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Teaching the
Law School
Curriculum

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Teaching the
Law School
Curriculum

edited by

Steven Friedland
Gerald F. Hess

Carolina Academic Press


Durham, North Carolina

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Copyright 2004
Steven Friedland and Gerald F. Hess
All Rights Reserved

ISBN 0-89089-244-X
LCCN 2004113202

Carolina Academic Press


700 Kent Street
Durham, NC 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com

Printed in the United States of America

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Dedication
Professor Hess: to Layne, Mike, and Amanda.
Professor Friedland: to his wife, Jennifer, for her support, and to his toddler son, Adin, for keeping things down
to a low roar. To his coauthor, Gerry, for keeping him out of oncoming traffic.

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Contents
Contributors
Preface

Chapter 1

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Business Associations

Introduction
Steven Friedland
Approach
Learning Goals for Business Associations Courses
Deborah Zalesne
Choice of Entity
Joan Heminway
An Organizational Structure for Teaching Corporations
Diane S. Kaplan
Challenges: Real-Life Context and Business Experience
Eric Gouvin, David Simon Sokolow, Linda Harrison, Eric Lustig, Douglas K. Moll
Material
The Greatest Show on Earth
Linda Harrison
Top Five Cases
David Simon Sokolow
Slides
Eric Lustig
Handouts and Outfits
Joan Heminway
Exercises
Exercises for the First Day of Class
Eric Gouvin, Eric Lustig, Joan Heminway, Diane S. Kaplan
Simulations and Small Groups
Deborah Zalesne
Brief Gems
Surviving, Dealing, and Laughing
David Simon Sokolow
Preserving Relationships
Eric Gouvin
Writing across the Curriculum
Joan Heminway
Teaching Corporate Governance through Shareholder Litigation
Jill E. Fisch

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Contents

Feedback and Evaluation


Class Participation
Diane S. Kaplan
Final Exam Preparation and Feedback
Joan Heminway

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Chapter 2

17

Civil Procedure

Approach
Introduction to the Civil Procedure Puzzle
Robert M. Bloom
A Problem-Based Approach Using Real Court Documents
Robin Kundis Craig
The Two-Course Approach
Christopher David Ruiz Cameron
Teach the Whole Class
Walter W. Heiser
Motivating Students to Learn Forum Selection
Greg Sergienko
Supplemental Jurisdiction: Decision Tree Analysis
Diane S. Kaplan
Training First-Year Students to Work like a Lawyer: A Sneaky Virtual Classroom Experiment
Alfred R. Light
Plans of Attack
Robin Kundis Craig
Symposium on Teaching Civil Procedure
Gerald Hess
Material
Pennoyer v. Neff: A Play in One Act
Roberta M. Harding
Concept Sheets
Diane S. Kaplan
Film Clips
Christopher David Ruiz Cameron
Turn Off the Oldies Station
John P. Lenich
Illustrative Litigation Documents Provide Context
Michael Finch
Forms Are Nice, Explanations Are Better
John P. Lenich
Fortenbaughs Files
Gerald Hess
Handouts Prior Exam Packet and PowerPoint Slides
Christopher David Ruiz Cameron
F.R. Civ. P. 4: Service of Process Exercise
Diane S. Kaplan
The Importance of Procedure
Gerald Hess

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Contents

Exercises
Collaborative Creation of Flow Charts
Laura J. Cooper
Joinder Hot Potato
Robin Kundis Craig
A Drafting of Pleadings Exercise for a Large Class
Walter W. Heiser
Pleading Workshop
John P. Lenich
Oral Arguments
Gerald Hess
Brief Gems
Calling Cards
William Slomanson
Role-Playing Client Autonomy
Lawrence W. Moore, S.J.
The Walk Through
Walter W. Heiser
A Devilish Case
Robin Kundis Craig
Mini-Reviews
Walter W. Heiser
Feedback and Evaluation
Using Grading Sheets to Improve Exam Feedback
Stephen Shapiro
The Practice Midterm
Walter W. Heiser
Make the Student the Professor
Katharine F. Nelson

