As always, stories that caught my eye this week:
When it comes to Mexico and immigration, turnabout is fair play.
Dahlia Lithwick explains why Antonin Scalia is the justice most likely to get profiled as a paid Fox News Correspondent.
Andrew Cohen weighs in on the Arizona case as well.
David Wiegel reviews Robert Draper's new book and wonders if this is the worst congress ever.
Slate yearns for a time when we looked up to accomplished people instead of Kim Kardashian.
Slate links to a Longform piece on stories about coming out.
At Salon, Steve Kornacki explains how Obama's hopes for a second term depend more on George W. Bush than you think.
Rupert Murdoch turns the tables on the British Government; the empire strikes back indeed.
A professor who used to teach about corporate fraud has been sentenced for corporate fraud. Apparently it was a clinic.
Bob Dylan is going to be awarded the Medal of Freedom. Think POTUS will sing?
P.L. Thomas thinks Presidents and Governors ought to stay out of education policy.
Friday, April 27, 2012
Monday, April 23, 2012
The - Well, ONE - Trouble with Law Finals
It turns out that there are some problems with the law school pedagogical model. I know; try to suppress your shock. There are any number of things I think are genuinely problematic about the standard way law is taught in our law schools: lack of formative assessment, under-inclusion of professional skill building, complete disregard for best learning practices, etc. I suspect that I will write posts on many of these things in the future. But because I've spent I don't know how many days in a row outlining for finals and there's smoke billowing from my ears, I want to hone in specifically on what's wrong with final exams.
Actually, it occurs to me that I need to be even more specific. It's bad pedagogical practice to have only one assessment determine a student's grade, and it's simply frickin' bananas to have it be based on one exam over three hours. Let's call it what it is: crazy.
But those aren't the things I find most crazy about it (at least not at a late hour on a Sunday during finals season). What drives me up the wall the most as a teacher is that students are tested on something they aren't given any formal opportunities to practice once during the year.
What we do as law students is read. We read cases, we take notes, we are very occasionally called upon to discuss those cases in class. We are sometimes exposed to a counterfactual - "Mr. Jakle, would the case have come out differently if X were true instead of Y?" - but we are never asked to examine a fictional fact pattern, analyze the legal questions and write a few thousand words on those angles. Until the final.
I'm not really sure how to convey how truly absurd this is.
"OK, kid: read a ton of cases, be sure to highlight them. Come to class and try not to spend too much time adjusting your fantasy football line-up. Two or three times during these three months, I will spend two minutes asking you about one case and wondering how minor tweaks might make a difference. Study with friends! Or, you know, don't. Mainly just read cases, think about them, and listen to me talk about them. At the end of the semester I will determine your entire grade based on your ability to do none of these things."
We are told all the time that we are being trained to "think like a lawyer." (Seriously, if you aren't a law student ask one how often they're told that). For my colleagues who actually intend to be lawyers, I think it would be more helpful to be trained to just be a lawyer, but I digress. Let me ask you this: if you were teaching someone to be a quarterback, how would you do it?
I'd like to suggest that you would NOT do the following:
Step 1: Show them tape of Joe Montana's greatest moments.
Step 2: Ask questions about how Montana makes decisions in the pocket.
Step 3: Compare how Montana looks at a play and how other quarterbacks operate.
Step 4: Look at a series of pass plays from a playbook.
Step 5: Discuss what a quarterback might do in various situations.
And hey presto! You've got a quarterback course! Oh, here's the kicker: your whole grade will be an exam where you have to go on to a field and throw footballs. Which you've never done before. Ever. Good luck!
Is it just me, or that just an insane way to teach somebody to do something?
One more simile, because I'm feeling punchy. Would you ever, ever, send someone into combat because they had played Halo 3 for 13 weeks? I certainly hope not. And there's a least an argument that playing Halo is a better facsimile of combat that reading case law is of taking a law exam. Except perhaps for the aliens.
It's almost more like showing someone videos of combat, and then showing them how an M-4 is built, and then expecting that that training would make them a competent marksman.
