The Faculty Lounge

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.

 

Establishing Norms for #Law Student Participation in Remote Learning: Turn Cameras on and Mute That Mic

Like many law schools, my institution has decided to move all classes on-line, to the extent possible, at least until March 29. The Elisabeth Haub School of Law is located in Westchester County, New York. Governor Andrew Cuomo has deployed the National Guard and established a 1-mile "containment area" a few towns over in New Rochelle, New York.

These are unusual times.

Today is the first day that my colleagues and I started teaching on-line. My message, to myself and my colleagues, is to do what you can, with whatever technology you feel comfortable with, and strive for excellence but not perfection.  In other words, we are all going to make mistakes in the on-line classroom, in the same way we make mistakes in the traditional classroom. (I made quite a few in my class this morning.) Many of us are feeling overwhelmed as we figure out the technologies that enable us to teach on line. It seems that at every turn, there is another webinar or click-through to consult.

We will get through this, with patience and good cheer.  Our students want us to succeed; we want them to succeed.  We will not leave our students behind. This will be difficult, for sure. But we will support each other and continue to grow as individuals and as communities.

But how to foster community if I can't see my students and my students can't see each other?  There are technologies that enable us to easily have the equivalent of a massive on-line conference call.  But what if students won't turn on their cameras?  I had more than one colleague say that fewer than half of their students turned their cameras on.  What if students have on their cameras, but I can see their messy beds, partially eaten meals and ... less than professional aspects of their lives?

Every instructor must decide what message to convey to students about virtual "presence." Mine is this:

I recognize students may not have reliable internet access, or may have internet problems at any particular moment. Not all students will have cameras or microphones on their laptops, especially if they have older machines.  I get it (I've been there!).  For these reasons, I'll make sure that students can participate in the on-line session by phone.  All students also will have access to a recording of the session. It's not ideal; it's not the experience any of us signed up for. But we will make sure that the students' learning is not set back.

That being said, I believe it is reasonable to ask students will use the phone option as a back-up measure, not all the time, unless they can let me know.  Students who are physically and technologically able to attend the synchronous class in its regularly scheduled time-slot should do so. 

 

In my class, I consider it part of my student's professional obligation to turn on their cameras, mute their microphones, and remain present for the entire time. Instructors certainly need to be understanding if someone needs to step away from their computer, just as we would be in a traditional class. But the expectation is that the instructors should be able to see the students and vice versa, as a matter of creating and building community. Very few people like to see themselves on camera (I know I don’t). By turning on the camera, we are showing up for each other and saying, “I’m a part of this. We’ll get through this together.”

 

We will! We will not leave anyone behind.

 

P.S. To my students, I don't care if you have made your bed.  I care about your education. Show up in whatever way you can.  We'll work it out (but you might want to check out the "virtual background" function in Zoom....)

Tips for Teaching Law Classes Online in the Event of a COVID-19 Shut Down of Law Schools

I've been teaching Federal Income Tax and Wills,Trusts & Estates in mixed live/online formats since 2009. I put together a short video for colleagues with thoughts about how to teach law classes in distance formats, whether synchronous or asynchronous, if the public health situation requires us to do so. The video does not address technology issues (i.e., what format is best for any one particular class), but rather offers thoughts on big picture issues/concerns when moving a traditional law class on line. A few of the tips are idiosyncratic to my school (i.e., who to ask for help supporting a particular program), but most of the tips are applicable across the legal academy.

