TEACHER
THE LAW
Inside...
Remember the Water Buffalo........................... 1
Book Review: David Nadvorney and Deborah
Zalesne, Teaching to Every Student:
Explicitly Integrating Skills and Theory
in the Contracts Class.................................. 3
Old Professor Tricks............................................. 4
The Supreme Court Conference Room:
Legal Writing as Legal Process.......................... 5
Infusing Ethics into the Legal Writing
Curriculum—and Beyond.............................. 7
Book Review: How Children Succeed:
Grit, Curiosity, and the Hidden Power of
Character............................................................ 8
It’s OK to Leave Law School............................. 10
Crossword Puzzle................................................ 11
Eliminating the Blackacre Opportunity Cost:
Using Real-World “Targeted Fact
Environments” in First-Year
LR&W Courses.................................................... 13
Reflection, Reality, and a Real Audience: Ideas
from the Clinic..................................................... 15
Beyond the Legal Classroom: Leveraging
Major Local Events to Engage Students and
Further an Interdisciplinary Approach to the
Study of Law................................................... 17
Teaching Statute Reading Basics in a First Year
Doctrinal Course: A Handout and Suggested
Classroom Exercises....................................... 18
Law School Communities “Saving Social
Security”— Imparting the Intangibles of
Practice Readiness.......................................... 21
Report from South Korea: My Experience
Teaching Law Students at Seoul National
University......................................................... 23
Passion is Necessary, Compassion is Priceless:
A Message to the Clinical Law Student..... 25
Introducing Students to Free On-line Legal
Research Resources: An Interactive Class..... 26
Happily Ever After: Providing Students With
Epilogues for Cautionary Tales................... 28
Developing Classroom Authenticity: “Big
Talk” Format.................................................... 29
Adding a Standardized Assessment Exercise to
the Legal Writing Toolbox............................ 31
On the Importance of Subtle Distinctions: A
Short Exercise in Close Reading and Critical
Thinking........................................................... 33
Blogging: Reflection Spurs
Students Forward........................................... 34
Classroom Justice: Beyond Paper-Chase
Pedagogy.......................................................... 35
Volume XIX, Number 2
SPRING 2013
Remember the Water Buffalo
By Katherine Silver Kelly
M
ost of us keep personal
mementos in our offices
and on our desks: a mug
emblazoned with our alma mater, a
plant or two, a photo of our spouse,
children, pets. These items serve several
purposes: they remind us why we
work and they also
provide a snapshot of
our personalities and
let others (students)
see that we are more
than just the professor
behind the podium.
As for my desk, right
next to the photo of
my husband stands a
photo of me — my 8th
grade school picture.
My family calls it the
“water buffalo picture,”
and for good reason. I
tried to straighten my very curly hair
and parted it down the middle. I look
like a water buffalo. Add a chipped front
tooth, out of control eyebrows and an
outfit that was meant to epitomize the
prepster I thought I was (it was the 80s,
so I refuse to take full responsibility)
and the resulting photo is pretty awful.
Eighth grade was not a good year for
me. I had a heightened sense of selfawareness thanks to the onset (or not)
of puberty, and I desperately wanted to
fit in. I thought I was the only one who
felt like this and wished I could be as
cool as everyone else. My mother told
me that things would get better and that
everyone was going through the same
thing. Although true, it did not make me
feel any better.
So, why do I keep such
an unflattering photo of
myself front and center
on my desk? Why would
I want to remind myself
of such an awkward,
confusing, and difficult
time in my life? Because
the student sitting across
from me might very well
be a water buffalo.
Law students are smart,
confident, and selfassured. And then they
start law school. Suddenly
everyone around you is a high achiever
and used to being the best and now
you are in competition with each other
for grades, jobs, leadership positions.
Rarely, if ever has a law student actually
failed at anything. In fact, most don’t
even consider failing (i.e., not being in
the top 10%) a possibility. When reality
hits, it can be very disconcerting and we
see lots of water buffaloes around exam
time and when grades are released.
— continued on page 2
THE LAW TEACHER | SPRING 2013 | 1
SPRING 2013
Promoting the science
and art of teaching
The Law Teacher, Volume XIX,
Number 2
The Law Teacher is published twice a
year by the Institute for Law Teaching and
Learning. It provides a forum for ideas
to improve teaching and learning in law
schools and informs law teachers of the
activities of the Institute.
Opinions expressed in The Law Teacher
are those of the individual authors. They
are not necessarily the opinions of the
editors or of the Institute.
Co-Editors:
Tonya Kowalski, Michael Hunter
Schwartz, and Sandra Simpson
Co-Directors:
Gerald Hess and Michael Hunter
Schwartz
Consultant:
Sophie Sparrow
Advisory Committee:
Megan Ballard (Gonzaga)
R. Lawrence Dessem (MissouriColumbia)
Olympia Duhart (Nova
Southeastern)
Keith A. Findley (Wisconsin)
Steve Friedland (Elon)
Barbara Glesner Fines (UMKC)
Dennis Honabach (Northern
Kentucky)
Tonya Kowalski (Washburn)
Paula Manning (Western State)
Margaret Sova McCabe (New
Hampshire)
Nelson Miller (Thomas Cooley)
Lu-in Wang (Pittsburgh)
©2013 Institute for Law Teaching and
Learning. Gonzaga University School of
Law and Washburn University School of
Law. All rights reserved.
ISSN: 1072-0499
| SPRING
20092013
2 | THE LAW
LAWTEACHER
TEACHER
| SPRING
Remember the Water Buffalo
— continued from page 1
Law professors are very proficient at
spotting all species of water buffaloes.
Some species are easy to spot. Those
are the students who once exhibited
an enthusiasm for learning but now
sit in your class shoulders slumped,
fearful of contributing to discussions.
You know what is going through that
student’s mind: “I worked so hard and
for what? My grades are awful and I’m
never going to get a job.” The bar exam
water buffaloes are also obvious. They
tend to shuffle around the law school
looking unkempt with rather wild eyes
and mumbling to themselves. There
are also some species of water buffaloes
that are less obvious. For example, the
student who acts confident but happens
to stop by to say hello. What that student
is really saying is, “Yes, I did well last
semester but it must have been a fluke,
and I don’t know how I’m going to do
it again,” or “I know I’m going to fail
because I did not understand hearsay/
habeas corpus/future interests, etc.
but there is no way I am going to say
anything because everyone else gets
it.” What all these species have in
common is that they have always been
very successful, and the
emotions they are
now experiencing
are completely
unfamiliar. It is
uncomfortable,
uncertain, and very
disconcerting.
law professor do when she encounters
a water buffalo? Unfortunately, just like
the law, there is no perfect answer.
Some professors
react to the herds by
ignoring them because
those animals just
need to “suck it up and
deal with it.” Others
attempt to domesticate these wild beasts
with excessive treats and coos like, “It
will be fine. Trust me.” Both approaches
have their benefits but neither really
addresses the issue, which is that law
school is about getting comfortable
being uncomfortable. So what should a
So dig through your old
school photos, find the worst
of the worst, and display it
proudly on your desk.
Although there may not be an answer,
there is certainly a response, and it is
why I keep that awful picture of myself
on my desk. That photo reminds me that
the student will probably get through
this but pretending not to see it or telling
them the conclusion (“you’ll be fine”)
without the analysis is not the solution.
It reminds me that we all experience
failure, uncertainty, and self-doubt
throughout our lives, and it’s not so
much the experience itself that matters
but how you deal with it. It reminds me
that even though I’m not in eighth grade
(thank goodness), I still feel like a water
buffalo on occasion, and if I’m feeling
that way, chances are other people are
too.
Students invariably see the photo and
some of them ask, ”who is that boy?”
I tell them it’s me (the polite ones act
shocked) and explain why it’s there. I
keep it on my desk to remind me where
I came from and that life is not always
easy, but if I could make it through
that awful time, then I can
get through anything. Does
it immediately solve their
problem? Of course not, but
it does help them realize that
understanding, accepting, and
learning from an experience is
what defines you.
____________
Katherine Silver Kelly is an Assistant
Clinical Professor of Law and Director
of Academic Support at The Ohio State
University Moritz College of Law.
Contact her at kelly.864@osu.edu.
Book Review:
Teaching to Every Student: Explicitly Integrating Skills and Theory in
the Contracts Class by David Nadvorney and Deborah Zalesne
By Gerry Hess
M
ost law professors who
teach first-year courses want
their students to learn some
combination of doctrine, theory, and
analytical skills. In Teaching to Every
Student: Explicitly Integrating Skills and
Theory in the Contracts Class, David
Nanvorney and Deborah Zalesne
provide a valuable resource to help
teachers and their students achieve those
goals.
Zalesne and Nadvorney designed their
book to help teachers integrate three
types of skills in first-year courses: (1)
academic, (2) legal reasoning, and (3)
and theoretical perspective. The book is
divided into three sections accordingly.
Each chapter addresses a specific subskill.
The co-authors’ main goal is to provide
teachers of first-year law students with
practical methods to help student learn
core skills essential to their success in
law school and beyond. Consequently,
each chapter begins with a background
about the skill and its importance for
students’ success in law school, on the
bar exam, and in practice. The heart
of each chapter is detailed exercises
teachers can employ to explicitly teach
the skill along with legal doctrine. The
exercises can be assigned as homework,
used in class, made part of an on-line
supplement to the course, or become part
of an academic support complement to
the course.
Teach to Every Student is directly
applicable to teachers of Contracts
Section I – Academic Skills
Chapter 1 – Preparing for Class (Case Briefing and Beyond)
Chapter 2 – Close Case Reading
Chapter 3 – Note Taking and Active Listening
Chapter 4 – Outlining
Chapter 5 – Exams
Section II – Legal Reasoning and Analysis Skills
Chapter 6 – Working with Facts
Chapter 7 – Working with Rules
Chapter 8 – Issue Spotting
courses. The exercises are built around
Contracts cases and appendices include
a sample Contracts syllabus and edited
version of each case addressed in the
exercises.
Nadvorney and Zalesne have lots to
offer teachers of any first-year course.
Most of the exercises are easy to
adapt to another course, although the
applicable cases would be different, of
course. For example, in the Academic
Skills section, exercises address briefing
(including “margin briefs”), note
taking guides, outline flow charts, and
practice exams. Likewise, the Legal
Analysis and Reasoning section contains
exercises dealing with fact analysis,
rule synthesis, the role of policy,
and issue spotting. The Theoretical
Perspectives section describes exercises
in recognizing theoretical perspectives
in judicial opinions and effectively using
theoretical perspectives in advocacy.
Finally, the sample syllabus, although
in the context of a Contracts course, is
an outstanding illustration of how to
make doctrine, skills, and theory equal
partners in a first-year course.
____________
Gerry Hess is the Co-Director of the
Institute for Law Teaching and Learning
and a Professor of Law at Gonzaga
University School of Law. He is available
at ghess@lawschool.gonzaga.edu.
Section III – Theoretical Perspective
Chapter 9 – Recognizing Theoretical Perspectives in Judicial
Opinions
Chapter 10 – Portrayal of Parties
Chapter 11 – Understanding and Critiquing the Role of Race, Class,
Gender, and Sexual Orientation in Judicial Decision Making
Chapter 12 – Integrating Issues of Race, Class, Gender, and Sexual
Orientation Throughout the Course
THE LAW TEACHER | SPRING 2013 | 3
Old Professor Tricks
By Sharon Keller
O
ccasionally I sit in on classes
taught by my colleagues and
I’ve noticed certain practices
and characteristics among those who
have grown gray in the service of
their subject. I share some of these
observations below.
Teach more, assign less. As you become
more conversant with a subject, you can
glean much more from cases than just
what the casebook authors intended.
You can assign fewer cases and use
fewer fact patterns to cover more points.
I remember reading a claim, hopefully
apocryphal, that an old professor said he
could cover the whole of Contracts I just
using Wood v. Lucy, Lady Duff-Gordon.
Even were this true I’m sure no one
should try it. The trade-off for using
fewer cases is confusion for students,
especially first years, who fervently want
to believe that each case stands for only
one rule. The balance I see old professors
striking is to go through slightly fewer
cases slower while reminding students
of similarities with past cases and even
with cases to come, which is my next
point.
Presaging. If a professor were a spotlight,
some subject matter would be in bright
relief in the center and some other
material, past and future, would be in
the penumbra. Old professors know
what issue of the past they want to
reiterate and what issue in the future
they want to hint at. One must be careful
to choose these issues wisely and seize
upon them frugally. While it creates
interest and excitement to anticipate
coming developments, nothing will
unfocus a discussion faster than too
much wandering down the byways of
side issues.
The bones of a subject. After one has
taught a subject for a while one gets
a sense of an internal structure for a
course. This is a skeleton hidden in the
body of the material that gives form to
the subject. We professors, being very
bright, are sure that we can analyze
4 | THE LAW TEACHER | SPRING 2013
a subject and identify this structure
in the abstract, but the truth of the
matter is that you discover by practice
what is effective for the purposes of
teaching. That is, it is not only an abstract
structure of the subject that you must
divine; you must be attentive to the way
that an abstract structure resonates
with your experience, professional and
pedagogical, of what sounds in that area
of the law. There are points where you
sense, somehow, that something just
came together. This can be idiosyncratic
– one old professor told me that for him
one such epiphany was the mailbox
rule. Can’t say that was true for me. One
should make a note of such moments
anyway. Your students are exploring a
subject through your eyes while you are
teaching. Where you had your personal
breakthroughs well may be where you
teach most clearly.
Observation of the students is also
a place to determine the teaching
structure of a subject. Try different
approaches and look for the relieved
look of comprehension in the faces of
your listeners. Make a note of that and
develop it more deliberately in your
teaching. I even found useful hints upon
rereading my class notes from my law
school days for classes that I now teach;
I made a special note of the graphs and
models I devised for myself to try to get
the penny to drop before the exam.
Repetition and repeating thematics. Nothing
is taught by saying it once. Despite our
remembrance of being deeply affected
by something someone said to us once,
things are learned because the seed fell
where the ground was cultivated. Old
professors repeat themselves during
the lesson, and also during the week,
the month, the semester, and their next
course. Eventually one catches a look
on the students’ faces that seems to say
“I know that – get on with it you old
warhorse!” when one has hit the nth
repetition of a favorite premise. This is
promising because it suggests that the
students think they know what you
mean. A few more repetitions and they
actually will know what you mean.
You do not have to repeat yourself in
the same words – you can repeat a
concept by looking at it from different
angles. However, there is something
to be said about actual repetition. At
regular intervals in my contracts class
I would reproduce a particular simple
diagram that was intended to show
some aspects of the contracting process.
I would start by slashing a straight line
on the blackboard and always saying
as I did so “This is a timeline …” With
some satisfaction I could hear a few
students reciting the next few lines of the
description with me.
Another contracts professor I know
balls up a sheet of paper from time
to time and throws it to a student
when returning to issues of offer and
acceptance. It is an effective symbolic
statement of common law formation,
showing the accepting party accepting
exactly and only what the offeror is
pitching. These mini-lesson repetitions,
which I’ll call for convenience
“thematics,” can be very effective. I
suspect they arise most often as the
inspiration of a moment in some class
one taught. Do not forget them as they
arise – make a note of them. Often they
embody your own, personal grasp of
the subject and, because of that, your
explanations using your own thematics
will be particularly forceful. A small
arsenal of these can be put to great use.
Predictability – when rhythm replicates
dynamism. When I was little my great
grandfather used to go out at ten a.m.,
sit by the grape arbor in his Adirondack
chair and feed the birds. Although,
or because, I was an antsy little child,
I would like to go out with him and
play in my sandbox at the same time
because it was peaceful around him.
Dynamism is good for classes but there
is also something to be said for peaceful
predictability.
— continued on page 5
Old Professor Tricks
— continued from page 4
Starting classes with a predictable
routine helps students settle into the
learning groove. Ironically it also creates
a sense of movement in the class because
students feel they know how this will go
and that they are now on their way. A
review at the beginning of class putting
the lecture of the day in a context is a
good routine. Old professors seem to
take their time with such reviews – they
do not speed through them. Often they
script their closings as well by including
a tantalizing preview of things to come
and/or some customary ending like
announcements. I’ve seen other endings,
for instance following a developing story
in the news that implicates the subject.
Such news stories are rarely first page
news so there is little worry of repeating
something already in the students’
awareness.
Regrettably, you usually cannot use an
Adirondack chair at the podium. But a
steady, recognizable rhythm can gather
the students’ attention, lend the class
a sense of movement and encourage a
feeling of engagement that rivals that of
the dynamic speaker.
Enjoy your job. On the down side, I recall
an old professor from my first year of law
school whom I cannot endorse. Although
he managed some of the techniques
I have described, his class was not a
good one because of his constant bitter
mutterings and his regarding us, his
class, as though he were gazing into a
bowl of hatching insect larvae. Where
people hate their lives, or humanity
generally, teaching is not such a good
job for them. It will take an effort to be
open enough to learn from such teachers
no matter how many tricks they know.
So, the last point I want to make is that
for your own sake, whether or not your
school rewards the development of skill
in teaching, experiment until you find
some joy in teaching. That seems to
be a key attribute of the venerable old
professor.
____________
Sharon Keller is a Visiting Associate
Professor and the Director of the Academic
Success Program at the David A. Clarke
School of Law of the University of the
District of Columbia. Contact her at
sharon.keller@udc.edu.
The Supreme Court Conference Room:
Legal Writing as Legal Process
By Andrew Jensen Kerr
I
teach at the Peking University School
of Transnational Law in Shenzhen,
China—our two-year Transnational
Legal Practice curriculum is centered
at the intersection of legal writing,
common law method, and US legal
discourse. The international posture
of the course sequence thus fosters the
student’s acculturation to the norms
and traditions
of the American
legal system.
Simulated
networking
events and notes
on email etiquette
share intellectual
space with contract drafting and
appellate mooting.
to Walter Bagehot’s analysis that politics
requires pageantry and symbolism if it
is to have resonance. Law students also
share this zeitgeisty appetite for gossip
and myth. What could be more symbolic
of the unmatched secrecy of the
Supreme Court than its fabled Supreme
Court Conference Room? Only the robed
may cross its threshold while conference
The tactile elegance and ritual of the
Justices’ descriptions only add to the
students’ eagerness to debate.
But if there is an ambition in educational
psychology to contextualize learning,
then I position the Supreme Court to be
an ideal setting in which to explore the
dramaturgy of the law. I suppose I tend
is in session. Indeed, my students guffaw
at the corollary—that Justices themselves
are expected to perform the custodial
work. You mean, Justice Kagan has to
fetch the coffee?!
But I think the Conference Room as
an intellectual construct has unique
pedagogical value as well—how does
Court deliberation and diplomacy
inform how opinions are written? A
major assignment for my students is to
draft a judicial opinion in response to
a hypothetical fact pattern. I frame our
Supreme Court Conference as sort of an
intermediate point in their legal research
on the topic. They’re familiar with the
relevant precedent
and have an instinct
for how the case
may turn. Still, they
are to approach the
conference with a
humble sensibility
and open mind—be
ready to be persuaded by your peers’
arguments. I link them to the Court’s
own web narrative of what happens
behind closed doors. The tactile
elegance and ritual of the Justices’
descriptions only add to the students’
eagerness to debate. I also provide a
— continued on page 6
THE LAW TEACHER | SPRING 2013 | 5
The Supreme Court Conference Room: Legal Writing as Legal Process
— continued from page 5
scholarly article from political science
that questions how things like median
justices and concurrences shift the axial
tilt of a majority opinion (Lupu and
Fowler, “The Strategic Content Model
of Supreme Court Opinion Writing”).
The article relays the usual process of
the Conference Room – we mirror the
procedure. First, each student meditates
aloud for five minutes on law or facts
they consider dispositive (I have the
fortune of teaching small sections;
if there is an even number I appoint
myself the tiebreaker and feign Justice
Kennedy’s wishy-washy tendencies).
Questions or interruptions of any sort
are not permitted during these opening
statements. We then take a tentative vote
as to who should win and intermission
for a quick respite.
The second half of class generally tracks
two forms of debate—close votes mean
having to convince the median justice
to join your side’s cause; less symmetric
balances mean figuring out how to craft
the opinion. In either event there will be
discussion of which party deserves to
win, and more importantly, why. What
is the reasoning the court will use? A
textual argument? Policy-based? By
reference to the Constitution? A broad
holding or narrowed to the idiosyncratic
facts of the present context? I’ve found
my students to be unusually voluble
and perhaps even more profound in this
student-centric classroom environment.
It is understandable that shy or selfaware students may fear questions from
an authority figure such as a professor.
But as hierarchies are flattened in this
peer-driven space these same students
are able to express their ideas with
sophistication and panache.
There are also structural pedagogical
benefits to the conferences. First,
students cannot engage in the facile
“black-white” distinction-making
common to the Socratic Method.
