The Faculty Lounge

The aftermath of Len Kachinsky’s defense representation

Across several prior posts, I have outlined how the 2007 conviction of Brendan Dassey for the murder of Teresa Halbach—part of the largest criminal investigation in Wisconsin’s history—can enhance the investigative criminal procedure classroom for law students and law professors alike. I have argued there is much for law students (and even lawyers) to learn from law enforcement’s numerous interrogations of Dassey alongside the pretrial defense representation he received. On that latter topic, I have focused on Len Kachinsky’s representation of Dassey during a five month period from March through August of 2006.

During that period, Kachinsky hired a defense investigator who would end up also interrogating Dassey in an effort to elicit a further confession from him in order to aid law enforcement. Kachinksy would also waive Dassey’s (extremely viable) Miranda arguments during a hearing on Kachinksy’s motion to suppress. And, to top the representation off, Kachinsky invited law enforcement to interrogate Dassey without representation prior to trial.

That remarkable behavior is constitutional pursuant to the Supreme Court’s 1984 decision in Strickland v. Washington, which sets an extremely low bar for attorney performance under the Sixth Amendment. Strickland poses two distinct problems: (1) the low standard itself, and (2) lower courts’ interpretation of that standard to further lower the bar sets. In my last post, I explored that first problem—the standard—and today I’ll explore how the lower courts interpreted Strickland to reject his claim that Kachinksy provided unconstitutional representation. Both problems point in the same direction, which is for law schools to demand more from students. At the end of this post, I’ll offer one concrete suggestion for how schools might do exactly that.

Len Kachinsky & the fallible Strickland standard

In a series of prior posts, I explored the various interrogations of Brendan Dassey in 2005 and 2006. Then sixteen, Dassey was interrogated numerous times across a several-month span about his involvement in the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s case. His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court.

Dassey’s confession aside, I began more recently to explore the concerning pretrial representation Dassey received from his appointed lawyer, Len Kachinksy. During a five-month span representing Dassey from March to August of 2006, Kachinsky waived critical issues, spoke to the media more than he spoke to his client, and hired an investigator to interrogate his own client—among other blunders. Kachinsky’s performance is enough to elicit any number of emotions, ranging from general disappointment to downright anger. Indeed, Kachinsky himself received that full range of responses to his behavior via nasty letters, angry phone calls, and even death threats.

The public outcry condemning Kachinsky’s representation of Dassey hides a powerful and unfortunate reality: Kachinsky’s representation was constitutionally adequate pursuant to Strickland v. Washington, the Sixth Amendment’s measuring stick for attorney performance. As teachers, we often assume that satisfying a constitutional standard is equivalent to competence. But that’s simply not true in the “effective assistance” arena. The constitutional standard is well below an acceptable minimum level of attorney competence.   

Short of calls to revise or overrule Strickland, which for decades have gone unanswered, the question shifts to whether there is another way to address Strickland’s low bar. The answer is yes and law schools are particularly well situated to raise expectations for the defense bar. At present, Strickland is not sufficiently representative of what the profession—in practice—demands of professional well-regarded criminal defense attorneys.  Law schools must develop curriculum that is not tightly calibrated to Stickland but, rather, reflects true standards of acceptable competence for defense attorneys.   

Gaddis on Teaching and Writing

In a recent interview on CSPAN, the distinguished historian John Lewis Gaddis discussed his new book, On Grand Strategy. The book is based on Studies in Grand Strategy, a year-long course at Yale University that Professor Gaddis developed with his colleagues Paul Kennedy and Charles Hill. As the fall and spring syllabi demonstrate, it’s an extremely innovative course, with a great reading list and eclectic guest instructors including Paul Solman of the PBS Newshour and David Brooks of the New York Times. 

During the interview (which was hosted by CSPAN legend Brian Lamb), Gaddis discussed the course curriculum and structure as well as the ideas that inform the course as a whole. The interview is an hour long, but Gaddis is so learned and interesting, the hour flies by.

Midway through the interview, just after Gaddis answered a question about Winston Churchill’s reaction to the Japanese attack on Pearl Harbor, Lamb asked out of the blue a quite profound question: “How do you learn?”

Gaddis at first seemed surprised by the question, unsure who Lamb meant by “you.” But once he grasped what Lamb was asking, he gave a great answer. Here is what Gaddis said:

 “I like to think it is both by reading and teaching and then reading more and teaching more . . . because I don’t think you really know what you’ve read well until you try to teach it to a group of young people . . . [A]s you teach to a group of young people, you realize there are things you still don’t know enough about how to teach credibly, to teach fully, and so on. That drives you back to additional reading.”

That seems exactly right to me. It certainly has been my experience.

Professor Gaddis then went on to explain how the act of writing is essential to his own learning process.

“[T]he act of writing something down like this book is a working out of ideas in my own [mind] which is another approach to thinking. I really didn’t know what I thought about some of these issues that are discussed in this book until I wrote the book and now I can go back and see what I think. And so I think it’s a creative interconnection of all three of these things – reading teaching and writing ultimately.”

I could not agree more.

The whole interview is quite interesting, and it covers everything from Steven Spielberg’s film Lincoln to Otto von Bismarck’s use of shock and awe to Isaiah Berlin’s essay on the Hedgehog and the Fox. You can find it here at the invaluable CSPAN website. 

