Justice Stevens and the Anti-Distortion Rationale: A Teachable Moment

I recently posted what follows on our "Thoughts on Citizens United" blog. I thought it worth re-posting here because it is an example of the kinds of points I have tried to raise in order to use Citizens United as a teaching touchstone to illustrate power and politics within the corporate system and within the democratic process. Another has been the use of technology to accentuate teaching, particularly about teaching about power in the internet age, something I've discussed previously. What follows hopefully illustrates both, and may offer a conversation starter for our panel at the SALT Teaching in a Transformative Age Conference--which is coming up soon!

From: "Thoughts on Citizens United":

Rick Hasen blogged yesterday about comments made by retired Justice John Paul Stevens concerning Citizens United. Justice Stevens' comments focused on the anti-distortion rationale rejected in Citizens United. He emphasized the idea that an actor in an election debate who has more resources than the other actors will distort the ability of the voters to make their decisions. Justice Stevens made these comments on "60 Minutes" this past weekend. You can read and see the original CBS story here. His Citizens United-relevant comments I repost from Hasen's blog:

SCOTT PELLEY (voiceover): In Citizens United, the majority gave corporations the right to spend as much as they want on political campaigns; the majority said that limiting money in politics is the same as limiting free speech.

Where does the court make a mistake in your view?

JUSTICE JOHN PAUL STEVENS: Well, you know, which mistake do I want to emphasize?

(Justice John Paul Stevens laughing)

SCOTT PELLEY: You decide.

JUSTICE JOHN PAUL STEVENS: Well, you know, basically an election is a debate. And most debates you have rules. And I think Congress is the one that ought to make those rules. And if the debate is distorted by having one side have so much greater resources than the other that sometimes may distort the ability to decide the debate on the merits. You-- you want to be sure that-- that it's a fair fight.

As I have stated during the recent forum Professor Amerson and I hosted with West Virginia University College of Law and the University of Akron School of Law, the rejection of the anti-distortion rationale represents, in my view, a departure from the Supreme Court caselaw that represented an uneasy but necessary pragmatism concerning corporate spending in elections. In his way, Justice Stevens echos this thesis quite pointedly and precisely. I will say more about this in future blogposts and other publications.

The Laptop Debate ... (Part one)

According to the Washington Post, I’m about three years too late…
In a March 2010 article on banning laptops, the newspaper quoted a University Virginia professor who stated that, given the proliferation of other types of interfaces (such as web-enabled cell phones) professors are fighting a losing battle with technology.

This year was my first year banning laptops in my classroom. I had taught my business organizations class last year to a group of 75, my largest class size to date. I am a wanderer in class; instead of standing for the whole period at the front of the room, I walk around the class, trying to change my student’s focus, help them to engage. Now, while I’m not a millennial, I have had the uncommon experience of being a recent graduate of law school. I earned my LL.M. at the University of Texas in 2006, where laptops were common and wireless access prevalent. I know what happens in classrooms nowadays, in fact I participated fully – I chatted on-line (often with students sitting next to me), I surfed the internet and generally distracted myself. So, I have firsthand experience with how easy it is to get sidetracked through technology. Still, I have heard and agree with the arguments that students have been distracting themselves in class for generations and that technology is just the latest tool to facilitate.
But that’s not why I ban them.

I ban it for two reasons: one is based on a concern for my students and the other is based on a premise that I have yet to hear: the down side of instant engagement. The concern for my students came about after students complained to me that, even when they wanted to focus, it was difficult because the internet usage from other students was so prevalent that it kept the whole room preoccupied. The Washington Post article refers to it as the “cone of distraction.” But there’s an easy solution for that – all students who use laptops can sit at the back of class (although if everyone wants to use a laptop then that would thwart the solution). So, while that motivates me, the other reasons stem from something that I have not seen discussed – how the use of technology can thwart thoughtful ruminations.

Allow me to first illustrate with a hypothetical. What if you’re a student in a class, who had deep concerns over the competency of your professor: he’s a new prof who has no “track record” and you’re unsure as to whether what he’s telling you is really accurate or just a collection of platitudes. So, every time he makes a statement about black letter law you “fact check” it, Google it on your laptop to see if what he says pasts muster. Instead of listening to the lecture from a point of view of thoughtful absorption, you are spending your time trying to catch the teacher, not to educate but to condemn. Suddenly, the environment isn’t about learning it’s about condemnation. Now let me be clear – I know that there are a lot of incompetent professors out there, and many of them need to be challenged, but having this instant access to the internet can lead to a sense of false confidence (If I found it on Wikipedia it must be right and my professor must be wrong! True story, two days after I orginally this, one of my students in answering a question did exactly that: he referenced Wikipedia) that can then lead to a situation where confusion is heightened and learning is inhibited. If instead, the material were digested in class first, with questions designed to clarify, then a student might spend that time engaging in real learning.