They aren’t challenging a singular
6 | THE LAW TEACHER | SPRING 2013
prompt, but must articulate a more
nuanced, uncertain and “grey” position
contrasting the dozen other students
in the classroom. This spectrum of
variation often requires the student
to form arguments at higher orders
of thinking—“maybe it’s wrong to
frame the debate as a black-white
issue, perhaps the question itself is
misdirected.” Second, the arithmetic
of the Supreme Court becomes more
palpable in this classroom experience.
The sum of how many justices are
part of the majority or concurring or
dissenting opinions can often make the
governing holding obscure or ethereal
for the first year student (especially
in the kaleidoscopic fragmentation of
the contemporary court). This math
becomes more obvious in the drama and
vote counting of the session.
Connected to this Supreme Court
modeling is an initiation to the work
of court clerks. I introduce their job
description and ask the student to
play the role of clerk in the process
of accepting petitions for certiorari.
After they have drafted their judicial
opinion writing assignment, I invite
them to my office to question them on
more ontological matters – I ask them
if this is a case that the Supreme Court
should bother to accept for review.
Alexander Bickel praised the “passive
virtues” of the Court and its sensitivity
to political timeliness (see Sanford
Levinson’s article, “Assessing the
Supreme Court’s Caseload: A Question
of Law or Politics?”). Should the Court
devote its scarce resources to more
pressing issues? Maybe the common
law can evolve at the trial or appellate
level to find the most efficient solution?
As Justice Brandeis famously enjoined
in New State Ice Co v. Liebmann, let the
states be the laboratories of democracy.
This play on judicial process allows the
student to consider opinion writing at
first principles – should I write this and,
if so, how?
I attempt to structure my curriculum so
that legal process tracks the discourse
of legal writing. The opinion writing
assignment is taught within the universe
of the Supreme Court; appellate brief
writing and mooting are taught as an
introduction to the adversarial system
(vis-à-vis the inquisitorial nature of
the civil law). However, I think this
general “conferencing” exercise is fairly
fungible and can be applied to different
parts of a legal writing curriculum;
for example, as part of a section on
memo writing and litigation strategy
within a law firm. The conference is
translated into an office setting where
students posit different strategies and
their likely traction for a judge or jury.
Again, the forgotten element of math
in law is surfaced – students learn to
think probabilistically. “Well, a statutory
argument has a 60% chance of success;
are these adequate odds to go to trial?”
This kind of discussion also lends itself
to another topic too absent from the 1L
curriculum – the ubiquity of settlement
in the American legal system.
Role playing should be regarded as a
uniquely experiential tool available
to law teachers. Indeed, front-rank
programs such as the NYU Lawyering
curriculum already make use of
simulated instruction in negotiation
and counseling exercises. I argue
that the Supreme Court Conference
is of similar value – the student
becomes familiar with the institutional
processes of opinion writing and
becomes empowered to speak with an
authoritative voice on the law.
____________
Andrew Jensen Kerr is a Senior Lecturer
at the Peking University School of
Transnational Law. He can be reached at
kerra@stl.pku.edu.cn. He thanks Eric Mao
for his inspiration.
Infusing Ethics into the Legal Writing Curriculum—and Beyond
By Almas Khan
A
s teachers of sequential courses
that are increasingly spanning
from the first year of law
school into the second and third years,
legal writing professors are uniquely
positioned to underscore a component
of the law school curriculum that until
recent times shared legal writing’s
subsidiary status—legal ethics.
Before 1974, when the American Bar
Association responded to the Watergate
scandal by enacting Standard 303(a)
(ii), which requires all ABA-accredited
institutions to
offer a mandatory
course in
professional
responsibility,
professional
responsibility
classes were
a “cipher” in
the curriculum of the law schools
that offered them. In a story that may
resonate with legal writing faculty,
professional responsibility courses
continued to languish after the
standard’s adoption, often allocated
minimal credits and assigned to
adjunct faculty or new law professors
as a rite-of-passage. To enhance the
course’s reputation and entice student
interest, professional responsibility
teachers became curricular innovators,
incorporating visual aids, role-play and
problem-solving exercises, and literature
into their classes while coalescing into a
scholarly community.
ethics for impressionable law students.
During orientation, legal writing faculty
can collaborate with the Honor Council
to emphasize the importance of seeking
counsel when confronted with ethically
challenging situations, reserving a more
detailed discussion of professional
responsibility in the legal writing
context for class.
Legal writing professors can employ
variegated methods to incorporate
ethical instruction in their courses
from the first day of class (which may
into problems analyzed for assignments
can fulfill course objectives and instill
appreciation for rules of professional
conduct that will guide students’ legal
careers.
Coordinating ethics instruction with
clinical and doctrinal faculty can ensure
that legal writing students receive
a relatively comprehensive (but not
unduly repetitive) introduction to the
subject, and partnering with the career
services center to sponsor a guest
speaker series centered on professional
responsibility can
complement class
instruction. For
example, during
the fall semester,
interactive panels
with upper-division
students and
attorneys can focus
on ethical objective legal writing. In
the spring semester, when most firstyear legal writing courses transition
to persuasive writing and 1Ls seek
summer employment, panels with
judges, trial and appellate attorneys, and
upper-division students with summer
internship experience may be apposite.
Requiring students to prepare questions
for the panelists and reflect on ethical
insights gleaned from the presentations
can generate a virtuous circle between
legal writing courses and legal practice
while inculcating the four values
identified by the seminal MacCrate
Report—competent representation;
striving to promote justice, fairness,
and morality; striving to improve
the profession; and professional selfdevelopment—endemic to upstanding
lawyers.
To enhance the course’s reputation
and entice student interest, professional
responsibility teachers became
curricular innovators­…
Professional responsibility instruction
now increasingly pervades clinical,
doctrinal, and legal writing courses,
and legal writing professors are
optimally situated to introduce and
reinforce ethical rules governing
attorney conduct before first-year law
students commence studies, during
legal writing classes, and outside of
class. Many law schools disseminate
suggested summer reading lists for 1Ls,
and books implicating an attorney’s
professional responsibilities can readily
be included in these lists; alternatively
(or in addition), legal writing professors
can assign these texts near the outset of
the first semester, foregrounding legal
coincide with orientation) onward. Scott
Fruehwald covers three legal ethics
topics in his first session with students:
“the role of the lawyer, the duties of a
lawyer to both the client and society,
and how easy it is for an attorney to
get into trouble.” Plagiarism is another
imperative subject to introduce in this
preliminary class and revisit as students
develop familiarity with the distinction
between legal writing conventions
and attributions to authority in their
undergraduate or graduate disciplines.
Requiring students to read and attest
to understanding the law school’s and
the legal writing course’s plagiarism
policy, and demonstrating how the
policy applies through progressively
challenging exercises, can be effective.
Also, beginning class with memorable
ethical anecdotes related to the topics
under discussion for the day (e.g.,
accurately representing authority in a
brief) can stimulate students’ interest
in the subjects while highlighting how
ethical considerations permeate legal
writing. Assigned readings, such as
Melissa Weresh’s book Legal Writing:
Ethical and Professional Considerations,
which includes case excerpts on ethical
issues arising in legal writing, can
instigate perceptive class discussions.
Finally, integrating ethical concerns
____________
Almas Khan formerly taught legal writing
at the University of Miami School of Law
and the University of La Verne College of
Law and is currently a doctoral candidate in
English concentrating on law and literature
at the University of Virginia. Contact her at
bak4pr@virginia.edu.
— continued on page 8
THE LAW TEACHER | SPRING 2013 | 7
Infusing Ethics into
the Legal Writing
Curriculum—and
Beyond
— continued from page 7
Mary C. Daly, Bruce A. Green & Russell
G. Pearce, Contextualizing Professional
Responsibility: A New Curriculum for a New
Century, 58 Law & Contemp. Probs. 193, 194
(1995).
1
2
Id. at 194-97.
See, e.g., Scott J. Burnham, Teaching
Legal Ethics in Contracts, 41 J. Legal Educ.
105 (1991); Margaret Z. Johns, Teaching
Professional Responsibility and Professionalism
in Legal Writing, 40 J. Legal Educ. 501 (1990);
Introduction to Lawyering: Teaching First-Year
Students to Think Like Professionals, 44 J. Legal
Educ. 96 (1994).
3
See generally Jamison Wilcox, Borrowing
Experience: Using Reflective Lawyer Narratives
in Teaching, 50 J. Legal Educ. 213 (2000).
4
Edwin S. Fruehwald, Legal Writing,
Professionalism, and Legal Ethics 2 (Hofstra
Univ. Sch. of Law Legal Studies Res. Paper
Series, Res. Paper No. 0820, 2008), available
at http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=1238484.
5
See generally Terri LeClercq, Failure
to Teaching: Due Process and Law School
Plagiarism, 49 J. Legal Educ. 236 (1999).
6
See Judith D. Fischer, The Role of Ethics in
Legal Writing: The Forensic Embroiderer, the
Minimalist Wizard, and Other Stories, 9 Scribes
J. of Legal Writing 77 (2003-04) (classifying
anecdotes).
7
Melissa H. Weresh, Legal Writing: Ethical and
Professional Considerations (2d ed. 2009).
8
See Philip M. Frost, Using Ethical Problems
in First-Year Skills Courses, 14 Perspectives:
Teaching Legal Res. & Writing 7 (2005).
10
See John M. Speca, Panel Discussions as a
Device for Introduction to Law, 3 J. Legal Educ.
124 (1950-51).
11
See Am. Bar Ass’n Section on Legal Educ.
and Admissions to the Bar, Legal Education
and Professional Development – An Educational
Continuum, Report of the Task Force on Law
Schools and the Profession: Narrowing the Gap
135-36 (1992) (deemed the MacCrate Report in
honor of Robert MacCrate, chair of the blueribbon task force that issued the report).
9
Book Review:
How Children Succeed: Grit, Curiosity, and
the Hidden Power of Character By Paul Tough
By Devin Kinyon
I
heard Paul Tough in an interview
on This American Life, relaying one
of the stories from his book, How
Children Succeed: Grit, Curiosity, and the
Hidden Power of Character. It’s the story
of the marshmallow test, an experiment
conducted in the 1960s at Stanford on
willpower. The test was administered
to four-year-olds in a preschool. Each
child was placed in a room with a desk,
and on that desk was a plate with one
marshmallow. The child was told that
he or she could have the marshmallow
now by ringing a bell to call in the
experimenter, but, if the child could wait
until the experimenter returned on his
or her own, the child would receive two
marshmallows.
The radio show played an audio clip of
a boy being subjected to the experiment
by his parents at home. I was sold on
Tough’s book when I heard that sound
clip; in it you hear a child named
Theo saying over and over to himself,
“ten minutes… ten minutes… TEN
MINUTES!” There are pangs of want in
Theo’s voice, doing anything he can to
cope with waiting for the opportunity
to get two “sweeties” instead of just
one. You can watch the clip on YouTube.
Spoiler alert: Theo did last ten minutes
and got two sweeties. And the reason
Theo could hold out seems to be his
learned ability to control and distract
himself, to be patient and cope.
On the surface, the radio show seemed to
imply that Tough’s book was a discussion
of the character attributes of those who
persevere in school and in life, kind of a
Seven Habits of Highly Effective People for
the educational reformer. What made
Tough’s book more interesting to me,
however, was how he put together so
much research by doctors, psychologists,
economists, and educators, experimental
research in labs and observational
projects in schools and communities.
And that research seems to point in the
direction that success in school and in
life is tied to a child’s character. (Tough
switches terminology throughout the
book, using the terms “noncognitive
behaviors” and “soft skills”)
The book begins by introducing James
Heckman, an economist at the University
of Chicago who has done extensive
research on the GED. Heckman’s
research looked at those people who
have passed the GED to see if their longterm outcomes are similar to people
who graduate high school. They are
not. He had believed that the process
of learning material to take and pass
the GED, which tests basic math and
science, reading and writing, and social
studies, was indicative of future success;
that the cognitive development tested
on the GED was the key to employment,
family stability, and prosperity. But his
research showed that those who passed
the GED have the same future outcomes
as high school drop-outs. This discovery
took his work on a new path, raising the
question of why some students can bear
the tedium of high school and others
can’t.
Tough connects Heckman’s research
to the earlier mentioned marshmallow
experiment. About twelve years after
the initial marshmallow tests, a different
researcher tracked down the original
study participants. Those who had been
able to wait for the researcher to return,
thereby receiving two marshmallows
instead of one, had SAT scores that
averaged 210 points higher than the
subjects who’d gone for the single
marshmallow. Like students who can
survive high school, those who could
wait to earn the second marshmallow
— continued on page 9
8 | THE LAW TEACHER | SPRING 2013
Book Review:
How Children Succeed
— continued from page 8
had some strength of character that
propelled them forward with lasting
effects. This is the core question explored
in How Children Succeed: why do some
kids make it while others don’t?
Poverty tends to be the default answer,
and the research in Tough’s book points
in that direction, but not for the obvious
reason. He discusses a thread of public
health studies regarding the stress
that comes from “adverse childhood
experiences,” a clinically-detached
term for poverty, violence in the home,
neglect, single- or no-parent families,
and coping with addiction, mental
illness, and incarceration. Living in this
type of environment impacts the body’s
internal hormonal balance. Humans’
stress hormones came out in short bursts
in pre-modern times, as in the need for
a shot of adrenalin to outrun a charging
beast. But modern humans live under a
continuous stream of stress hormones
caused by the ongoing daily stressors
in their lives. For children growingup in homes under continuous stress,
their hormonal system is in overdrive.
The researchers use the metaphor of a
fire hose: effectively these children are
flooded with stress hormones all day,
every day. The principal impact of this
stress hormone flood is the reduced
ability to manage emotional behaviors
leading to poor academic performance,
and a likelihood of adult health problems
ranging from heart disease and obesity,
to smoking, depression, and risky sexual
behaviors. Subsequent experiments
show that when all other factors are held
constant, weak learning outcomes by
students who grew up in poverty are
closely aligned with hormonal stress
load. The researchers found that it isn’t
poverty itself that is defeating these
children; it’s the stress that goes along
with it.
To illustrate this distinction between
poverty and stress, Tough interviews
teachers at an elite private high school
in New York State. Their wealthy
students are not subject to the same
types of stressors as poor students.
Notwithstanding, the teachers still see
similar gaps in the students’ character
development. These students, with
extreme pressure to achieve and
succeed, display many of the same
unhealthy outcomes as poor students.
Tough reports on research showing that
wealthy white suburban youth have
comparatively higher rates of substance
use and abuse, depression, and other
mental health issues. The difference
between the wealthy students and poor
students is often a parent advocating
on the wealthy student’s behalf, making
demands on the school and ratcheting up
the expectations of the student, further
increasing the stressors in the student’s
life. Instead of helping their children
manage their stress, they paper over it,
which further exacerbates it in the long
run.
The silver lining to Tough’s oftendepressing book is that high stress levels
can be mitigated through intentional
character-building activities. By helping
students and children build their
portfolio of noncognitive skills, teachers
and parents can decrease the likelihood
of the long-term negative outcomes. This
is a lesson that shouldn’t be surprising
to anyone who teaches, parents, or
works with young people—it’s strong,
supportive relationships that counteract
much of the stress-caused character
deficits. How Children Succeed highlights
many such successful relationship-based
interventions, primarily in schools and
youth programs. There are lots of good
ideas for teaching children how to wait
to earn a second marshmallow.
I know who The Law Teacher’s target
audience is, and don’t imagine many
of you torture your students with
marshmallow experiments. But the entire
time I was reading How Children Succeed,
I was thinking about the law students I
work with every day. I’m an academic
support professor, so my work deals
with students who aren’t performing
well for one reason or another. Very
often the students who come through
my door or sit in my classroom reflect
many of the problematic outcomes that
Tough’s researchers observe. There
are those who have been so pushed to
achieve by their families and own selfdrive that the slightest stumble reduces
them to tears. And there are the students
who overcame significant obstacles to
make it to college and into law school,
struggling to balance the old world they
came from with the new professional
class they are about to enter. I see in most
of my students the impacts of the stress
in their lives before they arrived on our
campus, and the stress that is piled on
each day. And while most of them will
survive to join our profession, their stress
will continue to intensify, leading many
to substance abuse, mental health issues,
and questioning why they chose to study
the law in the first place.
Tough’s book is an important reminder
that helping a student lay out a
thoughtful hearsay analysis, for example,
isn’t likely to help him or her succeed
in the long run if we don’t have other
supports in place to nurture their soft
skills. The students I’ve seen turn
around from initial weak law school
performance universally exhibit the
noncognitive abilities that How Children
Succeed explores. They’ve learned to
bounce back from defeat and to place
their trust in supportive relationships
with faculty and advisors. This book was
a welcome reminder of how essential
this work is, and that the development
of character and interpersonal skills can’t
be an afterthought in legal education.
Successful law students and lawyers
need soft skills.
Paul Tough’s How Children Succeed
certainly isn’t a roadmap for law schools
(or schools and colleges, in general), and
leaves many questions to be researched.
But for law teachers interested in
thinking about how to support students
and why they might be struggling, this
book is a good place to start.
____________
Devin Kinyon is Assistant Clinical Professor
of Law and Assistant Director of Academic
Development at Santa Clara University
School of Law. He can be reached at
dkinyon@scu.edu.
THE LAW TEACHER | SPRING 2013 | 9
It’s OK to Leave Law School
A Note from an Anonymous Former Student, Sent to Professor Jan M. Levine
I
began law school teaching in 1980 as
an adjunct, and I have been a fulltime professor since 1986. Because I
teach legal writing, a course that is built
upon much individualized interaction
with my students, I get to know those
students very well. The five law schools
where I have taught have been unique
institutions, located in diverse places,
and with quite different types of
students. Despite those variations one
common event has been the discussion
held with a first-year student who is
considering departing from law school.
Although there are many reasons for
a student to consider such a departure
before the end of the first year, the most
common include unhappiness with the
study of law, growing dissatisfaction
with new insights into law practice,
and receipt of weak interim or mid-year
grades.
These discussions are not easy ones for
either student or teacher, but I have been
flattered and touched that these students
have come to me in an effort to seek
advice or unburden themselves. It is not
common to hear from such students after
they leave, but recently I did receive a
note from one of my former students
who left school in mid-year. His note
was articulate and came straight from
the heart, and he gave me permission
to share his thoughts with others in the
hope that it would be helpful to anyone
struggling with the same circumstances
he faced.
Here is that note, edited slightly for
clarity from the original e-mail, and with
the student’s identifying information
removed. We both hope you share it as
you see fit.
I’m not sure if you will remember this,
but I was a 21-year-old student in your
legal writing class many years ago.
About two-thirds of the way through the
fall semester, I had a bit of an existential
crisis, and came to you looking for
advice. It was pretty apparent that if I
sat for exams, I would not do very well; I
knew I would perform well below what
I was capable of. I ultimately decided to
10 | THE LAW TEACHER | SPRING 2013
withdraw from school, knowing that I
could start over the following year with a
clean slate, if I was so inclined.
Anyway, the reason I’m writing to
you is because I remembered recently
something you had said, that you rarely
knew what happened to your students
who were like me and decided to leave
law school. I had wanted to write to
you sooner, but honestly, I didn’t have
much perspective to really say anything
worthwhile.
Honestly, talking to you made me feel
like it was OK to leave law school, that
it wouldn’t be the end of the world, and
that it was not a matter of life or death.
I really needed to hear that. So I thank
you. The school had graciously offered
to let me re-matriculate the next year, but
honestly, once I took a step back and let
out a sigh of relief, I knew pretty much
immediately that I would never go back,
that I did not want to go back, and that I
had absolutely no desire to be a lawyer.
I didn’t rush to any decisions, but over
the next few months it became more and
more undeniable.
So I never went back to law school, a
decision I never regretted for a second.
I can’t say that my career was easy once
I made that decision. I still didn’t have
a clue what I actually wanted to do, and
spent several years working mediocre
jobs I didn’t care about and made no
money at, but didn’t really have to
put much effort into. I actually got out
there and saw what my options were,
and figured out what I actually was
interested in and cared about. I made
an abortive attempt at graduate school
soon after that, which didn’t pan out,
but I did end up going back to graduate
school again about a year and a half ago.
I studied computer science, enjoyed it
immensely, did awesome in my classes,
graduated, and recently started a new
job I am really excited about.
I don’t know how helpful this e-mail
will be, to anyone. My circumstances
are somewhat unique, but most peoples’
are. The prospects for legal jobs have
changed enormously (I may have
actually dodged a bullet, but that’s
neither here nor there.) To those of
you who are upset and agitated about
their decision to go to law school,
who are freaking out because they’ve
based all these insane expectations
on having brilliant legal careers, who
are completely miserable and beat
themselves up constantly, this is my
advice: it will be OK. If you decide to
leave law school, it’s not the end of
the world. Putting all that pressure
on yourself is just going to dig you an
early grave. You can’t make yourself be
passionate about something you don’t
like. If you are really that miserable, it’s
OK to take a step back and let yourself
breathe; there is absolutely no reason to
be embarrassed or self-conscious about
it.
