By the clueless, for the clueless

The Times Magazine had an interesting (though prolix) article about what makes a teacher effective. After a lot of teasing and skirting, it finally gets around to nailing what makes a good teacher: “Teaching depends on what other people think, not what you think.” Right. If you can’t see the concept from the other side of the desk and intuit how students are understanding it—or misunderstanding it—then you can’t engage the class. You not only have to have a fairly deep knowledge of your subject and control the room, but you also have to know what is going on in the minds of the class. That means being able to imagine all the different ways that something might be read or grasped by someone encountering it for the very first time. It, as the article quotes an educator as saying, “is decidedly not about being yourself.”

In other words, to be a good teacher, you have to imagine how whatever you’re trying to impart sounds to someone utterly clueless about it. And I have no difficulty whatsoever imagining what it’s like to be clueless. Actually, the appropriate verb is “remembering” because I had no idea what was going on for about 90 percent of the time I was in law school. And I remember exactly what that was like as though it were yesterday. One time in Fed Courts, my friend Chung Lee, who always sat right in front of me and whose photo galleries are linked to in the sidebar, suddenly turned around in the middle of whatever Gewirtz was saying and asked me whether in fact the dissent or the concurrence or someone wasn’t necessarily right because of, I don’t know, maybe the Eleventh Amendment or something. And I swear I had not the foggiest idea what he was saying. And it was terrifying. But not as much as when, about five weeks into first year, I sidled up to a conversation my frenetic and anxious classmates were having about their summer job prospects. And I just listened in stunned silence as I slowly put the pieces together and eventually said, “We have to work during the summer? How does everybody know these things?”

So, now that Spring Break is upon us, it’s time for me to post an old exam for the 1Ls to stress over. And I’ve already told them I’m not fielding questions and that they should just work through it on their own or with their study groups or whatever. Why? Because eventually you figure all this law stuff out, but those little epiphanies take place in dank, solitary, shadowy corners of libraries at odd hours. It’s just the way of things.

Politics, professors, and pundits

Justice Scalia’s denigrating a plea to overrule the Slaughterhouse cases as “the darling of the professoriate” made news. As usual, the reports, which reduce the exchange to sound bites, are not all accurate. The fascinating idea at the heart of the matter is that being an effective advocate—a good lawyer—can be fundamentally at odds with being a sound legal theorist, even when arguing to a sympathetic judge. This is exactly why I hate it when students echo my own little pet theories back at me on an exam. I would rather they just stuck to the law. It’s also a vivid illustration of why doctrinal and clinical education are equally important in the modern academy. Here’s the unabridged opening of the argument, which I fully realize is long but seems worth it to me:

• MR. GURA: Mr. Chief Justice, and may it please the Court: Although Chicago’s ordinances cannot survive the faithful application of due process doctrines, there is an even simpler, more essential reason for reversing the lower court’s judgment. The Constitution’s plain text, as understood by the people that ratified it, mandates this result.
In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.
The rights so guaranteed were not trivial. The Civil War was not fought because States were attacking people on the high seas or blocking access to the Bureau of Engraving and Printing. The rights secured by the Fourteenth Amendment were understood to include the fundamental rights honored by any free government and the personal guarantees of the—
• CHIEF JUSTICE ROBERTS: Of course, this argument is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big—it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.
• MR. GURA: Your Honor, the Slaughter-House cases should not have any stare decisis effect before the Court. The Court has always found that when a case is extremely wrong, when there is a great consensus that it was simply not decided correctly, especially in a constitutional matter, it has less force.
• JUSTICE SOTOMAYOR: What is it that has—has been caused by it that we have to remedy, meaning States have relied on having no grand juries, States have relied on not having civil trials in certain money cases, they have relied on regulating the use of firearms based on us, the Court, not incorporating the Privileges and Immunities Clause in the way that you identify it.
• MR. GURA: State—
• JUSTICE SOTOMAYOR: What—in which ways has ordered liberty been badly affected?
MR. GURA: Justice Sotomayor, States may have grown accustomed to violating the rights of American citizens, but that does not bootstrap those violations into something that is constitutional.
• JUSTICE GINSBURG: Are you saying that the rights—if you could clarify your conception of privileges and immunities. Am I right in thinking that to keep and bear arms would be included even if we had no Second Amendment, as you envision privileges and immunities?
• MR. GURA: Justice Ginsburg, that is correct. The framers and the public understood the term—
• JUSTICE GINSBURG: But just tell us the dimensions of what it is. I mean, we have the eight amendments, so I know you say that’s included. Keep and bear arms would be included even absent the Second Amendment. What unenumerated rights would we be declaring privileges and immunities under your conception of it?
• MR. GURA: Although it’s impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it is impossible to do so under the Due Process Clause, at least with respect to the Privileges and Immunities Clause we have wonderful historical guideposts. There are—
• JUSTICE SCALIA: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due—?
• MR. GURA: It’s—
• JUSTICE SCALIA: Is it easier to do it under privileges and immunities than it is under substantive due process?
• MR. GURA: It is easier in terms, perhaps, of—of the text and history of the original public understanding of—
• JUSTICE SCALIA: No, no. I’m not talking about whether—whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?
• MR. GURA: Justice Scalia, I suppose the answer to that would be no, because—
• JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty—
(Laughter.)
• MR. GURA: No. No. I have left law school some time ago and this is not an attempt to—to return.
• JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have—even I have acquiesced in it?
(Laughter.)
• MR. GURA: Justice Scalia, we would be extremely happy if the Court reverses the lower court based on the substantive due process theory that we argued in the Seventh Circuit. …