Chapter 3

Clinical Law

Approach
Clinical Legal Education: An Annotated Bibliography
Gerald Hess
Using Difference Analysis to Teach Problem Solving in the Clinical Setting
Kimberly E. OLeary
The 10 Commandments of Externships
Larry Krieger
Material
Video Reenactments
Lee Stuesser
Exercises
Teaching Collaborative Skills to Students
Sue Bryant
Broken Squares: An Exercise to Demonstrate the Shift from Individualistic to
Cooperative Problem Solving
Beryl Blaustone

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Contents

Teaching Creative Problem Solving


Linda Morton
Mirror, Mirror: Using Non-Traditional Reflective Exercises
Kim Diana Connolly
A Proxemics Exercise to Teach Observation, Communication, and Reflection
J.P. Ogilvy
How Terms and Ways We Think about Clients Influence Our Lawyering
Sue Bryant
Teaching Alternative Client Counseling Models in the Clinical Course
Kimberly E. OLeary
Parallel Universe Thinking
Sue Bryant
Transferable Rhetoric
Paul Bergman
Brief Gems
Encouraging Attendance; Dealing with Absences
John Barkai
Little Words, Big Difference
Gail Hammer
Teaching Communication Skills and Mediation Skills
John Barkai
Feedback and Evaluation
Student Journals to Increase Reflection on Legal Practice and on Personal Professional Development
Harriet N. Katz
Recommendations for More Effective Use of Academic Dialogue Journals
J.P. Ogilvy
Educational Goals and Evaluation Criteria (Battered Womans Rights Clinic)
Sue Bryant and Maria Arias

Chapter 4

Constitutional Law

Introduction
Steven Friedland
Approach
Setting, Achieving, and Evaluating Course Goals
Wilson Huhn
Five Common Approaches
Steven Friedland
At the Heart of a Course in Constitutional Law
Sanford Levinson
On Interpretation: The Adultery Clause of the Ten Commandments
Paul Finkelman and Sanford Levinson
Embracing the History of the Constitution
Sanford Levinson
Teaching a Course on the Constitution: Finding and Using Founding Documents
Thomas E. Baker
Self-Reflection within the Academy: The Absence of Women in Constitutional Jurisprudence
Karin Mika

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Contents

Problem Solving and Storytelling


William Kaplin
Setting the Stage for Interpretation
Stephen Wermiel
The State of the Canon in Constitutional Law: Lessons from the Jurisprudence of John Marshall
David E. Marion
Biggest Challenges
Nat Stern, Paul Finkelman, Stephen Wermiel, Andrew R. Klein, Sanford Levinson
The First Class: Marbury v. Madison or Other?
Steven Friedland
Yes to Marbury
Evan Caminker
No to Marbury
Sanford Levinson
Teaching Dred Scott
Diane S. Kaplan
Teaching the Freedom of Speech: Simon & Schuster; Prior Restraints; Obscenity; Fighting Words;
Commercial Speech; and the Freedom of Association
Stephen L. Sepinuck
Employing the Socratic Method
Dan T. Coenen
Top Cases
Nat Stern, Stephen Wermiel, Sanford Levinson
Circles of Indecency
Richard J. Peltz
Material
Casebook and Supplement
Thomas E. Baker
Problem-Solving Materials
William Kaplin
Storytelling Materials
William Kaplin
On Discrimination
Dan Levin
Web-Enhanced Constitutional Law
Alfred R. Light
Constitutional Law on Videotape
Steven Friedland
Internet Sites Can Make a Web-Based Course
Thomas E. Baker
Exercises
A List of Regulated Types of Speech
Stephen L. Sepinuck
Mock Oral Arguments
Stephen Wermeil
A Quiz on the Constitution
Steven Friedland
Illustrating the Levels of Scrutiny in Equal Protection Analysis
Stephen L. Sepinuck