There is an awful tendency in humans
to be terrified of failure, and to avoid it
like the plague, above all else. The idiotic
notion that if something doesn’t work
you should just keep bashing your head
against the wall, and the feeling of being
so embarrassed over the quintessentially
human act of making an honest mistake,
just destroys people. Being realistic and
adaptable is one of the most important
human qualities, not a dark secret to
hide in shame.
I don’t know if any of this was as helpful
as what you told me. This has just
been my experience. But if it helps just
one student find their way, then I’ll be
ecstatic. I’m sorry if it’s a bit wordy and
rambling; my writing isn’t as disciplined
as it once was.
I hope everything is going well for you.
Thank you again.
____________
Jan M. Levine is an Associate Professor
of Law and the Director of the Legal
Research and Writing Program at
Duquesne Univ. School of Law.
Contact him at levinej@duq.edu.
JUDICIAL POWER
(C) 1995 Ashley S. Lipson, Esq.
Across
1.
This "international" company left a permanent
footprint on the law of interstate jurisdiction.
14. Vehicles for the exercise of judicial power.
4.
Advanced law degree.
7.
Criminal Prosecutions Limitations Act.
19. King's knight's pawn.
11. Actor Neuman, who played lawyer in several films
and television segments (Initials).
12. International Union of United Automobile,
Aerospace, and Agricultural Implement Workers of
America.
13. Fellow of the Royal Astronomical Society.
18. One entitled to allegiance and service.
20. Impress.
22. Famous ancient judge.
24. Lower life form but very rule-oriented, nevertheless.
25. Set of tools.
27. Continuously variable transmission.
28. Environmental Impact Statement.
— continued on page 12
THE LAW TEACHER | SPRING 2013 | 11
JUDICIAL POWER
Across — continued from page 11
29. Speech Association of America.
42. Form of money used in ancient Rome.
31. Law firm's venue.
44. A past perfect crunch.
32. Emergency equitable relief where there exists a
threat of immediate and irreparable harm, without
an adequate remedy at law.
45. Verified.
33. Guaranteed Student Loan.
49. Spanish pot for holding water.
50. Aborted fish eggs.
51. Iron.
35. Globe.
37. The right of the oldest member of a coparcenary to
have first choice of share of an inheritance (English
law).
40. Part of the Federated States of Micronesia.
52. Canadian revolutionary.
53. Standard Book Number.
54. One who exercises his or her right to enjoy
property.
Down
1.
Became associate justice of the Supreme Court in 1986.
23. Intimidate.
2.
Argumentative, leading, privileged, vague, and
speculative questions.
26. Mark evidence.
3.
City in Nigeria.
4.
Unlawful state for motor vehicle operator.
32. Frequently used by Einstein to transfer among
coordinate systems.
5.
Criminal slang for money.
34. Personification of fire.
6.
Oscillated.
36. New York based law book publisher.
7.
UCC term indicating a price of goods which includes
cost, freight, and insurance.
38. Feline.
8.
Weak states shielded by stronger one.
9.
Local area network.
41. Disorder.
10. Concur in an opinion.
30. Examine a witness.
39. Measure for most statutes of limitation.
43. Self-impressed connoisseur.
15. Meals.
46. Underwriters Laboratories, Inc. (Environmental
law acronym).
16. Legal furniture.
47. Male name, form of Salvatore.
17. Turns per inch.
48. Number of the "states' rights" amendment.
21. Environmental Impact Statement (Environmental law
acronym).
Crossword solution is on page 36
12 | THE LAW TEACHER | SPRING 2013
Eliminating the Blackacre Opportunity Cost
Using Real-World “Targeted Fact Environments” in First-Year LR&W Courses
By Charles E. MacLean
G
enerations of law school
students have wrestled with law
school fact patterns regarding
Blackacre, or Dewey, Cheatem, & Howe,
and so on, as they learned to apply
the law in one law school course after
another. And first-year legal research
and writing (“LR&W”) students are
obliged to survive whatever more-orless vetted fact patterns the program
or professor or text has provided that
year. If a substantial portion of first-year
LR&W assignments grew instead out
of a single “targeted fact environment,”
with real-world value, those first-year
LR&W students would still learn the
same legal research and writing skills
and resources, but would also perforce
learn about the contours and depth of
the targeted fact environment. And
when that targeted fact environment
is relevant to achieving a key part of
the law school’s vision or mission, and
involves a real-world set of important
legal issues confronting real people
and institutions in our communities,
that provides a springboard for
teaching all the same legal research
and writing skills many have used
Blackacre-type scenarios to transmit
up to now, but also creates motivated
first-year LR&W students, informs an
entire cohort of students about critical
legal problems in our communities,
gives life to our law schools’ mission
statement pronouncements that we are
committed to diversity, pro bono service,
community outreach, etc., provides
important legal research to non-profit
agencies and needy people in our
communities, and fosters a student body
that values pro bono service as a natural
outgrowth of our profession rather than
a chore or afterthought.
To start on this critical path, a LR&W
professor or program only needs: (1) a
community constituency in need, (2) a
substantial legal problem or set of legal
problems confronting that constituency,
(3) a cooperative LR&W director and
academic dean, and (4) enough time to
craft or obtain a broad scenario on point
and weave it into the LR&W assignments
throughout the year. Failing to take this
path is a decision to continue to pay the
Blackacre opportunity cost.
Why in LR&W Classes?
Whatever pedagogical quest is realized
within an upper level elective benefits
only those few students who take the
elective. On the other hand, every
student in each cohort must take LR&W
in the first-year curriculum. Thus,
LR&W students are a captive audience.
Whatever pedagogical quest one realizes
in the first-year LR&W program benefits
every student in that entire cohort. There
is a clear opportunity cost when we fail
to achieve something a bit more grand
in those first-year LR&W courses. The
answer lies in simply using targeted
fact environments on which to base
a good share of the first-year LR&W
assignments instead of relying on the
Blackacre fare many now use.
Within a single “targeted fact
environment” lies the source material
for assignments useful in every LR&W
course module: (1) statutory, rule,
caselaw, and secondary research, (2)
Bluebook or ALWD citations for that
research, (3) predictive writing and oral
presentation, (4) persuasive writing and
oral argument, and (5) every other topic
and sub-topic in any LR&W course.
Using such a targeted fact environment
throughout the first-year LR&W
curriculum would create a cohort of
students, who, having taken that course
with that “targeted fact environment,”
will have developed all the same legal
research and writing skills that would
have been learned using the traditional
random “Blackacre” fact pattern
construct, but with a real and abiding
knowledge of issues involved in that
targeted fact environment. Sounds like a
win-win.
Sources for Targeted Fact
Environments
Once a program or professor chooses
to use the targeted fact environment
framework, the next task is to determine
the target. Possible sources for targeted
fact environments include: (1) the law
school’s mission and vision statements,
(2) the ABA Standards, (3) local
newspapers, and (4) area non-profit or
governmental organizations serving the
needs of area clients.
From School’s Vision/Mission
Statements:
Let’s say the law school’s mission
statement provides that the school is
committed to serving “humanity,” and
“underserved rural communities in the
Appalachian region.” In the light of the
highlighted portions of that law school’s
mission statement, the LR&W program
or professor may choose to devise a
targeted fact environment that focuses on
an assemblage of legal issues and legal
needs confronting rural communities
in Appalachia, such as utility shut-offs,
uninsured or underinsured medical
care, homelessness, alcoholism and
drug abuse, social security, Medicaid
and Medicare eligibility, SSI disability,
workers’ compensation, and the like. In
that way, in the first year, law students
are confronting and learning about issues
that may otherwise be covered in law
school, if at all, only through electives
touching only a small percentage of
each cohort. Placing those issues, via
the targeted fact environments, into
first-year LR&W courses guarantees
that every matriculant will be exposed
to and will develop an awareness of
those precise legal challenges the law
school felt were important enough to
incorporate into its vision or mission
statements. Any key quest identified
in any law school vision or mission
statement can serve as a rich source of
ideas for targeted fact environments.
— continued on page 14
THE LAW TEACHER | SPRING 2013 | 13
Eliminating the Blackacre Opportunity Cost
— continued from page 13
From ABA Standards:
One example will suffice to illustrate the
concept. ABA Standard 302 provides in
part that each law school “shall” offer
substantial opportunities for student
pro bono activities, which may be creditbearing or not. Thus, a targeted fact
environment in a credit-bearing LR&W
course could focus on the real needs
of persons and institutions in need in
our communities. For example, a local
social service agency serving homeless
veterans or crime victims could benefit
from legal research (even from first-year
law students) on matters confronting
their clients. The benefit to the outside
agency is clear, but the benefit to our
students is even clearer. Instead of
rolling their collective eyes at yet another
make-believe Blackacre scenario, those
first-year LR&W students would be
tasked to do what many of them came
to law school to do – help others. This
would energize and involve the LR&W
students, and improve student learning
outcomes. Another win-win.
From Today’s News:
As one recent example, a local explosion
of sorts arose of late from a particularly
egregious case of judicial misconduct
in the Knoxville area. That could have
yielded a number of real-world and
engaging targeted fact environments.
The scenario played out as follows
based on court findings. A trial judge
routinely consumed 10-20 Oxycodone
tablets on days when he was presiding
in a series of high-profile murder trials
over a period of several years. He had
obtained some of those pills from a
felony probationer he had himself
sentenced. The Judge also obtained
sexual favors from that probationer, at
times in his chambers. The Judge even
fell asleep during more than one of those
murder trials. Eventually, the Judge was
prosecuted for Misconduct in Office and
entered into a diversion agreement. The
successor judge, serving as thirteenth
juror in a number of those murder trials,
found structural error, and cast doubt
on all the murder convictions, since the
original Judge had not been competent
to preside.
The targeted fact environment could
have addressed chemical dependency,
right to fair trial, due process, structural
error, professional responsibility, and
the like. They would study the issues on
one day, and read the latest news and
developments the next. Another winwin.
From Collaborations with
Non-Profits:
Perhaps the most fool-proof way to
obtain nearly all the advantages of
using targeted fact environments in
first-year LR&W classes can be realized
by partnering with a non-profit agency
serving persons in need in the areas
around our law schools. Depending on
the collaboration, the agency chosen,
and the topics at issue, that approach
would help achieve law school vision
and mission statement goals, inculcate
pro bono energy in our LR&W cohorts,
serve our hinterlands, energize a cohort
of LR&W students by having them
help real neighbors with real problems,
respond to and achieve ABA Standards,
and ensure that entire cohorts (and not
just select students taking later electives)
will be informed about key issues and
constituencies selected by the school.
Conclusion
Using this targeted fact environment
approach would create a more relevant
first-year LR&W experience, inform
and energize an entire captive cohort
on issues of import to our communities,
provide a public service, help our
students make a difference in the
first year, and avoid or eliminate
the Blackacre opportunity cost. And
this path would further crystallize
some of the recent literature on ways
to incorporate LR&W into doctrinal
courses, meld LR&W and clinical
courses, create more practice-ready
graduates, improve our relevance and
footprint in our communities, help meet
enhanced ABA scrutiny, and enhance
pro bono service mindsets. What Dean
would oppose teaching the same skills in
LR&W, while simultaneously gaining so
many other benefits? Law schools cannot
afford the Blackacre opportunity cost
any longer, so as part of the shift toward
experiential learning and practice-ready
graduates, law schools should adopt
targeted fact environments for first-year
LR&W courses.
____________
Charles E. MacLean is an Assistant
Professor at Lincoln Memorial UniversityDuncan School of Law. Contact him at
Charles.MacLean@lmunet.edu.
Submit articles to The Law Teacher
The Law Teacher encourages
readers to submit brief articles
explaining interesting and
practical ideas to help law
professors become more effective
teachers.
THE
LAW
TEACHER
| SPRING
20132013
| 14
14
| THE
LAW
TEACHER
| SPRING
Articles should be 500 to 1,500 words
long. Footnotes are neither necessary nor
desired. We encourage you to include
Please e-mail manuscripts to Barb
Anderson at banderson2@lawschool.
gonzaga.edu. For more information
contact the co-editors: Tonya Kowalski
at tonya.kowalski@washburn.edu,
and Sandra Simpson at ssimpson2@
lawschool.gonzaga.edu.
Reflection, Reality, and a Real Audience: Ideas from the Clinic
By Dana M. Malkus
F
or a variety of reasons too
numerous and complex to recount
here, law teachers are increasingly
expected to provide law students with
more feedback and assessment. This
is especially true for those who teach
“doctrinal” courses. As a clinician,
frequent feedback and assessment are
common and essential parts of my
teacher-student relationships. I believe
the clinical model provides at least three
simple—but important—lessons that can
inform all law teaching.
First, law teachers should provide
students ample opportunities to
practice reflective self-assessment.
Clinical legal education—like many
other disciplines—places a high value on
reflective self-assessment. At their core,
lawyers are problem-solvers. In my view,
effective and creative problem-solvers
are those who admit to, and learn from,
mistakes (rather than being held captive
by the fear of making them). My goal is
to help students learn to self-assess so
that they can grow from each experience
and continue to improve their skills in
practice. I want self-reflection to become
a habit for my students because I believe
it will make them more competent
problem-solvers and better professionals
(whether they practice law or pursue
some other work).
Self-assessment is a useful tool that
law teachers can employ for a variety
of purposes, including (1) empowering
students to take an active role in their
own learning, (2) motivating students
to more fully engage with the course,
and (3) helping students develop into
more competent professionals able to
both tackle a variety of client problems
and manage the consequences of their
own (inevitable) mistakes. Reflective
self-assessment is a skill that should be
taught not only in the clinical setting,
but throughout the entire curriculum.
Here are three ideas for helping students
develop this skill:
1.In a course where written assignments
(of any kind) are used, ask students to
answer simple reflection questions as
part of the assignment. For example:
What do I like most about this work
product? What am I most concerned
about with respect to this work
product? How much time did I spend
on this assignment?
2.Ask students to answer simple
reflection questions when you hand
back any graded assignments. For
example: What is one thing I did
well on this assignment? What is one
mistake I made that I will correct in
future work product?
3.Ask students to reflect on their
experience with the course. For
example: What should I start doing
that I am not already doing? What
should I stop doing that I am currently
doing, but which is not working very
well? What should I continue doing
because it is working well?
Second, law teachers should bring
reality into the classroom whenever
possible. In the clinic, I generally enjoy
motivated students. Students are
motivated—at least in part—because
they are working on real matters
with real clients and have real ethical
responsibilities to those clients. In
addition, they are interacting with real
lawyers, making professionalism and
networking concrete realities. The “realness” factor also motivates me. I am
motivated to give students frequent and
concrete feedback, not only because it
is my professional duty to do so, but
because they are practicing under my
license.
Here are two ideas for bringing more
reality into the classroom:
1.Collaborate with a clinician to
generate a real world problem, and
associated real world documents,
to use in the classroom (taking
appropriate measures to preserve
confidentiality). Ask students to come
to class prepared to discuss their
proposed strategy for addressing the
problem, or do a simulation in class.
Invite the clinician and the clinic
students who worked on the problem
to offer feedback as to the students’
proposed approaches to the problem.
2.Talk with a clinician or practicing
lawyer about policy issues he or
she sees affecting clients. Invite that
person to class to present the issue to
the class and have the class work on
strategies for addressing the issue.
Third, law teachers should help
students internalize the concept of
“audience.” In the clinic, I provide
students with frequent individual
feedback on written work. In addition,
I help them prepare for client meetings
by using role play and other techniques
that allow them room to practice the
upcoming client interaction. I have
noticed that one aspect of this feedback
process is particularly effective: helping
students understand and internalize that
there is a real reader or listener on the
other side of the communication.
By asking questions that help students
think about alternative choices (e.g.,
other ways to interpret the statute,
manage an identified risk, describe a
problem, or build trust with the client)
and understand where I am confused,
offended, doubtful, or surprised,
students gain an awareness of audience
and develop a greater sense of how to
effectively speak to that audience. The
goal here is not to point out misspellings,
grammar errors, or the overuse of “um”
(though there certainly is a time for that).
Instead, the goal is to help the student
see the bigger picture. What is the
communication trying to accomplish?
Here are three ideas for helping students
internalize the concept of audience:
1. Ask students to prepare a short
writing assignment related to the
subject matter of the course (e.g.,
draft a contract provision, write
a client letter, or write a memo to
— continued on page 16
THE LAW TEACHER | SPRING 2013 | 15
Reflection, Reality, and
a Real Audience: Ideas
from the Clinic
— continued from page 13
the file). Choose a few to read
anonymously in class, and give
your impressions as the reader as
you read them.
2. Invite some practicing lawyers
to visit your class, and explain
to them your goal of helping
students internalize audience.
Assign students a short writing
assignment to be completed prior
to that class. Break the students
into small groups, with one guest
assigned to each group. Ask
the guests to read the written
product and offer brief “reader”
impressions.
3. Invite some practicing lawyers or
a clinical faculty member and her
students to visit your class, again
explaining the goal of helping
students internalize audience.
Break students into small groups,
with one guest assigned to each
group. Provide a hypothetical
scenario (based on the assigned
course reading or on real problems
the guests have seen in practice),
and guide the groups through
a role play of the scenario. At
the end, ask each guest to share
reactions he or she had during the
role play to the communication
coming from the students.
Incorporating these kinds of
learning strategies does not have to
take an inordinate amount of time.
By providing students with more
opportunities to practice reflective
self-assessment, apply doctrine to realworld problems, and communicate
with an audience, law teachers can
facilitate a more motivating and
productive classroom experience for
both student and teacher.
Beyond the Legal Classroom:
Leveraging Major Local Events to Engage
Students and Further an Interdisciplinary
Approach to the Study of Law
By Christie Stancil Matthews
T
he topic of law school oftentimes
elicits discussions of the Socratic
Method, the pedagogical approach
named for its originator, Socrates, that
utilizes inquiry-based dialogue to help
students think critically about issues of
importance.1 However, Socrates was also
known for his interdisciplinary approach
to learning, infusing discussions of
religion, politics, arts and law to prepare
his students to more effectively problemsolve.2 While Socratic dialogue remains
a staple in many traditional law school
classrooms today, there is a growing
movement in legal education to also
embrace more practical, experiential
learning opportunities aimed at
matriculating practice-ready and
professionally-mature attorneys. I think
this paradigm shift particularly presents
opportunities to employ the “other”
Socratic Method—that is, embracing an
interdisciplinary approach to learning
the law.
In recognition of the unprecedented
learning opportunity that the DNC
presented, my school’s administration
formed an internal ad hoc team
whose goal was to identify and create
opportunities for our students to engage
in election-related legal discourse and
to participate in the democratic process
through a variety of methods. I had the
privilege of serving as co-chair of that
non-partisan team, which we called the
Civic Engagement Team, and took on
the specific year-long responsibility of
leading a group of 20 faculty, staff and
students in creating programming for
our student body that would achieve
the team’s goal. Our team’s motto was
“Engage. Explore. Advocate.” This
slogan reflected our desire for students
to explore the issues surrounding the
presidential election and our recognition
that such exploration could even spark a
career interest in advocacy around some
of these issues.
While many law schools are answering
the call for practical learning by creating
or fortifying clinical programs, law
students can benefit as well from law
schools leveraging newsworthy local
events to further engage students in the
larger community in which they will
practice and to encourage studying the
law in a real-world, interdisciplinary
context. One such example is the
Charlotte School of Law’s response to
the Democratic National Convention
(“DNC”) that took place September
4-6 ,2012, in Charlotte, North Carolina,
not five miles from our law school’s
doorstep.
While we could have easily chosen a
less ambitious agenda, we instead took
a robust, comprehensive approach that
resulted in a plethora of opportunities
for student engagement. We invited
guest speakers like Judith Corley, general
counsel of the Democratic National
Convention, as well as Mark Davis,
general counsel to then-North Carolina
Governor Beverly Perdue. We organized
forums to further discussion on hotbutton political topics, including an
Immigration Forum, Food Law Forum,
and a Civic Engagement Forum that
included election-related workshops
with topics such as “Lawyer as Leader”
and “Grassroots Political Organizing.”
____________
Dana M. Malkus is assistant clinical
professor at St. Louis University School of
Law. Contact her at millerdl@slu.edu.
16 | THE LAW TEACHER | SPRING 2013
— continued on page 17
Beyond the Legal Classroom
— continued from page 16
We arranged small group lunches
and dinners for students to talk more
intimately with various leaders, from
local city councilmen to election law
scholars to national government agency
leaders. We held a political blogging
contest and had the winners blog
during the week of the DNC from a
downtown social media office hub. We
provided students with information on
internships and volunteer opportunities
in the political arena, which resulted
in our students working with many of
the major players in the conventionorganizing process, serving as election
poll watchers and registering voters. We
worked with other groups in the school
to promote, encourage and support their
election–related initiatives, including
an Election-Law Symposium organized
by the law review. We held convention
watch parties and invited an election law
expert to speak beforehand.