Reigniting the need for Dassey in the classroom

Brendan Dassey’s court case came to an abrupt halt last week when, on June 25, 2018, the Supreme Court denied his petition for a writ of certiorari. The petition sought review of Dassey’s March 1, 2006, confession to law enforcement wherein he admitted to participating in raping and killing photographer Teresa Halbach. More specifically, the petition asked the Court to evaluate whether Dassey’s incriminating statements were voluntary pursuant to the due process clause.

The March 1 interrogation’s fame beyond legal circles arose from the Netflix documentary, Making a Murderer, which episode 3 focused on. I consider that interrogation in this post. In doing so, I argue that it makes for compelling criminal procedure teaching material in four main areas outside the voluntariness doctrine: Miranda custody, Miranda waiver, interrogation techniques, and the legal import of sequential interrogations. With Dassey’s petition denied, using Dassey’s case as a teaching tool seems all the more important. After all, forthcoming Supreme Court guidance seems unlikely given that the Court has not heard a juvenile interrogation case since Fare v. Michael C., decided in 1979.

Reid & sequential interrogations

The Supreme Court has yet to decide whether it will review the voluntariness of Brendan Dassey’s March 1, 2006, confession to raping and killing photographer Teresa Halbach. It will do so today. Numerous interrogation-related issues of first impression arose in Dassey’s case, largely in the context of Miranda custody, Miranda waiver and use of the Reid interrogation technique on juvenile offenders. But sadly, none of those issues were available for presentation to the Supreme Court because trial counsel for Dassey waived them. All that was left for appellate counsel before the Supreme Court was the question of whether his March 1, 2006, confession was voluntary for purposes of the due process clause. Dassey’s petition for Supreme Court review would have been much stronger if these issues were available for inclusion. Unlike the uniqueness of his Miranda-related issues, the Court has considered innumerable voluntariness issues dating back to Hopt v. Utah in 1884.

Today, we consider another set of unpreserved issues, largely focused on Miranda custody and waiver, which arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the third time and the second time that day. The second Feb. 27 interrogation went unexplored by the Netflix documentary series Making a Murderer and untested by his trial counsel. Had Dassey’s then lawyer had a firm understanding of the Reid interrogation technique, then perhaps he would have had a fuller range of preserved Miranda-related arguments to present in his Supreme Court petition.

Reid & Brendan Dassey’s Lost Defense

Brendan Dassey is down to his last strike. Having filed his petition for a writ of certiorari before the U.S. Supreme Court, his case is over if the Court declines to grant cert. The petition argues that Dassey’s March 1, 2006, confession was involuntary. Using that confession against him at trial, the petition argues, violated the Fourteenth Amendment’s due process clause. Dassey’s petition has appropriately generated considerable media coverage (here and here for example) alongside scholarly commentary (here and here for instance).

But the value of Dassey’s case for educational purposes involves much more than the voluntariness issue.  That issue has taken prominence only because it is an issue preserved for appeal.  But Dassey’s case presents other perhaps more fruitful grounds for challenging his conviction that were not preserved by earlier lawyers.  Most critically, Dassey’s early lawyer failed to preserve critical Miranda-based arguments related to custody.

One of those unpreserved issues arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the second time. The interrogation, which the Making a Murderer Netflix documentary series did not feature or mention, offers another example of how an attorney’s knowledge of the Reid interrogation technique can better inform Miranda-related arguments. Investigators would interrogate Dassey three times that day. Today, in this fifth post, I’ll consider what took place in the first of those interrogations and how it could have supported an important Miranda-based defense that a defense attorney with an understanding of Reid could have raised.

When interview becomes interrogation

In earlier posts, I argued for why both Brendan Dassey and the Reid interrogation technique belong in the criminal procedure classroom.  Most recently, I offered a handful of conclusions about how understanding the Reid method can better inform Miranda-related arguments.  In this fourth post, I will explore the relationship between Reid and one of the interrogations left unexplored by the Making a Murderer Netflix documentary series. 

As I noted in my last post, Making a Murderer focuses in episode 3 on Dassey’s March 1, 2006, interrogation, which is at the heart of Dassey’s petition for Supreme Court review.  The documentary, however, does not explore—or even mention—several other Reid interrogations of Dassey.  Dassey’s interactions with law enforcement during those interrogations were critical contributors to his March 1 “confession.”  The most notable of these are an interrogation that occurred on Nov. 6, 2005, and three interrogations that happened on Feb. 27, 2006.  Today I’ll explore what took place on Nov. 6. 

For Men in the Legal Academy Who Want to Help Fight Sexism

Men in the legal academy, if you want to help fight sexism...

...do cite good scholarship by women. Empirically survey your own footnotes before sending in that manuscript....don't accept invites to speak on panels without racial and gender balance. Ask the question before accepting....do call out other men who speak over women in faculty meetings.

...do ask each law review that offers to publish your article about the racial and gender balance of the authors the journal has published in the last five years.

...do advocate for key committee leadership by women of all colors, men of all colors and other minority groups. Faculty hiring might look a wee bit different.