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Contents

Humanizing Papers
Stephen L. Sepinuck
Mock Admissions Committee
Steven Friedland
Drafting Student Opinions in Roe v. Wade
Stephen L. Sepinuck
Brief Gems
Using Hypotheticals as Advocacy Practice
Andrew R. Klein
Teaching the Free Exercise of Religion: Employment Division, Department of Human Resources
Stephen L. Sepinuck
Reading Out Loud
Sanford Levinson
Teaching Roe v. Wade
Peter Shane
The Second Amendment as Teaching Tool in Constitutional Law Classes
Eugene Volokh
Feedback and Evaluation
Using Quizzes
Thomas E. Baker
Extra Optional Reviews
Steven Friedland
Opinion Writing Assignment
Thomas E. Baker

Chapter 5

Contracts

Approach
Learning about Rules from the Legal Duty Rule
Joel K. Goldstein
International Law in First-Year Contracts
Mark A. Drumbl
Getting to Know Students and Involving Them in Class Pedagogy
Charles Calleros
Active-Learning Overview in Contracts
Greg Sergienko
Symposium on Teaching Contracts
Gerald Hess
Material
Teaching Consideration from Original Leading Cases
Val D. Ricks
Great Contracts Cases
Celia Taylor
Using Electronic Commerce to Teach a Transactional Viewpoint
Christina L. Kunz
Ethics: Client Interviews and Witness Preparation
Charles Calleros
Disney Films Teach the Basics of Contract Law
Gerald Hess

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Contents

xiii

Exercises
A Contracts Drafting Challenge
Ron Brown
Contract Negotiating and Drafting
Alison Grey Anderson
The Parol Evidence Rule and the Living Contract
Paula A. Franzese
Exploring the Difficult Concept of Reciprocal Inducement
Charles Calleros
A Soap Opera and Lesson on Contract Damages
Hazel Glenn Beh
Williams v. Walker-Thomas Exercise
Alison Grey Anderson
Contract Interpretation and Life Experiences
Irma S. Russell
Brief Gem
Unannounced Student Teaching
Celia Taylor
Feedback and Evaluation
Feedback Form
Charles Calleros
Preparing Students for Outlining and Exam Taking
Charles Calleros
Final Class Session Maintaining Perspective
Charles Calleros

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Chapter 6

153

Criminal Law

Approach
Introduction and Three Approaches to Criminal Law
Steven Friedland
Comparative and International Concepts
Richard S. Frase
Teaching Criminal Law to Undergraduate Students
Craig Hemmens
Challenges in Teaching Criminal Law
Steven Friedland
The Challenging Student
Kate Bloch
Three Pillars of the Classroom Community: Demystification, Rapport, and Engagement
Kate Bloch
Material
Movies and Videos
Kevin McMunigal, David McCord, Steven Friedland
Teaching Prostitution Seriously
Beverly Balos
Exercises
Teaching Constitutional Limitations on Criminalization in One Fun Class
Ellen Suni

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Contents

A Prelude to the Famous Case of Queen v. Dudley & Stephens


David McCord
Intellectual Treasure Hunts
Kate Bloch
A Plea Bargaining Simulation
Sidney L. Harring
Teaching Law, Skills, and Ethics through Negotiation
Jeffrey L. Kirchmeier
Teaching Rape
Ellen Suni
Using Teaching Assistants to Put Criminal Law in Context
Stacy Caplow
A Three-Hour Tour . . .
Steven Friedland
Moral Geography
Steven Friedland
Brief Gems
The First Day of Class
Kevin McMunigal
The Elements of a Crime and Chocolate Chip Cookies
Jeffrey Ershler
Feedback and Evaluation
Final Exam on the First Day of Class and throughout the Course
David Dominguez
Practice Exams and Quizzes
Kevin McMunigal

Chapter 7

Criminal Procedure

Introduction
Steven Friedland
Approach
Popular Emphases of Criminal Procedure Courses
Steven Friedland
Material
Fusing Crime Stories and Class
Catherine Arcabascio
Using Non-Fiction Table Setters to Enrich the Course
Michael Perlin
Adding a Comparative Perspective to American Criminal Procedure Classes: Germany
Albert W. Alschuler
Creating a Set of Materials on a CD
Johnny C. Burris
Exercises
The Mock Arrest
Pamela Bucy
Student Prosecutors and Defense Counsel
Melissa Tatum

