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…

Webinar: A Teaching Experiment Part I

I recently had the honor of giving a university lecture on diversity for West Virginia University's Diversity Week 2010. The title of my talk was "The Diversity Rationale: What it Means and Why it Matters."

Rather than the usual stand-up-in-an-auditorium-and-talk format, I presented the talk via webinar. It was sponsored by WVU Extended Learning. The link to the archived here. (Note that you have to have an updated version of Java in order to access the program.) I would appreciate your feedback on how it (the webinar) came across, its utility -- particularly from the point of view of a student who happened upon the discussion -- and how useful this approach may be for teaching purposes.

In a subsequent posting, I plan to reflect in depth on my experiences in using a webinar as a teaching and lecturing medium. Suffice it to say for now that the experience was "surreal."

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Characteristics of the Millennials – Part 2: They’re Confident & Team-Oriented

This is the second post in a series regarding the characteristics of Millennials. In part one, I discussed the first two characteristics that I have learned about this group: that they are confident and team-oriented. In this post I would like to discuss two other characteristics: that they are achievement oriented and conventional.

They’re Achievement Oriented
Quite frankly, I don’t know if law professors will see a significance difference in this characteristic than in previous generations (although, being a younger professor, I have no personal point of reference). My understanding of the typical personality type that attends law school is that they have classic Type A attributes: they are achievement oriented, always prepared, and typically used to succeeding.

Research I have seen on this supports that idea. For instance Susan Daicoff, a Professor of Law, writes extensively on the personality traits of lawyers and law students. In a 1997 article entitled “Articles Lawyer , Know Thyself : A Review of Empirical Research on Attorney Attributes Bearing on Professionalism,” she discusses the findings from studies regarding the attributes of lawyers at various stages: before they enter law school (from early childhood through college); during law school and after they graduate. In summarizing the findings regarding law students Prof. Daicoff writes “the research … suggests, although with some expected gender differences, that law students are motivated by achievement rather than altruism.” For me, the most interesting aspect of Prof. Daicoff’s piece is its publication date – 1997. That year is significant for me because it’s the year I graduated from law school. As such, it seems that this particular aspect of the law student’s personality is consistent with previous generations.

The anomaly then might be in comparing law students to non-law students. What could be happening is that, while law students’ achievement orientation is remaining constant, the achievement oriented nature of the general millennial population has risen to a comparable level.

I would love for both law and non-law faculty who have been teaching for a number of years to chime in on this. In particular, I would like to know if either group has seen a change in how ambitious these latest crops of students are compared to previous years.

They’re Conventional
My understanding from Grace is that by conventional, these groups of students are generally more conservative than previous generations. Certainly, compared to those who attended law school in the 1960s, there must be a significant difference in the political leanings and civil rights activism - I have heard of no sit-ins at law schools in the last few years.

Personally, hearing that this generation is conservative sheds some light on the type of class that I teach and the resistance that I have encountered in my two years of teaching this course. As I mentioned in a previous post, the classes that I teach are mainly business courses: business organizations; securities regulation; international business transactions and a corporate governance seminar. Although I had anticipated that many of my students would have a business focus and thus, could be characterized as more conventional (as compared to, say students enrolled in a human rights class), I had thought that the specter of the bar examination would draw in otherwise left-leaning students who needed a crash course on these issues before taking the exam.

For me, there is no contradiction between having a strong business foundation and a more progressive, civil rights based mindset. However, I was surprised to discover that most of my students (even the ones with no interest in business) were by far more conventional. The most obvious example of this was when I showed my students the movie The Corporation. The movie is a documentary with a clear bias – its basic premise is that many of the characteristics of the modern publicly traded corporation are similar to those of a psychopath. It is based on a book by Joel Bakan that seems thoroughly researched but is no less provocative.

I present the movie in my class, not because I agree whole-heartedly with everything the movie says (I don’t), but because I believe that it’s a good way to stimulate paideia – getting students to question the idea of what a corporation is for. For instance, is a corporation simply there to generate earnings for its shareholders (as we learn in the black letter law)? Or are there other stakeholders that we should consider? Why or why not?