...do look at racial and gender salary disparities on your own faculty, if the information is publicly available. Ask questions. In. Front. Of. Everyone.

...don't close your office door fully when meeting with any students, especially women.  In confidential situations, draw the door partially closed and speak quietly.

...don't date students.  If you respect women, men, and yourself, you can wait until after graduation.

...don't call on a female student to give the "woman's perspective;" don't call on a student of color to give the "black/brown/Asian/other" perspective.  No one speaks for an entire group. No one student should carry the burden of educating the rest of the class. You're the teacher.

...don't wait for a student to raise issues of gender, race, class, sexuality.  Lead by example and signal that these issues can be important.

...when teaching Crim Law, do remember that there are rape survivors in your classroom. They are not snowflakes; they are strong; but be considerate.

...don't comment on any student's appearance. If the student needs some friendly advice about what is or is not appropriate clothing for class or interviews, there's a Dean of Students for a reason.

...do instruct moot court judges that they are not to comment on students' appearances. If there are concerns that could hurt the student's career, rely again on the Dean of Students, not the moot court judges, to convey the info.

...don't call a mixed-gender group of staff or students "guys" (e.g., don't say, "Have the guys in the IT department check your computer," when there are women who work in the IT department, too.)

...do object to the use of the word "guys" to refer to a mixed-gender group of students, colleagues, staff (e.g., "Those guys did a great job"). Your vocal objection to the use of "guys" in a case like this would be a rare instance in which "mansplaining" is welcome, especially to other men. Don't make it women's work to be the ones who remind everyone else of the importance of gender-neutral language. Your school may even have a policy on it.

 

(cross-post from FeministLawProfs.com, here)

Lecture Recordings in Online Teaching

In recent years, I've been delving (both in law and other disciplines) into strategies and platforms for effective online teaching/learning. I was never a strong proponent of online law teaching in particular because, like many others, I've always felt there's something about classroom interactions that's hard to replace online. And, yes, I know there are all sorts of ABA Standards and other rules that preclude significant amounts of online J.D. instruction, so my experience in the recent past has been with online LL.M. and other similar programs.

While I was always leery of online law teaching, I have taken a lot of online courses, and started to teach several, in other disciplines. The technologies have advanced significantly since I first raised my concerns in the mid to late 1990s when law profs in Australia began to worry we'd soon all be replaced by talking heads on computers.

I still haven't come to any definitive conclusions about when, and in what circumstances, online teaching can be as good as, better than, or a useful supplement to classroom instruction, but I've recently started thinking about one particular aspect of online teaching: lecture recordings, and how best to make use of them.

I've taken, and also instructed, online classes that have no "lecture" component. There may be preset readings or short YouTube videos, or blog posts gathered together as part of the course materials, but no actual formal lectures as such. I've also taken, and instructed, classes where the instruction has utilized either interactive video classes with students (via Skype, Zoom etc) or pre-recorded lectures, or a combination of both.

Pre-recorded lectures can be particularly useful in some circumstances: for example, where the course needs to be asynchronous because students are in different places/time zones etc. 

I've been teaching a few courses recently that require pre-recorded lectures for this purpose. Because these courses are law-related and because I want discussions to be as interactive as possible (even though they're largely asynchronous and use text-based discussion boards), I record new lectures weekly, both presenting new material and reacting to/commenting on discussions from previous weeks. I do this, rather than pre-recording everything upfront, because I want to simulate, as best I can within the constraints of the technology, the feeling of an interactive classroom.

However, some people have suggested to me that this is a waste of time and it's easier to pre-record everything because this can give you the benefit of re-using lectures in later iterations of a course in subsequent semesters, and it also gives you the benefit of having everything prepared upfront and not having to fit in lecture-recording at what may become a busy time of the semester.

I'm wondering if others have faced this issue in teaching or learning in an online setting and how you feel about it. I think pre-recorded lectures that are recyclable can be very useful in many contexts including things like Bar Prep courses where there is a lot of material that doesn't change much from year to year, a lot of students in a lot of different places, and perhaps less need to create an environment that simulates a classroom setting. However, does it always make sense to save time and recycle lectures if you can? (I'm aware too that a lot of folks teaching online courses are adjuncts and visitors and have less time to spend on course prep because of, say, other practice obligations, than full time faculty members and that might make a difference too.)

So, yes, this is a finicky point and not many people are probably thinking about it, but if anyone is, I'd be interested in your thoughts.

 

On International Women's Day, Advocacy Groups Launch “Full Citizenship Project for Law Faculty”

This press release from colleagues affiliated with the Legal Writing Institute and Association of Legal Writing Directors:

Professional associations unite to support full institutional citizenship—an effort to correct gender and related disparities among law faculty

The Legal Writing Institute (LWI) and the Association of Legal Writing Directors (ALWD) announce the launch of a new initiative aimed at correcting gender and related disparities among U.S. law faculty.  Organizers chose International Women’s Day (March 8) to launch the “Full Citizenship Project for All Law Faculty” because of the professional status challenges that continue to plague skills-based and academic support law faculty, who are predominantly women.