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Contents

Motions to Suppress Evidence


Christine Hutton
Serving a Search Warrant
Pamela Bucy
Using Narratives to Teach Stop and Frisk
Ellen Suni
Brief Gems
A Noteless Approach
Christine Hutton
Explaining the Big Picture of Crim Pro
Catherine Arcabascio
Teaching Cases with Practical Impact
Pamela Bucy
Motivating Students to Read Statutes Effectively
Melissa Tatum
Centering on the Facts
Christopher Slobogin
Feedback and Evaluation
Using Multiple-Choice Questions to Teach Application of the Law
Ellen Suni

Chapter 8

Evidence

Introduction
Steven Friedland
Approach
Three Approaches
Steven Friedland
Evidence Has Something for Every Student
Lynn McLain
Hypotheticals and Hearsay
Welsh White
Evidence and Trial Advocacy Courses, Side By Side
Robert P. Burns
Performance and Application in Small Groups
Linda E. Carter
The Need to Integrate Legisprudence into the Evidence Course
Ed Imwinkelried
Challenges in Teaching Evidence
Steven Friedland, Jack Sahl, Andrew Taslitz
Additional Perspectives
Steven Friedland
Material
Five Helpful Evidence Cases
Andrew Taslitz, Jack Sahl
Teaching Race Issues in the Required Evidence Course
Isabelle R. Gunning
Classic Cases, Newspapers, and Trial Transcripts
Lynn McLain

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Contents

Movies
Paul Bergman
Music and Movies, Not Notes
Christine Hutton
My Cousin Vinny, Revisited
Steven Friedland
Hearsay Analysis and Problem
Lynn McLain
Comparing Federal and State Rules of Evidence Using Side-By-Side Charts
John Barkai
Exercises
First-Day Exercises
Andrew Taslitz, Jack Sahl
Teaching Evidence from a Practical Perspective Using Small-Group Advocacy Exercises
John Barkai
Teaching Hearsay through Structured Courtroom Observation
Beryl Blaustone
Brief Gems
Storytelling in the Classroom
Beryl Blaustone
Mock Trial
Steven Friedland
Courtroom Observation
Christine Hutton
Mock Witness Examination
Jack Sahl
Laying the Foundation
Christine Hutton
Teaching Evidence through the Drafting of Jury Instructions
Beryl Blaustone
Teaching Hearsay through Role Play
Louis Haffner
Feedback and Evaluation
Multiple-Choice Feedback
Paul Bergman
Practice Exam, Midterm, Closed-Book Final
Lynn McLain
Testing Federal and State Rules of Evidence
John Barkai
Performance Tests
William Slomanson
Cartoons, Captions, and Mnemonics on the Exam
John Barkai
Midterm Student Evaluations
Paul Bergman

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Contents

Chapter 9

Family Law

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Approach
Why I Use Problems in Teaching Family Law
J. Eric Smithburn
Incorporating Experiential Components in Family Law Courses
Barbara Glesner Fines and Mary Kay Kisthardt
Problems, Cases, and Topics
Francis Catania
An Interactive, Traditional Approach to Family Law
Charles P. Kindregan, Jr.
Material
Family Law Verses
Robert E. Rains
Current Event Handouts
Charles P. Kindregan, Jr.
Exercises
Interviewing about Families A First-Day Exercise
Barbara Glesner Fines and Mary Kay Kisthardt
Bringing Theater Techniques to the Classroom
Susan B. Apel
Understanding Family Law in Context: The Court Observation Assignment
Jane C. Murphy
Exploring Scholarly Perspectives: The Expert Panel Role Play
Barbara Glesner Fines and Mary Kay Kisthardt
A Skills Workout
Sheila Simon
Brief Gem
Abortion Issue
Judith D. Fischer
Feedback and Evaluation
Class Participation, Simulation Exercises, and Take-Home Final
Francis Catania
Negotiating and Drafting a Marital Dissolution Agreement
Barbara Stark