I think one of the reasons I'm struggling to articulate exactly what I think is so misguided about the practice is that - when you break it down - it's so inescapably simple. I dare you to disagree with the following proposition: It's a good idea to practice something you'll be tested on. If you were going to teach someone to swim, and then grade them on their ability to swim, you would - at some point - want them to enter a pool, right? You wouldn't show your students videos of Michael Phelps and Natalie Coughlin, ask them (your students) what was great about their techniques, and then toss them (still your students) into the deep end.
Which is essentially what law professors do. "There are three things you need to fix a car engine: a ratchet, pliers, a screwdriver. Great! Now fix this engine." (If it's not already painfully clear, I have absolutely no idea how to fix an engine.)
I'll stop with the comparisons, and I'll resist the temptation to make this a diatribe on everything I think could be improved about the legal educational model. Instead, I'll just end with this. If you're a law student, consider whether your professors this semester have given you any structured opportunity to practice the specific skill on which you're being tested. I suspect not (if so, good for your professor; they are an exception). If you're not a law student.... well, I guess just relish that fact. And go do this
because you're law student friends aren't.
Actually, it occurs to me that I need to be even more specific. It's bad pedagogical practice to have only one assessment determine a student's grade, and it's simply frickin' bananas to have it be based on one exam over three hours. Let's call it what it is: crazy.
But those aren't the things I find most crazy about it (at least not at a late hour on a Sunday during finals season). What drives me up the wall the most as a teacher is that students are tested on something they aren't given any formal opportunities to practice once during the year.
What we do as law students is read. We read cases, we take notes, we are very occasionally called upon to discuss those cases in class. We are sometimes exposed to a counterfactual - "Mr. Jakle, would the case have come out differently if X were true instead of Y?" - but we are never asked to examine a fictional fact pattern, analyze the legal questions and write a few thousand words on those angles. Until the final.
I'm not really sure how to convey how truly absurd this is.
"OK, kid: read a ton of cases, be sure to highlight them. Come to class and try not to spend too much time adjusting your fantasy football line-up. Two or three times during these three months, I will spend two minutes asking you about one case and wondering how minor tweaks might make a difference. Study with friends! Or, you know, don't. Mainly just read cases, think about them, and listen to me talk about them. At the end of the semester I will determine your entire grade based on your ability to do none of these things."
We are told all the time that we are being trained to "think like a lawyer." (Seriously, if you aren't a law student ask one how often they're told that). For my colleagues who actually intend to be lawyers, I think it would be more helpful to be trained to just be a lawyer, but I digress. Let me ask you this: if you were teaching someone to be a quarterback, how would you do it?
I'd like to suggest that you would NOT do the following:
Step 1: Show them tape of Joe Montana's greatest moments.
Step 2: Ask questions about how Montana makes decisions in the pocket.
Step 3: Compare how Montana looks at a play and how other quarterbacks operate.
Step 4: Look at a series of pass plays from a playbook.
Step 5: Discuss what a quarterback might do in various situations.
And hey presto! You've got a quarterback course! Oh, here's the kicker: your whole grade will be an exam where you have to go on to a field and throw footballs. Which you've never done before. Ever. Good luck!
Is it just me, or that just an insane way to teach somebody to do something?
One more simile, because I'm feeling punchy. Would you ever, ever, send someone into combat because they had played Halo 3 for 13 weeks? I certainly hope not. And there's a least an argument that playing Halo is a better facsimile of combat that reading case law is of taking a law exam. Except perhaps for the aliens.
It's almost more like showing someone videos of combat, and then showing them how an M-4 is built, and then expecting that that training would make them a competent marksman.
I think one of the reasons I'm struggling to articulate exactly what I think is so misguided about the practice is that - when you break it down - it's so inescapably simple. I dare you to disagree with the following proposition: It's a good idea to practice something you'll be tested on. If you were going to teach someone to swim, and then grade them on their ability to swim, you would - at some point - want them to enter a pool, right? You wouldn't show your students videos of Michael Phelps and Natalie Coughlin, ask them (your students) what was great about their techniques, and then toss them (still your students) into the deep end.
Which is essentially what law professors do. "There are three things you need to fix a car engine: a ratchet, pliers, a screwdriver. Great! Now fix this engine." (If it's not already painfully clear, I have absolutely no idea how to fix an engine.)