As law faculty status and salaries decrease, the percentage of women faculty increases. Based on available data, roughly—and only—36 percent of tenured or tenure track faculty are female, whereas 63 percent of clinical faculty and 70 percent of legal writing faculty are female. This disparity is due to faculty teaching in skills-based areas often being denied the opportunity to earn the same security of position and academic freedom that traditional law faculty enjoy. Yet security of position and academic freedom are needed for a robust classroom and innovative teaching in all areas of law.

The Full Citizenship Project kicks off the start of a campaign to raise awareness about the challenges facing many of the many women and men who teach in skills-based positions. “The goal of this project is to gain support among all law school administrators and faculty for our view that no justification exists for subordinating one group of law faculty to another based on the nature of the course, the subject matter, or the teaching method,” said Kim D. Chanbonpin, President of the Legal Writing Institute. “We believe these rights are now necessary more than ever before to ensure that law students and the legal profession benefit from the myriad perspectives and expertise that all faculty bring to the mission of legal education.”

The first step of this project involves gathering signatures from across the country endorsing the Full Citizenship Statement, which has already been adopted by these organizations and by the Society of American Law Teachers Board of Governors. A copy of the Full Citizenship Statement is available here.

We invite all interested parties—both within and beyond the legal academy—to endorse the Statement by signing here. The signature campaign begins on International Women’s Day (March 8) and will end on Equal Pay Day (April 4). Organizers plan to report and present the results of the project to interested organizations, including the American Association of Law Schools, the American Bar Association, and the American Law Deans Association. More information about the Citizenship Project is available on the LWI website.

About LWI and ALWD: The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing. LWI has nearly 3,000 members representing 38 countries. The Association of Legal Writing Directors (ALWD) is a non-profit professional association of directors of legal reasoning, research, writing, analysis, and advocacy programs from law schools throughout the United States, Canada and Australia. ALWD has more than 300 members representing more than 150 law schools. The mission of ALWD is to pursue activities to help law schools provide excellent legal writing instruction.

For more information, contact:

Kim D. Chanbonpin

President, The Legal Writing Institute

The John Marshall Law School

312-386-2856

kchanbonpin@jmls.edu 

-OR-

Mary Bowman

Associate Professor of Law, and

Director of the Legal Writing Program

Seattle University School of Law

206-979-3301

bowmanm1@seattleu.edu

Gift Cards For Blood!

In a fun coincidence, this Red Cross drive, offering a $5 Amazon gift card in exchange for presenting as a blood donor came across my Facebook feed this morning.  I say it is a coincidence, because my Taboo Trades seminar was reading about precisely this issue today, in “Rewarding Altruism? A Natural Field Experiment” by Nicola Lacetera, Mario Macis, and Robert Slonim. The authors conduct a natural field experiment involving nearly 100,000 individuals on the effects of offering economic incentives for blood donations. Because cash compensation is not permitted, subjects received either a $5, $10, or $15 gift card. As is the case with the Red Cross drive featured here, anyone presenting to donate would receive the gift cards regardless of whether they donated. (Presumably, to undermine any incentive to lie about health histories in order to receive the compensation, as suggested long ago by Titmuss -- who we read last week).

Lacetera, Macis, and Slomin find that providing material rewards led to a large and significant increase in the propensity to donate, and in a very standard way: the effect was increasing in the amount of the incentives. They also found that rewards led to some spatial (i.e. some subjects who would have donated at a particular center switched to a center offering a gift card) and short-term inter-temporal displacement (i.e. some subjects who would have donated later moved up the timing of their donations in order to take advantage of the reward offer). But the gift cards increased the likelihood of donation, even after accounting for these displacement effects. 

Interestingly, the current drive is offering a $5 incentive, but the optimal incentive in the study, if I recall correctly, was $10 (although $15 generated more donations, it also cost more and resulted in more displacement effects).  That’s my recollection anyway. 

So, give blood! And, for the moment anyway, earn money! (Oops, not money, a mere thank you gift, of course).

Why and How Law Schools Should Engage With Students About Social Media and Blogging

I recently attended a swearing-in ceremony for newly-minted lawyers who passed the July 2016 bar exam. The ceremony was nice, complete with several speakers, introductions of numerous city and state bar group leaders, and a reception afterward. During the ceremony, an accomplished lawyer provided remarks about professionalism and the practice of law. Among her remarks were some strong sentiments about internet usage – she encouraged each new lawyer to cultivate a strong presence online through blogging, active engagement on social media, and other public legal writing. I immediately wondered whether this was the first time these new lawyers had gotten this advice. I also wondered how law schools currently educate and advise students about curating content in their online profiles, and whether law schools should do this at all. 

Writing publicly online, whether through social media, blogs, or otherwise, plays a role in how lawyers interact with both the public and each another. Above the Law reported recently that a majority of Americans – 54 percent – say they would be likely to hire a lawyer who is active on social media. Among Americans aged 18-44, this number increases to 69 percent. A U.S. News article has suggested that law students use social media for career development because of the rapidly changing legal landscape.

The legal profession was initially skeptical of the internet and social media, but this has changed in recent years. The American Bar Association's 2016 Legal Technology Survey Report indicates that nearly 90 percent of law firms have a website. Since 2013, roughly 26 percent of law firms have maintained a blog, though this number is much higher for larger firms. Among lawyers who maintain a law-based blog, 42 percent say that they have had clients retain them because of their blogging.

