of twenty-seven teenage corpses in the crawl space under Gacy’s house and two more under his garage and driveway. As you will read in this post, however, the probable cause supporting those warrants was, at best, questionable. But no appellate court in the country would, on this evidence, be interested in overturning Gacy’s convictions—despite the strong merits of what became the core of his appellate clams. Collectively, the investigation of Gacy’s home provides an extraordinary opportunity for students to learn and apply the probable standard through a real-world investigation.

O.J. Simpson & Exigent Circumstances

In last week’s post,  we explored how the case of Adnan Syed serves as a powerful vehicle to teach Strickland v. Washington in the investigative criminal procedure classroom.  This week, in my third post of this series, we explore how investigative decisions made on June 13, 1994—the night of Nicole Brown Simpson and Ron Goldman’s murders—offer students an unparalleled opportunity to apply the Fourth Amendment’s exigent circumstances doctrine.