I'll stop with the comparisons, and I'll resist the temptation to make this a diatribe on everything I think could be improved about the legal educational model. Instead, I'll just end with this. If you're a law student, consider whether your professors this semester have given you any structured opportunity to practice the specific skill on which you're being tested. I suspect not (if so, good for your professor; they are an exception). If you're not a law student.... well, I guess just relish that fact. And go do this
because you're law student friends aren't.
Friday, April 20, 2012
Weekly Round-Up for April 20th
Dahlia Lithwick says Judge Janice Rodgers Brown's latest opinion evinces a wish for 1930's political sensibilities on the right.
What does every President since Taft have in common? A lack of facial hair.
How does government decide who gets Secret Service protection? David Weigel tells us.
And Forrest Wickman wonders why they're always touching their ears.
The Atlantic worries that Facebook is making us lonely.
And Eric Klinenberg says "stop worrying."
Jefferson Morley thinks Kansas Secretary of State Kris Korbach will prevent Romney from making in-roads with Latino voters.
Apparently Americans are more scared of Iran right now than they were of the Soviet Union in 1985.
Petraeus and the CIA are urging Obama to step up drone attacks in Yemen.
Can Robert Bales - killer of 17 Afghan civilians - use PTSD as a defense?
I love this: The Bachelor is facing a class action lawsuit for racial discrimination.
Relatedly, Andrew O'Hehir wonders why rom-coms are still segregated.
Edward Tenner says grammatical rules are changing and you should get over it already.
What does every President since Taft have in common? A lack of facial hair.
How does government decide who gets Secret Service protection? David Weigel tells us.
And Forrest Wickman wonders why they're always touching their ears.
The Atlantic worries that Facebook is making us lonely.
And Eric Klinenberg says "stop worrying."
Jefferson Morley thinks Kansas Secretary of State Kris Korbach will prevent Romney from making in-roads with Latino voters.
Apparently Americans are more scared of Iran right now than they were of the Soviet Union in 1985.
Petraeus and the CIA are urging Obama to step up drone attacks in Yemen.
Can Robert Bales - killer of 17 Afghan civilians - use PTSD as a defense?
I love this: The Bachelor is facing a class action lawsuit for racial discrimination.
Relatedly, Andrew O'Hehir wonders why rom-coms are still segregated.
Edward Tenner says grammatical rules are changing and you should get over it already.
Monday, April 16, 2012
Branch, Jackie, and How Baseball Changed Everything
Yesterday, April 15th, was Jackie Robinson Day, Major League Baseball's annual tribute to a pioneer, a hero, an All-Star, the immortal Number 42. In honor of Jackie and yesterday's memorial, I want to do something a bit different today. The blurb that describes this blog says law leaves its fingerprints all over everything, and that my purpose is to describe the myriad smudges it leaves on our lives without our even realizing. Today, I want to flip the script, because it's a two-way street. The law moulds our lives in all sorts of ways, but so to do we mould the law. There are few better examples of how society affects law than the story of #42.
The standard narrative of the legal demolition of Jim Crow often both begins and culminates with Brown. There's no doubt that Brown was a singular moment in American history, an institutional signal that the status quo was unacceptable and that a sea change in American life was necessary.
But the story of the Warren Court as a heroic bench that grabbed the ropes and tore down inequality is, at best, an over-simplification. It was not the bolt from the blue that many still assume it was; there were murmurs, earlier shakes to the system that indicated what was to come. In a series of cases around 1950, the Court decided that states could not send black students to an out of state law school (Gaines), that group learning was crucial to a Higher Education Doctoral Program and that segregation therefore wasn't acceptable in that context (McLaurin), and that the social connections made in law schools make segregation unacceptable there, as well (Sweatt).
The Justices had already been pulling out some of the legal supports propping up Jim Crow, but they weren't acting alone. When the Court was deciding Sweatt v Painter in 1950, the Truman administration encouraged the Justices to use the opportunity to strike down segregation altogether. Blacks and whites had served together during World War II, forging bonds a return to civil society couldn't break. In 1948, President Truman officially desegregated the military.
After World War II, the Great Migration greatly increased the functional desegregation in the large cities of the north and the west. Polling outside the south showed that most of the country was, in fact, in favor of desegregation. The country - at least outside of the south - was ready. In some ways, the Court was catching up.