Source: ABA 2016 Legal Technology Survey Report

 

With 13th, Netflix May Be Relaxing Its Streaming Policy a Little, Which is Good for Educators

Hi - I'm excited to be guest blogging this month about a few topics that I find engaging. I hope they are also relevant to many of you. Thank you to the moderators for this opportunity.  

Like many people, I scroll through Twitter looking for comments and articles about things that interest me. Last week, I saw the following exchange between film director extraordinaire Ava DuVernay and Alex Lauth, an employee of Villanova Law School:

@AVAETC I work at Villanova Law School and we want to have a showing of #The13th for students in our MLK programming week. Is that allowed?

— Alex Lauth (@AlexLauth) November 29, 2016

Yes. Public screenings of @13THFilm are allowed by Netflix in a first-of-its-kind general waiver ever made by the company. Show + share. ✊🏾 https://t.co/PnpSIefBiU

— Ava DuVernay (@ava) November 29, 2016

 

My interest was immediately piqued for several reasons. First, as a law professor committed to social justice, it is encouraging to read that law schools around the country are providing space to screen 13th, the Netflix documentary film directed by DuVernay centering on racial inequities in the American criminal justice system.

Second, I’ve been planning a January 2017 screening of 13th at my own law school, outside of my standard classes, that I'd like to be open to the full campus. I have a Netflix membership and could easily stream the film from my personal account. One of the items on my to-do list has been to figure out whether such an approach is permissible under both Netflix policy and current copyright law. This proved to be more challenging than I thought, so DuVernay’s announcement was quite timely.

I had experienced some difficulty determining Netflix’s full policy on streaming films for educational purposes, either inside or outside of the classroom. The Netflix terms of use state that the service is for personal use only, and users “agree not to use the service for public performances.” A public performance is basically a showing open to anyone other than family or a small group of friends. As the copyright owner of 13th, Netflix can limit how members use its service to watch the film and restrict larger performances. Section 106 of the Copyright Act gives copyright owners the exclusive right to, among other things, display and perform (show) films publicly. This arguably means that streaming for educational purposes is prohibited by Netflix's terms of use.

Teaching a New Class

This summer, I'll be teaching Energy Law for the first time as part of Berkeley's Professional LLM program.  I've never taught the class before, nor did I ever take it or any related courses (environmental law, natural resources law, oil and gas law, or public utilities law) while in law school. It's also new in terms of structure -- the class is scheduled for three hours a day, for eight consecutive days -- which poses challenges of its own (in terms pacing, reading assignments, etc.).

Fortunately, I'm not a total novice -- energy was my primary practice group back during my law firm days (if you're wondering how someone who had no background or coursework in energy came to work primarily in the field as a lawyer, the answer is an old-fashioned one: I was randomly assigned to the practice group my first day at the firm). And I was lucky enough to have some stellar mentors at the firm who were committed to giving me a thorough foundational grounding in the field. Practice experience is great, but can be somewhat catch-as-can -- had I created a syllabus based solely on what I had done billable work in, my students would have learned everything there is to know about state energy brokering regulations, a fair amount about vegetation management standards ... and nothing at all about the Federal Power Act.*

In any event, teaching in a new area is an experience all new professors go through, and most of us will go through repeatedly as our careers progress. So I figured I'd open this thread up for people to speak their minds on the subject -- anything from advice, to cautionary tales, to amusing anecdotes.

* A side note: My experience starting off as a practicing attorney in a completely new and unfamiliar field made me incredibly grateful for the oft-maligned "traditional" law school education of "learning to think like a lawyer." Even had I taken a class in energy law, there's no way I would have learned the intricacies of Illinois' regulations on energy brokers and how they compared to the standards in New Jersey. But the generalist grounding I got in legal research and writing, plus the broader understanding I had from taking an administrative law class, gave me the intellectual agility necessary to tackle something that was entirely new to me without losing too many steps in the process. "Experiential learning" and clinics are great, and I'm all for them, but there is a lot to be said as well for a generalist legal education that produces lawyers capable of handling a wide and diverse range of topics that might be quite far afield from they originally envisioned they'd be doing when they entered law school.

Classes ... to record or not to record?

Oh no, not this hoary old chestnut again....

Yes, indeed. I've been musing about recording classes since a student asked me for the first time in a long while why I don't record classes regularly, as opposed to when there's a particular reason like a religious holiday or a student who requires a special accommodation.

This is something I haven't thought about in relation to my own classes for a while, and I know some folks do regularly tape (ugh - showing my age!) RECORD their classes.

I don't absolutely hate the idea, but I don't love it either. I suppose an additional concern I have these days is that, in the midst of all the discussion about new tech and distance ed, if we regularly record all classes in a residential program, we run the risk of creating confusion about whether it's actually a hybrid program. I have no objection to hybrid programs, and possibly not even to pure distance programs for that matter, but I tend to think we should be clear about WHICH kind of program we are offering. If it's intended to be a residential program and students are supposed to attend classes and have the benefits of discussion etc as the main professor-student interactions, I worry that regular recording of all classes confuses that objective and students become more inclined to skip class or not participate in class if they come to rely more and more on recordings.