I imagined that this movie would engender a lively debate among my students. Instead, my students have, by and large, reacted very negatively to the ideas contained in the movie. Instead of a lively debate, I am often met with disdain for the idea that a corporation should be anything but a profit making machine. I wonder if I have presented this movie a decade ago whether it would garner the same response.

Of course, any attempt to extricate general attributes from such a large and diverse population is always fraught with peril; the idea of distilling the essence of a generation seems to me an enormous empirical challenge. Nonetheless, the findings are significant. Being able to understand the type of students that I am teaching, even at a superficial level, can help me (I hope) to be a better teacher, one who can understand her audience and tailor her teaching methods accordingly. Many good teachers do no less now when they tailor their teaching style to the various ways that people learn. Doing so on a generational level would allow for additional means of reaching them.

Example of Teaching to Millenials

Prof. Charles Calleros, of the Sandra Day O'Connor College of Law at Arizona State University, has provided us with this excellent example (given by his son Alex) of using technology to teach to generation millenials. The video shows how animation can covert what would otherwise be an ordinary lecture into a fun, entertaining and memorable event.

This particular example has Prof. Phillip Zimbardo lecturing on the different perspectives of time ...

Characteristics of the Millennials – Part 1: They’re Confident & Team-Oriented

In a previous post I discussed the research that WVU Law’s Director of Academic Excellence, Grace Wigal had presented regarding Millennials. It was a fascinating presentation to listen to because it shed light, from a generational perspective, on some of the tools that I has used in teaching this group and how they were received. In this post I will explore two of the characteristics that Grace discussed: their confidence and team oriented nature. In the next post, I will discuss two others: They’re goal oriented and conventional (conservative) nature.

They’re Confident:
The courses that I teach at the College of Law are part of the law school’s business curriculum. In the fall, I teach Business Organizations and a Corporate Governance Seminar. In the Spring, I teach Securities Regulation and International Business Transactions. My Business Organizations course (which many students treat as a required course since it is tested on most bar exams) is by far the largest class I teach in the year. Last year, I had approximately 75 students. This year I have close to that number: approximately 70. What has surprised me more is the sheer confidence that students have when presenting a case or questioning a legal issue. There are always a core group of students who speak up in class and present their ideas. What impresses me about them is that, even if they are on the completely wrong track, or give the wrong answer to a question – they are undeterred; they simply pick themselves up and do it again.

Contrast this with an experience a classmate of mine had when he was in law school (approximately fifteen years ago). He remembers vividly being called on in 1st year contracts to present a case and, being devastated when the teacher dismissed his analysis. Here’s the thing – my friend traces that one single event to his poor performance in law school. That one experience destroyed his confidence and he feels he never recovered. In fact, I remember the day it happened and indeed, my friend truly never was the same after that.

Now does my friend’s experience exemplify our generation’s lack of relative confidence? Perhaps not, but I was a fairly outspoken person in law school and I can still remember being terrified at the thought of being unprepared, particularly in a class the size of mine. Certainly, if I had been summarily dismissed by a professor I would not have immediately jumped back on the horse and volunteered again in the same class period. So, this does seem to be a change and, welcome at that – makes me think that these group of students will be more likely than a generation ago to separate their failings in class from their value as a law student.

They’re Team-Oriented:
Based on what Grace has said in her research, these groups of students are team-oriented: they have taken to heart George Bush’s mantra – no child should be left behind. By inference, group activities would seem to go over better with this group of students than with others. I have seen that borne out in my own experiences with my Business Organizations class. One of the components of my class is that in addition to the doctrinal issues, I have my students complete various drafting exercises based on what we learn, so that they have a practical application for some of the doctrinal issues that we cover. The students draft partnership agreements, bylaws, shareholder proposals etc… Last year, I had my students complete each of these assignments individually. This year, on the advice of one of my students, I turned these into group assignments. So far, they have only completed one, but the feedback that I received from the class was exceedingly positive (in contrast to the feedback I received last year which was lukewarm at best). Now maybe it’s just that they could divide the work between many people this year – but I truly don’t think that’s it. Rather, it seems like focusing on this assignment in groups allowed them to delve more deeply into the issues implicated by the drafting exercise and really think about the implications for what a partnership agreement would look like. Going over what they handed in was one of the best classes I had this semester.