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Chapter 10

229

Federal Income Tax

Approach
Teaching Tax through Stories
Paul L. Caron
Goals, Philosophy, and Coverage
Nancy Shurtz
Statutory Interpretation and the Development of a Civic Perspective
Kim Brooks
Problems, Previews, Participation, and Preparation
Leandra Lederman
Providing a Framework for Learning
Mary L. Heen

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Contents

Statutory Analysis, Not Arithmetic


Eric Lustig
TaxProf: A Virtual Tax Community
Paul L. Caron
Material
Tax Case Limericks
Leandra Lederman
Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases
Paul L. Caron
Tax Returns, Casebooks, and Slides
Eric Lustig
Text and Handouts
Nancy Shurtz
General Outline of Federal Income Tax (Handout)
Leandra Lederman
Computing Taxable Gain (Handout)
Leandra Lederman
Introduction to Deductions Problems (Handout)
Leandra Lederman
Exercises
Introducing Statutory Interpretation with Song Lyrics
Kim Brooks
Brief Gems
Role-Playing
Nancy Shurtz
Boot
Leandra Lederman
Cartoons
Nancy Shurtz
IRC 212 Area Code
Leandra Lederman
Getting the Class Started and the Power of Bruce
Kim Brooks
How Would the IRS Ever Know . . .
Leandra Lederman
Feedback and Evaluation
Designing Writing Assignments and Exams Based on Course Objectives
Kim Brooks
The TaxProf Exam Bank: Practical Help for the Tax Professor
Paul L. Caron
Research Paper, Midterm, and Final Exam
Nancy Shurtz

Chapter 11

Legal Research and Writing

Approach
The Self-Directed LRW Assignment
Richard J. Peltz

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Contents

Individualized Instruction
Ann Sinsheimer
50,000,000 Elvis Fans Cant be Wrong: The Socratic Method Works
James B. Levy
Visualizing a Memorandum of Law
Okianer Christian Dark
The Evolution of a Legal Research Curriculum
George H. Pike
Material
Syllabus Bank
Jo Anne Durako
The True Story of the Three Little Pigs
Nancy Soonpaa
Using the Synthesis Chart to Bridge the Gap between Analysis and Drafting
Tracy L. McGaugh
Of Digests and Parties
Alex Glashausser
Law Library Research Flow Chart
James B. Levy
Exercises
Paragraph Parody Exercise on Writing Style
Judith D. Fischer
Using Live Client Interviews Instead of Fact Patterns
Mark E. Wojcik
Transactional Skills Workshop
Deborah Schmedemann and Ken Kirwin
Using Negotiation to Improve Thinking and Writing in the First Year
Teresa Brostoff
Pop Culture Prognostication
Nancy Soonpaa
The Application Process
Tracy L. McGaugh
What Self-Guided Museum Tours Can Teach Us about Legal Research
James B. Levy
Every Case Has Two Stories
Sue Liemer
Low-Stakes Assignments: Developing Strategies to Write Persuasive Advocacy Briefs
Silvia Rivero and Lori Wallach
Teaching Active Reading
Sheila Simon
Brief Gems
IRAAC in Living Color
Nancy A. Wanderer
Remember the Paint Box?
Brannon Heath
Persuasive Seating
Nancy Soonpaa
Judge and Lawyer Speakers
Nancy A. Wanderer

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Contents

The Last ClassEnding on the Right Note


Sheila Simon, Andrea Mooney, Sue Liemer, Melissa Marlow-Shafer, Mary Beth Beazley
Feedback and Evaluation
Handling Student Reactions to Critiqued Work
Tracy L. McGaugh, Paul Toppins, Sue Liemer
Critiquing Student Papers The Quick and the Dead
James B. Levy
Getting Students to Critically Review Their Writing
Stephen L. Sepinuck
Oral Exam of Research Skills
Judith A. Gire
The Research Quiz Show
Brannon Heath