It's possible that many students would use recordings as study aids in the lead-up to an exam, and I take that point, but I always prefer my students who have questions about an aspect of the course to come and talk to me about it in the lead-up to an exam rather than rely on a recording where I suspect it might be easier to take something out of context than in a direct discussion with me. Of course, that means I have to be prepared and available to speak with students in the lead-up to an exam and my policy is to do that.

In recent years, I've also taught mostly upper level discussion-based classes rather than larger 1L classes (the smaller classes do assist with my ability to be available to any students who need to ask questions in the lead up to an exam). I worry that recording smaller more interactive classes might have a chilling effect on class discussions. In a class where most students are going to actively participate in most classes, some students may be reticent to be recorded asking stupid questions (I don't know how true this is - but a few students have mentioned this in the past). I like these kinds of classes to be a safe place in which students can openly make mistakes or raise concerns and confusions. I don't know if recording would negatively affect that dynamic, but I worry that it might.

Maybe I'm wasting too much time thinking about this. It just struck me as an interesting issue in light of the fact that law schools are now thinking more about using technology for course delivery and moving to distance and hybrid education models. Do we need to draw lines more clearly between distance/hybrid versus resident courses as a more general matter, and does recording classes and making the recordings generally available suggest a distance/hybrid model? I don't know and I'm not averse to recording. It's just not something I've done for a while.

Interested in others' thoughts.

 

Drafting Lessons

 It all started with the committee assignment from hell.  When my dean asked me co-chair the Strategic Planning Committee a few years ago, neither of us could know that it would transform  my own teaching and scholarship, nor how. 

For at least a decade I intended to add drafting exercises into my Commercial Law and Contracts courses, but getting my book Love’s Promises out the door and other teaching and administrative obligations kept it on the back burner.  It took the relentless talk about curricular and other reforms in those weekly Strategic Planning meetings to overpower my worries about the steep learning curve and crowding-out of other scholarly and teaching projects. 

I little guessed that it was not a zero sum game.  Instead, learning to teach students how to create the documents that memorialize a commercial transaction changed my scholarship and other teaching in profound and positive ways. 

At the same time that I came to see the de-lamination of my notes as an ethical imperative, the ABA and the California Bar were cooking up new course requirements.  Accredited schools must offer 6 credits of transition-to-practice coursework and admission to the California Bar requires 15 credits that include topics like negotiation and drafting of contracts and other legal instruments. 

Professors across the curriculum are busy figuring out how to meet these requirements, each of us working within our fields of expertise and from our own backgrounds in practice.  I’ve teaching been Contracts and  Commercial Law (mostly Secured Transactions) for two decades, and before that I was in the Credit Recovery department of a big firm.  Sitting on the Appointments Committee over the years, I’ve noticed that most of us tenured and tenure-track come from litigation backgrounds, and for all but the junior faculty that was a while ago.  The question is how we who have not practiced in decades can help our students enter that arena.

One option is to give up before we start.   I spent much of my first decade teaching a lot like my professors taught me in the 1980s, and as their professors taught them in the 1950s and ‘60s, and so forth, all the way back to Langdell.  Top-tier law schools with big endowments may be able to hire a staff of legal drafting instructors on contracts, a parallel to the non-tenure-track faculty who teach students to write memos during their first year.  But the 2008 financial crisis and declining enrollments put this option out of reach for most of us.  

Another option is for us middle aged dogs to learn a few new drafting tricks.  I did, and am here to say that learning to teach contract drafting required me to adopt new ways of thinking that those insights have only enriched both my doctrinal teaching and my scholarship. 

But a paradox stands in the way for many so-called podium teachers.  Some think that learning to teach drafting and its increased grading is too hard.  Others, in contrast, see it as too easy, mere ministerial scrivener’s work that is unworthy of a true scholar’s attention.  In my experience both of these views are mistaken.  As Kwame Anthony Appiah put it in the NY Times magazine Education issue, universities can, should, and do focus on both utility and utopia.  Our students take on monumental debt both to earn a living and to practice a profession that protects sacred values like justice.  

How Drafting Lessons Helped my Scholarship

Figuring out how to teach drafting helped me think more precisely about writing for particular readers by shaping a voice, format and substance.  That new focus helped me to write a trade book that aims to get a distilled version of the law review articles I’ve written about family agreements out to non-lawyers who could benefit from knowing a few things about assisted reproduction, adoption, cohabitation and marriage agreements.  (A 3-minute video demonstrates that voice and format.) 

These changes happened incrementally.  First I taught a three-credit drafting seminar with Olivia Farrar of Howard University Law School, who also teaches a drafting boot camp here at the University of Maryland.    We created a hypo that required students to negotiate and complete the documentation for forming an LLC that purchased a medivac helicopter with seller financing.  That course taught me much more than how to translate a business deal to contractual concepts and then to words on the page.  In addition to learning that aircraft owners have to be US citizens, I discovered that my casebook did not convey crucial information that students need.  For example, few of them realize that messing up some clauses is fatal – and likely malpractice – nor the ways that doctrine dictates which clauses are core provisions.  (Although Secured Transactions was a pre-req for the course, only a handful of students understood that failing to define an “obligation” secured by collateral meant that the whole effort was not worth the paper it was written on.)  