Through these activities, students were
able to tie the traditional legal theory
to their socio-economic and political
counterparts to provide a more realistic
framework in which to learn the law. For
example, students in an Immigration
Law course were able to sit and dialogue
with the Director of the U.S. Office
of Immigration Review and attend a
forum where they brainstormed with
various community stakeholders on
ways to address some of the more salient
immigration dilemmas affecting the
election. Discussions of legal reform
were interlaced with discussions of
socio-economic concerns and political
influences.
Students were also able to engage in
experiential learning opportunities.
For example, some of our students
interned in the offices of the Democratic
National Convention Committee and
reviewed vendor contracts. Additionally,
the opportunities created by the Civic
Engagement Team provided avenues
for students to use and develop skills
that are not traditionally the focus in law
school, such as blogging about political
issues.
The result of our Civic Engagement
Team’s efforts was to leverage the
excitement already felt by many of our
students because of the proximity of the
DNC and to further engage them in the
legal learning process.
While the DNC was the major local event
that was the catalyst for the creation of
these additional learning opportunities
at Charlotte School of Law, other major
events can provide equally engaging
opportunities, such as the Olympics
or Super Bowl, local summits or
conferences organized by well-known
national or international organizations,
or nearby natural disasters. All of these
events can provide opportunities to
introduce other disciplines, including
social science concerns, environmental
matters, economic viewpoints, as well
as political issues, and can help foster an
interdisciplinary approach to learning
the law.
When these opportunities arise, we
as law professors can best serve our
students by finding ways to connect the
material we teach in class to any broader
initiative by the school. For example,
many of my colleagues helped support
the efforts of the Civic Engagement Team
by either directly serving on the team
or serving as workshop leaders. Still
others identified experiential learning
opportunities in convention-related
activities or awarded students additional
participation points for attending my
team’s activities. Others were able to
weave election-related material into
their classrooms through references
in hypotheticals and in lectures. In
doing so, many were able to bridge the
classroom with the larger world in which
our students will soon practice and, as
such, bolster our students’ interest in
and learning of the material.
We are training our students not to think
in a vacuum but to become professionals
and leaders that create pragmatic
solutions for the betterment of their
clients and, ideally, the community at
large. By dovetailing involvement with
major local events to the classroom and
experiential learning opportunities, law
schools can expand upon the Socratic
tradition and, in the process, better heed
the call to ground legal education in the
practical world in which our students
will serve.
____________
Christie Stancil Matthews is an
Assistant Professor at Charlotte School
of Law. You may contact her at
cmatthews@charlottelaw.edu.
____________
Lisa R. Lattuca, Lois J. Voight, & Kimberly Q. Fath,
Does Interdisciplinarity Promote Learning? Theoretical
Support and Researchable Questions, 28 Rev. High
Educ. 23, 34 (Fall 2004).
1
Mary L. Radnofsky, The Case for an Interdisciplinary
Education, Socrates Institute (1995), http://www.
socratesinstitute.org/research/treatise.html.
2
THE LAW TEACHER | SPRING 2013 | 17
Teaching Statute Reading Basics in a First Year Doctrinal Course:
A Handout and Suggested Classroom Exercises
By Deborah Maranville
A
lthough dating back decades,
the call to incorporate into legal
education greater attention
to statute reading has increased
significantly in volume over the past
decade, with the first year a special
focus of concern. In recent years, many
schools have adopted a first-year
course designed to focus students on
legislation and statutory interpretation.
Nonetheless, in contrast to the deluge
of study aids on how to brief cases,
accessible guides for students on
the basics of statute reading remain
relatively rare.
Likewise, the otherwise burgeoning
literature on teaching techniques for law
school is thin when it comes to strategies
for helping students learn the basics
of statute reading. Yes, legal analysis,
research, and writing texts include
chapters on statutory analysis, but
these are typically detailed.1 And upper
division teachers of tax, UCC and other
statute- focused courses purport to teach
statute reading skills, but these upper
division courses tend to be subject-matter
specific in approach and to assume
some basic ability to parse a statute.
A review of resources on teaching law
yielded little in the way of suggestions
for how to incorporate the teaching of
statute reading skills into a first-year
course, apart from using problems that
require careful statute reading in order
to reach an answer.2 Thus, I offer the
following “handout” for students as
a basic introduction, along with brief
suggestions for how to reinforce the
contents through in-class activities.
The Handout
______________________
How to Read a Statute: MAP It!
By Deborah Maranville
Introduction
For the past century and more, the
dominant approach to legal education
has been the “case method,” in which
students are said to learn the law, and
the glory of the common law system
of precedent and stare decisis, by
reading appellate cases. Because of this
emphasis on appellate cases, especially
in the first year of law school, many
students graduate with skewed instincts
for approaching a legal research task:
they start their research by looking for
appellate cases.
Yet we live in what former Yale Law
School Dean and Commissioner of
Major League baseball Guido Calabresi
termed “The Age of Statutes.” Statutes
are everywhere, regulating everincreasing portions of modern life.
Few legal areas are now immune from
statutes. Thus, for the vast majority of
legal problems, the primary source of
law is statutory. As a result, learning
how to read a statute has become at least
a co-equal task with learning how to
read a case. Although a veritable cottage
industry has developed that purports
to teach students how to “brief” cases,
introductory resources on how to read a
statute (or an administrative regulation,
or codified court rule such as the Federal
Rules of Civil Procedure) are more
limited. Legal education lacks a short,
snappy, introductory overview of the
skill. The following pages attempt to fill
that gap.
Overview
The basic stages of reading a statute can
be summarized in three steps, easily
remembered using the acronym MAP:
18 | THE LAW TEACHER | SPRING 2013
M = Method
A = Ambiguity
P = Purpose, Policy, Protocols
The Cardinal Rule
But before you proceed to these three
stages, you need to take a deep breath
and remember the cardinal rule of
statute reading: SLOW DOWN. Or, to
emphasize the point in a different way:
Slooooooooooooooowwwwwwwww
Dooooooooooooooowwwwwwwwnnn.
Many issues of statutory interpretation
revolve around extremely picky
questions concerning how the statute
is organized, or just which word the
legislature used. A classic example is
“did the legislature say ‘and’? Or did it
say ‘or’?” Thus, while you should always
use your skimming skills to understand
where a specific statutory provision fits
into the larger whole, save your speed
reading skills for another occasion.
M - Method
Once you have slowed down, your
method for reading the statute will
involve two steps: If you are lucky,
you will have one or more professors
in the first year who will go through
this process with you in detail and
demonstrate their own methods for
reading a statute.
Step 1. Orient yourself.
Put your specific statutory provision in
context by browsing the table of contents
Before you even begin to read a
particular statutory provision, first
engage in a very quick “pre-reading”
exercise by skimming the code’s table of
contents. You will be able to understand
a specific statutory provision much more
easily if you have a sense of how it fits
into the broader statutory scheme. If you
are given an out-of-context excerpt of a
— continued on page 19
Teaching Statute Reading Basics in a First Year Doctrinal Course
— continued from page 18
statute in a casebook, quickly type in the
citation in Lexis or Westlaw so you can
see the table of contents surrounding
that excerpted section.
Step 2. Read the statute.
Reread the statute. Diagram the statute.
Take the statute apart and work with it
word by word until you are confident
you understand what it says.
What are you looking for as you read the
statute? Approaches to statute reading
vary, just as approaches to briefing
cases vary. Some people try to break the
statute into “elements,” the key activities
that together will trigger a particular
legal result. Others use an “If . . . then”
structure, for the same purpose: identify
the “ifs,” the predicates that trigger the
statutory “thens.” A third approach is
to diagram the statute much as English
grammar teachers sometimes teach
students to diagram sentences (or used
to!), identifying especially the subjects
and verbs, scrutinizing the conjunctions
(and, or), and the modifiers with care.
Once you know what you are looking
for when reading a statute or rule, think
about what technique might work well
for your learning style. Options include:
in a PowerPoint or word processing
program, insert line breaks after each
phrase or critical word, then increase
the font size of important or ambiguous
terms, or highlight them. Or, color code
the language so that, for instance, the key
ambiguities or all conjunctions are the
same color. Any method is fine, if it gets
you pulling the statute apart in a way
that you can understand it accurately.
A - Ambiguity
Many lawsuits involve a dispute over
the meaning of a statute. Typically
these disputes arise either because the
language of the statute is ambiguous in
some way, or because the result reached
through a literal application of the
statute seems absurd, or inconsistent
with what the legislature seems to have
intended. Thus, in reading statutes the
second step is to look for the ambiguities.
Did the legislature use what might be
uncharitably termed “weasel words,”
that is words like “reasonable” or
“substantial” that will predictably
generate disagreement over their
meaning? Is the statute grammatically
ambiguous, perhaps because it is not
clear what word a phrase modifies?
that the “plain meaning” of the statute,
typically using dictionary definitions,
is unambiguous. (This can be amusing
in a case that reaches the U.S. Supreme
Court, where the court splits 5-4 and
reverses the lower courts.) Justice Scalia
is particularly fond of this protocol.
For instance, in the Florida election cases
from 2000, a significant question was
how to interpret a statute that provided:
“If [a] manual recount indicates an error
in the vote tabulation which could affect
the outcome of the election, the county
canvassing board shall . . . .” Was the
statute directed at all errors in the vote
tabulation, because any errors might
affect the outcome? Or was it aimed
at limiting relief to a limited subset of
errors so significant that the outcome
could predictably be affected?
Sources: Dictionaries and Canons
of Construction. In arguing “plain
meaning,” lawyers often resort to rules
of interpretation, known as canons of
construction, that are usually referred
to by their Latin names. A widely used
example is expression unius est exclusio
alterius. (The expression of one specific
thing is the exclusion of another.)
Karl Llewellyn, the famous legal
realism theorist of the mid-twentieth
century, argued that these canons are
indeterminate, because they come in
matched and contradictory pairs.
Predicting when a court will find a
statute to be ambiguous takes both
experience and good judgment. As you
read cases, be alert to the arguments
parties make about when statutes are
ambiguous, and how the courts respond,
so you can hone your skills in this area.
P - Protocols: Plain Meaning,
Precedent, Purpose, Policy, etc.
The third step in reading statutes is to
learn the protocols, or “codes of correct
conduct” that courts use in resolving
ambiguities in statutes. Entire books
are written on this subject and entire
courses taught on it, and within the
legal profession, we lack agreement
on which approaches are “correct” or
permissible. Thus, any brief introduction
will inevitably oversimplify. The United
States Supreme Court is divided as to
which “protocols” are legitimate, but
most advocates and lower courts will
draw on all of them, as they seem useful.
At this stage, you should become familiar
with the following protocols, and the
sources relied on by followers of each
approach.
• Protocol: The Plain Meaning Rule
(also known as “textualism”). Sometimes
a court will simply announce, by fiat,
that no ambiguity exists, and claim
• Protocol: Legislative Intent (also
known as “originalism”). A second
approach is to interpret the statute in the
fashion that will best further the intent
of the legislature. In trying to determine
the intent of the legislature, a court will
often look at the legislative history of the
statute.
Source: Legislative History. What
did the committees that drafted or
considered the statute say in committee
reports? What claims did supporters
make in legislative hearings, or debate
on the floor of the legislature, about how
the statute should be interpreted?
• Protocol: Precedent. Sometimes,
the court will interpret a statute in a
particular way, because that’s the way
it’s always been done. In other words,
the court will rely on prior precedent.
Sources: The cases in all those opinions
you’re reading.
• Protocol: Purpose. Often the court will
engage in “purposive reasoning,” trying
to identify the purpose for the statute
by asking, “What was the legislature
trying to accomplish?” and “What
— continued on page 20
THE LAW TEACHER | SPRING 2013 | 19
Teaching Statute Reading Basics in a First Year Doctrinal Course
— continued from page 19
interpretation will best further that
purpose”?
Sources: Historical context. What were
the issues of the day when the legislature
enacted the statute? What social
problems was the legislature trying to
address?
• Protocol: Policy (often relied on by
proponents of “dynamic” interpretation).
Courts (and law professors asking their
students to be pretend-judges) often
ask “Which interpretation will lead to
the ‘better’ result?” with “better” being
evaluated in light of “policies,” such as
certainty, predictability, efficiency, or
fairness.
component parts and identifying likely
ambiguities. Begin with a reasonably
short statutory provision projected on
the screen, then demonstrate any of the
techniques described in the handout:
break the statute down by inserting
paragraph breaks, color coding,
changing the font size, diagramming.
The How to Read a Statute: MAP It!
Handout can be usefully supplemented
by classroom work. The following
techniques can motivate students to read
the handout carefully and to develop
basic statute reading skills.
When I taught Civil Procedure for
several years, I liked to start the course
with diversity of citizenship subject
matter jurisdiction, both in the course
of a short march through the stages of a
lawsuit, as well as the first in depth topic.
This worked well for teaching both
statute reading and initial case analysis,
because the statute is reasonably short
and accessible, and the casebook I used
included relatively short and accessible
cases (at least by comparison to personal
jurisdiction!). Given the increasing role
of statutes in the doctrine covered in
the traditional first year courses, any
of them could include some attention
to statutes, and, in my view, at least
several ought to do so. Most criminal
law courses address the Model Penal
Code, and contracts courses can include
Uniform Commercial Code provisions.
Coverage of statutes in torts and
property courses is more variable, but
suggestions from my own colleagues
include a state landlord-tenant act; the
Civil Rights Acts of 1866 and 1964 and
a state human rights statute for the
trespass section in property; and 230
of the Communications Decency Act,
which immunizes Internet platforms
like Facebook for what users do and say
on those platforms and is thus relevant
background for torts committed via the
Internet.
1. Teacher Demonstration
With the use of presentation software
such as PowerPoint or a document
camera, you can easily demonstrate
to the class one or more methods
of breaking down a statute into its
2. Student Sharing
As part of their class preparation assign
students the task of breaking the statute
apart. Then in class ask them to share
their approaches with each other.
Depending on the size of the class, you
Sources: Current contexts and public
values. In evaluating policy, the courts
will look at the current social context
and evolution of societal values. For
instance, they might evaluate how social
and technological changes have altered
the way a statute operates in practice.
Should statutes or rules that specify
how a lawyer must deliver court papers
to an opposing lawyer be read broadly
to permit delivery by e-mail or FAX
technology? Or would that require a new
or amended statute or rule?
____________________________________
Two Classroom Activities
to Reinforce the Lessons
in the Handout
20 | THE LAW TEACHER | SPRING 2013
may wish to do this in small groups,
with students then asked to share with
the full class their observations about
new techniques they learned and why
they like them. Or, you may ask students
to volunteer to demonstrate their
approaches to the class as a whole.
____________
Deborah Maranville is a Professor of Law
and Director of the Clinical Law Program
at University of Washington School of Law.
Contact her at maran@uw.edu. The exception
is Mary Barnard Ray, THE BASICS OF
LEGAL WRITING (2006), pp. 54-61
(Chapter 2: Reading Opinions and Statutes)
and even that treatment runs to seven pages.
____________
Thanks to my colleagues Tom Cobb and
Sarah Kaltsounis for suggesting step 1 and
the heading to step 2.
____________
The exception is Mary Barnard Ray, The Basics
of Legal Writing (2006), pp. 54-61 (Chapter 2:
Reading Opinions and Statutes) and even that
treatment runs to seven pages.
1
A search by Alena Wolotira of the Gallagher Law
Library yielded only Stephen Sepinuck, Teaching
Statutory Construction through Reverse Problems
and “Why” Problems in Hess & Friedland, et. al,
Techniques for Teaching Law 2 (2011),
pp. 222-223.
2
The current version of the casebook, Yeazell, Civil
Procedure (8th ed.2012) continues to be structured
in a way that lends itself to this approach.
3
Thanks to my colleague Linda Hume for sharing
this idea.
4
My colleagues Bob Anderson and Greg Hicks
note that this material is covered in Joseph William
Singer, Property: Rules, Policies and Practices
(5th ed. 2010).
5
My colleague Ryan Calo shared this example and
notes that the statute “makes intuitive sense to
students and casts a shadow over virtually any tort
committed on or through the Internet.”
6
Law School Communities “Saving Social Security”—
Imparting the Intangibles of Practice Readiness
By Kathy M. Morris
L
aw school famously teaches
students how to think like
lawyers...but what trips them
up earliest at work is not knowing
how to present their thoughts—and
themselves—effectively in everyday
professional situations. That skill is
far less tangible and perhaps harder to
teach than the traditional legal skills,
but every bit as critical. The fact remains
that law students too often graduate
without having gained the interpersonal
communication, poise, and social skills
needed to build the foundation for
careers they can count on and enjoy.
The good news is, each law school
community can help its students enhance
their “social security.”
What skills do new lawyers, many of
whom have spent innumerable hours
alone in front of computers, lack?
• The ability to mingle comfortably in
the company of clients or to make
small talk over a business meal with
more senior colleagues
• An instinct for artfully breaking into
an active conversation to make a point
in a meeting
• The presence of mind to deliver
information effectively, on the spot
• The knack for asking for feedback on
their work and the aplomb for taking
constructive criticism gracefully
All these skills and others like them
relate to communicating confidently, to
conveying a professional persona....yes,
to social security in the workplace.
One innovative course, a class on
Negotiation and ADR, develops
workplace communication skills such
as networking or delivering bad news,
in part, through “adventure learning.”
The course is described in full in a 2012
Washington University Journal of Law and
Policy article on problem-solving in the
first-year curriculum, subtitled “It’s Time
to Get It Right,” by professors Bobbi
McAdoo and Sharon Press.
Another departure from traditional
coursework in the first year is suggested
by lawyer and writer Michael Serota
in the Colloquy 2010 issue of the
Northwestern University Law Review.
He recommends a first-year course on
personal values, career decisions, and
professional satisfaction.
Rather than place the entire burden
on the professors for all-new courses,
however, there are ways to involve
additional constituencies in addressing
the wide-ranging demands on students
to present themselves positively in
today’s fast-paced legal profession.
Some possible focal points and
approaches include:
Making a first impression
Law schools hold pre-interview season
“Meet the Employers” gatherings to
help students familiarize themselves
with the local job market and to interest
prospective employers in them. Or, they
participate in public interest job fairs,
bringing together organizations that
wouldn’t otherwise recruit on-campus.
Before these type of events, law schools
could...
• Host a workshop, sponsored by a
local law firm and the career services
office, at which effective ways to
introduce oneself are modeled.
Students could then break into tables
of 6 students and 1 to 2 lawyers from
the hosting firm to take turns starting
a conversation, learn from each
other’s introductory small-talk, and
gain feedback from the participating
lawyer(s).
• Handouts could also be provided on
Do’s and Don’ts for making a positive
first impression—as well as for seeing
and seizing opportunity—at job
fairs, Meet the Employers night, or
employer-hosted cocktail parties. The
ability to make a positive impression
is a skill that will continue to serve
students well following graduation,
from day one forward.
Interacting effectively. Not all
communication challenges take place
on campus or in the workplace. Callback interviewees, student clerks or
summer associates, and new lawyers are
called upon to chat and dine with other
lawyers or clients, and those who are
reticent are at a significant disadvantage.
Before sending students out for their
summer jobs, law schools could...
• Call upon alumni/ae and adjunct
professors to invite a student to lunch,
bringing along a colleague or client for
the express purpose of sharing with
the student the common missteps
made early on by new professionals as
they interact and converse in beyondschool environments. Humorous
but instructive stories shared at
these “Take a Student to Lunch”
sessions could then be collected by
the alumni office and made available,
without attribution, to all classes and
recent graduates as cautionary tales
regarding faux pas in work-related
social settings.
• The participating alums and adjuncts
could then be invited to campus for a
school-sponsored meal, where the fine
art of conversing-while-consuming
is in focus. Students who did not
have an individual outing could also
attend this group opportunity. Over
dessert, a question and answer session
could be held at each table, allowing
the students to seek guidance on safe
and savvy subjects for small talk with
colleagues and clients, whether in a
short encounter or during extended
— continued on page 22
THE LAW TEACHER | SPRING 2013 | 21
Law School Communities “Saving Social Security”
— continued from page 21
interactions, such as on business trips.
It’s always good to mine experience,
and there are never enough ways to
be inclusive of adjuncts or involve the
alumni in the ongoing enterprise of their
alma mater.
Indicating enthusiasm. Business schools
have said the number one reason
interviewees fail to land jobs is a lack of
projected enthusiasm. That same sense
of neutrality—or worse, negativity—
can also be fatal on the job. Saying
“no” more than “yes,” passing up a
stretch assignment, or remaining silent
in meetings as students might in large
lecture halls are missed opportunities
and moments that could mistakenly be
interpreted as reluctance to grow or a
lack of enthusiasm for the job. Before
graduating another class of students, law
schools could...
• Examine their curricula with an eye
toward folding in more interaction,
even in small moments in large
classes, for students to move away
from passivity or timidity. Professors
might, from time to time, consider
discouraging the practice of raising
one’s hand to be recognized, so that
students develop the sense of when
and how to take the floor to interject
a point or question.