So what have your experiences been? If you’re a student, do you agree with team-oriented exercises? If you’re a professor, do you think that this approach works? I would be particularly interested in hearing from business school professors, who have long employed group methods along with case-studies in their classroom.

Are Tenure Standards the Problem with Teaching?

This post is being submitted by one of my colleagues at WVU College of Law, Will Rhee. He read an earlier post and wanted to comment.

Enjoy

JMA

______________

This post is in response to Jena’s excellent earlier “In search of the Millenials” post. Instead of discussing the Millenials, however, I would like to examine Jena’s remark at the end of her post about the apparent “zero-sum game” between time spent teaching and time spent on scholarship.



Like Jena, I too am a pre-tenured law professor who would like to be both a good teacher and a good scholar. Numerous tenured law professors around the country have counseled me that as a pre-tenured professor I want to get a “B+” in teaching but not higher than that because a higher “grade” on teaching pre-tenure means I’ve “wasted” time on teaching that could have been dedicated to scholarly production. Moreover, I’ve heard the hackneyed phrase “legal scholarship is the coin of the realm” bandied around so many times during my relatively short time in the academy. While many pages have been written decrying the apparent conflict between these differentiated roles of law teacher and law professor, I believe that there are plenty of law professors like Jena and me who want to excel at both. As gatekeepers of the legal profession, I do think we have a sacred duty to train and prepare our students—the overwhelming number of whom will become practicing attorneys—for the legal profession. At the same time, I relish the variety and diversity of contemporary legal scholarship. I believe that law professors have a valid role to play as the connectors and bricoleurs of the academy. I love thinking and writing about law writ large—both practically and theoretically—and want to make a genuine scholarly contribution to the study of law.



An article authored by Brent Newton, an adjunct faculty member at Georgetown and Deputy Staff Director of the U.S. Sentencing Commission, entitled “Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy” (also forthcoming in the South Carolina Law Review), argues that the legal academy’s obsession with so-called impractical scholarship is the primary obstacle to curricular reform. Newton writes, “[I]t will not be possible to implement such proposed curricular and pedagogical reforms if law schools continue their trend of primarily hiring and promoting tenure-track faculty members whose primary mission is to produce theoretical, increasingly interdisciplinary scholarship for law reviews rather than prepare students to practice law.” (p. 4).



My initial response to Newton’s provocative article is that while I applaud his candor and agree that the legal academy needs to have this conversation openly and transparently, I disagree with his conclusion as overly simplistic and caricatured. Just as many of our law students “train for the test,” I do think law professors—particularly pre-tenured ones—do allocate their time based upon the express or perceived norms of the legal academy. Instead of thinking that tenure standards are the problem, I believe that the lack of clarity over those norms is the problem. The accompanying problem, however, with this lack of clarity is the reality that opinions can, will, and should differ.



For example, there currently is an uproar over the ABA Section of Legal Education and Admissions to the Bar Outcome Measure’s Committee recommendation that the ABA “re-examine the current ABA Accreditation Standards and reframe them, as needed, to reduce their reliance on input measures and instead adopt a greater and more overt reliance on outcome measures.” (p.1) Whereas “outcome measures” are “accreditation criteria that concentrate on whether the law school has fulfilled its goals of imparting certain types of knowledge and enabling students to attain certain types of capacities, as well as achieving whatever other specific mission(s) the law school has adopted,” “input measures” are “accreditation criteria that concentrate on whether law schools are investing the right types and amounts of resources (such as physical plant, number of faculty, and budget) to achieve the goals identified in the accreditation standards and the school’s missions.” (p.3) As someone who dabbled with educational policy as a legal practitioner and, more importantly, who is married to an awesome high school teacher, I can attest that outcome measures are considered state-of-the-art in educational pedagogy. As the old adage goes, people only do well what the boss checks. Upon hearing of this current debate, my wife was mystified that the legal academy was even having this debate because K-12 teachers concluded decades ago that output measures is the way to go. In fact, the accountability component of the infamous No Child Left Behind law is premised upon outcome measures.



In my opinion, the challenge with outcome measures is not agreeing that they are a good idea in the abstract (they are) but rather getting agreement on them among independently-minded faculty and, even broader, among a very fractured legal profession. Pedagogically, it makes sense to say that we as teachers should clearly articulate what we expect our students to be able to know or do before we assess them on whether they actually know it or can do it. Likewise, we then can be held accountable through somewhat objective means to see if we actually successfully taught our students to know or do what we said we wanted them to know or do.