Which leads me to ancillary point that my colleague, William Rhee, pointed out: namely that the legal system has not yet thrown aside all vestiges of the old ways. A law student needs to learn the basics of note taking and thoughtful discussion for those situations in the legal world where technology is either not accessible or not permissible. What if, you are so accustomed to relying on your computer to type questions that you are completely at a loss on how to behave during an oral argument, standing at the podium with nothing more than some paper and a pen? There will be something lost in client interactions if the only thing a client sees during a meeting is the two slits of eyes above your laptop. I have literally seen two teenagers sitting side by side on a couch not making eye contact or talking, both of them glued to their cell phones, expressionless as they were texting - each other. What does that say about our continued ability to interact with people face to face?

That for me is the real danger; it’s the dark side of what I mentioned in a previous post – using technology to get students to engage. I love technology and love how it gives people a means to access a discussion, a debate, in ways they never could before. I love that all of my seminar students and most of my business organization students have spent some time this semester blogging on issues of Citizens United and grappling with what the case means for them in different contexts. But something happened along the way to engagement: occasionally, the instant feedback of technology leads students to rush to judgment, and substitute thoughtful commentary with thoughtless reactions. It can lead to an inability to learn basic skills of communication (in much the same way that a calculator had a horrible effect on students’ arithmetic).

So, while I embrace technology as a mechanism for teaching my students, I also place limits. And so this year, I banned laptops in my class. There were grumblings at first ( I hear there always are) but the results have been worth it. It has given my students and me a time to slow down, to wrestle together with the questions they have and to think through these issues over the course of a two-hour period. And for me, that’s right on time.

A Teaching Experiment Part II: Adjusting to the Technology

I recently posted about my involvement in a diversity week webinar lecture at West Virginia University. Since then, I had been involved in another distance-learning program related to the Citizens United v. Federal Election Commission decision that took place via videoconference; this project took a great deal of my time. (Jena Amerson blogged about the event--and its unfortunate mishap that took place--here.) Now that I have time to write after these events, I want to reflect on these two very different experiences in two separate blog posts. Today, I will reflect on the use of the distance learning technology for the diversity webinar. I will discuss the Citizens United videoconference in a later post.

First, the webinar was a great honor since it provided an open opportunity to discuss diversity in a university-wide lecture. Anyone with a suitable computer could “tune in” to the talk. A small group of university students, faculty, and staff did engage in the webinar—somewhere around 20 participants joined in the live broadcast. However, since the broadcast is saved at the WVU Extended Learning archive, it remains to be seen how many people will look at it.

Second, I want to reflect on the experience itself. One of the wonders of using the webinar technology was its ability to allow the webinar leader and the participants to conduct the seminar from virtually anywhere. All one has to possess is a laptop or computer with a camera and microphone installed—virtually any computer made in the last five years would qualify. What this meant for me was that I presented the webinar in the quiet of my office.

The challenge in this apparent convenience was that no one who participated in the webinar was present with me. The only interaction I received was from text-message like questions posed to me after I finished my discussion. This was a bit disconcerting: I sat, talking to just my computer and my camera and didn’t have any direct visual or aural replies. I felt that this required a significant adjustment to my approach to lecturing—indeed, I felt like I was literally performing for a camera and having to imagine from just the text on the screen whether my points were being received. Think of being by one’s self (no production staff, no audience, no director to cue you in) in a TV studio doing a live broadcast—an isolating experience.

This made me realize how much I depend on the in-person interactive quality of teaching in a “real life” classroom. The technology, though it allowed for anyone in cyberspace to follow my lecture, took this interactive layer away. I had to adjust on the fly to make it work (and my colleagues were helpful to me on this issue by mooting my talk for me the day before).

I think this issue of “adjusting to the technology” is one that anyone currently teaching and trying to make use of technology is going to encounter. I think the same thing I could say about using a virtual classroom can be said by anyone not used to things like PowerPoint, web sites, Wiki programs, etc. My only other observation is that devising such strategies as to particular technology and as to the process of technological change is going to matter more and more as technology in the classroom continues to evolve. It is a challenge we as teachers will continually face as our students—and the technology they bring with them—continue to evolve.

Lessons Learned ...

On Thursday November 4th Atiba Ellis organized a panel discussion with Professors Stephan Padfield and Wilson Huhn from the University of Akron. The panel was a perfect intersection of the issues that this blogs raises and the issues that I have been struggling with all semester: using new technology to incorporate case law across the curriculum. In this case, the new technology was Skype, which allowed us to engage in a two way video conferencing format: the professors at Akron could see us; hear the students questions and respond in real time. The "law" that they were discussing was the Citizens United case that (as mentioned in an earlier post) Atiba and I have been using as a means of engaging the students in issues of corporate law, constitutional law, and election law. In that way, the panel (taking place two days after the latest elections) was timely. Atiba mentioned the recent elections in his remarks and the professors at Akron elaborated and built on that in their reponses to student's questions.




The downside? The technology didn't work completely. What this blog entry was supposed to be, was a post with initial remarks from me followed by the video, so you could see for yourself how the Skype teachnology worked. Instead, because the technology didn't manage to record the event, you are left with my observations on the matter (supplemented with pictures to provide you with context).