On-the-job training

Yesterday, the JV-FPD team got its draft briefs in. Even though we selected relatively “simple” cases for the clinic, the briefs seem to raise pretty viable issues, so that’s all good, and I spent much of the day scribbling what we call feedback all over them. And yesterday I received 46 applications for next year’s clinic. Oh, and I taught the 1Ls about Justice Ginsburg’s contention that cool kids have a lower expectation of privacy than nerds. (That, by the way, is how much sense the Katz test makes.) So, it was a hectic day.

Whoever is on next year’s JV team will owe a debt to this year’s students, who are basically the test case for what works and what doesn’t. Beatriz and I have already identified ways to improve the course for next semester. Nonetheless, the initial briefs were all well within the range of our hopeful expectations, but I’m not necessarily telling the team that since I suspect insecurity makes people try harder. And, even though this first time out is not without its bumps, they are getting lots of attention from experienced brief-writers. Scott Srebnick came by last week to offer some advice, and Beatriz dropped by class today to share her feedback on the drafts. Yesterday, I also confirmed with USAO Chief of Appeals Anne Schultz that she and Interim United States Attorney Jeffrey Sloman, both of the Class of 1983, will meet with the group to talk about appellate advocacy after Spring Break. So, we’ll all be heading downtown.

Next year’s team will also get the benefit of access to the newly refurbished digs that the Powers That Be have set aside for all of the School’s clinics. It is already decked out with the School’s snazzy new color scheme and geometric carpet squares, and we are all eagerly awaiting furnishings. The new space will house all the clinical faculty plus me, client interview rooms, a student work room, and a classroom. I say “plus me” because there’s some sort of categorical crisis about whether I’m doctrinal or clinical since I started the clinic. To me, it’s all just law. Call it whatever you want. Lately, I am realizing that, since I have no plans to surrender Evidence or Criminal Procedure, the clinic’s viability depends on my not teaching upper-level seminars for the foreseeable. So, I’m starting to think of ways to roll the cases I teach in seminars into the clinic. Very soon—maybe as soon as March—this is going to be a doctrinal clinic. Don’t worry—this all makes perfect sense in my head.

No more words

I remember reading when I was a kid some probably apocryphal story—I think it was in Reader’s Digest, which has gone from America’s most widely read publication to just barely existing—about this “efficiency expert.” He would come into a company and ask for an office with a desk, a chair, and a big rug. He would direct that all memos be routed through him. And he would never come out of his office, but everything would somehow get better. And no one could figure out why. Then, when he left, they would find that half of all the memos circulated were under the rug. The point is there are too many voices. Faxing made it worse and email and texting have made it worse than that. Wait till they invent telepathy. The iThink or whatever.

