January 19, 2008
The challenge of teaching dynamic ethics
The front page of many papers today carried the story of Daryl Atkins, whose death sentence was commuted by a Virginia trial judge. Atkins was the petitioner in a 2002 Supreme Court case in which execution of the mentally retarded was barred, but litigtion continued on whether or not he was sufficiently mentally handicapped. Prosecutors continued to press for his execution.
Then, a new issue appeared. Lesley Smith, the attorney for a co-defendant who provided testimony for the government, stepped forward and provided convincing evidence of prosecutorial misconduct. In short, the government, while interviewing the cooperating co-defendant, had turned off the tape, coached the witness, and failed to tell the prosecution about the incident.
As a former prosecutor who really does believe in both punishment and the incapacitation of proven criminals, this story illustrates once again a fundamental ethical problem in criminal law: Too many prosecutors are more committed to getting convictions than they are to justice. The underlying problem is the trend to see prosecutors as solely a part of law enforcement, with police as their clients, while part of their true role is to be an objective, deliberative administrative body which acts as a filter between the police and the the courts. In fact, it is in the service of this true role that prosecutors are afforded so much discretion, creating that much more danger if convictions become the ultimate goal.
I have taught hundreds of students who have or will become Texas prosecutors, and I have struggled with how to teach this important value. It isn't enough to simply recite the maxim that justice is most important, since that can easily be redefined in the context of a job where no one respects the true meaning of that value. What I have come around to is using simulations, where the students take on the role of an attorney facing these kinds of dilemmas. It is time-intensive and sometimes awkward, but I still think it is worth the costs.
What have others tried, within their fields, to teach situational, dynamic ethics?
-- Mark Osler
January 18, 2008
Urging students (and law schools?) to do something innovative with summer $$$$
At a time when all the media talk is about an economy in trouble, law students will surely be happy to see this new article from The Recorder headlined "Summer Associate Forecast Brighter in '08." The article reports that the majority of large law firms interviewed for the story "said their summer programs will be slightly bigger than last year." But what really caught my eye was the article's report that the standard weekly salary for a BIGLAW summer associate in 2008 is going to be over $3000.
Given my own (now dated) experience that a BIGLAW summer involved a lot of benefits in addition to the weekly salary (e.g., free food, tickets to events), I wonder if any students or law schools have thought about innovate ways to capitalize on BIGLAW largess. Imagine if, for example, a student group (or a Dean) encouraged BIGLAW summers to pledge, say, five percent of their summer salary to a public interest lawyering fund?
If we run the numbers on the assumption that, say, 100 students will donate this (tax-deductible?) five percent amount after working 10 weeks during their 2L summer, we end up with $150,000 plowed back into public interest lawyering thanks to the increasing salary scale for BIGLAW summer associate
Of course, such "found" BIGLAW $$$ could be used by student groups (or a Dean) for purposes other than for public interest lawyering: this fund could be used to help students deal with law school debt or to hire counsel to sue troublesome alums or to create a retirement program for poor underpaid federal judges or to try to convince people not to go to law school or to help needy former prosecutors or for any number of other possible noble pursuits.
Posted by DAB
January 14, 2008
Blogs as teaching tools : CALI/Berkman lunch wrapup
Thank you to all the bloggers who came to lunch and to our "Open Source Booth" at AALS -- this is a belated attempt to scribble down what little I remember from our lunch about how blogging can advance law professors' roles as educators. (The luncheon was titled, "Beyond Scholarship," and was intended as a followup to Berkman's Bloggership Symposium of 2006.) More after the jump...
Blog as discussion forums
There was considerable interest in using blogs as, essentially, a re-working of the discussion boards of the earlier Web. There seems to be something about blogs that perhaps feels less intimidating and more intimate and personal about blogs. Further, blogs' strong anchorage around time maps well onto classes that run on a syllabus.