Chapter 12

Professional Responsibility

Introduction
Steven Friedland
Approach
Telling Stories, Writing Rules: Creating Enthusiastic Professional Responsibility Students
Steve Hartwell
Getting Students Onboard
Howard Erichson
Applied Professional Responsibility/Law Practice Management
Ellen Suni
Professionalism
Mark Weisberg
Teaching through Different Methodologies
Nathan Crystal
First Day, Challenges, and Top Cases
Jack Sahl
Material
Moral Compass
Larry Raful
Readings for a Meaningful Life in the Law
Mark Weisberg
Exercises
Using Dramatization and Simulation in Professional Responsibility Teaching
Robert P. Burns
Bringing Professional Responsibility Home through Film
Nancy B. Rapoport
Learning through Role-Playing, Guests, and Videotapes
Jack Sahl
Reflection Papers
Larry Raful
Writing MPRE Questions
Ellen Suni

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Brief Gems
Reading Out Loud and Other Methods of Active Student Participation
Mark Weisberg
Feedback and Evaluation
Assigning Student Journals
Ellen Suni
Assigning Student Journals, Part II
Mark Weisberg
Using Quizzes to Promote Feedback
Nathan Crystal

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Chapter 13

315

Property

Introduction
Steven Friedland
Approach
Four Approaches
Steven Friedland
Challenges in Teaching Property Law
Patrick Wiseman, Steven Friedland, Basil Mattingly
Teaching Property through the Problem Method
Steven Friedland
Teaching Property Law with Problems and Role Plays
Lonny Hoffman
Some Lessons from Lon Fuller for Teaching Property Law (or Anything Else)
Stephen C. Veltri
Teaching Real Property Law as Real Estate Lawyering
Roger Bernhardt
A Preface to the Teaching of Common Law Estates and Future Interests
Alan Weinberger
Teaching the Rule Against Perpetuities in First-Year Property
John Weaver
How to Be a Good Property Law Teacher: Some Suggestions
James Kainen
Negotiating a Lease
Steven Friedland
Problems and Role Plays
Joseph William Singer
Simulated Pre-Trial Conferencing
Zygmunt Plater
Material
Some Top Cases and Statutes
Joseph William Singer, Patrick Wiseman
Symposium on Teaching Property
Gerald Hess
First-Day Activities and Cases
Basil Mattingly, Patrick Wiseman, Joseph William Singer

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Contents

Brief Gems
Not Knowing the Answer
Joseph William Singer
Profit-A-Prendre in Action
Peter Reich
The Price Is Right
Judith Royster
Feedback and Evaluation
Difficulty Papers
Judith Wegner
Comprehension Reviews
David A. Thomas
Reviews and Past Exams
Patrick Wiseman
Practice and Feedback in the Property (and on the Golf) Course
Michael V. Hernandez

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Chapter 14

343

Sales and Secured Transactions

Approach
We Are All Debtors and Creditors
Stephen L. Sepinuck
Teaching Students How to Read Statutes Critically
Carol L. Chomsky and Christina L. Kunz
Article 9 Transactions, Skills, Maps, and Fears
Karen M. Gebbia-Pinetti
Integrating Theory in Large, Upper-Level Commercial Law Classes
Curtis Nyquist
Parties, Problems, and Papers
John F. Dolan
Material
Adventures in PowerPoint
Alison Sulentic
Teaching Sales through History, Opera, Poetry, Literature, Art, and Baseball
Ann Lousin
Supplemental Readings and Props
Karen M. Gebbia-Pinetti
Parol Evidence Chart
Dan Keating
U.C.C. 2-207 Flow Chart
Dan Keating
Potential Recovery Theories in Sales Injury Cases
Dan Keating
Exercises
Collateral Conflict Role Play
Richard H. Nowka
Borrower/Lender Role Play to Begin Secured Transactions
Karen M. Gebbia-Pinetti

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358
360
360
361

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Contents

Repossessing Cars and Other Active-Learning Exercises


Stephen L. Sepinuck
Integrating Legal Research Skills into Commercial Law
Camille Broussard and Karen Gross
Interest Group Negotiations
Karen M. Gebbia-Pinetti
Sale/Lease Distinction
Stephen L. Sepinuck
Brief Gems
The Financing Statement as a Smoke Detector
Eric Gouvin
The U.C.C. is Your Friend and Other Gems
Karen M. Gebbia-Pinetti
Feedback and Evaluation
Ungraded Drafting Assignments
Karen M. Gebbia-Pinetti
Chattel Paper Extra Credit
Stephen L. Sepinuck
Rule Maps
Stephen L. Sepinuck
Secured Transactions Exam Format
Karen M. Gebbia-Pinetti