I mention this because I am using a tiny sliver of a breather I have to clear out my email inbox. There are three emails in here about a yoga class the Law School is (for some reason) offering—and I’m pretty sure I deleted at least two on the same topic earlier. There’s a whole bunch of stuff about various faculty meeting agenda items. Probably a dozen about speakers and events and cocktails. Lots and lots about the newly renovated space for the School of Law’s clinics—which is really nice and will impress the ABA when they come back for the next inspection, not that I’m saying anything about what they said during the last one. Because I wouldn’t do that. There’s emails about coordinating interviews for a clinic receptionist and a new secretary. There are emails about putting signs on the door and about what the signs should say. And only once you wade through that thicket do you get to the ones about actual work: JV-FPD briefs to supervise, letters of recommendation to write, student papers to read and grade.

I know, I know. People with real jobs have inboxes the size of my sent-messages box. But I’m supposed to be really thinking about the law, you know? Anyway, it’s too much. So, with thanks to the Reader’s Digest guy, I’ve been adding certain work people to my junk mail list. That way, I just never see anything they send. Better yet, UM’s high-tech voicemail system, it turns out, can be programmed to delete messages from any extension so I never even know certain people called me. (I wonder whether this feature was invented because of sexual harassment or just regular harassment.) Point is, if you want to get rich, invent a junk-mail filter that can read and purge email based on it being pointless rather than based on author or domain. Then, I wouldn’t have to decide whether so-and-so has ever sent anything I needed or wanted to read. Still, for now, this beats the alternative.

“You’re scaring them.”

One of the six Eleventh Circuit appeals the FPD’s JV squad is handling is a supervised-release violation that entails internet restrictions. Having not had home internet access for going on five days due to what we call technical difficulties, I can tell you this borders on cruel and unusual. We are quickly arriving at the point where denying sex offenders internet access is tantamount to denying an obscene caller use of the telephone system. One could still function, I suppose, but it would be so daunting that many would just be functionally banished from society, as we tend to do to sex offenders. As for me, I am making due whenever I am away from the office with my original 2G iPhone. While that device would have seemed nothing less than sorcery even six years ago, now it’s barely adequate for everything I need it to do.

Anyway, the JV squad is all up and running. All the briefs are due in early March, so hopefully we will be able to draft replies before the semester is out. The United States Attorney’s Office’s Chief of Appeals and School of Law alumna Anne Schultz (JD ’83) could not have been more accommodating, especially with scheduling. The judges of the Southern District of Florida, particularly the Chief (JD ’78), likewise facilitated the assignment of the cases.

Needless to say, things are a little more hectic than they usually are up here in my Ivory Tower, what with doing practical work for real people. So, when I gave my 235 1Ls the little talk about the Crim Pro exam yesterday, I may have been more emphatic than strictly necessary regarding what needs to be in those essays and, far more importantly, what had better not be in those essays. One of the few 2L-transfer students in Crim Pro who was in Evidence last semester, looked right at me during a pause in my tirade and said, “You’re scaring them.”

The long view

Justice Kennedy’s opinion in last week’s big Supreme Court case began with an epitomical opinion spoiler that proves (once you ignore all the superfluity) that it’s all about how you frame the issue: “Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an ‘electioneering communication’ or for speech expressly advocating the election or defeat of a candidate.” I have no idea why the opinion rambles on for pages after that or what more there might be to say. Laws prohibiting speech are not allowed. Everyone knows that.

Skipping over the rest of the Court’s opinion and past the concurrences, Justice Stevens’ first line in dissent informs, “The real issue in this case concerns how, not if, the appellant may finance its electioneering.” Ah. Well, that might actually justify filling some pages. It’s pretty clear already that Justice Stevens is right on this one. And, just as with Daylight Savings Time, I’ve now effectively added an hour to my life by skipping over Kennedy’s syllogistic disquisition.

Since it’s been about two years since I’ve seen a television commercial, the Court’s decision about corporate speech is not going to affect my life at all anyway. The only importance of the decision to me is that it has all eyes on Justice Stevens, as Adam Liptak’s short piece yesterday illustrates. When Stevens was in his 20s, he (along with Byron White, though I’m not clear on whether they knew each other then) was an intelligence officer in the United States Navy in the Pacific Theatre. Now, during his 90th lap around the sun, he is still reading opinions from the high court.