• Students can be spontaneously
tapped to lead a part of the class
discussion, in order to reinforce that
sound professional performance
does not always permit advance
planning or require perfection.
• Teaching with a thorny
hypothetical in an announced
brainstorming mode, where no
ideas are pronounced wrong and all
participation is welcomed, can help
students find their voice before they
venture into their first job, which for
some may be their first encounter
with a white collar workplace.
22 | THE LAW TEACHER | SPRING 2013
Communicating efficiently.
Time is at a premium in the workplace,
in both billable and non-billable contexts.
Students whose instinct or habit has
been to stay behind their computers
in class, whether diligently typing
notes or multitasking on Twitter, may
have a harder time assuming the roles
required for a successful transition from
classroom to conference room. Busy
lawyers have limited time to devote to
mentoring and training, so it is critical
that students and new lawyers know
how to get to the point quickly when
summarizing their research, how to
convey a conclusion decisively, and how
to seek and accept practice pointers well.
To address this practical reality, law
schools could...
• Ask the librarian to draft and
distribute short research questions
and answers to the emeritus
professors and students, for use at an
event akin to speed mentoring where
students “report” on the research
findings, as if they had performed
an assignment for a partner. The
timed interchanges will help students
work on conversing articulately
and succinctly with senior authority
figures.
• The Dean also could designate days
when students sign up, in five minute
intervals, to (re)introduce themselves,
start up the conversation, and seek
a top tip for enhancing professional
communication.
The more each part of every law school
provides opportunities for their students
to speak as well as to write and to engage
as well as to listen, the more secure and
practice-ready their graduates will be.
Let’s not blame the computer age or
social media for the lack of “social
security” skills among law school
graduates. Many people who earn JDs
are introverts; even the extroverts among
them have not had to learn how to put
their extroversion to effective use in
professional settings. It should not be a
surprise, then, that students, and many
alumni/ae, need help with the elusive
but key intangibles that add to early and
continued success in communicating
in practice. Hopefully, law schools will
embrace new possibilities for moving
their students beyond professional
pitfalls, thus contributing even more
significantly to ensuring the value
of a legal education and to realizing
long-standing recommendations of the
MacCrate and Carnegie Reports.
____________
Kathy M. Morris is a lawyer who has
practiced law, been on both the faculty
and in the administration of Northwestern
University School of Law, and headed lawyer
training and professional development
initiatives at Sidley Austin, LLP and other
law firms. While directing the American Bar
Association Centers for Continuing Legal
Education and Career Resources, she served
on the ALI-ABA Adult Learning Study
advisory committee, whose work resulted
in the 1999 publication Teaching for Better
Learning, reprinted in 2004. Ms. Morris
founded and runs Under Advisement,
Ltd., a career counseling practice for
lawyers, law students, and law firms, www.
underadvisement.com. She earned a JD at
Northeastern Law School in 1975 and a BA
with Honors in 1971 from the University of
Michigan.
Report from South Korea: My Experience Teaching Law Students at
Seoul National University
By Brent E. Newton
I
n the summer of 2012, as a visiting
law professor, I taught a lecture
course on American criminal law and
procedure at Seoul National University
(SNU) School of Law in South Korea. I
arrived in Seoul with some trepidation.
Although I had taught over three dozen
law school courses in the United States at
three different law schools, I had never
before taught at a foreign law school.
While I was assured by the law school’s
administration at SNU that my students
were proficient
enough in English
to take the course,
I was concerned
that they would
generally
lack sufficient
knowledge
about American
law and society
in a manner that would preclude an
adequate understanding of complex
issues such as what constitutes a
“search” under the Fourth Amendment
or how America’s history of federalism
and racial discrimination has influenced
the Supreme Court’s interpretation
of the U.S. Constitution in criminal
cases. I also had preconceptions of
South Korean students as being highly
competitive, overly-stressed workaholics
who would make American law
students – themselves known for their
competitiveness and high stress levels –
appear cool and calm by comparison.
constrained to provide less depth than
I would have preferred. Nevertheless,
because I wanted to expose my students
to the entirety of the American criminal
justice system, I taught the course in a
comprehensive manner and at a rapid
pace.
As I discuss below, my students proved
to be up to the challenge. Their ability to
follow my rapid pace and comprehend
many novel legal and cultural concepts
was a reflection of their country’s recent
health care system is excellent, and its
crime rate is low compared to the United
States. Women have played an increasing
role in the country’s government, private
industry, and educational system. (Half
of my students there were women.)
Seoul, its capital and largest city (with
ten million residents) is modern, clean,
and safe. Since 1987, when its former
military-dominated government
gave way to a western-style tripartite
government, the country has experienced
increasing
democratization.
As part of its trend toward modernization, South Korea is in the midst of
two major reforms—one related to its
legal system and the other related to its
criminal justice system­…
My class had 159 students and met for
a total of 30 hours. The course primarily
focused on U.S. constitutional criminal
procedure and covered the full range
of issues typically taught in American
law school courses commonly known
as “Criminal Procedure: Investigation”
and “Criminal Procedure: Adjudication.”
Having only 30 hours to address the
same issues normally covered in two full
semesters in American law schools, I was
history. South Korea has experienced
a remarkable transformation in recent
decades. A country with a long history
and relatively stable culture—dating
back over two thousands of years—it
suffered devastating blows during the
first half of the twentieth century as a
result of three decades of occupation
by imperial Japan and three years of
bitter fighting and destruction during
the Korean War in the early 1950s. In
the six decades following the end of the
Korean War, however, South Korea has
emerged as one of the strongest and
most resilient countries in the world in
terms of both its socio-economic status
and its commitment to democracy. Its
economy, while adversely affected along
with the rest of the world by the recent
recession, has generally thrived. Huge
and profitable international corporations
such as Samsung, Kia, LG, and Hyundai
are headquartered in Seoul and employ
large segments of the workers in the
country. South Korea has one of the most
educated citizenries in the world. Its
As part of its trend
toward modernization, South Korea is
in the midst of two
major reforms—
one related to its
legal system and
the other related
to its criminal justice system—that
were directly relevant to my teaching
experience at SNU. First, three years
ago, Korea’s system of legal education
began its transformation from one of
undergraduate legal education followed
by rigorous selection and training
process whereby only a tiny fraction of
graduates ultimately became lawyers
and judges to a system of Americanstyle graduate legal education and
a subsequent bar examination with
a relatively high passage rate. There
currently are 25 South Korean graduate
law schools. SNU is widely considered
the most prestigious of those schools.
It tends to attract the best and brightest
students, although there are other
excellent law schools as well.
The country also is undergoing extensive
change in its criminal justice system. Its
traditional system, which was heavily
influenced by both Japanese criminal
law and the European inquisitorial
— continued on page 24
THE LAW TEACHER | SPRING 2013 | 23
Report from South Korea
— continued from page 23
system, has moved more towards the
American adversarial model. Many of
the traditional powers of police and
prosecutors have given way to new
protections for criminal defendants.
Although it does not yet use Americanstyle juries, South Korea very recently
has started to have ordinary citizen
involvement (along with judges) in
the process of adjudicating criminal
defendants’ guilt in some cases.
After teaching a couple of classes
at SNU, I quickly realized that my
concerns about teaching South Korean
law students had been unfounded.
The typical law student in my course
was stellar. Although many students
were shy to speak in class – much like
many American law students would
be in a class of such a large size – my
conversations with dozens of students
after class and during my office hours
and their overall excellent performance
on the final examination revealed a solid
command of oral and written English.
The typical student also had a deep
understanding of American culture
and history. Most had studied English
literature as part of their secondary and
higher education in South Korea. Many
students also frequently had traveled
to or even attended college in the
United States, and they all had watched
countless American television shows
and movies. They knew English idioms
and “got” American humor. Many of
the students also were fluent in several
languages (including German, French,
Japanese, and Chinese). Approximately
half of my students also had completed
a summer course on German law taught
by a visiting professor from Germany.
Several qualities particularly impressed
me in addition to my students’ high
24 | THE LAW TEACHER | SPRING 2013
intelligence: their work ethic, maturity,
respectfulness, good sense of humor,
kindness, and community spirit.
Towards the end of the course, I learned
something that astounded me: over 70
of the students – the ones most fluent in
English – had collaborated to translate
all 15 chapters of the assigned book
into Korean and shared the written
translation with the members of the
class so that students would have both
English and Korean versions. (I am the
author of the book, so there was no issue
concerning copyright infringement.) The
students presented me with a copy of
the Korean translation of my book as a
“souvenir” from my visit.
To put my experience at SNU in
perspective – and understand just how
impressive my students were – one need
only imagine a law professor from an
Eastern country coming to an American
law school and attempting to teach a
comprehensive survey course on some
significant part of his or her country’s
legal system entirely in his or her native
language. At most, only a tiny fraction
of the student body at even the most
highly ranked U.S. law schools could
successfully take a foreign law course
taught in another Western language such
as Spanish or French. Further imagine
them trying to do it in an Eastern
language.
To offer a complete picture of my
experience in Seoul, I feel compelled to
offer one final observation. As I noted,
Asian students are often stereotyped as
highly competitive and as workaholics.
Those two descriptions are ones that
many South Koreans at SNU with whom
I spoke used to describe themselves
(often with a mixture of pride and
regret). Stress levels were very high as
a result. Americans, however, should
be wary in passing judgment on such
qualities. Many Americans possess
those same qualities – at least in the
upper echelons of our educational and
professional sectors and most notably in
the legal sphere. Americans, like South
Koreans, tend to equate hard work and
consequent educational and professional
success with personal fulfillment, even
if personal unhappiness results from
being so chronically driven. Rather than
condemn this ethos of hard work and
high expectations outright, I would
suggest that both our cultures might
benefit by carefully considering the
costs and benefits of being so driven
and by trying to achieve a better balance
between success and happiness. The
generation of students currently in the
new graduate law schools in South
Korea – who, like typical American law
students, are mostly in their twenties –
do appear to appreciate the importance
of achieving such a balance but likely
will struggle trying to do so.
The administration at SNU indicated to
me that SNU and other new graduate
law schools in South Korea are interested
in having other Western law professors
teach courses on aspects of the American
and European legal systems. In view of
my positive teaching experience there, I
would highly recommend it.
____________
Brent E. Newton is Deputy Staff Director,
U.S. Sentencing Commission, and an
Adjunct Professor of Law at Georgetown and
American Universities. He can be reached at
ben5@law.georgetown.edu.
Passion is Necessary, Compassion is Priceless:
A Message to the Clinical Law Student
By Courtny Osterling
C
linical education is a special
opportunity for the law student.
Having not yet been admitted to
practice law you interview and counsel
clients, draft and file court documents,
argue with opposing counsel, and
appear as attorney of record in court
proceedings.
significantly disrupt your life. On the
contrary, if proper attention is not paid
to your client’s case, it may result in an
undeserved criminal record, less visiting
time with their child, or other undesired
outcomes. The ramifications to your
client’s life could be serious and long
lasting.
Unfortunately, what I see all too often
is troubling. This great opportunity,
and the inherent responsibility, does
not always seem to resonate. However,
if you enter the clinical opportunity
with some common sense basics your
experience will be much stronger,
more meaningful, and the level of
service provided to the client will be
exponentially better.
If as a student attorney you’re invested in
the client’s case and not your prospective
grade, I guarantee the academic return
will indeed follow.
Don’t Worry About the Grade
This educational mantra, one I’ve heard
myself on numerous occasions, is often
ignored. Admittedly, concerning oneself
merely with understanding the course
material rather than the grade achieved
is generally unrealistic. Law students
in particular need excellent marks for
scholarships, internships, or even to
qualify for job interviews. But what
normally may be of benign consequence,
in the clinical setting this approach
brings with it great risks never before
attached to a student’s educational
performance. Much like that of a licensed
attorney, students have real clients with
real legal issues and as such, have real
influence on the outcome of the case.
If the work only serves as a means to
an end, inevitably the clinical course
will be approached as you would any
other, which it certainly is not. Most
significantly, the outcome of your
performance no longer just affects you.
Consider your work in the traditional
law class. If you don’t put enough
time into preparing, it results in a less
desirable grade. Not ideal, but the
difference between an A and B won’t
Lawyer with Compassion
Lawyering with just passion for the
law is not enough; we must also lawyer
with compassion for those we represent.
This has proven difficult for the average
clinical student. In large I believe this can
be attributed to the difficulty the student
has understanding and relating to the
average clinical client.
Whether it be race, gender, family
history, country of origin, level of formal
education or economic background
our society is a cauldron of diversity.
Although we are taught differences
should be celebrated, we are not
taught how these differences can have
a profound impact on someone’s life,
how they produce different challenges,
different thought processes, and different
responses to everyday occurrences.
So with many law school clinical
programs designed to serve the
impoverished populations, a typical
clinical program client may have one
grown up difficult living conditions
inside and outside their home, have
limited formal education, and dealt
with drug addiction and/or experience
with family violence. So with the
average clinical students never having to
experience these challenges, how do they
relate with a client who has?
First and foremost, simply
understanding that premise is a good
start. Human thought processes,
feelings, and reactions are finely tuned
mechanisms built from a tapestry of
personal life experiences. Therefore,
if we have different life experiences it
stands to reason our values, our thought
processes, and our responses to various
situations will be different. Undoubtedly,
you will encounter clients whose actions
make you want to shake your head,
but understanding how these decisions
came about will offer insight into their
situation and often help you shape your
legal arguments.
Second, and just as important, don’t
pretend. A prime example occurred
when a peer of mine attempted to
counsel his client. This particular client
was a 16 year old African-American
female who was pregnant. While
attempting to counsel her, he (being a
27 year old white male from suburbia)
stated, “I know exactly what you are
going through.” To the credit of this
young client, she read him the riot act.
Regrettably, this also caused her to shut
down emotionally making it impossible
to effectively counsel her.
So what could he have done differently?
A simple change of words may have
changed the course of their attorneyclient relationship. Perhaps, “I can’t
even imagine what you are going
through,” would have produced a
better result considering there was no
real way for him to understand and
relate to the client on an intimate level.
The linguistic change may be subtle,
but the implication is not. To a client
in crisis, this could mean a world of
difference. Your clients are human, and
what humans can innately do is sense
insincerity.
You shouldn’t always expect to fully
appreciate and understand what your
— continued on page 26
THE LAW TEACHER | SPRING 2013 | 25
Passion is Necessary, Compassion is Priceless
— continued from page 25
client is experiencing (it doesn’t mean
don’t try). Recognize the client is in
crisis and is coming to you for help. As
lawyers we don’t need to empathize, it
is enough to appreciate the situation is
stressful and have compassion.
Don’t Expect a Pat on the Back
On multiple occasions I have heard
students complaining the client should
be grateful because they are receiving
free legal services. To say the least
this sentiment is misguided. First, as a
student attorney you should understand
at this point your “legal prowess” is not
as great as you may like to believe.
Secondly, understand that for the most
part clients seek lawyers in times of
crisis. Whether or not they brought it
on themselves, it does not eliminate this
factor. What we do as lawyers is help our
clients resolve their problem to the best
of our ability. What we generally do not
do is completely eliminate the problem.
The relevance in this, and what is
extremely important for a clinical
student to understand, is that the client’s
problem may still exist for years after
our intervention. Our contribution is
to obtain the most favorable outcome
possible, which often does not
completely solve the problem. For
example, in a custody dispute, the initial
goal may be obtaining legal and physical
custody for your client against a parent
who abuses drugs. Even if a favorable
outcome is obtained, your client will still
need to deal with the continuing stresses
of ongoing visitation with that parent,
with putting a family back together,
and all the trials and tribulations that go
along with it.
You sutured up a gaping wound, but
that wound still needs to heal. So despite
the great work you may have done, the
client still likely faces years of disputes
with that other party, not to mention a
deconstruction of their family played
out before lawyers, social workers, and
a judge. Consequently, even if the best
possible resolution was obtained, there
is a good chance your client will not see
it that way. Clients will often enter with
very specific expectations, and although
they may not be legally feasible, seem
reasonable to them. In their mind falling
short means you failed.
We all would love appreciation from
people we help, but that is not why we
do what we do. If you are continually
expecting that pat on the back, and
that’s important for you as an attorney,
then you will have a very unfulfilling
career. Find joy knowing you did your
best to place your client in the best
possible position allowed under the facts
and circumstances presented to you.
Anything above that, consider icing on
the cake.
Final Thoughts
Student attorneys are given a wonderful
opportunity to use their unique set of
skills to help others less fortunate while
gaining invaluable practical experience.
But just like many other great things in
life, it comes with a great responsibility.
Understand that and embrace it. Take
pride in your work and respect your
client, no matter who they are. Use your
clinical experience to better yourself not
only as a future attorney, but a person as
well.
____________
Courtny Osterling, Syracuse University
College of Law, can be reached at
cjosterl@syr.edu.
Introducing Students to Free On-line Legal Research Resources:
An Interactive Class
By Eunice Park
I
n the Information Age, as the trend
away from the privatization of
information continues, we recognize that
strict adherence to an electronic regimen
of LexisNexis and Westlaw research
may be inadequate for our students. At
the same time, it can seem a daunting
task to determine how to broach the
vast array of on-line resources, some
useful, others of dubious reliability.
Our approach at Western State College
of Law is to introduce students to
free on-line legal research sites as
resources that will become increasingly
prominent and can pose valid, effective
alternatives to costly, or merely more
cost-effective, options. By familiarizing
students with such sites, we enable
them to become balanced, adept and
flexible researchers. This class also has
the side benefit of introducing some
practical fundamentals that a traditional
curriculum does not always provide the
opportunity to mention.
Create a Map and Demonstrate
We know that the ease of on-line research
often makes it easy for our technologycomfortable students to pounce on
the keyboard without investing much
preliminary thought into what is a
desirable database or how the specific
issue fits into the larger legal landscape.
Instantaneous results provide immediate
legal research gratification, and the
students feel they have accomplished
— continued on page 27
26 | THE LAW TEACHER | SPRING 2013
Introducing Students to Free On-line Legal Research Resources:
— continued from page 26
something, notwithstanding the
sometimes questionable value of the
results. The questionable value of much
information on the Internet compounds
the risk of poor results.
Thus, before letting our students loose
into the wilderness that is the World
Wide Web, we should provide them
with tools to navigate the resources
meaningfully. Our approach is to
introduce the multitude of resources
by setting forth four basic categories of
sites: (1) General Legal Research; (2)
Court Links;
(3) Legislation
and Regulation;
and (4) Legal
Periodicals.
These categories,
then, create a
framework,
or “map,” for
organizing the
lesson plan and in-class exercise. We
have conducted this interactive class
successfully for the last few years, and
this has been a popular class among our
students.
and Federal Register. Finally, local state
legislative and executive agency websites
offer a wealth of information. This
category also provides an opportunity
to remind students of the role
legislative history can play in statutory
interpretation.
information, such as a communityedited legal dictionary and legal forms
available for purchase. Consider asking
for a volunteer in the class to explain
the difference between a web site and a
search engine such as Google Scholar,
which may be obvious to many of our
students but, for those who are less techsavvy, beneficial to hear explicitly.
With the Court Links category, the
purpose is for students to realize that
courts maintain such websites and that
much information is readily available to
…it can seem a daunting task to
determine how to broach the vast
array of on-line resources, some
useful, others of dubious reliability.
Within each category, I provided a
sampling of reputable sites. For each
site, in turn, I explained (1) its origins,
domain or purpose and (2) what kind of
information it offers; and (3) provided
the URL. After providing this overview, I
pasted the URL directly into the browser,
showed the students the actual site and
demonstrated live some of the features
we had just discussed.
For example, within the broadest
category, General Legal Research, I
discussed Cornell’s Legal Information
Institute, Findlaw, and Google Scholar
as a representative sampling of some
different types of sites, namely, a law
library website, a Thomson Reuters
business website, and a search engine.
Instructors can point out for the students
that, like Westlaw or LexisNexis, the two
websites include a searchable database,
but they also offer unique kinds of
the public. A good starting point is the
website for the Administrative Office of
the U.S. Courts, which provides links
to all available federal court websites.
Visiting this website additionally creates
an opportunity to introduce students
to PACER, so that students are aware
that an internet-based public access
service exists to locate cases and obtain
docket information. The U.S. Supreme
Court’s official website is another good
example of a court link, and instructors
could even pull up for the students the
Local Rules in order to reinforce that
often under-mentioned practitioner’s
imperative. Consider demonstrating the
features of your state’s court web sites, as
well.
The third category in the instructional
framework is Legislation and Regulation.
Here instructors can introduce students
to THOMAS as the primary online
source for federal legislative material.
Students also can realize that the
Government Printing Office, a frequently
overlooked entity, maintains a website
that provides free access to the CFRs
The fourth and final category of
information, Legal Periodicals, allows
students to recognize that not just
primary information is available within
free on-line legal research resources, but
also that certain sites, such as American
Law Sources Online
and the Social Science
Research Network,
are dedicated to
disseminating
secondary materials.