Chapter 15

Torts

Approach
Negligence and Duty First
Alan Calnan
Setting Out My Approach to Teaching and Making Students Experts
Kim Brooks
Exercise for First Day of Torts
Kathryn Kelly
Dont Start with Vosburg
Greg Sergienko
Starting with Moore v. Regents of the University of California
Keith Sealing
Symposium on Teaching Torts
Gerald Hess
Material
Five Great Torts Cases
Andrew R. Klein
New York Times v. Sullivan Ad
Judith D. Fischer
Hustler Magazine v. Falwell Film and Ad
Judith D. Fischer
Using Star Trek to Introduce Privacy Law
Okianer Christian Dark

xxiii

361
362
364
364
365
365
365
366
366
366
366
367
369
371
371
372
373
375
376
377
378
378
380
381
381

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xxiv

Contents

Exercises
Teaching Torts with Puzzles, Props, and Productions
Nancy Wright
A Little Variety Goes a Long Way
Christopher Guthrie
Teaching Palsgraf
Alan Calnan
Constructive Notice and Sufficiency of Evidence
Alison Grey Anderson
Demystifying Causation
Alan Calnan
Brainstorming Technique to Initiate a Torts Seminar
Okianer Christian Dark
Brief Gems
Res Ipsa Loquitur
Alison Grey Anderson
Visualizing Foreseeability
Alan Calnan
Ask Your Students
Louis J. Sirico, Jr.
Feedback and Evaluation
Students Writing Their Own Exam Question
Mark Weisberg

382

Index for Books, Casebooks, and Authors


Index for Cases
Index for Films and TV Shows
Subject Index

393
397
403
405

382
384
386
386
387
388
389
389
390
391
391
391

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Contributors
Alschuler, Albert W., 179
Anderson, Alison Grey, 142, 149, 386, 389
Apel, Susan B., 219
Arcabascio, Catherine, 178, 182
Arias, Maria, 77
Baker, Thomas E., 95, 114, 119, 125, 127
Balos, Beverly, 161
Barkai, John, 73, 74, 202, 203, 208, 209
Beazley, Mary Beth, 283
Beh, Hazel Glenn, 148
Bergman, Paul, 72, 200, 207, 209
Bernhardt, Roger, 324
Blaustone, Beryl, 60, 204, 205, 206
Bloch, Kate, 158, 159, 163
Bloom, Robert M., 19
Brooks, Kim, 232, 248, 250, 372
Brostoff, Teresa, 271
Broussard, Camille, 362
Brown, Ron, 141
Bryant, Sue, 59, 70, 71, 77
Bucy, Pamela, 180, 181, 182
Burns, Robert P., 192, 306
Burris, Johnny C., 180
Calleros, Charles, 133, 140, 145, 152
Calnan, Alan, 371, 386, 387, 390
Cameron, Christopher David Ruiz, 20, 30, 35
Caminker, Evan, 100
Caplow, Stacy, 168
Caron, Paul L., 231, 235, 237, 251
Carter, Linda E., 193
Catania, Francis, 214, 224
Chomsky, Carol L., 345
Coenen, Dan T., 108
Connolly, Kim Diana, 67
Cooper, Laura J., 37
Craig, Robin Kundis, 19, 24, 40, 45
Crystal, Nathan, 297, 312
Dark, Okianer Christian, 259, 381, 388
Dolan, John F., 350
xxv