And all of this is excruciatingly important to understanding what the Court is supposed to do and what it actually does. Even though pundits (as Liptak demonstrates) love to slap Stevens with the label of “liberal”—because life is easier to comprehend if you divide everything, as Pink Floyd famously intoned, into Us and Them—the truth is rather more complex. (Stevens was appointed by Nixon to the Seventh Circuit and to the Supreme Court by Ford. He is “liberal” in the sense that he joined the fight against aggressive fascists but the label is otherwise vapid.) Stevens’ vision of America is simply longer and deeper than that of at least some of his brethern, as Liptak also coyly points out:

Justice Stevens, who served in the Navy during World War II, reached back to those days to show the depth of his outrage at the majority’s conclusion that the government may not make legal distinctions based on whether a corporation or a person was doing the speaking.

“Such an assumption,” he wrote, “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”

The reference to Tokyo Rose was probably lost on many of Justice Stevens’s readers.

Following Stevens’ lead, I guess, Liptak declines to enlighten the New York Times readership as to who or what Tokyo Rose was, but the phrase is not in the opinion as merely some Montgomery-Burns-type idiosyncratic ancient pop-culture reference. It is a claim to a jurisprudential philosophy forged as much through study as through experience fighting for the Republic. What I’m saying is, Stevens is Yoda, forced to deal with a bunch of Luke Skywalkers fumbling about the swamp not quite yet clear on what the point of being a Jedi is.

How China is like a racoon

Teaching a bunch of Facebookers about “expectations of privacy” would be ludicrous enough without having to bring raccoons into it. After dealing with Katz we eventually moved on to California v. Greenwood, in which the Court explains that Americans cannot reasonably expect their garbage to be private because of the raccoons:

Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.

In the game of adjudication, this is an illegal move for lots of reasons, not the least of which is that the habits of scavengers in Laguna Beach are not a proper subject for judicial notice. More fundamentally, it fudges the meaning of “reasonable expectations” to mean something more like “reasonable certainty,” which is well beyond what Katz held or, more to the point, what Harlan took Katz to hold.

If the Fourth Amendment only protects things that we are reasonably certain will remain secret, then nothing is protected because China is the giant raccoon on the planet, snooping through all our stuff. Even though Google pretty much stone-cold busted the Chinese reading our emails or something, the New York Times points out that “Google investigators have been unable to determine the goal: to gain commercial advantage; insert spyware; break into the Gmail accounts of Chinese dissidents and American experts on China who frequently exchange e-mail messages with administration officials; or all three.” Indeed, no one really seems to know much about the cyber-attacks, probably because everyone is too busy uploading nonsense to Facebook.

Thinking about all this, as I get paid to do, I’ve decided that a huge part of the problem with Fourth Amendment analysis is that it is generally taken for granted that “unreasonable” in the text means “not extreme” or “in proportion” or something like that. But that’s just silly. Everything works much better if “unreasonable” is taken to mean “not irrational,” which after all is its primary definition. (I realize that to defend this contention properly I need lots more pages and scores of footnotes. And I’ll eventually get around to that.) Even if America would deem Greenwood’s expectation that no one would rifle through his garbage far from certain, it seems pretty clear that it was not an irrational expectation—like Google’s expectation that China would not try to hijack their servers. Or whatever.

“Don’t kid yourselves. If they didn’t know what they’re doing, they wouldn’t be there.”

David Letterman is absolutely right: “Any time there’s a big stink like this, it’s money. Don’t kid yourselves—it’s all about money.” That’s exactly what’s going on at the Supreme Court this week.

The Court is, like NBC, flip-flopping on a decision it just made and upsetting a lot of people, mainly Antonin Scalia, who I understand is a Conan O’Brien fan. Just last term, Scalia wrote for the Court that the Confrontation Clause requires that chemists preparing lab reports for use in criminal trials are subject to cross-examination. Now that Souter is gone, the Court is looking at the issue again for no other reason, Scalia pointed out during argument, than to overrule the newly minted decision.

And why? Because it’s expensive. Twenty-some states filed an amicus brief saying producing witnesses is costing them a lot of money. And some of the justices actually listened to them. When Richard Friedman, arguing for the petitioners, ventured that “the expense is not inordinate,” Justice Alito rebuked him: “How can you say that? We have an amicus brief from 26 states and the District of Columbia arguing exactly the contrary.” Has Alito even heard of Gideon v. Wainwright, another Sixth Amendment case in which a unanimous Court required the Nation to spend kajillions of dollars? Could it be that Scalia and Stevens are the only people left on the Court who know what it is the Court is supposed to do for the Republic? Does it not even occur to the others that maybe, just maybe, the Constitution deliberately and by design makes it extremely difficult to enforce Prohibition-type laws because the values embodied in that document are in many ways irreconcilable with the tactics necessary to keep people from harming themselves by ingesting things that are bad for them? Do we really have a bunch of beancounters up there measuring the value of our rights in dollars? Are rights no different than a multi-million-dollar late-night television show contract, to be reconsidered and rescinded within months of being recognized?