Students will enjoy
seeing their own law
school’s law review
journal included on
American Law Sources Online, and they
can recognize how inclusive the scope of
information can be.
Provide an In-class Opportunity
to Investigate
Once instructors have run through this
framework, the students will be eager to
try the sites for themselves. At this point,
the class can break up into small groups,
and instructors can either designate a site
for each group to investigate or allow
each group to try multiple websites.
Ideally, the students can research the
memo or other problem on which they
have begun working and already have
some notions regarding important cases
or statutes. This background provides
the students with a construct for
appreciating the value of the information
they find in the free on-line sources
compared to what they have already
found via Westlaw, LexisNexis, or
traditional print resources. Afterwards,
I asked the students to share as a group
their findings and observations, focusing
— continued on page 28
THE LAW TEACHER | SPRING 2013 | 27
Introducing Students to Free On-line Legal Research Resources
— continued from page 27
on advantages and disadvantages they
noticed with each resource such as the
ease of use or limitations in available
information, and how different sites
led to the same or different kinds of
information.
End-of-Class Goals
At the end of the day, we want our
students to be aware that the strong
trend against the privatization of
information is going to continue; to have
some sense of the kinds of free on-line
resources that exist, how the information
is organized, and how to access it;
and to know that, while they need
to understand how to use traditional
resources, much of the same information
is available in valid free on-line sites,
and students do not have to rely solely
on those traditional resources. Students
can feel empowered by the knowledge
that they have access to much
information at their very own laptops.
With an informed perspective, our
students can march into the constantlyevolving cyberspace wilderness as
effective, self-sufficient legal researchers.
____________
Eunice Park is an Assistant Professor
of Lawyering Skills at Western State
College of Law. Contact her at
epark@wsulaw.edu.
Happily Ever After: Providing Students with Epilogues
for Cautionary Tales
By Abigail Patthoff
S
tories of lawyers’ professional
missteps are legion: misplaced
commas causing millions
in client losses, late court filings
triggering malpractice claims, and
incomprehensible briefs meriting
sanctions are just a few. Judicial
opinions and articles featuring such
transgressions can seem ready made
for law professors. Cautionary tales
help answer the question that naturally
precedes each lesson we attempt to
impart to our students: “Why does it
matter?”
Because these stories are perennial, they
often carry a ripped-from-the-headlines
urgency that catches student attention.
Additionally, storytelling can be more
effective at convincing the listener to
adopt a behavior than overt persuasive
efforts.
Yet, despite these benefits, law professors
have reason to be careful about using
cautionary tales in the classroom. As
stories go, cautionary tales are tragedies.
Unlike conventional narratives, which
feature a protagonist’s struggle and
ultimate resolution of that struggle, in a
cautionary tale the protagonist does not
28 | THE LAW TEACHER | SPRING 2013
prevail. These protagonists are attorneys
with whom our students are supposed
to identify. Thus, the primary emotion
that cautionary tales are intended to
arouse in a student is fear of failure.
Although some fear is productive and
can motivate students to achieve, too
much fear can be debilitating. A decline
in well-being among law students,
attributed to stress, has been welldocumented. Fear is one of the culprits
contributing to this distress. The Socratic
Method is famously intimidating, grades
are often exclusively earned via one endof-the-semester make-or-break exam,
and the news is replete with reports
about dwindling job opportunities for
law graduates. Law students are not
short on reasons to fear.
In this environment, it is important that
we scrutinize any additional fear that
we introduce into our classrooms. In
my own classes, I have learned to limit
the number of cautionary tales that I
use. When I do decide to tell one, I try
to do it at a lower-stress moment in
the semester, such as shortly after the
submission of a legal writing paper. I
do this not only because excess stress
is mentally and physically unhealthy,
but also because it impedes learning.
In the past, when I have been less
sparing with cautionary tales, students
who are loaded down with law school
anxieties seemed unable to project onto
themselves a lawyer’s anxieties, which is
necessary for them to identify with the
protagonist in the story. Without this
identification, students are much less
likely to be persuaded that they should
learn a behavior.
The most meaningful change that I’ve
made in the way that I use cautionary
tales, however, is pairing the stories
with explicit instructions about how
to avoid the negative consequences in
the story—my version of an epilogue.
A student who hears a cautionary tale
is likely to ignore it unless the student
believes that she can realistically
avoid the consequence suffered by
the protagonist. So, for a student who
believes that she’s “a bad legal writer,” a
story about an attorney being sanctioned
for filing an incomprehensible brief is
— continued on page 29
Happily Ever After
— continued from page 28
unlikely to motivate her. Because
she doesn’t believe that she has the
tools or the ability to avoid filing an
incomprehensible brief herself, the
story will not change her behavior.
To minimize this defeated reaction, I
give my students small, concrete steps
they can take to avoid the negative
consequence. Perhaps the brief was
incomprehensible because it lacked
organization. By walking my students
though the brief and imposing
CREAC (or IRAC) on it together, I
offer them a tangible way to avoid
the threat. The “bad writer” student
doesn’t know where to begin to avoid
filing an “incomprehensible” brief, but
she can be confident that she knows
the basic order that a legal audience
expects an analysis to take.
Although many of us use cautionary
tales to introduce a particular topic,
epilogues make the connection more
explicit. Stories that arouse fear
are, alone, counterproductive. But
when paired with realistic measures
for conquering the fear, they can
motivate student learning. In this way,
cautionary tale epilogues can help put
students on the road to “happily ever
after.”
____________
Abigail Patthoff is an associate professor
of legal writing at Chapman University
School of Law. Contact her at
patthoff@chapman.edu
Developing Classroom Authenticity:
“Big Talk” Format
By Mark L. Perlmutter
O
ne of the things my students
regularly tell me is that
while they have plenty of
opportunities to discuss intellectual
topics in class, they rarely, if ever, have
an opportunity to have an authentic
conversation in which they get to know
one another and learn something about
themselves as “human beings who are
becoming lawyers.” To remedy this,
I’ve developed a structure to facilitate
such conversations I call a “Big-Talk”
format (as opposed to the “small talk”
smothered in social defenses in which
we ordinarily engage).
This structure is particularly useful in
discussing professional responsibility
issues—not so much the rules
themselves but the human factors that
determine whether our students actually
are able to meet ethical standards
in practice. These are their personal
character traits and situational pressures
such as financial exigencies, client
relationships and loyalty, anger and
frustration with the opposition, among
others.
In a PR course, this format could be used
with the following topics, listed in order
of least threatening to most threatening
and discussed in that order (but no more
than one topic in an hour-long class):
1.What does it mean to you to be a
professional?
2.What do you lie about? When is it
okay to lie in your personal life and
as a lawyer?
3.What is the role of money in your life?
What ethical compromises are you
concerned you might be pressured
to make for money or that you have
made for money? (If this one is hard
to get going, try “What makes it hard
for you to talk about money?”)
To introduce the new structure, the
instructor tells the class that this session
is about “big talk” rather than small
talk; that is, that we will be talking about
important things. Explain that it’s not
enough to learn the disciplinary rules to
be an ethical lawyer. It’s also important
for lawyers to look at other factors that
will influence whether they’re able to
follow the rules in real life—their own
values, character, and pressures that may
be brought to bear on them.
Consider whether it may be helpful to
begin this process by modeling how
someone might respond, e.g., “I have to
confess I’ve lied when my wife asks me
whether a certain article of clothing she’s
obviously attached to makes her look
fat,” or “I can’t deny that when things
got slow when I was in practice, I was
tempted to nudge a client toward a more
aggressive posture because I knew that
would result in higher billings for me.”
What we’re shooting for is an authentic
conversation, and the best way to achieve
it is to be authentic ourselves.
The class should be seated in a circle
or an ellipse so that everyone can see
everyone else. There should be no tables
or other barriers inside the circle.
It’s also essential to have a “talking
object,” that is, something that can be
easily passed from person to person or
even thrown across the room like a small
stuffed animal—the sillier looking the
better. It’s also helpful to have a digital
timer—such as those included in the
clock utility on an iPhone.
The group safety agreements, which
should be displayed and covered with
the class, are as follows:
1. We agree to listen with respect and
without judgment as well as we can,
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THE LAW TEACHER | SPRING 2013 | 29
Developing Classroom Authenticity
— continued from page 29
recognizing that people’s thoughts,
feelings, and actions are a product of
their life experiences.
2. We agree to pursue understanding
rather than persuasion.
3. We agree to invite and honor
diversity of opinion.
4. We agree to speak what has personal
heart and meaning for each of us.
5. We agree to go for honesty and depth
… without going on and on.
6. We agree to respect the airspace of the
person who holds the Talking Object;
only the person with the Talking
Object may speak at any given time.
7. We agree to maintain strict
confidentiality.
8. We may pass if we choose.
Each person should be asked to indicate
assent to abide by the agreements by
raising their hands.
The process then begins by the
instructor’s announcing the topic. The
talking object is placed in the middle of
the circle. (It’s best to put it on a small
stool so that people don’t have to bend
over too far to pick it up.) The group is
then given three minutes of silence for
everyone to collect their thoughts on
the subject matter so they can listen to
others while awaiting their turns. At the
end of the three minutes, the first person
moved to speak retrieves the talking
object, returns to the circle and begins
speaking. It’s helpful to have a timer to
limit each person to either one, two or
30 | THE LAW TEACHER | SPRING 2013
three minutes, depending on how much
total time is available and the nature of
the topic. But it’s also important not to
let the timer itself become a distraction.
The first person finishes speaking then
chooses to pass the talking object to the
person on either side and the speakingthen-passing continues in that direction
until the talking object has made it
around the circle. At that time, the
instructor may choose to go in order for
another round or may allow people to
request the talking object and then speak
in random order as each is moved to
speak.
The critical task of the instructor is to
create a safe place for personal disclosure
by being supportive of all the students
without judging. Also, the instructor
should gently encourage the group to
talk to one another (rather than focus
on the instructor, which often occurs);
to respect the holder of the talking
object by not interrupting the speaker;
and generally, to nudge members to
comply with the rules when they stray.
It’s not the instructor’s job to “correct,”
or interrupt, or respond to others’
comments.
When witching from going around in a
circle to random speakers, consider using
“subgrouping,” that is, when someone
makes a statement that others are likely
to disagree with—the instructor is likely
to feel electricity in the room—consider
interrupting the flow and suggesting
that before we entertain differences, let’s
see who has similar thoughts or feelings.
Have those people take turns speaking
until that subgroup’s energy plays out.
If no one has similar feelings, see if you
can “subgroup” with the speaker by
validating something that the person
said. (This helps people feel safe.) Then,
turn to those who may have a different
point of view and have them discuss
their views. In this way, each side of the
issue gets explored more deeply, without
judgment, and, generally, the two sides
will be more open to seeing each other’s
points of view than the usual way of
doing things, i.e., point/counterpoint.
See http://www.sctri.com/en-us/
systems-centered.aspx for materials on
“Functional Subgrouping.”
Conversations conducted in the
Big Talk structure not only produce
authentic communication and personal
introspection, but also have the effect of
creating community among the students.
They begin to see they’re not alone with
their fears and failings, and through this
authenticity, they feel safer with and
more connected to one another. As their
sense of safety and connection builds
during the semester, they feel freer to
be honest with themselves and with one
another. And, of course, being honest
with ourselves is the first step toward
improving our ethical conduct.
____________
Mark L. Perlmutter is an Adjunct Professor
at University of Texas School of Law and the
University of California Hastings College
of the Law, and has practiced as a civil trial
lawyer at Perlmutter & Shuelke in Austin.
Contact him at mlp@civtrial.com.
Adding a Standardized Assessment Exercise to the Legal
Writing Toolbox1
By Kelley B. Poleynard
C
onsider this exchange:
Student: “What’s a digest?”
Professor: “Well, as we discussed last semester and as was covered in the assigned reading . . . .”
How many times has a similar scenario
played out in your class?
One day when the legal writing
professors in our department sat down
together, we all had the same lament:
students continually asked questions in
class to which they should have known
the answer if they had completed the
assigned reading (an e-book in our case).
We also commonly noticed students
seemed to “forget” basic concepts
they already had learned earlier in the
year. What could we do about this?
We already administered a good faith
research review exercise in the fall
and a good faith citation and grammar
diagnostic in the spring. How else could
we impart the importance of reading the
assigned text and the need to review and
recall previously learned skills?
Our solution: a graded, year-end
multiple-choice assessment exercise
made up of twenty-five questions
worth seventy-five points, covering
research and writing skills taught in both
semesters. Our goal was to provide an
incentive to our students to read their
text and to review the practice skills our
students would need for summer or fall
externships. We found the exercise not
only served these purposes, but also
informed our teaching, helping us to
pinpoint discrete areas needing more
review in the classroom.
The Exercise
The standardized exercise we administer
is based on fundamental information
students should glean from their
assigned reading – and which has been
covered during class time, too.
The exercise covers three main categories
of questions: use of legal authority, such
as identifying mandatory vs. persuasive
authority and choosing the best authority
to cite; legal research, for example, types
of sources and finding tools and where
to begin legal research; and general legal
writing principles, such as the parts of
a memo or brief, persuasive writing
techniques, and recognition of poor vs.
good writing depending on the audience.
We included a few very easy questions,
a few more difficult questions, and some
middle of the road questions.
By assigning three points to each of the
twenty-five questions, the seventy-five
point value gives the exercise some
“teeth” to encourage students to read
when they should and to review their
notes throughout the year. At the same
time, requiring a graded, as opposed to
a good-faith, exercise does not unfairly
prejudice the good legal writer who is
a poor test taker because the exercise is
worth only approximately 11% of the
total points possible during the spring
semester. (Each semester of legal writing
is worth 50% of the student’s grade. The
year-end grade is reported as the average
of the two semesters.)
Sample Questions
and Results
Did the exercise prove effective? Did
the results demonstrate students had
indeed read their text and notes; that
they had reviewed the basic skills they
would need after they ventured outside
our classroom? Last year, my colleague,
Robert Somers, and I performed an
informal statistical analysis of our
students’ performance on the exercise.2
The sample totaled 114 students spread
over four different sections. Below are
samples of each category of questions
from the exercise and what Professor
Somers and I learned about our students
from their responses.
Example 1 – Use of Authority
Which of the following citations refers
to a source that could not be binding
authority?
a. 495 U.S. 320 (1990)
b. 357 F.2d 890 (2d Cir. 1989)
c. 61 A.L.R. Fed. 538 (1975)
d. 325 P.2d 987 (Cal. Ct. App. 1999)
Answer: (c). This question assessed
students’ recognition of secondary
sources as persuasive authority, as well
as students’ knowledge of different
court levels based on the reporter and
jurisdictional abbreviations. As expected,
almost everyone in the sample answered
correctly, 96% of 114 students.
Example 2 – Use of Authority
You are filing an appellate brief with the
Ninth Circuit Court of Appeals. You find
Case A on point, but Shepards/Keycite
indicates that three more recent Ninth
Circuit cases have distinguished Case A.
Therefore, Case A:
a. Can be cited only if you inform the reader of negative treatment.
b. Can be cited but only for issues
that the subsequent cases did not
distinguish.
c. Should not be cited because it is no longer good law.
d.Is good law and can be cited without limitation.
Answer: (d). Although this was a more
difficult question requiring students to
think more deeply about the meaning
of negative treatment, I was surprised
that only 20% of the students sampled
answered correctly. The majority of
— continued on page 32
THE LAW TEACHER | SPRING 2013 | 31
Adding a Standardized Assessment Exercise to the Legal
Writing Toolbox
— continued from page 31
students who answered incorrectly
chose (b). On reflection, it appears
students answered the question ultraconservatively, having been reminded
throughout the spring semester of an
attorney’s duty of candor, including
the need to cite to only good law and to
inform the court of adverse controlling
authority.
Example 3 – General Legal
Writing Principles
One writing technique for downplaying
an actor’s involvement is
a. Using the passive voice
b. Using affirmative language
c. Using plain English
d. Using a short sentence
Answer: (a). Not surprisingly, 85% of
the sampled 114 students answered
correctly, demonstrating their recall of
the persuasive writing techniques they
had learned in the spring semester.
Example 4 – Legal Research
Your firm represents Randy, a licensed
California Realtor. Randy has been sued
in the Orange County Superior Court by
the Buyer of his client’s house. The Buyer
alleges Randy failed to disclose the
home’s heating vents were contaminated
with toxic mold. Your partner has asked
you to research whether any statutes
govern whether Randy violated any
duties to the Buyer.
Which index is the best place to begin
your research?
a.U.S.C.A.
b. West’s California Code Annotated
c. West’s California Digest
d. U.S.C.
32 | THE LAW TEACHER | SPRING 2013
Answer: (b). The hypothetical
corresponded to two separate questions
(the second question asked students to
identify the case that would constitute
binding authority in this scenario).
This particular question assessed the
students’ ability to choose the right
starting place to research a client
problem based on the facts. Students
had conducted independent research
in both the fall and spring semesters,
and I had expected most students to
answer this question correctly. However,
of the 114 students sampled, 62%
answered correctly. Choice (c)—the
Digest—was the most frequently chosen
wrong answer. The hypothetical told
students the jurisdiction, which most
recognized, and also told students the
type of authority to find. The choice of
the California Digest over the California
Annotated Code indicated confusion as
to either the name of the correct finding
tool or the type of authority contained in
each finding tool.
Conclusion
Did the standardized assessment
exercise enhance our legal writing tool
kit? 3 Yes. The 114 sampled students
averaged almost 80% correct answers,
demonstrating students had reviewed
the material and had an understanding
of the skills they had learned throughout
the year and how to apply them.
Although I was relieved my students
indeed were walking away with the basic
knowledge they would need to survive
on their own, I found reviewing the
results more important to informing my
teaching.
My colleagues and I have always taught
the concepts contained in the assessment
exercise, but I find I now deliberately
reiterate in class the concepts students
had the most trouble with on the
exercise, particularly those skills
students learn in the fall and reapply in
the spring. For example, after students
have learned a digest is a finding tool
for cases and the index to an annotated
code is a finding tool for statutes in
the fall, I re-emphasize the difference
between the two in the spring, having
learned my students confuse the two
finding tools. Likewise, when teaching
the lawyer’s duty of candor, now I
repeatedly remind students a case that
has been distinguished is not bad law,
and students may ethically cite to the
case (unless other factors are at play).
In the end, the exercise served our
department’s purposes—it persuaded
students to read and to review before
hitting the summer break and has made
us better professors of legal writing.
____________
Kelley B. Poleynard is a Professor of Legal
Writing at Whittier Law School. She can be
reached at kpoleynard@law.whittier.edu.
____________
This article is based on a presentation my
colleague Professor Robert Somers and I jointly
gave at the Western Regional Legal Writing
Conference at the University of Oregon School of
Law, August 9-10, 2012, “Killing Two Birds With
One Stone: Using a Standardized Review Exercise
as a Teaching Tool and Assessment Mechanism.”
1
Our analysis was based on twenty-two, rather
than twenty-five questions. See note 3 infra.
2
A standardized exercise such as this one also can
serve as a vehicle for formal assessment without
requiring students to take – or professors to grade
– an additional “test.” Last year the exercise was
reduced to twenty-two multiple choice questions
to make room for eight imbedded short answer
“research path” questions, which the co-chairs
of the law school’s Assessment Committee (the
director and assistant director of our department)
used to formally assess our students’ ability to
conduct legal research.
3
On the Importance of Subtle Distinctions: A Short Exercise in Close
Reading and Critical Thinking
By Jay Sterling Silver
T
o stress the importance to 1Ls of
close reading and critical thinking,
I hand out the following, two-part
exercise, followed by the answer sheet
below it, in a fifteen- or twenty-minute
segment of class sometime in the first
semester:
Critical Thinking
Exercise
Anyone can spot a clear distinction.
As a lawyer, you’ll earn your keep
by evaluating and articulating subtle
differences between the facts of your
case and a case cited by opposing
counsel, and by understanding the
effect of punctuation, conjunctions,
and other aspects of grammar and
syntax on the meaning of a statute or
contract. Like a wolf in sheep’s clothing,
critical differences in meaning can
masquerade as minutiae. Parts I and II
and the answer sheet that follows will
underscore this lesson.
____________
Answer to Critical
Thinking Exercise
The correct answer to Question 1 is
D, and the correct to Question 2 is
B. Question 1 calls for you to select
“the second sentence below in which
the following phrase appears.” As
you correctly answered, option D is
the second sentence containing those
particular words. While Question
2 is almost the same as Question 1,
a comma has been added between
“below” and “in which,” creating a
nonrestrictive clause. The difference?
The nonrestrictive clause merely helps
describe what is in “the second sentence
below,” which is option B, adding
nonessential information. The effect
of the comma is to change the task
from selecting the second sentence that
contains particular language to simply
Student Name: ___________________________________________
PART I. Fill your name in on the line above and read the following as closely as
you can, answering both questions before you proceed to Part II.
Question 1.
