It’s all over

Another semester down. I’m knee-deep in exam-writing now. The case against Benedict Kuehne (JD ’77) is over, too. So, the law of conservation of anxiety holds. Just walking into the library during finals season gives me contact-tension. But there’s a wave of relief spreading over the criminal defense bar all over town and, indeed, the nation. Kuehne’s understated and exemplary graciousness survived the ordeal of being prosecuted, as demonstrated by his statement: “I have had throughout a deep and abiding belief that things would turn out well in the end. … We are all fortunate to be able to say that we have a Justice Department whose goal is to try to do the right thing—not to win at all costs.” And Judge Marcia Cooke emerges vindicated, having had her dismissal of the money laundering count characterized as “eminently correct” by a unanimous Eleventh Circuit panel. All in all, a heartwarming holiday tale, like, you know, Die Hard.

Clawing and scratching for rank and position

The other day at the gym, an undergrad asked me whether he shouldn’t apply to the University of Alabama’s law school seeing as they’re paying students—in iTunes credits no less—to do so. The scam is that boosting the number of applications means they can reject more people, thus making the school appear more selective under U.S. News and World Report’s criteria. I know, I know: One would expect a reputable institution of higher learning to find paying applicants—in iTunes downloads no less—to endure a rejection letter too unseemly to tolerate. But Alabama has decided that closing the gap between it (in a five-way tie at 30th) and, say, the University of Iowa (tied at 26th with BC) is worth whatever sneers they endure within academe. (Is there really any difference between studying law in Tuscaloosa and studying law in Iowa City? Isn’t either fate sufficiently akin to punishment or at least civil confinement that distinguishing between the two is pointless?)

Notwithstanding the annual list’s shortcomings in method and dubiousness of purpose, schools seem on the whole unable to resist jockeying for position. And that means gaming the numbers in ways that push the boundaries of what might be strictly ethical. The academy is, in other words, about as obsessed with U.S. News’ rankings as Jon Stewart was with the Bush Administration. The sheer amount of energy professors and pundits spend picking apart the rankings and cataloguing their flaws both underscores and enhances the magazine’s influence. And this influence translates into schools making important decisions based on how they impact the rankings. Like buying applications from sub-par candidates. And focusing admissions decisions on GPAs (somewhat regardless of the major in which it was earned or the institution that bestowed it) and LSAT scores. Etc. This means that law schools generally start to look more and more alike and that it makes less and less of a difference whether a prospective student chooses one or another.

Yesterday, a publication non-ironically called Super Lawyers ranked UM 20th in its inaugural ranking of law schools. Their claim is that they base their rankings on the quality of the lawyers each school produces. And, to be sure, we have more than our fair share of outstanding alumni. Coincidentally and in fact, Kathleen Williams (JD ’82) was honored at the Law School yesterday for her leadership in the profession. Chief Judge Moreno (JD ’78) was there as were Magistrate Judges O’Sullivan (JD ’85) and Palermo (JD ’50). And those are just the alumni I ran into yesterday. But how much does the success of our alumni say about the program we offer today? I point this out not because I have any opinion one way or the other (I don’t, as per custom) but because the real relevance of this Super Lawyers thing is how its anti-intellectual reaction to U.S. News’ hegemony illustrates the folly of any attempt to rank a product so complex as a professional-school education. Here’s what they say:

Most law school rankings look at things like bar passage rates, professor-to-student ratios and the number of books in the library, but they ignore the end product—the quality of lawyers produced. We think it’s like ranking football teams based on athletic facilities, player size and equipment without considering who wins the games.

In the real world—the world of clients and juries and judges—no one cares about your GPA or LSAT score. All that matters is how good and ethical a lawyer you are. That’s the focus of Super Lawyers.

Yikes. I mean, really: Yikes. If criticizing U.S. News is like criticizing Bush, here comes Super Lawyers spouting nonsense and similes like Sarah Palin. No one cares about your GPA. You don’t need lotsa books. Just git in thar and raise hell!

¡No vamos a Washington!