Drunk on that Kool-aid, I added a 1-credit drafting workshop to my Secured Transactions course.  As with the seminar, students created a portfolio of documents that would memorialize a financed sale transaction, though the workshop syllabus was considerably slimmer than the seminar one.  The workshop is open to students in my class, and about half sign on each time I teach it.   

Fortunately, I teach at the University of Maryland law school, which has long been a leader in clinical education and other experiential pedagogy.    The administration backed my efforts to learn the ropes of contract drafting by giving full teaching credit for team –teaching that first seminar, hiring a Teaching Assistant to hold office hours with students and help with administrative matters like electronic submission of assignments, and letting me add an extra credit to my Secured Transactions class.

But not every professor is as evangelical about drafting.  Nor does every law school have the resources to support faculty in devising curricular reforms from scratch.

I’m writing a book to make it easy for people like me: doctrinal professors who want to add some transactional drafting exercises to reinforce doctrinal and theoretical materials and send students into their job search with a transactional writing sample and into practice knowing the difference between a representation and a covenant.  The exercises are modular so that professors can start with one and then add more in future semesters.  For enthusiasts I’m including exercises that can be ratcheted up to mirror complexities of practice.

What Do Law Professors Want?

Now that I know to tailor a book to reach a particular group of readers, I’m using this guest blogging gig at Faculty Lounge to solicit your thoughts about what would work in your classroom.

--  Would you prefer to add on a 1-credit drafting workshop, or to integrate materials into the casebook material you already cover?

 -- Would it be helpful to get tips about reducing time grading, such as having students negotiate as teams and turn in an assignment together?

 -- How many hours in a semester do you anticipate being willing to grade transactional exercises as part of your existing course?  As a 1-credit add-on workshop?

     --   Ten?  Twenty?  As many as 40?

-- Are you likely to direct your students to on-line multiple-choice questions on drafting if it reduces time you spend explaining the concepts?

 -- What else should I include (or exclude) to make this book user-friendly?

If you’d like to communicate with me directly about your own experiences teaching drafting, don’t be shy.  My email is mertman@law.umaryland.edu. 

I look forward to drafting on your thoughts and experiences.

The coming arrived casebook revolution

This morning, I received a survey from Wolters Kluwer (Aspen), publisher of the IP Survey textbook I use. The survey sought out what I find important in a book, and even asked if I knew any young IP professors I was impressed with (who could presumably write a new book). Why? The casebook authors (Profs. Merges, Menell & Lemley) somehow worked out a deal to take the book "private." That is, Aspen won't be publishing the book anymore, and they will self publish the book for a mere fraction of the former cost.

This is just one example of the casebook revolution. Contrary to what students might think, many professors actually do care about casebook prices. Modern technology is finally allowing them to do something about it.

The straw that broke the camel's back, I think, came last year, when Aspen offered Dukeminier, et al., as a rental only. That is, students paid for an electronic version and a paper version, could mark up the paper version, but then were required to send the paper version back. The cost was less than the prior full price of a casebook, but not by much. The rationale for this move was obvious: cut out the secondary market. Professors rebelled, and many said they would switch books before they would allow this, and Aspen relented, offering a print version (and claiming that its prior emails saying there would be no such version were misinterpreted).

But the handwriting was on the wall: book publishers are looking for a way to extract more and limit competition. Some of my colleagues get angry about that. My view is more sanguine: entry costs are low, so someone should be able to capture the market by simply competing with a lower price. If we hate this setup so much, we should just do casebooks another way. 

Perhaps not surprisingly, IP and internet law professors have led the way to start doing just that. Independent presses have arisen, open source casebooks have been created, and materials have been shared. You can now get two IP Survey texts (with a third on the way) for around $30. You can get statutory supplements for free in PDF (or cost of printing in paper). These things sell for $60-$90 from publishers. There are specialty casebooks (e.g. trademark or internet law), as well as highly focused reading materials (for example, you can get free access to my internet law readings online, or you can buy it in paper for about $35, if you want my exact reading choices for internet law).

Another benefit of the revolution is that new platforms allow for benefits not previously possible. Unlocked PDFs that allow for easy search, cut, and paste. An "open source" feel whereby edits by one professor's edits can be recombined into other books (though standardization of format would be helpful for this). More images, quotes, video links, etc., by professors willing to take fair use positions that publishers might not be willing to take.

In other words, the revolution has arrived, and is waiting to spread. Non-IP professors have not picked up on this as much (yet), though the H2O platform at Harvard has several reading lists in non-IP courses. As self-publishing platforms grow and more professors get on board, casebook publishers will see significant pressure.

I'll end this post with a couple caveats, however:

1. Publishers add value. For the most part, the cheaply available works are not nearly as polished as casebooks. They also contain far less material (which is good and bad - depending on whether the book matches what you want to teach). There are definitely exceptions to both of these.

2. Authors that have more potential upside may spend more time. If you like "notes" that sum up history, cases in other jurisdictions, etc., you are less likely to see those in a self-published book - certainly in the first editions. That work takes time, and simple incentives may limit it. On the other hand, if the author keeps 100% of the profit, then maybe such work will be worthwhile. Creating my own set of materials took a huge amount of time, and I simply had nothing left in the tank to write long notes, introductory text, hypotheticals, etc. But not all works are the same. I have colleagues who have written books with some fine problems in them, for example.