But it wasn't just World War II, it wasn't just the Great Migration, it wasn't just time. In 1947, a seminal moment of American history ushered in a new era. On April 15th, 1947, Jackie Robinson wore the uniform of the Brooklyn Dodgers at Ebbets Field, and over 26,000 fans (14,000 of them black) witnessed the most important day in 20th century American sports: baseball's coming of age.
Today it is difficult to remember or imagine baseball's former prominence in the national psyche. Then, it really was the National Pastime. It more accurately echoed Whitman's words:
"Baseball is our game... America's game; has the snap, go, fling, of the American atmosphere - belongs as much to our institutions, fits into them as significantly as our constitutions, our laws: is just as important as the sum total of our historic life."
When baseball was our civic religion, Jackie's presence at second base stamped indelibly on the national consciousness. The Court was packed with baseball fans, and those nine could not help but be aware of the revolution in baseball parks across the country. (Baseball's roots on the Court run deep. Even twenty-five years later baseball reigned; in the middle of an oral argument during the 1973 National League Championship Series, Justice Stewart passed a note to Justice Blackmun "VP Agnew just resigned! Mets 2, Reds 0.")
But it didn't start on April 15, 1947. It started long before that, with Branch Rickey of Duck Run, Ohio.
Ever since his days as the baseball coach at Ohio Wesleyan University, when he had insisted that Tommy Thomas stay in his room with him at a whites-only hotel in South Bend, Rickey had been determined to do his part to end racial injustice. 40 years later, as the General Manager of the Brooklyn Dodgers, Branch did more than many could have imagined.
A brilliant student, an excellent athlete, a fervent Methodist, and an endless story-teller, Branch Rickey revolutionized baseball not once, not twice, but three times. Best known for bringing in Jackie Robinson, he also developed the modern minor league farm system, and his encouragement of a third Major League paved the way for baseball's expansion in the 1960s. And, in the interests of both pride and full-disclosure, he was my Great-Grandfather.
Rickey had played baseball, coached Ohio Wesleyan, managed the Dodgers, but perhaps as important as anything else, he had been trained as a lawyer at the University of Michigan. The next time you complain about law school's workload, consider that he graduated in five semesters instead of six, and did so while coaching the Wolverine's baseball team.
Rickey went about integrating baseball in the same way a civil rights attorney prepares the perfect test case. For one, he had to find the perfect, sympathetic plaintiff. Rickey famously selected Robinson not only for his undeniable athletic gifts - he had been a four-letter athlete at UCLA
but because of his temperament. Knowing the abuse that would be hurled at Robinson in the early days of his playing career, Rickey chose him because - in his words - he "had the courage not to fight back," to turn the other cheek and play the game. A slip would confirm every bigot's belief in the aggressive, uncontrollable black man. Rickey knew his "client" would need an even keel in the batter's box in the same way a lawyer knows his client must control himself on the stand. Robinson was everything he needed to be and more: even-tempered in the face of unimaginable hatred, a success on the diamond despite vicious efforts to injure him, and soon enough a beloved teammate.
Handsome, self possessed; hell, he was even a decorated veteran. He was any lawyer's dream client.
Rickey and Robinson pressed their case before the Court of Public Opinion. Robinson won Rookie of the Year in 1947, and in 1948 Satchel Paige joined Larry Doby on the Cleveland Indians (the first team to integrate in the American League), and three other black athletes joined Jackie on the Dodgers. In 1949, Jackie Robinson was selected to the National League All-Star team not by coaches, not by teammates, but by baseball's fans. Branch and Jackie won their case.
Now, 65 years after Jackie first walked to a Major League plate, I walk the same halls at Michigan Law that my Great-Grandfather walked over a hundred years ago. I am ever aware of the legacy he has left for me, for my fellow law students, and for all of us. I keep the portrait shown above next to my desk as a reminder, as both an exhortation to achievement and a check on my humility. I look for him at Hutchins Hall, imagine him crossing the Law Quad, ponder what answer he might give to a cold call. I take this April 15th as a reminder to keep him with me.