To summaries, my tips are these:

1. If you are teaching synchronously, try to do so in your regularly scheduled class time, so as not to create scheduling conflicts for students. If you are teaching asynchronously, try to get your recordings/assignments up before the class otherwise would meet live, or, as a default, no later than 24 hours after a regularly scheduled class would have met.
2. Keep our eyes on the goal of delivering the best educational experience we can, within the constraints we are have, including time and training.  Don't feel like you have to radically re-organize your course. 
3. Instructor availability to students matters especially in the distance format -- make sure to schedule virtual office hours.  Consistency is important.  Don't suddenly add new assignments and requirements just because the class unexpectedly must be taught in a distance format. Make sure to stay in regular contact with students.
4. Random additional nuggets of wisdom I've acquired in teaching online for 11 years:

• • Employ visuals, especially if teaching a class asynchronously.  I don't like to see myself on screen, but it's not about me.  The student feedback is that they feel more connected when they can see their instructor.
  • Provide students a roadmap when teaching online, whether in the format of an outline that can be downloaded, or a list on the screen that students can reference during the online session.
  • Record in small chunks.  Don't do what I did for years, and make the mistake of recording sessions that lasted 1 hour 50 minutes. Break the session into 20-minute segments. If you have to rerecord, you'll be glad to have to re-do one segment only. Also, if you don't refer to super-current events, you may end up building a library of recordings that you can use in future semesters.
  • Develop appropriate mechanisms for attendance and accountability. Obviously, if large numbers of students are sick, very strict attendance policies will need to be relaxed, but you'll want to be able to monitor student progress.
  • Build in lots of opportunities for feedback to students. I do this through quizzes (that do not count toward a student's grade) to provide students with the opportunity to apply the material from the distance class session.
  • Much of what we do in live classes can be done via distance sessions -- group work, working with a partner, self-assessment, etc. With a little creative thinking, we can do those things slightly differently (and equally successfully) online.
  • The students want their professors to be successful instructors just as much as we want them to to be successful learners. We're all in this together and will work together to deliver the best education we can under the circumstances.  Perfection isn't required.

The video (about 24 minutes) is available below for anyone who is interested.

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.

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.

Aaron Hernandez & the Fourth Amendment’s Plain View Doctrine

Last week’s post discussed how the federal government’s investigation into Alex Levin provides a compelling illustration of the Fourth Amendment’s exclusionary rule. This week’s story begins in 2010 when the New England Patriots acquired Rob Gronkowski and Aaron Hernandez in the NFL Draft. Together, Hernandez and Gronkowski became the first pair of tight-ends in NFL history to each catch five or more touchdown passes, while on the same team, in consecutive seasons. By 2011, the duo was setting records for yardage, receptions, and touchdowns by tight-ends, combining for 169 receptions, 2,237 yards, and 24 touchdowns in that season alone. In recognition of their success, the Patriots offered the dynamic duo the largest contract extensions in NFL history—locking Hernandez and Gronkowski into five-year contracts collectively worth more than $90 million.

But Hernandez’s on-the-field success masked a darker persona away from football. In 2013, just two years after signing his exorbitant contract extension, Hernandez was prosecuted for the murder of Odin Lloyd. By 2017, Hernandez was dead. This post peers into a small facet of the state’s initial investigation into the murder of Odin Lloyd; specifically, the search of Hernandez’s home shortly before his arrest. Although law enforcement had a warrant to search the house, officers seized items not listed in the warrant during its execution. Enter the plain view doctrine.

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.

Teaching Strickland v. Washington through the case of Adnan Syed

In my post last week titled “Bringing famous defendants into the Criminal Procedure classroom,” I suggested that case filings from (in)famous defendants present the legal academy with a special opportunity to bring the classroom alive—particularly and especially the investigative criminal procedure classroom—in a manner superior to more traditional teaching methods.  At the end, I promised a series of follow-up topic-specific posts that would include my thoughts about teaching the investigative criminal procedure course through the lens of famous defendants. Today we dive into how the performance of Adnan Syed’s attorney, Cristina Gutierrez, at his murder trial makes for a compelling way to teach Strickland v. Washington.