Circle the letter corresponding to the second sentence below in which the
phrase “Punctuation and conjunctions can” appears.
A. Punctuation and conjunctions must be given close attention.
B. Punctuation and conjunctions can drastically alter the meaning of a
sentence.
C. Punctuation, rather than the absence of the word “can,” will dictate the
correct answer to this very question.
D. Punctuation and conjunctions can, as you will see when we review this
exercise, make all the difference in the world.
Question 2.
Circle the letter corresponding to the second sentence below, in which the
phrase “Punctuation and conjunctions can” appears.
A. Punctuation and conjunctions must be given close attention.
B. Punctuation and conjunctions can drastically alter the meaning sentence.
C. Punctuation, rather than the absence of the word “can,” will dictate the
correct answer to this very question.
D. Punctuation and conjunctions can, as you will see when we review this
exercise, make all the difference in the world.
PART II. The answer Question 1 is different from the answer to Question 2. In
this part, think about and explain on the lines provided below exactly why the
answer is different.
selecting the second sentence, which,
as the nonrestrictive clause that follows
indicates, happens to contain certain
language. Think about it, and don’t
assume that subtle distinctions are of
minor importance.
In your study of law and throughout
your career, the points you overlook
or think are too small to worry about
may well come back to haunt you.
Remember: good lawyers read closely
and think carefully.
____________
Jay Sterling Silver is a Professor of Law
at St. Thomas University School of Law.
Contact him at jsilver@stu.edu.
____________
For a more detailed explanation of the grammatical
conventions discussed in this exercise, see://grammar.
about.com/od/basicsentencegrammar/a/restrnonradjc03.
htm.
1
THE LAW TEACHER | SPRING 2013 | 33
Blogging: Reflection Spurs Students Forward
By Amanda L. Smith
J
ournaling cultivates a habit of
reflection essential to the learning
process. Rather than have students
keep journals, I ask them to blog. Like
Facebook and Twitter, blogs are avenues
of expression familiar to students. I have
found that when I present journaling as
blogging, students are enthusiastic about
the reflection process. This past spring,
my students not only blogged about the
past, but also captured inspiring words
for the future.
Blogs are places where students can
discover more about themselves as
learners and future lawyers. I set up
a password-protected forum to house
each student’s blog. This allows every
student to write with the assurance that I
will be the only reader. I set up a regular
blogging schedule and provide students
with general topics as each entry comes
due. Oftentimes, I prompt students
to reflect upon their experiences after
completing major assignments and to
anticipate upcoming challenges.
Last January, the due date of a blog
entry fell within days of when my firstyear students received their first set
of grades. Not wanting them to dwell
on GPAs, I asked my students to write
about what motivated them to come to
law school. Also, because I was teaching
in the evening program,
I suggested that they
write about what keeps
them going as they juggle
full-time jobs, families,
and law school.
34 | THE LAW TEACHER | SPRING 2013
One afternoon, I sat down at my
computer to read these blogs. Click.
First blog. A student wrote that her
daughter’s tenacity motivates the
student to succeed in law school. She
described how her daughter had been
bullied while playing on a sports team.
In an effort to protect her daughter, my
student offered to let her daughter quit
the team. The daughter refused because
she could not let the bullies get the best
of her. My student, inspired by her
daughter, vowed not to allow law school
to get the best of her but to give her best
to law school.
Click. Second blog. This student said that
she feels like a superhero while sitting
in her law school classes. She works as
a paralegal and had a client recently
refer to her as “Law Girl.” Now, on her
toughest days, she envisions herself
standing tall on a mountain top. Her
cape blows in the wind. One fist rests
on her hip while her other first is raised
high into the air. “Law Girl” echoes in
the valley below.
Click. Click. Click. I did not simply read
these blogs; I devoured them. I found
each one more compelling than the last.
While I had suggested that students
write 225 words, most poured out over
1,200 words. The students’
stories of challenge and resolve
were so precious that I set out
to preserve them.
I treated the blogs
like treasured
photographs and framed them. I placed
pieces of each student’s blog into his or
her own 5 x 7 frame. I added graphics
and color to make the words come alive.
I took the frames to the last class meeting
of the year because, much like the blogs,
the final class involves reflection on
lessons learned with an eye toward the
future. In that last class, we talked about
how much the students had learned
during their first year of law school. We
also discussed the challenges they would
face in the future, both as students
and attorneys. During difficult times,
I encouraged them to remember why
they wanted to become lawyers. Then,
I walked around the room, placing a
frame into the hands of each student.
After giving my students’ words back
to them, they gave me nods, smiles, and
tears. Through blogging, my students
learned that reflecting on the past not
only helps learning in the present, but
can also be motivating in the future.
____________
Amanda L. Smith is an Associate Legal
Methods Professor at Widener Law School’s
Harrisburg campus. Contact her
at alsmith9276@widener.edu.
____________
Thank you to the two students mentioned
for giving me permission to share pieces
of their blogs.
Classroom Justice: Beyond Paper-Chase Pedagogy
By SpearIt
T
he film, The Paper Chase, is
famous for its depiction of the
rigors of law school at an elite
institution. It tells the story of Hart,
a 1L at Harvard Law School, and his
experiences with Professor Charles
Kingsfield, a professor whom he
both idolizes and finds frightening.
Despite his scholarly brilliance and
regal namesake, Kingsfield is hardly
the model instructor. He is heavy
handed and his tactics, intentionally
intimidating and authoritarian. Despite
being dated by nearly half a century,
this film is still relevant today, since
this style of pedagogy survives in law
school teaching across the country;
and although many would disavow
the film as an excessive portrayal of
legal education, many of Kingsfield’s
techniques persist to the present. This
is ironic since, by the film’s end, the
superstar professor learns a great deal
from the student. The subtext is that
students are not empty vessels and
professors, fountains of knowledge—
rather, they are partners in learning.
What follows advocates a critical
approach to law school teaching
called “classroom justice,” as a foil to
Kingsfield’s paper-chase pedagogy.
This concept may be understood as a
subspecies of critical pedagogy, which
seeks to devise more equitable methods
of teaching than traditional models of
legal education. Predicated on the need
for reform, the approach also aims to
provide legal educators with a moral
compass to provide greater agency to
students in their legal education and to
help students understand the power at
play in the acquisition of knowledge.
In theory, classroom justice begins with
the student-teacher dialectic. It derives
from the baseline proposition that a
teacher’s identity is inextricable from
the student’s, and indeed, depends on
it; there is no such thing as a teacher
without a student, as the identity of one
is bound up in the other. A dialectical
approach grounds teaching in a principle
of equality since each cannot exist
without the existence of the other. In
practice, reflective teachers cultivate
this understanding by recognizing
teaching as an opportunity for learning.
Such teachers sit in the middle of
contradiction, existing both as teacher
and student.
This dialectical approach is especially
relevant to the law school setting, since
legal education is characterized by rigid
hierarchies and student alienation. The
culture of legal education creates some
of the problem through the use of strict
grading curves, which put students in
zero-sum competition for the highest
grades. And although instructors may
benignly admonish students to “work in
groups,” the grading policies may make
isolation seem a better option than trying
to help one’s peers.
Sometimes the hierarchies result from
the professor’s approach. For example,
teachers à la Kingsfield may use
authority-invested tactics like insisting
on being called “professor,” wearing
suits on teaching days, and employing
a host of power-ridden techniques,
including “cold calling,” use of seating
charts, and inquisitorial regimes garbed
under the “Socratic method.” There is
much at a teacher’s disposal to create a
chasm between teacher and student.
Unfortunately, however, sometimes
it is necessary for professors to create
space, especially for non-traditional law
professors. For these professors, these
very tactics may be part of a strategy for
dealing with the type of student who
lacks professionalism and sincerity, or
worse, lacks faith in the instructor’s
competence. When employed as a part
of a program to instill professionalism in
students, these strategies may advance
justice; under paper-chase pedagogy,
however, they do the opposite.
Classroom justice can inform the
learning ecology, class policies, methods
of evaluation, as well as include students
in deciding some of the content of
the course. In my criminal law class,
for example, students vote on how
participation will work, as well as help
determine some of the course content, as
the last few lectures are reserved to cover
particular crimes in which students have
affirmed an interest. In my corrections
law class, students can choose from
several options for developing a policy
project, including a wiki project, written
policy report, or memorandum of law.
Offering options to students might seem
like a small gesture, but to students it
can make a world of difference and give
them greater agency in their education,
as well as reward skills beyond good
test-taking. Moreover, in my corrections
class, it provides an opportunity for
service learning, since many of the final
projects are posted online for public
viewing.
Taken wholly, classroom justice stands
for the proposition that justice is more
than a concept from a casebook—it is a
goal to be attained in the classroom, too.
Instead of creating oppressive learning
environments, intentional or otherwise,
professors should strive to teach law
school classes where justice is taught and
actually lived, in productive learning
environments free from fear, unfairness,
and other hostilities.
____________
SpearIt is an Assistant Professor of Law
at Saint Louis University School of Law.
Contact him at spearit@slu.edu.
THE LAW TEACHER | SPRING 2013 | 35
JUDICIAL POWER
Solution
— continued from page 11
36 | THE LAW TEACHER | SPRING 2013
Summer 2013 Conference
Hybrid Law Teaching
Friday, June 7, 2013
Registration
Welcome Reception [2nd Floor Lobby] (heavy appetizers will be served)
4:30 ‐ 7:00 p.m.
5:00 ‐ 7:00 p.m.
Saturday, June 8, 2013
Registration and Breakfast [First Floor Commons]
Opening [Room 100]
8:00 ‐ 8:45 a.m.
8:45 ‐ 9:15 a.m.
[Room 102]
9:30 ‐ 10:30 a.m. Concurrent Workshops 1
[Room 150 (Clinic)]
[Room 102]
[Room 150 (Clinic)]
Lunch [Room 100] (provided)
[Room 125 (Library)]
[Room 114]
[A] Roberto Corrada: "Ill‐Structured Whole‐Course Simulations for Upper Level Courses"
[B] (cancelled)
[C]
Emily Grant and Will Foster: "Analogical Exercises for Transactional Drafting"
[D] Brett Brosseit: "Applied Critical Thinking and Legal Analysis"
[Room 102]
[Room 150 (Clinic)]
Break [First Floor Commons]
[Room 125 (Library)]
[Room 114]
[Room 100]
[E] [B] [D] Aliza Kaplan: "Pushing for [A] [C]
Emmy Reeves: "Killing Three Birds Benjamin Madison and Natt Gantt: Preparation: 'The Need for Theory Simon Canick and Jim Hilbert: Paulette J. Williams: "A Nonprofits With One Stone: Doctrine, "Technology in Law Schools and the "Cultivating Professional Identity and Skills‐Based Pedagogy With a Seminar/Clinic"
Academic Support and Bar Passage Personal Touch in Public Interest Profession: Narrowing the Gap"
Formation in Doctrinal Course"
to Boot"
Law Courses'"
Break [First Floor Commons]
[Room 102]
5:15 p.m.
5:15 ‐ 6:30 p.m.
6:30 p.m. ‐ ?
[Room 114]
[Room 150 (Clinic)]
3:45 ‐ 4:15 p.m.
4:15 ‐ 5:15 p.m. Concurrent Workshops 3
[Room 125 (Library)]
[Room 102]
2:15 ‐2:45 p.m.
2:45 ‐ 3:45 p.m. Concurrent Workshops 4
[D] Ezra Ross: "The Hybrid Clinical Course: Applied Trial Advocacy"
[D] [C] [B] [A] Craig T. Smith, Jon McClanahan, Michael Vitiello: "Integrating Stephen Gerst: "Building the Bridge John Worley: "Integrating Bar Exam Katie Pryal, and O.J. Salinas: "Hybrid to Practice Using Letters to Student Preparation into Upper‐Division Experiential Learning in Traditional Teaching Beyond the Traditional Classrooms"
Doctrinal Courses"
Lawyers"
Course"
12:00 ‐1:15 p.m.
1:15 ‐ 2:15 p.m. Concurrent Workshops 3
[Room 114]
Break [First Floor Commons]
10:30 ‐11:00 a.m.
11:00 a.m. ‐ 12:00 noon Concurrent Workshops 2
[Room 125 (Library)]
[A] [C] [B] Jalae Ulicki: "How to Effectively Use Michelle Hook Dewey: "The Upside‐
Bradley Charles and Heather Responseware in Asynchronous and Garretson: "Applying the Law: Down Classroom: How the Flipped Synchronous Learning Examples and Exercises that Bridge Lecture Model Can Be Used in Legal Environments to Meet the Needs of Legal Writing and Doctrine"
Education"
Digital Natives"
[Room 150 (Clinic)]
[Room 125 (Library)]
[Room 114]
[B] [C]
[A] [D] Aaron Dewald and Bonnie Mitchell Jennifer Gundlach and Kennisha Angela Upchurch, "Flipping the Law Timothy Casey, "Integrating Ethics (tentative), "Considerations in Austin, "Putting Legal Doctrine Into School Classroom: Optimizing the Designing and Implementing a and Skills: The STEPPS Program"
Practical Context"
Law School Classroom"
Hybrid Course in Legal Education"
Adjourn for the Day
Visit Brown v. Board of Education National Historic Site (optional)
Dinner on your own
Summer 2013 Conference
Hybrid Law Teaching
Sunday, June 9, 2013
Breakfast [Room 114]
Re‐Opening [Room 100]
8:30 ‐ 9:00 a.m.
9:00 ‐ 9:15 a.m.
[Room 102]
9:30 ‐ 10:30 a.m. Concurrent Workshops 6
[A] Jeremiah Ho: "Hybrid Within a Hybrid: Integrating Academic Success in Upper‐Level Capstone Courses"
[Room 150 (Clinic)]
[Room 102]
[Room 150 (Clinic)]
[B] [A] Cynthia Ho: "Implementing the Julie St. John: "What the Flip? How to Flip a Law School Class Using Carnegie Apprenticeships of Knowledge and Practice: A 'Mystery Videos to Deliver Lectures Outside Statute' Approach to Substantive of Class, Freeing up Class Time for Knowledge and Lawyering Skills"
Active Learning"
2:15 ‐ 2:30 p.m.
2:30 ‐ 3:00 p.m.
3:00 p.m.
[Room 125 (Library)]
[Room 114]
[C]
Joy Radice: "Criminal Law & Lawyering Skills"
[D] Deborah Borman: "Incorporating Teaching Professional Identity into the Curriculum"
Break [First Floor Commons]
12:00 ‐1:15 p.m.
1:15 ‐ 2:15 p.m. Concurrent Workshops 8
[Room 114]
Break [First Floor Commons]
10:30 ‐ 11:00 a.m. 11:00 a.m. ‐ 12:00 noon Concurrent Workshops 7
[Room 125 (Library)]
[B] [C] [D] Sarah Ricks: "A Casebook Designed Hillary Burgess: "Using Multiple Jennifer Spreng: "Clark v. Jones, The to Integrate the Teaching of Skills Choice Questions to Teach Writing Great Civil Procedure Shootout, and and Doctrine: Current Issues in Creating Law School Classroom and Diagnose Critical Thinking Constitutional Litigation: A Context Communities"
Deficiencies"
and Practice Casebook"
[Room 102]
[A] Nancy Soonpaa & DeLeith Gossett: "Moving Towards Legal Practice: Why and How All Courses Should Integrate Academic Support Principles, Doctrine, Practice Skills, & Legal Writing"
[Room 150 (Clinic)]
[B] Michael Bloom: "Incorporating Practice into Contracts"
[Room 125 (Library)]
[Room 114]
[Room 100]
[C]
[E] [D] Sarah Morath, Elizabeth A. Shaver Dr. Keith Wilder: "Lost in Olivia Farrar and Martha Ertman: Translation: 'Effective Techniques and Richard Strong: "Motions in Motion: Incorporating the Carnegie "Co‐Teaching Deal‐making and Deal‐ for Teaching International Law Apprenticeships into a Legal Students and Inter‐Disciplinary drafting"
Drafting Course"
Students'"
Break [First Floor Commons]
Closing [Room 100]
Adjourn
Hybrid
Law Teaching
Institute for Law Teaching and Learning Summer Conference
June 7-9, 2013
Washburn University School of Law, Topeka, Kansas
The Institute’s summer 2013 conference,
“Hybrid Law Teaching,” features 34
workshops with 47 presenters and will
explore ways in which participants can create
hybrid law school courses.
The conference will be June 7-9, 2013, at
Washburn University School of Law in
Topeka, Kansas.
Structure of the
Conference: Tailor the
Conference to Suit Your
Interests
The conference includes eight workshop
sessions. During each session, four or
five workshops will run simultaneously.
Participants will be able to tailor the
conference to fit their individual interests
by choosing which workshop to attend
during each session. The workshops will
deal with:
• Innovative materials;
• Alternative teaching methods;
• New technologies;
• Ways to enhance student learning in
all types of courses;
• Techniques to better prepare
students for their bar exams;
• Means of restructuring legal
education to foster practice-ready
lawyers.
Each workshop will include materials
that participants can use during the
workshop and when they return to their
campuses, and all the presenters will
model effective teaching methods by
actively engaging the participants.
Benefits to Participants:
Improve Teaching and
Learning
During the conference, participants
can expect to encounter many new
ideas about a wide variety of ways in
which they can create hybrid law school
courses. In addition, the conference is
intended to facilitate informal interaction
among creative teachers who love their
work with students.
Participants should leave the conference
with both inspiration and the
information they need to seamlessly
integrate skills, doctrine, and values in
their teaching, to bridge traditional law
school categories, such as legal writing
and doctrine, clinics and skills courses,
and academic support and doctrinal
courses, and even to flip their classes.
The ultimate goal of the conference
is to help the participants improve
their teaching, improve their students’
learning, and further their school’s
efforts to offer attractive, effective
courses that prepare students to practice
law.
Registration and Fees
Attendance is limited to 100 participants
to facilitate small-group experiences. The
roster will be filled in the order that the
Institute receives the registration form
and conference fee:
• $450 for non-presenters
• $200 for presenters.
Make check payable to Washburn
University or provide Visa/MasterCard
information on the registration form.
Refunds
Attendees must notify the Institute to
receive refunds. If notice is received on
or before May 23, 2013, a full refund will
be provided. No fees will be refunded if
notice is received after May 23, 2013.
Meals
The following meals are included in the
registration fee:
• Saturday, June 8:
Light breakfast and lunch.
• Sunday, June 9:
Light breakfast and lunch.
As of 4/26/2013. For most up-to-date information, visit lawteaching.org/conferences/2013
Welcome Reception
(Optional)
We invite participants to pre-register
and begin getting acquainted at the law
school during an optional Welcome
Reception at Washburn University
School of Law. Registration will start
at 4:30 p.m. and the welcome reception
will be 5:00-7:00 p.m. on Friday, June
7. Heavy appetizers will be served.
Afterwards, please feel free to explore
Topeka and its great dining options,
either individually or in groups.
Lodging; Transportation
Please visit
lawteaching.org/conferences/2013
for transportation and lodging
information.
Session 1 Workshops
Saturday, June 8, 2013 – 9:30-10:30 a.m.
[B]
Applying the Law: Examples and
Exercises that Bridge Legal Writing and
Doctrine
Bradley Charles, Thomas M. Cooley Law
School and Heather Garretson, Thomas
M. Cooley Law School
“Because I said so” is a reason - but not a
reasoning technique.
Often our students give an answer but not a reason for it. Our teaching
method eliminates the gap between
the answer and the reason. During the
workshop, we will discuss our method of
teaching the nine reasoning techniques,
demonstrate how first-term students in a
doctrinal class work with the techniques
throughout the term, and divulge their
greatest benefit - reasoned writing.
Participants will get the nine reasoning
techniques, a chance to apply them, and
an understanding of how the techniques
can be used in any class.
[A]
How to Effectively Use Responseware
in Asynchronous and Synchronous
Learning Environments to Meet the
Needs of Digital Natives
[C]
The Upside-Down Classroom: How the
Flipped Lecture Model Can Be Used in
Legal Education
Jalae Ulicki, Phoenix
Michelle Hook Dewey, University of
Illinois
Online teaching as well as classroom
teaching requires active participation
by digital learners. In this session
participants will learn how to use
responseware to increase active
engagement by students. They will learn
how to make immediate changes in
the learning environment at the lesson
level and how to use data to reflect
and incorporate changes in the course
level. Online teaching denotes a shift
from teacher-centered instruction to
student-centered learning. It affords law
professors the opportunity to reflect not
only on their own teaching methodology
but to reflect on the changes and
opportunities brought into law school
environments by technology.
The Flipped Lecture Model draws
on such concepts as active learning,
student engagement, and hybrid course
design. By placing expository lecture
content outside of the classroom, class
time can be used for application of
knowledge and experiential learning.
The workshop will model the Flipped
format by providing a brief pre-recorded
10 minute lecture for participants to
view in advance. During the workshop,
participants will engage in discussion
and hands-on activities building on the
lecture. Participants will be prepared to
begin designing and implementing their
own flipped course after the workshop.