3. Sometimes the published book is just better. I like my patent law book. I like my contracts book. It's going to take a lot to convince me that another book is better. But that's what competition is all about.

4. New systems lack standardization, and thus may not offer all the features we want. Converting my fully online materials to printed materials was time consuming and, frankly, pretty ugly. There are other systems that may work better, and eventually the best ones will shake out.

In conclusion, be on the lookout for opportunities to collaborate on new textbooks in new areas, and the next time you complain about high prices, remember that you can do something about it!

[updated to incorporate and respond to some good comments]

Clickers, Anyone?

I've used clickers since I started teaching. In some classes/lessons, I use them extensively. For example, my novelty and statutory bars sections of patent law are almost all clicker exercises, where I vary the hypotheticals just slightly to test the outer limits of what constitutes, say, "public" use. I think of it as lightning-round Socratic method, except that everyone participates. I also like to use them because it forces the students to take a position. I routinely get many more votes than I do hands raised when I just ask.

I also find that clickers embolden some to speak up, because when I show the totals and that many people agreed, students are more likely to raise their hands and explain their answers. This is helpful, because it allows me to figure out whether the class is understanding the material and, if not, to find out why. The clickers can also scare students off - if only one picked an answer, he or she is less likely to volunteer why. It frequently happens, though, that the minority of one was correct or recognized some nuance in the question. Thus, I use a belt and suspenders approach - get clicks, ask for hands, and then show the results and ask for more volunteers if need be.

I recommend clickers to anyone not using them. I find them helpful and my students have responded positively for years.

But as the ABA moves toward requiring formative assessments (Standard 314), I wonder whether the clicker slides are enough. On the one hand, the students answer questions and we discuss right, wrong, and iffy answers and they can judge for themselves if their responses were correct. But maybe that's just me being lazy and not wanting to do more work to change my methods. Perhaps it would be better if I required everyone to answer (my participation rate runs at about 2/3) and graded answers (I have colleagues that do this).

I don't know the answer to this question. On the one hand, the students are responsible for their own education and should participate as they wish to their benefit or detriment. On the other hand, maybe it would be better to have more grades spread out throughout the year. I'm not sure my students would like that so much, but the educational results may end up improved.

Call For Ideas: Teaching Practical Skills In 1L Classes

This just in from the AALS Section on Teaching Methods:

The AALS Section on Teaching Methods is building its 2015 newsletter around your creativity and innovation for introducing practical skills and knowledge into first-year law school classrooms around the country.

Our Goal - Our hope is to create a forum that inspires each of us to share our ideas, borrow those of others, and ultimately reinvigorate and improve our teaching and our students' learning.

Our Ask - Using the form available at

http://goo.gl/forms/n8nGp4v3ob, please submit by April 15 a very brief summary (no more than 280 characters--or two tweets!) of an idea you have executed (or are thinking about executing) for teaching practical skills or knowledge in a first-year law school course (e.g., contracts, torts, property, criminal law, procedure, writing).

By submitting an idea, you give the Section on Teaching Methods permission to reprint your submission, along with your submitted name and affiliation, in our 2015 newsletter.

Our Followup - The Section may reach out to the authors of a handful of submissions to write a brief article that provides more detail regarding the teaching idea submitted.

LegalEd's Igniting Law Teaching 2015 Conference

My colleague Michele Pistone is the founder of LegalEd, a nonprofit dedicated to using new ideas and technology to improve legal teaching. Its 2015 Igniting Law Teaching conference is this week. Even if you can't attend, check out the videos either on live feed or after the conference - last year's presentations have been viewed thousands of times.

Here is the announcement and info:

Registration is now open for LegalED’s Igniting Law Teaching 2015.  The conference is Friday, March 20, 2015 from 9:00 am – 5:00 pm EST at American University Washington College of Law.  It is also available for live viewing by webcast.

 The conference will feature talks by 30 law school academics and practitioners from the US, Canada and England in a TEDx-styled conference to share ideas on teaching methodologies.  LegalED’s Teaching Pedagogy video collection includes many of the talks from last year’s conference, which have been viewed collectively more than 5000 times.

 The panels for this year include: Law Teaching for the 21^st Century, Applying Learning Theory to Legal Education, The Art and Craft of Law Teaching, Using Technological Tools for Legal Education, and Pathways to Practice.  Here is a link to the topics, speakers and schedule.

 The Igniting Law Teaching conference is unlike other gatherings of law professors.  Here, talks will be styled as TEDx Talks, with each speaker on stage alone, giving a well scripted and performed 8 minute talk about an aspect of law school pedagogy.  In the end, we will create a collection of short videos on law school-related pedagogy that will inspire innovation and experimentation by law professors around the country, and the world, to bring more active learning and practical skills training into the law school curriculum.  The videos will be available for viewing by the larger academic community on LegalED, a website developed by a community of law professors interested in using online technologies to facilitate more active, problem-based learning in the classroom, in addition to better assessment and feedback.

 We hope you can join us on March 20^th, either live or virtually.