But what should our students know or be able to do? Good luck trying to get agreement on that essential question. Should we agree with the Carnegie Report (William Sullivan et al., Educating Lawyers: Preparation For The Practice of Law (2007)) that we need to cultivate all three “apprenticeships”—cognitive, expert practice, and ethical-social? Law school is short and the only time students can really learn doctrine and “how to think like a lawyer,” why not let students focus on that and leave becoming expert practitioners to the rest of their legal career? Given the financial crisis and the resulting fundamental—perhaps permanent—change to the nature of the practice of law and what clients are willing to pay, do law schools have an obligation to the practicing bar to produce graduates who are ready to hit the ground running and contribute substantively and financially to actual legal representation? Could law schools try to bridge the perceived gap between the JD and legal practice through more post-graduate work, LLMs, more rigorous CLEs, or even the MacCrate Report’s American Institute on the Practice of Law (The Task Force on Law Schools and the Profession, ABA Section of Legal Education and Admission to the Bar, Report of The Task Force on Law Schools and the Profession: Narrowing the Gap: An Educational Continuum (1992))?



More broadly, what is the purpose of a law school? Should we have different kinds of law schools or should all law schools seek to do the same basic things? What outcomes do we want to generate institutionally? Do we want to be the connectors and bricoleurs of the academy and generate cutting-edge original ideas unencumbered by the bonds of peer review? Do we want to create scholarship that the practicing bar actually reads and uses? Are we concerned with being labeled a trade school or are we a bona fide member of the academy? Do we really believe that every student can be a lawyer? Do we have a responsibility to weed out students who would be terrible lawyers? Do we really care about teaching or is our role really to sort our students in a pseudo-objective way for their potential employers? Are we just money-makers for the University or simply responding to a market demand by providing an overly litigious American society with the lawyers they want? Do we want to improve legal doctrine to further justice—whatever that means? Do we want to differentiate institutionally—forming a mini-university within each law school—where faculty individually can choose to specialize in teaching or scholarship but with the net collective effect of allowing the law school to excel in all areas?



To be fair, the lack of clarity over the purpose of a law school is a problem that I’ve observed in every institution. Good transparent guidance was extremely hard to find in legal practice. Very rarely was I ever told explicitly the outcomes expected from me before I started a job. Even when I received excellent performance evaluations, I often felt like they were random (and I suspect that some of our law students—despite our sincere best efforts—might feel the same way).



What is clear to me is that fortunately or unfortunately the measuring stick in the legal academy is the infamous U.S. News & World Report rankings. While we all vilify them, unfortunately we see law school deans’ careers often rise and fall with them. Not surprisingly, scholarly output appears to impact the prestige factor of these rankings. Like many of our students, we too as law professors and law schools appear to “train to the test.”



What do I think would result from a candid conversation over the purpose of a law school? I think there would be less essentialized, unhelpful discussion over the perceived norms of the entire legal academy (I myself chuckle at how many times I hear tenured faculty and even deans tell me that while some norm is not true for their own particular law school it is true for the rest of the academy) and more specific discussion over what kind of law school do we as the faculty, students, and alumni of that particular law school want. While we have begun to see some intentional differentiation among different law schools (notable examples include the University of the District of Columbia and Northeastern’s emphasis on public interest law, Charlotte School of Law’s focus on creating practice-ready lawyers, and George Mason’s dedication to Law and Economics), I still think the conversation needs to shift more from aggregate abstractions to specific approaches at particular schools. Individual law schools should be able to experiment boldly and thereby provide the legal academy and legal profession with different concrete examples of different approaches. We should collect objective data on the outcomes of those different experiments and allow our generalized conversation to take on some helpful particulars. Perhaps such transparency and honesty is too much to ask, but I do believe that until individual law schools can publicly agree upon what outcomes they’re trying to accomplish and transparently tie their norms and evaluation to such agreement, we’ll never be able to address the problem of improving teaching or any other perceived challenge in legal education.

Will Rhee
Associate Professor of Law, West Virginia University College of Law