I encourage you to take some time today to think about the changes these men wrought on our world. Do not forget that just as our laws shape us, so do we shape our laws. Never underestimate the power of sports to heal our wounds, to hold a mirror up to our society and show both its finer features and its blemishes. Always remember that grace in the face of hatred and vitriol is both the more difficult and the more rewarding path. Above all, never, never forget that even just two people can - through work, belief, and determination of will - change the face of a nation.
]
Happy Jackie Robinson Day.
The standard narrative of the legal demolition of Jim Crow often both begins and culminates with Brown. There's no doubt that Brown was a singular moment in American history, an institutional signal that the status quo was unacceptable and that a sea change in American life was necessary.
But the story of the Warren Court as a heroic bench that grabbed the ropes and tore down inequality is, at best, an over-simplification. It was not the bolt from the blue that many still assume it was; there were murmurs, earlier shakes to the system that indicated what was to come. In a series of cases around 1950, the Court decided that states could not send black students to an out of state law school (Gaines), that group learning was crucial to a Higher Education Doctoral Program and that segregation therefore wasn't acceptable in that context (McLaurin), and that the social connections made in law schools make segregation unacceptable there, as well (Sweatt).
The Justices had already been pulling out some of the legal supports propping up Jim Crow, but they weren't acting alone. When the Court was deciding Sweatt v Painter in 1950, the Truman administration encouraged the Justices to use the opportunity to strike down segregation altogether. Blacks and whites had served together during World War II, forging bonds a return to civil society couldn't break. In 1948, President Truman officially desegregated the military.
After World War II, the Great Migration greatly increased the functional desegregation in the large cities of the north and the west. Polling outside the south showed that most of the country was, in fact, in favor of desegregation. The country - at least outside of the south - was ready. In some ways, the Court was catching up.
But it wasn't just World War II, it wasn't just the Great Migration, it wasn't just time. In 1947, a seminal moment of American history ushered in a new era. On April 15th, 1947, Jackie Robinson wore the uniform of the Brooklyn Dodgers at Ebbets Field, and over 26,000 fans (14,000 of them black) witnessed the most important day in 20th century American sports: baseball's coming of age.
Today it is difficult to remember or imagine baseball's former prominence in the national psyche. Then, it really was the National Pastime. It more accurately echoed Whitman's words:
"Baseball is our game... America's game; has the snap, go, fling, of the American atmosphere - belongs as much to our institutions, fits into them as significantly as our constitutions, our laws: is just as important as the sum total of our historic life."
When baseball was our civic religion, Jackie's presence at second base stamped indelibly on the national consciousness. The Court was packed with baseball fans, and those nine could not help but be aware of the revolution in baseball parks across the country. (Baseball's roots on the Court run deep. Even twenty-five years later baseball reigned; in the middle of an oral argument during the 1973 National League Championship Series, Justice Stewart passed a note to Justice Blackmun "VP Agnew just resigned! Mets 2, Reds 0.")
But it didn't start on April 15, 1947. It started long before that, with Branch Rickey of Duck Run, Ohio.
Ever since his days as the baseball coach at Ohio Wesleyan University, when he had insisted that Tommy Thomas stay in his room with him at a whites-only hotel in South Bend, Rickey had been determined to do his part to end racial injustice. 40 years later, as the General Manager of the Brooklyn Dodgers, Branch did more than many could have imagined.
A brilliant student, an excellent athlete, a fervent Methodist, and an endless story-teller, Branch Rickey revolutionized baseball not once, not twice, but three times. Best known for bringing in Jackie Robinson, he also developed the modern minor league farm system, and his encouragement of a third Major League paved the way for baseball's expansion in the 1960s. And, in the interests of both pride and full-disclosure, he was my Great-Grandfather.
Rickey had played baseball, coached Ohio Wesleyan, managed the Dodgers, but perhaps as important as anything else, he had been trained as a lawyer at the University of Michigan. The next time you complain about law school's workload, consider that he graduated in five semesters instead of six, and did so while coaching the Wolverine's baseball team.