The Supreme Court denied certiorari this morning in ACLU of Florida v. Miami-Dade County School Board. That was the case in which Judge Gold entered a preliminary injunction preventing the school board from pulling the children’s book ¡Vamos a Cuba! from elementary and middle school shelves. The Eleventh Circuit, undertaking plenary review, reversed Judge Gold. (UM Law Professor JoNel Newman litigated the case on behalf of the ACLU.) Judge Carnes or one of his law clerks indulged in this introduction (which pretty much explains why Judge Gold’s findings had to be jettisoned):

Kafka advised a friend that “we ought to read only books that bite and sting us. If the book we are reading doesn’t shake us awake like a blow on the skull, why bother reading it in the first place?” The kind of biting, stinging, and shaking Kafka advocated, however, is not the kind we feel when we read a purportedly nonfiction book filled with factual errors, distortions, and misrepresentations.

As is typically the case when the press attempts to report on the Court, The Herald’s story neither offers nor exhibits any understanding of what a cert denial means and quotes board member Perla Tabares Hantman so as to make her seem just as clueless (which she well may be): “We were right and we prevailed. … This is a great victory for the School Board and for Cuban-Americans.” I’m pretty sure she’s not wildly happy because the court of appeals’ decision to undertake de novo review will not be revisited. (The petition for cert presented two mind-numbing civil procedure questions about whether Judge Gold’s hard work didn’t merit some deference from the Eleventh: “Whether, in a First Amendment case, the district court’s findings of historical fact, motivation, intent, pretext and credibility are entitled to deference under Fed. R. Civ. P. 52(a)(6), or, as the court of appeals held, are instead subject to plenary review,” and “whether the courts of appeals are required to undertake ‘independent review’ of a trial court’s factual findings when those findings support a holding in favor of First Amendment claims.”) Hispanic Business, on the other hand, did a much better job reporting the story.

As far as I’m concerned, the most disturbing question raised by the case is right there on page 3 of the court of appeals’ opinion and is passed over as though it weren’t even a concern: Why was a book written for five- to eight-year-olds ever in any middle school library?

Face to face at last

It was slightly terrifying. Instead of a field of glowing Apple logos and Dell badges, there were faces. And it was like they were all on pseudoephedrine, raising their hands and asking questions. To be sure, most of those questions sprang from the rising anxiety over the impending exam. All I know about it is that it is going to be insanely hard. I always try to make my exams as hard as possible so that I don’t have any trouble telling the B-plusses from the regular B’s etc. I learned that from all those standardized tests. The questions that separate the geeks from the nerds on the LSAT and the SAT etc. are the very, very hard ones. The easy questions don’t even matter. They’re just there to wear you and the point on your No. 2 down.

I haven’t even decided on a TV show yet, and it’s getting kind of late for that. All my exams are TV-based. It makes them easier to write and less painful to grade. The Evidence exam calls for a pretty specific formula. You need a non-cop, non-lawyer show with a sizable ensemble cast, preferably including a decent-sized family. Then you need an event that gives rise to both a criminal prosecution and a civil suit. The two cases need to be built on completely different and inconsistent explanations for said event. Then, you just mock-up all the stuff that would exist—FBI reports, deposition excerpts, hospital reports, web sites, text messages, photos, newspapers, wiretaps, emails, letters, etc.—and have them argue that it’s either in or out in one case or the other or both. For instance, my first year doing this, the church in Springfield was burned and the insurance company believed Reverend Lovejoy did it and refused to pay while the police believed Fat Tony had it torched because Lovejoy failed to pay extortion. My favorite was the Arrested Development exam because I was able to base it entirely on one episode and it worked beautifully.

There’s nothing on TV now that lends itself to this. I’ve been trying to work with Hung, which is pretty sharp. But something’s off and it hasn’t come together. It’s sort of like last time, when I tried to do an I Love Lucy that involved Fred Mertz doing inappropriate things to Little Ricky. The reaction from the two friends I sent early drafts was of such outraged revulsion that I had to start from scratch with 30 Rock. Relying on DOM’s endorsement, I tried out Glee and, boy, did I pay for that. The clip DOM posted is all you need to know. This stuff is concentrated, cloy poison. It’s Juno lobotomized and remade into a cheesy, warbling, nauseating musical: a veritable hell on Earth.