Predictably and correctly, actions like this paint the Court as a political body, no different than the White House or Capitol Hill, dismissive of logic & reason & precedent & rules & everything but the personalities of those holding the office. Which is why Scalia, correctly, openly from the bench criticized “us for taking this case.” And as for the important and immediate impact of all this: How am I supposed to teach constitutional decisions with a straight face if they get made this way?

Just look at them and sigh

Classes start up again today, so my Thematic iPod selected CSN’s “Teach Your Children” for the drive into work. Today the Federal Public Defender University of Miami Junior Varsity Team begins working on some appeals. Tomorrow, I take on two sections totaling 235 One-Ls for Criminal Procedure Unplugged—one in my usual space and another in our new satellite classroom across campus.

I hate making little rules for class because I hate having to enforce them. Too many rules distract and detract from the mission at hand because people spend time litigating transgressions rather than being productive. For that reason, having “sick days” or “excused absences” is more expensive than having “personal days” or a fixed number of absences forgiven, no questions asked. So, I just give every student four personal days to use for religious holidays or beach days or dental appointments or whatever. But too few rules can also make it impossible to accomplish objectives because people need to be organized if they are going to work collectively.

My current working theory re: the laptops is that the bigger the class, the more of a problem gizmos are. Engaging a group of over 110 without eliminating distractions makes it impossible to cover the material in optimal depth. For one thing, you get constant requests to repeat things that were said while someone was emailing or IMing or shopping or whatever. And that breaks up class and makes it impossible to do anything remotely Socratic. Also, it’s maddening.

But the One-Ls will interpret being deprived of their gadgets as both punitive and arbitrary rather than as the natural result of being gathered for a particular purpose. “Expect whining,” said one colleague. Maybe from some, I suppose. But this is exactly what Nash was talking about when he wrote, “Can you hear? And do you care? And can you see?”

“Never look back. It distracts from the now.”

Each year that one teaches the same subject, the temptation to recycle and repurpose an old exam grows. And recycling is, of course, the mantra of our time. E.g., yesterday, this horror called “Ghetto Supastar” began playing on the gym’s sound system and only two of us there recognized it as a retread of a painful ditty called “Islands in the Stream” written by the Bee Gees for Dolly Parton and Kenny Rogers. (Horrible as IITS was and is, it sounds way better than the new version, I kid you not, plus it at least kind of makes sense. More news to the young: modern-day anthem “Land of Confusion” was written not by the group Disturbed but by Genesis in the mid-80s, lyrics by guitarist Mike Rutherford. Gym Class Heroes’ song “Cupid’s Chokehold” is a just a remix of Supertramp’s 1979 classic, “Breakfast in America”—which remains of course superior in every way.)

Hollywood is addicted to recycling as well. It was bad enough when they got poor old Leonard Nimoy to appear in a tedious caricature where you not only have to suspend disbelief but also thought itself. And I admit that I will go see the reimagined Sherlock Holmes. But now they are retreading anything—even things that were terrible in their original iteration. Hence, we will shortly be treated to an A-Team movie (Exasperated Eye-Roll®).

Granted, I haven’t been doing this all that long, but I’m pretty convinced that recycling is not a good idea. A current essay exam—like the eight-question one I just finished grading—keeps everyone sharp, creative, and up-to-date. As everyone in America knows, Trudy Monk left her husband, Detective Adrian Monk, a videotape saying that, if she died, the guy from Coach killed her. In June 2008, a fractured Supreme Court suggested that, under the right circumstances, the tape would be admissible against Coach over a Confrontation Clause objection. Before mid-2008, there would have been little need to test or even seriously ponder the issue. But this year’s entire exam became centered on the Monk finale, despite the fact that part two aired the day after the exam. Given the chance to tackle something insanely hard, a few students pretty much nailed it.