Bringing famous defendants into the Criminal Procedure classroom

Last year, I drafted a series of posts for this blog wherein I suggested the many benefits of bringing Brendan Dassey’s prosecution into the law school curriculum (the intro post from that series is here). In that series, I mentioned that I twice taught a course called (Un)Making a Murderer and assembled course materials to accompany the class. Those materials relied, in part, on filings from Dassey’s case. Doing so intimately acquainted me with his case and its many associated legal issues.

To bring the Dassey prosecution to life for students, I expose them to numerous filings from the case alongside several law enforcement investigatory materials (including, for example, search warrants and interrogation videos). Teaching that class taught me this:  in-class conversations that focus on actual case filings has significant advantages compared with the more typical classroom conversation that revolves around discussing one case at a time in a vacuum—disconnected from how that case applies to a real person.

Preparing for Class

Joanna Grisinger has been blogging this month at Legal History Blog on the subject of teaching legal history. Her helpful advice is broadly applicable to all subject areas. Here is an excerpt:

“As soon as a syllabus is finalized and handed out, I save a copy as ‘future syllabus 3XX’ and add notes to it (moving or removing certain cases that just don’t work with a particular day’s material, noting at the top that I need to spend more time on A, B, or C, etc.) I know I’m not going to remember the details of why something didn’t work a year, or years, later, but it’s easy to go back to my office and simply move an assigned reading from one day to another. It’s also a file where I can paste citations, links, and stray thoughts (like ‘do a better job explaining negligence’ or ‘read this article before teaching Lochner again’) to deal with later.

Further, when I run across something online that I think might be interesting to use in one of my classes someday (an image, a newspaper article, a Legal History Blog reference to a new book or journal article, a digital history project, someone else’s syllabus or reading list, a tweet with a great piece of teaching advice), I immediately save it with Google Keep (which lives in my browser and requires a single click; Evernote also works for this.) Evernote and Google Keep (and probably a dozen more similar programs) store all kinds of materials and allow you to tag your materials as you like. I’ve created tags for each of the different classes I teach or might teach (as well as ones for various research projects I’m working on, restaurant recommendations, travel ideas, etc.). I’ll tag a link as soon as I save it, with whatever fits (the same article might be of use in Legal History since 1850, Gender and the Law, and Constitutional Law). Some of these classes I might not be teaching again for a few years, but when I’m starting to think about ordering materials and revising the syllabus for that class, I have a giant head start. It’s also a great way to keep track of the teaching tips and interesting assignments people tweet about that can be almost impossible to find weeks or months later.”

I take a very similar approach. At the end of each class period, there are often things I want to tweak about how I will cover the same material the next time I teach the course. But I find that if I don’t make a note to myself immediately after class, I can never remember what it was I wanted to change about that particular class by the time the next year rolls around.

I also find blogs to be enormously helpful for staying on top of new developments in the subjects I teach. For example, Rick Hasen’s Election Law Blog is essential reading for anyone who teaches Election Law. It provides a daily summary of all election law-related developments, including the latest court cases, law review articles, FEC rulings, newspaper stories, op-eds, and blog posts. There is not a day that goes by that I don’t read Election Law Blog. And I have found both the Civil Procedure & Federal Courts Blog and EvidenceProf Blog to be great sources of information as well. I don’t think I would be able to keep my courses fully up-to-date without those blogs. 

Part of the fun of being a law school professor is the fact that the subjects we teach constantly evolve. Even legal history courses must change over time as new scholarship deepens and broadens our understanding of the past. The law’s dynamic nature makes teaching it a new and rewarding challenge every semester.  

For more of Professor Grisinger’s excellent teaching advice, here are links to her posts on developing a legal history survey course, moving from semesters to quarters, choosing reading for legal history courses, and preparing for class.

"No Scrubs" - Federal Income Tax Edition

Two creative students in my Federal Income Tax class made this video, a parody of the TLC song "No Scrubs."  Major kudos to Pace Law School students Alexis Bueno and Monica Lindsay. Lyrics -- fully appreciated by the tax nerds among us -- appear after the fold.

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.