[D]
The Hybrid Clinical Course: Applied
Trial Advocacy
Ezra Ross, University of California,
Irvine, School of Law
Most law schools teach trial advocacy as
a one-semester skills-based simulation
course. By contrast, many law school
clinics throw students into actual
representations without first providing
a thorough grounding in skills-based
instruction. But what if students could
have the combined benefits of both
approaches? Couldn’t a hybrid course
provide students a semester of targeted
skill instruction and then have those
students apply those skills to real cases
the following term? Using a detailed
case study and multiple interactive
“brainstorming” sessions, this workshop
will explore precisely how instructors
can provide highly coherent blended
skills/clinical instruction in a year-long
format.
Session 2 Workshops
Saturday, June 8, 2013 – 11:00 a.m.-Noon
[A]
Building the Bridge to Practice Using
Letters to Student Lawyers
Stephen Gerst, Phoenix
This session will present an innovative
teaching method using the “Letter to
a Student Lawyer.” Participants in
Professor Gerst’s “class” will experience
how responding to a letter in writing
makes learning easier and more exciting.
They will also engage with fellow
“students” to collaborate in small groups
while creating a responsive letter that
contains information that is accurate,
and useful. Participants will also learn
how the reading assignment becomes a
research tool for the information needed
to improve writing skills and experience
the joy of knowing that what you have
been learning has application to common
situations.
[B]
Integrating Bar Exam Preparation into
Upper-Division Doctrinal Courses
John Worley, South Texas College of Law
As of 4/26/2013. For most up-to-date information, visit lawteaching.org/conferences/2013
[C]
Integrating Experiential Learning in
Traditional Classrooms
Session 3 Workshops
Michael Vitiello, University of the Pacific
[A]
Ill-Structured Whole-Course
Simulations for Upper Level Courses
Participants: your boss has instructed
you to prepare for an interview with a
new client whom you are about to meet.
Your client has learned that a journalist
intends to publish a story claiming that
when she worked for a prominent judge,
police found child pornography on her
office computer. Your research suggests
your client has no right of action under
New York law (where you practice)
but may under Connecticut law (where
the journalist works). After reviewing
that case law, you will interview your
client and determine where to sue and
whether you can act in time to save her
reputation.
[D]
Hybrid Teaching Beyond the
Traditional Course
Craig T. Smith, University of North
Carolina; Jon McClanahan, University of
North Carolina; Katie Rose Guest Pryal,
University of North Carolina; and Oscar
J. Salinas, University of North Carolina
This workshop focuses on cooperative
hybrid teaching: collaboration by teams
of professors to address students’
learning needs both within and beyond
the framework of traditional courses. For
example, teams of professors in UNC’s
Writing and Learning Resources Center
share teaching strategies and materials;
partner with librarians and legalresearch vendors; cooperate to enhance
the timeliness and attractiveness of
academic support for relevant students;
and blend online learning with optional
individual meetings to help students
improve their writing. Participants will
engage in: 1) articulating their teaching
challenges; and 2) exploring how
cooperative hybrid teaching might help
students in additional contexts.
Saturday, June 8, 2013 – 1:15-2:15 p.m.
Roberto Corrada, University of Denver
The goals of this workshop are to engage
professors, first, to see that ill-structured
whole course simulations for upper level
students help law students to be more
practice-ready and, second, that these
simulations are doable by any professor
who has had some practice experience
and has been teaching any doctrinal
subject for 3-5 years. Methods include
some lecture around theory/structure,
hands-on engagement to generate
ideas for doing these simulations in
participants’ doctrinal classes (we will
brainstorm together, based on ideas
developed in the session), and hands-on
engagement by participants developing
ways to grade these courses (rubric
templates are supplied for participants to
adapt for their own use).
[D]
Applied Critical Thinking and Legal
Analysis
Brett Brosseit, Ave Maria
Recent studies, such as those presented
in Academically Adrift, have highlighted
widespread deficits in critical thinking
skills and dispositions among college
graduates. As these students pursue
legal education, educators must assess
their learning skills and develop effective
ways to help them overcome potential
deficits. Participants will discover a new
model to help students strengthen their
learning and problem-solving skills and
develop the dispositions, or habits of
mind, necessary for success in the study
and practice of law, and explore ways to
employ the model to help optimize their
students’ performance.
Session 4 Workshops
Saturday, June 8, 2013 – 2:45-3:45 p.m.
[A]
Technology in Law Schools and the
Profession: Narrowing the Gap
[B]
(cancelled)
Simon Canick, William Mitchell and Jim
Hilbert, William Mitchell
[C]
Analogical Exercises for Transactional
Drafting
Technology is transforming the
practice of law, with profound effects
in case management, collaboration,
virtual practice, and communication,
among other things. Yet in law school,
technology is only seen as a productivity
tool, or as a means of achieving
classroom objectives. What if we view
technology as a set of competencies
that students need to master in order
to succeed in practice? In this session
participants and presenters will: identify
key technologies for lawyers; discuss
gaps between technology in practice and
what we teach; and propose methods for
professors to use technology in ways that
model critical skills and practices.
Emily Grant, Washburn University and
Will Foster, Washburn University
Effective lawyers anticipate
contingencies and structure clients’
affairs to provide flexibility for the
predictably unexpected. By developing
classroom exercises that incorporate
everyday contingencies, teachers can
hone students’ abilities to anticipate
factual and legal contingencies, and
accordingly, to be effective planners and
drafters. In this session, presenters will
model an analogical exercise in which
participants brainstorm contingencies
involved in coordinating a social
function. The exercise then incorporates
the anticipated contingencies into
contract format. Participants will work
in groups to identify other analogies
that incorporate the use of familiar
contingencies to teach students to
anticipate legal contingencies and draft
client documents accordingly.
[B]
Killing Three Birds With One Stone:
Doctrine, Academic Support and Bar
Passage to Boot
Emmy Reeves, University of Richmond
Students learn skills more effectively
when taught in context. This workshop
will explore the potential synergy in
learning skills and doctrine in a single
course. We will do exercises that
As of 4/26/2013. For most up-to-date information, visit lawteaching.org/conferences/2013
demonstrate effective integration of
skills and doctrinal instruction, while
maximizing student engagement,
such as use of clicker technology and
self- and peer-editing. Participants will
leave this session prepared to design
a course combining academic support
with doctrinal instruction and also
laying the foundation for bar passage;
equipped with specific experiential
teaching techniques to reach various
types of learners and maximize student
engagement; and ready to meet the
potential challenges of such a course.
[C]
A Nonprofits Seminar/Clinic
Paulette J. Williams, University of
Tennessee
The workshop will include an overview
of the combined clinic/seminar taught by
Professor Williams and a short exercise
done by her students at the beginning
of each semester. Using a PowerPoint
presentation she will briefly present
the steps to incorporating a group and
obtaining a tax exemption. Participants
will do a roleplay as the CEO or a
member of the board of directors of
a nonprofit or as one of the attorneys
representing the group in becoming a tax
exempt organization and will reflect on
and debrief the simulation experience.
[D]
Cultivating Professional Identity
Formation in Doctrinal Course
Benjamin Madison, Regent University
and Natt Gantt, Regent University
This workshop is designed to help
participants better understand
professional identity formation and how
the results of such formation benefit
students. The workshop will discuss
techniques instructors can use in any
course to teach professional identity
formation and to encourage students
to reflect on their values and on how
they will incorporate those values into
their approach to the practice of law.
The workshop will provide interactive
exercises so that participants consider
how the concept of professional identity
formation should be defined at their
institution and how it should be taught
in the specific courses taught by the
participants.
[E]
Pushing for Preparation: The Need
for Theory and Skills-Based Pedagogy
With a Personal Touch in Public
Interest Law Courses
Aliza Kaplan, Lewis & Clark
Law schools hope to attract prospective
students with certificates, courses,
externships and clinics in public interest
law. Yet, we are still not doing a good
enough job of offering courses that
address both the history and theory of
public interest lawyering or that teach
the professional skills necessary to be
successful in these careers. We also do
little to prepare our students emotionally
and/or with the life skills required
for a career in the public interest. In
this workshop, in addition to offering
productive models of public interest
courses currently in practice, Professor
Kaplan will discuss her hybrid course
“Public Interest Lawyering: Theory
and Practice.” Through audience
participation, she will examine ways to
engage students in theory, skills and
the ethical/personal/emotional issues
confronting public interest lawyers.
Session 5 Workshops
Saturday, June 8, 2013 – 4:15-5:15 p.m.
[A]
Flipping the Law School Classroom:
Optimizing the Law School Classroom
Angela Upchurch, Capital University
A “flipped” classroom turns the
traditional teaching paradigm on
its head - altering the roles of both
the professor and the students, both
in and out of the classroom. In this
workshop, we will explore how to bring
the “flipped” classroom into our law
schools. Attendees will participate in
“flipped” simulations of a large doctrinal
class and of an individual student
paper conference. We will also discuss
strategies for designing a flipped class
for your own course and will put these
strategies to work in an interactive group
exercise.
[B]
Considerations in Designing and
Implementing a Hybrid Course in Legal
Education
Aaron Dewald, University of Utah and
Bonnie Mitchell, University of Utah
There is a buzz surrounding legal
education regarding the use of hybrid
learning as a teaching and learning
strategy. Unfortunately, there is also a
perception that utilizing hybrid learning
involves long hours in front of a camera,
or that it requires incredible computer
skills to get started. This is not the case.
This workshop will offer a few simple
heuristics for participants to consider
when designing and implementing a
hybrid learning methodology as part
of their curriculum. These heuristics
will cover pedagogy, technology, and
learning sciences.
[C]
Putting Legal Doctrine Into Practical
Context
Jennifer Gundlach, Hofstra University
and Kennisha Austin, Hofstra University
This presentation will focus on how law
faculty can expand their thinking about
appropriate learning outcomes for the
doctrinal curriculum, with particular
emphasis on lawyering skills. The
presenters will share how they have
worked collaboratively with colleagues
to introduce new learning objectives to
their Civil Procedure course and how
students’ performance in achieving those
objectives is assessed. Discussion will
emphasize the importance of using an
integrated, interdisciplinary approach
to teaching black letter doctrinal law,
as well as ethics and lawyering skills.
The session will include an interactive
exercise and a demonstration of a webbased modular law office case file.
As of 4/26/2013. For most up-to-date information, visit lawteaching.org/conferences/2013
[D]
Integrating Ethics and Skills: The
STEPPS Program
Timothy Casey, California Western
The innovative STEPPS Program (Skills
Training for Ethical and Preventive
Practice and career Satisfaction), a
required second-year course in ethics,
professionalism, and lawyering skills,
integrates many of the principles from
the literature on curricular development.
These principles can be applied to
enhance the learning environment at
other institutions. Participants will
engage in a series of active exercises
designed not only to promote a
discussion of curricular innovation, but
also to demonstrate specific teaching
techniques.
Session 6 Workshops
Sunday, June 9, 2013 – 9:30-10:30 a.m.
[A]
Hybrid Within a Hybrid: Integrating
Academic Success in Upper-Level
Capstone Courses
Jeremiah Ho, University of
Massachusetts–Dartmouth
This presentation addresses many of the
concerns and ideas facing law teachers
who want to integrate academic success
instruction more fully in an upperlevel doctrinal course and to do so
using a capstone course as the doctrinal
foundation. Much of the presentation
will uncover reasons why capstone
courses lend themselves particularly
well for upper-level academic success
instruction, approach course design
issues that integrate skills and capstone
doctrine, and share what to do in the
capstone classroom to help students
maximize both a deeper learning of
doctrine and specific acquisition of
academic success skills. The presentation
will outline ways to approach course
design and execution of this kind of
hybrid class and illustrate how to
manage both the hybrid nature of
teaching skills and doctrine, while
that doctrine is itself, at the same time,
a hybrid of sorts. Attendees should
expect to leave the presentation with a
methodological approach for designing
and implementing this type of hybrid
course.
[B]
A Casebook Designed to Integrate
the Teaching of Skills and Doctrine:
Current Issues in Constitutional
Litigation: A Context and Practice
Casebook
Sarah Ricks, Rutgers University–Camden
[C]
Using Multiple Choice Questions to
Teach Writing and Diagnose Critical
Thinking Deficiencies
Hillary Burgess, Charlotte
In this session, participants will discuss
ways for faculty to expose students
to, and have them practice, good
legal discourse using multiple choice
questions to both diagnose students’
writing, provide individual feedback
to students, and help students better
understand the expectations of legal
discourse. By using these techniques,
professors can provide multiple
assessments that incrementally increase
the difficulty level for students and
incrementally increase their mastery
over doctrine, thinking, and discourse
skills. Techniques for creating extensive
writing opportunities without increasing
professor grading will be discussed.
[D]
Clark v. Jones, The Great Civil
Procedure Shootout, and Creating Law
School Classroom Communities
Jennifer Spreng, Phoenix
Legal education is getting the message:
learning communities provide unique
pedagogical opportunities while
mirroring most students’ professional
futures. Classroom community
mixes culture with carefully crafted
elements that nurture a shared past,
current interpersonal ties, and future
commitment. In this workshop,
participants will design their own
community building element for one of
their courses next year within a model
of intergenerational collaboration.
Whether participants select an antihierarchical vocabulary, infuse a favorite
activity with a creative mythology, or
design their own Great Civil Procedure
Shootout!!!, all will leave with a concrete
foundation for their future community in
a classroom.
Session 7 Workshops
Sunday, June 9, 2013 – 11:00 a.m.-Noon
[A]
Implementing the Carnegie
Apprenticeships of Knowledge and
Practice: A ‘Mystery Statute’ Approach
to Substantive Knowledge and
Lawyering Skills
Cynthia Ho, Loyola University of
Chicago
Do you teach a class that focuses
on statutes, rules, or code? Are you
frustrated that students seem resistant to
deciphering such language on their own
(without study aids), even though this is
what they need to do as attorneys? If so,
this workshop is for you! The goal is to
provide teachers with a tool to improve
student understanding of statutory
language. The emphasis is on an active
learning approach that should teach
students a key lawyering skill that they
can then apply to any code or statute,
including a “mystery” statute that they
have never seen before.
[B]
What the Flip? How to Flip a Law
School Class Using Videos to Deliver
Lectures Outside of Class, Freeing up
Class Time for Active Learning
Julie St. John, University of Detroit
Mercy
[C]
Criminal Law & Lawyering Skills
Joy Radice, University of Tennessee–
Knoxville
Participants will work on developing
and critiquing an interactive lawyering
component for a criminal law course.
Over the course of the semester, this
criminal law/lawyering hybrid course
covers the basic legal doctrine and uses a
“Simulated Case File” to engage students
in four different lawyering exercises:
interviewing a client; conducting a
preliminary hearing; writing a legal
memo; and plea bargaining. Participants
will be presented with an exercise using
the legal research memo assignment
as an example. Then in small groups,
participants will talk about practical
solutions to the obstacles that a
As of 4/26/2013. For most up-to-date information, visit lawteaching.org/conferences/2013
Lawyering-Criminal Law hybrid course
presents. At the end the workshop a
TWEN site created to share the course
materials for hybrid criminal law courses
will be introduced.
[D]
Incorporating Teaching Professional
Identity into the Curriculum
Deborah Borman, Northwestern
University
In Educating Lawyers, the Carnegie
Foundation identified three
apprenticeships necessary in professional
legal education: thinking (legal analysis),
performance (practical skills), and
professional identity. Clinicians, skills,
and research faculty can contribute to the
development of students’ professional
identity without overhauling the
curriculum via short additional
assignments or by tweaking existing
assignments. In this interactive session
participants will define “professional
identity,” and working in groups use
their definitions as a springboard to
design and present one creative lesson
plan or multi-class module to the group.
The presenter will then identify three
short assignments she uses to encourage
the development of professional identity.
Session 8 Workshops
Sunday, June 9, 2013 – 1:15-2:15 p.m.
[A]
Moving Towards Legal Practice: Why
and How All Courses Should Integrate
Academic Support Principles, Doctrine,
Practice Skills, and Legal Writing
Nancy Soonpaa, Texas Tech University
and DeLeith Gossett, Texas Tech
University
Why don’t the LRW profs teach my
students how to write? Why doesn’t the
academic support director teach them
how to study? Why didn’t the contracts
prof teach them about covenants so
they could write my memo assignment?
Surprise. Teaching our students is
both an individual AND collective
responsibility. We should ALL teach
them skills, and doctrine, and basic
learning techniques. We are the village,
and they are ours. Anyone can, and
everyone should, incorporate into their
classes short exercises that cross all of
our artificial turf-defining lines. This
workshop will show you how to do it.
[B]
Incorporating Practice into Contracts
Michael Bloom, University of Michigan
Legal practitioners, as a collective pool,
have virtually every relevant expertise,
skill, and level of experience to offer
a law school class. The challenge for
the professor lies in incorporating the
practitioner in a way that effectively
serves classroom learning objectives.
Through this workshop, participants
will develop: 1) a catalogue of potential
methods for incorporating practitioners
into the classroom (with specific, but
not exclusive, focus on contracts-related
classes); and 2) a better understanding of
what is likely to lead to successful (and
unsuccessful) incorporation.
[C]
Motions in Motion: Incorporating the
Carnegie Apprenticeships into a Legal
Drafting Course
Sarah Morath, University of Akron;
Elizabeth A. Shaver, University of Akron;
and Richard Strong, University of Akron
This workshop will review an upperlevel litigation course that emphasizes
the three apprenticeships identified in
the Carnegie Report: Participants will
actively review and discuss the course
materials, including brainstorming ideas
for appropriate course hypotheticals.
In addition, participants will engage in
classroom exercises that will allow them
to grapple with the basis for a motion
in limine and put together a persuasive
approach for the respective sides, as well
as evaluate judicial opinions for judicial
persona and voice. Participants will leave
the session with several useful tools
for designing a course that will help
students transition from the classroom to
the courtroom.
[D]
Co-Teaching Deal-making and Dealdrafting
Olivia Farrar, Howard University
Olivia Farrar and Martha Ertman
(University of Maryland) collaborated
on teaching a course merging their
backgrounds in doctrinal law [Ertman]
and transactional drafting [Farrar],
to teach students how to realistically
“paper a deal.” Using the example
of their course’s hybrid model, this
presentation begins with choosing a
realistic fact scenario [in this case, the
deal was a non-profit LLC needing to
buy and finance a medevac], teach the
substantive law required by the deal
[in this case, advanced contracts and
secured transactions], and the skills
necessary to serve the client’s needs
[here, the students created the entire
portfolio that would properly capture
their complex deal].
[E]
Lost in Translation: “Effective
Techniques for Teaching International
Law Students and Inter-Disciplinary
Students”
Dr. Keith Wilder, University of Cologne
and the University of Bonn (Germany)
This workshop focuses on the challenges
of effectively teaching international
students, and in particular non-native
English speakers, legal vocabulary and
theory. However, many of the techniques
that will be discussed could also be
easily adapted to make the training of
non-law students from other academic
disciplines more dynamic, enjoyable
and effective. The workshop itself will
introduce the participants to the pitfalls
of one-to-one translation and selfreferencing definitions. Participants will
take part in various inter-active activities
that highlight the difficulties arising
in this area, and will be introduced to
various learning tools and methods that
have proven effective in overcoming
these challenges.
As of 4/26/2013. For most up-to-date information, visit lawteaching.org/conferences/2013
Hybrid Law Teaching
Institute for Law Teaching & Learning
Summer Conference: June 7-9, 2013
Name: _________________________________________________________________ Phone: _________________________ Fax: __________________________ Law School: ___________________________________________________________ Address: ______________________________________________________________ City/State/Zip: ________________________________________________________ E‐mail: ________________________________________________________________ Circle letters for the workshops/events you wish to attend (only one per session): Session 1: A B C D Session 2: A B C D Session 3: A B C D Session 4: A B C D E Session 5: A B C D Session 6: A B C D Session 7: A B C D Session 8: A B C D E Saturday early evening tour of Brown v. Board NHS: Yes No Conference price includes breakfast and lunch on Saturday, June 8 and Sunday, June 9. Please let us know at the time of registration if you have special dietary needs. Payment Information: ___ $450 ‐ Attending as non‐presenter ___ $200 ‐ Attending as presenter ___ Enclosed is a check payable to Washburn University ___ Please charge my: __ Visa __ MasterCard Card No: _______________________________________ Expiration Date: ____ / ______ Washburn University federal ID
number: 48-6030115
See ILTL website (URL below) for W-9
Security Code (back of card): ___________ Print name (as it appears on card): _____________________________________________________________ Address: ____________________________________________________________________________________________ Return this form with your check or credit card information to: Institute for Law Teaching & Learning Washburn University School of Law Attn: Donna Vilander 1700 SW College Avenue Topeka, KS 66621 For information, contact Donna Vilander at donna.vilander@washburn.edu or (785) 670‐1105 (4/12/2013) See also: http://lawteaching.org/conferences/2013/