The flip side of this is that most people understand blogs to be public, although they need not be, and when they are, students who post under an identifiable name could risk repercussions in the "real world" (especially later employment or, inevitably, that Senate confirmation hearing). This is a concern being echoed all over the Web over the Millenial Generation's laxer attitudes about privacy, but in the classroom it's easily solved by making the blog private to the class. More than one professor suggested, however, that keeping the blog public can help students begin to shape their future public identities as lawyers by turning the experience into a teachable moment.
There was some conversation about participation and whether blogs encourage a different set of participants than the typical classroom 'gunner.' I suggest it may be time to update my very limited research in this area. One thing I would like emphasize in this regard is that having students discuss a topic as an assignment is a very different thing than opening a general forum for discussion, and that for the former instance we're still awaiting an easy-to-use version of Berkman's H2O Rotisserie to manage structured conversations. For whatever reason, online dialogue technology has not otherwise progressed since the mid-1990s.
Blogs as raw course materials
This conversation was mostly instigated by myself in putting forth the question, how can we take all the work we're doing on our various blogs as scholars and turn them around for use in the classroom? I'm particularly keen to answer this question in the context of eLangdell, which will allow law professors to remix teaching materials -- and presumably the most important of these will be up-to-the-minute updates that we're posting on our blogs. But are blog posts usable as educational content?
I'm sure I'm missing quite a lot as there was considerable conversation going on all over the table. I would love if anyone who was there -- or anyone with any related ideas -- would post them in the comments. (I would also love speculation as to why we ended up with only one woman at the table... it can't just be that we were competing with Justice O'Connor... I hope it wasn't my own bias!).
January 13, 2008
A hierarchy of goals for law school instruction and serving students
During recent AALS presentations and in other law school reform discussions, I realized law professors often talk past each other because of different visions of the goals for law school instruction and serving students. To give reform goals some conceptual content, I devised a hierarchy of goals for law school instruction and serving students (which now reminds me a bit of the eight degrees of tzedukah). Here goes:
Law school instruction and serving students should be focused on...
5. helping students pass the bar
4. helping students get better grades
3. helping students learn doctrines and skills needed to be competent lawyers
2. helping students develop insights and abilities needed to be outstanding lawyers
1. helping students enhance talents and options needed to be flourishing professionals
In developing this (incomplete?) hierarchy, I have come to new insights about old issues, such as the laptops-in-the-classroom debate. I surmise that many professors, perhaps accurately, fear that laptops (and surfing) in the classroom can undermine efforts to achieve Goals 3 and 4 and 5 for all the students. But I consider laptops and the internet to be essential to Goals 1 and 2 and 3 for those students who are genuinely interested in the concepts and materials I cover. Similarly...
Deeper insights about the stratification of law schools and law students also can emerge from this hierarchy of goals. Consider, for example, Goal 5 concerning helping students pass the bar: because of their very different student populations, top-tier law schools and their students likely don't worry about this goal much; bottom-tier law schools and their students likely have to worry about this goal a lot. And, for middle-tier schools, where the top 75% of students are very likely to pass the bar on the first try, an internal emphasis on Goal 5 will necessarily commit resources to the benefit of only a small portion of the school's student population.
Goal 4, helping students get better grades, creates a different sort of dynamic. Most law schools have a fixed curve for most standard classes, so helping some law students get better grades will only entail that other students get worse grades. This explains, in part, the grade-inflation pressure at most law schools: raising the overall grade curve will do more to help the entire student population on Goal 4 than will any amount of student services that merely help certain students do better on exams.
Finally, the pernicious realities of quantification and US News rankings explains why the "lesser" goals in this hierarchy tend to get so much more attention. It is very easy to quantify and assess success with Goals 4 and 5, but quite hard to quantify and assess success with Goals 3 or 2 or 1 (unless success is defined in terms of monies given back to the law school by alums). Thus, there will always be internal and external pressures to "do better" on Goals 4 and 5, while far too little attention is paid to Goals 3 or 2 or 1.
Posted by DAB