So here are my observations:

I think that using technology in this way allowed the students to engage differently than they can with other formats. This is the digital generation, the students who grew up with mobile phones and text messaging; the ones who are accustomed to getting their questions answered instantly with a laptop and a wireless connection. Showing these students that we can engage with them using a technology they understand is invaluable in helping us to connect with them as teachers.

I've been thinking about this a lot in preparing for our upcoming presentation at the S.A.L.T. conference - using the intersection of technology and case law to connect with our students. Specifically, what is it about what we're doing (by having our students blog, have them use video, use a recent supreme Court case) that makes it different from previous methods of teaching?

Let's be honest, the idea of having one case that touches on multiple subject matters is not new - my students often tell me of finding a case that they've read in one class's casebook being used in another casebook for a different subject. That makes sense- one judge can touch on a multitude of different legal theories in a single opinion; it's only natural that different casebook authors (and law school teachers) would use a portion for their own purposes.

So what makes our experiment so different? The conclusion I've reached (which I'm still thinking through) is that it's the combination of the timeliness, the technology and the richness of the case that makes this an effective way to teach to students. Unlike cases that have already been compiled and edited for casebook purposes - Citizens United is new, the Supreme Court just decided the case this year. In addition, my students had to read it unabridged, no editing or censoring on my part. Finally, my students had to use technology (by blogging at least twice throughout the semester) to think through the issues that Citizens United raised. It was almost as if they were defining for themselves what Citizens United meant across all these different areas of the law: they were analyzing it; massaging it; trying to firgure out how it all fit together in a way that I think they could not have done without blogging. And then, to hear some of the thoughts that they had struggled with being echoed by professors and scholars ... the feedback that I've had so far has been overwhelmingly positive. As one student in business organizations class noted -it was like bringing in all these different threads together.

So, while it would have been nice to have had a video to record the moment (and the four professors have decided that we are going to have a wrap up session which we will record and post) I think the far more valuable thing that this panel (and this semester) has shown me is that, if you take the time to think about different ways you can engage your students and you supplement that with timely issues that they want to understand, the results can be astounding...

Citizens and Beyond …

The Supreme Court on September 28th granted certiorari yesterday regarding whether to expand corporate rights in other contexts. The cases, will involve the application of the state secrets doctrine and invocation of the right to privacy by a corporation (General Dynamics Corp. v. United States and The Boeing Company v. United States, Nos. 09-1298 & 09-1302). It will be interesting to watch in the coming months how the experts will analyze these cases, especially in light of the Court's recent Supreme Court decision Citizens United v. Federal Election Commission.

While I’m sure that I will have strong opinions on the cases as a scholar when they are decided by the Supreme Court, my primary interest in these right now is as a teacher. One of the points of this semester long project that Atiba Ellis and I have is trying to find ways to teach across the curriculum. Only the most superficial logic would deny the overlapping nature between one aspect of a curriculum and another. In fact, on the first day of my business organizations class I challenge my students to find one course that they are taking or have taken where business and business organization issues are not implicated. In the two years that I have made that challenge I have yet to be stumped to find a connection.

Last month, I co-taught a class for andre cummings entertainment law course on piercing the corporate veil. dre certainly didn't need the help – he has taught this course numerous times and has a strong business background. Still, I couldn’t argue with his logic in getting me to co-teach with him: according to dre, it’s creative and offers students a different perspective. I agree with dre. I also think it breathes life into students who, for this generation at least, seem quick to view things as monotonous and repetitive. In my own experiences teaching Legal Writing I also found this to be so – I could give my students my core tips repeatedly over the semester but, as soon as I have a guest lecturer who comes in and, in essence, repeats those same tips to them, suddenly the students get it.

So what does all this have to do with the Supreme Court’s docket? Well, in the coming weeks I will look for ways to incorporate these issues into my business organizations and corporate governance classes. My corporate governance students in particular, who are just beginning to draft their seminar papers, might find it interesting to make connections between a corporation’s 1st amendment rights (as discussed in Citizens) and a corporation’s right to privacy. In my business organizations class we recently discussed the issues of duties for members of the board of directors and the rights of shareholders to bring derivative lawsuits if they feel that the corporations are not invoking invoking their rights. The example I gave my students is a variant on an example that Mark Ramseyer gives when he teaches his students this segment: what if Iron Man, the treasurer for S.H.I.EL.D. corporation, suddenly decided that SHIELD’s iron man suits are his and his alone and steals them from the corporation. If the company refuses to sue (preferring to take matters in their own hands) then a shareholder of S.H.I.E.L.D. would have the right to bring a derivative lawsuit in the corporation’s name suing to get the Iron Man suits back. One of the things that I will ask my students is, would the principles of derivative lawsuits apply in those situations where a shareholder is seeking to invoke a corporation’s right to privacy? What are the implications when the rights that a shareholder is trying to enforce are not monetary or fiduciary but constitutional? SInce we have a guest lecturer who will be talking with my students on Thursday about the Citizens United case, this seems like an ideal setting to pose these questions.

Hopefully, getting them to think about this in one context will encourage them to think about it in other contexts. I would love to hear suggestions from other teachers out there for what they do to teach across curricula…