It only feels like a punishment

I did it. No more laptops in Evidence starting Monday. There are only four more classes left, so only a tiny handful of students panicked. One told me afterward—with no appreciation whatsoever of the irony—how he and all his friends were instant messaging each other about why I was angry at them and just could not figure it out. I just gave him the Exasperated Eye-roll® and walked off. They think they’re being punished for something.

What we have is a fundamental philosophical disconnect. I believe that a law school class should operate on the same principles as meetings in law firm conference rooms: Everyone shows up having read tons of stuff, brings a pen and a legal pad and some ideas, and then tries to make the other associates laugh out loud by making silly faces while the partner is holding forth on legal issues he doesn’t quite grasp. But some law students operate on High School Rules of Order, where the teacher is viewed primarily as a disciplinarian-cum-nanny and classtime is an ordeal to be endured as the price of a degree. That’s why—even though we charge frightening amounts of money for these classes—students feel elation and even gratitude when one has to be canceled. (If their personal trainer or tennis instructor or piano teacher canceled a session {and didn’t offer a refund}, on the other hand, just imagine the outrage.)

To be sure, many professors reinforce the philosophical divide by assuming the role of disciplinarian rather than discussion-moderator or -provocateur. They have lots of detailed rules and accompanying penalties. Their syllabi read like Federal Sentencing Guidelines sections. One colleague used to go bananas if students walked in late through one door rather than another. Then there’s the whole excused-versus-unexcused-absences thing. Who has time for that? I tell them, If you’re not here, I assume there is a fantastic reason. If it happens five times, I may drop you from the class or fail you. What is there to discuss? If you’re not there, then you missed it, that’s all. If you miss a meeting at work, do you saunter into your boss’ office and ask her to recap it for you? Do you write to Jon Stewart to explain why you missed his show last Tuesday? Notwithstanding this, students can’t stop themselves from saying, “I know you said you don’t care, but,” and then describing in uncomfortably intimate detail their diseases and symptoms and tragedies of every stripe, and I can’t recoil quickly enough while repeating, “Really, it’s fine; I don’t care. Please stop. I beg you to stop.”

Take out your quills and inkwells

The other day in Evidence we were discussing a Rehnquist opinion that referenced two obscure cases dealing with the Smith Act. If you didn’t know what the Smith Act was, you would have no idea what Rehnquist was scrawling about. Way back in the 1990s, this would have required some minor effort by the standards of the day. But today when I ask, “What did the Smith Act deal with and what is Rehnquist saying in this paragraph?” and upwards of 100 students just stare at me quizzically, it’s a little disconcerting. “If you could take a short break from instant messaging and just ask the box in front of you, we could get on with this.” This happens all the time, and I still don’t get it.

So, I was thinking of banning laptops next semester when I teach Crim Pro to the 1Ls. It’s not that I entirely agree with the numerous professors—or entire schools—who complain that students don’t pay attention. It’s not as though law professors were enrapturing before students had laptops. Back in the twentieth century, if a professor was dull, we messaged each other and made grocery lists and even played games in class, all with a pen and paper.

But the way students use laptops makes learning harder and more time-intensive rather than more efficient. They walk into class with the textbook and the supplement to the textbook plus this six-pound appliance that is a blank slate. They haven’t taken any notes on what they read. They just sit there waiting to type every word, so they can then spend way, way, way too much time trying to figure out what it all means at some unspecified future time. Outlines are typically upwards of 90 single-spaced pages, making studying for finals more daunting than it ever should be. Watching them use their laptops this way is like watching someone try to change the channel by throwing the remote control at the buttons on the television from across the room.

I asked the upper-class students in Evidence what they thought. One student said manual note-taking is a necessary legal skill that needs to be practiced and another said banning laptops was ridiculously paternalistic. So, I thought about that and now I’m thinking I might ban laptops for the last two weeks of this semester.