Rickey went about integrating baseball in the same way a civil rights attorney prepares the perfect test case. For one, he had to find the perfect, sympathetic plaintiff. Rickey famously selected Robinson not only for his undeniable athletic gifts - he had been a four-letter athlete at UCLA
but because of his temperament. Knowing the abuse that would be hurled at Robinson in the early days of his playing career, Rickey chose him because - in his words - he "had the courage not to fight back," to turn the other cheek and play the game. A slip would confirm every bigot's belief in the aggressive, uncontrollable black man. Rickey knew his "client" would need an even keel in the batter's box in the same way a lawyer knows his client must control himself on the stand. Robinson was everything he needed to be and more: even-tempered in the face of unimaginable hatred, a success on the diamond despite vicious efforts to injure him, and soon enough a beloved teammate.
Handsome, self possessed; hell, he was even a decorated veteran. He was any lawyer's dream client.
Rickey and Robinson pressed their case before the Court of Public Opinion. Robinson won Rookie of the Year in 1947, and in 1948 Satchel Paige joined Larry Doby on the Cleveland Indians (the first team to integrate in the American League), and three other black athletes joined Jackie on the Dodgers. In 1949, Jackie Robinson was selected to the National League All-Star team not by coaches, not by teammates, but by baseball's fans. Branch and Jackie won their case.
Now, 65 years after Jackie first walked to a Major League plate, I walk the same halls at Michigan Law that my Great-Grandfather walked over a hundred years ago. I am ever aware of the legacy he has left for me, for my fellow law students, and for all of us. I keep the portrait shown above next to my desk as a reminder, as both an exhortation to achievement and a check on my humility. I look for him at Hutchins Hall, imagine him crossing the Law Quad, ponder what answer he might give to a cold call. I take this April 15th as a reminder to keep him with me.
I encourage you to take some time today to think about the changes these men wrought on our world. Do not forget that just as our laws shape us, so do we shape our laws. Never underestimate the power of sports to heal our wounds, to hold a mirror up to our society and show both its finer features and its blemishes. Always remember that grace in the face of hatred and vitriol is both the more difficult and the more rewarding path. Above all, never, never forget that even just two people can - through work, belief, and determination of will - change the face of a nation.
]Happy Jackie Robinson Day.
Friday, April 13, 2012
Weekly Round-Up for April 13th
This week's best and most interesting stories:
The New York Times reports on the second-degree murder charges against George Zimmermann.
Joan Walsh at Salon says it wouldn't have happened with the social movement that followed the killing.
David Wiegel on how Trayvon Martin's killing is affecting the Florida election.
Emily Bazelon tells us why we should be shocked about George Zimmermann's lawyer's behavior.
At the Times, a story on how the NRA has advanced laws like Florida's.
Obama has declined to ban anti-gay discrimination by employers with Federal contracts.
Salon reports that declining abortion options in the South indicate a triumph of society over law.
For those of you unsure, Andrew Leonard explains the so-called "Buffet Rule."
Salon interviews Faramerz Dabhoiwala, author of "The Origins of Sex," and he talks about altering social norms and expectations in the 1760s.
Tracy Clark-Flory examines the new UK tv-show "Dating while Disabled." Progressive? Exploitative?
Transgender contestants can now compete on "Miss Universe," thanks to... Donald Trump?!
An investigation into the pepper spraying at UC Davis last fall finds fault with the Chancellor.
The New York Times reports on the second-degree murder charges against George Zimmermann.
Joan Walsh at Salon says it wouldn't have happened with the social movement that followed the killing.
David Wiegel on how Trayvon Martin's killing is affecting the Florida election.
Emily Bazelon tells us why we should be shocked about George Zimmermann's lawyer's behavior.
At the Times, a story on how the NRA has advanced laws like Florida's.
Obama has declined to ban anti-gay discrimination by employers with Federal contracts.
Salon reports that declining abortion options in the South indicate a triumph of society over law.
For those of you unsure, Andrew Leonard explains the so-called "Buffet Rule."
Salon interviews Faramerz Dabhoiwala, author of "The Origins of Sex," and he talks about altering social norms and expectations in the 1760s.
Tracy Clark-Flory examines the new UK tv-show "Dating while Disabled." Progressive? Exploitative?
Transgender contestants can now compete on "Miss Universe," thanks to... Donald Trump?!
An investigation into the pepper spraying at UC Davis last fall finds fault with the Chancellor.
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