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xxvi

Contributors

Dominguez, David, 172


Drumbl, Mark A., 132
Durako, Jo Anne, 262
Erichson, Howard, 293
Ershler, Jeffrey, 172
Finch, Michael, 32
Finkelman, Paul, 90, 99
Fisch, Jill E., 13
Fischer, Judith D., 224, 268, 380, 381
Franzese, Paula A., 144
Frase, Richard S., 156
Friedland, Steven, 5, 84, 87, 100, 118, 120, 121, 126, 155, 158, 160, 171, 177, 189, 196, 197, 201, 205, 291, 317, 319,
321, 331
Gebbia-Pinetti, Karen M., 347, 354, 361, 364, 365, 366, 367
Gire, Judith A., 287
Glashausser, Alex, 265
Glesner Fines, Barbara, 214, 218, 222
Goldstein, Joel K., 131
Gouvin, Eric, 8, 10, 13, 365
Gross, Karen, 362
Gunning, Isabelle R., 198
Guthrie, Christopher, 384
Haffner, Louis, 207
Hammer, Gail, 73
Harding, Roberta M., 26
Harring, Sidney L., 164
Harrison, Linda, 8
Hartwell, Steve, 291
Heath, Brannon, 282, 287
Heen, Mary L., 234
Heiser, Walter W., 20, 41, 45, 47
Heminway, Joan, 6, 10, 13, 15
Hemmens, Craig, 156
Hernandez, Michael V., 340
Hess, Gerald, 25, 35, 36, 43, 53, 135, 141, 334, 377
Hoffman, Lonny, 321
Huhn, Wilson, 85
Hutton, Christine, 181, 182, 200, 206
Imwinkelried, Ed, 194
Kainen, James, 329
Kaplan, Diane S., 6, 10, 14, 22, 30, 36, 103
Kaplin, William, 97, 114, 115
Katz, Harriet N., 74
Keating, Dan, 354, 356, 358
Kelly, Kathryn, 373
Kindregan, Charles P., 215, 218
Kirchmeier, Jeffrey L., 166

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Contributors

Kirwin, Ken, 270


Kisthardt, Mary Kay, 214, 218, 222
Klein, Andrew R., 99, 122, 378
Krieger, Larry, 55
Kunz, Christina L., 139, 345
Lederman, Leandra, 233, 236, 245, 246, 247, 248, 249, 250
Lenich, John P., 32, 33, 42
Levin, Dan, 116
Levinson, Sanford, 88, 90, 94, 99, 101, 110, 123
Levy, James B., 258, 267, 276, 285
Liemer, Sue, 277, 283, 285
Light, Alfred R., 23, 116
Lousin, Ann, 353
Lustig, Eric, 8, 9, 10, 235, 237
Marion, David E., 99
Marlow-Shafer, Melissa, 283
Mattingly, Basil, 319, 335
McCord, David, 160, 162
McGaugh, Tracy L., 263, 274, 284
McLain, Lynn, 190, 199, 201, 208
McMunigal, Kevin, 160, 172, 173
Mika, Karin, 97
Moll, Douglas K., 8
Mooney, Andrea, 283
Moore, Lawrence W., 45
Morton, Linda, 61
Murphy, Jane C., 220
Nelson, Katharine F., 48
Nowka, Richard H., 360
Nyquist, Curtis, 348
Ogilvy, J.P., 68, 76
OLeary, Kimberly E., 54, 70
Peltz, Richard J., 111, 255
Perlin, Michael, 178
Pike, George H., 261
Plater, Zygmunt, 332
Raful, Larry, 303, 307
Rains, Robert E., 216
Rapoport, Nancy B., 306
Reich, Peter, 337
Ricks, Val D., 137
Rivero, Silvia, 278
Royster, Judith, 337
Russell, Irma S., 150
Sahl, Jack, 196, 198, 203, 206, 302, 307
Schmedemann, Deborah, 270
Sealing, Keith, 376

xxvii

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xxviii

Contributors

Sepinuck, Stephen L., 107, 120, 121, 122, 123, 286, 345, 361, 364, 366
Sergienko, Greg, 21, 134, 375
Shane, Peter, 123
Shapiro, Stephen, 46
Shurtz, Nancy, 231, 243, 248, 249, 252
Simon, Sheila, 222, 280, 283
Singer, Joseph William, 331, 333, 335, 336
Sinsheimer, Ann, 257
Sirico, Louis J., 391
Slobogin, Christopher, 185
Slomanson, William, 44, 208
Smithburn, J. Eric, 213
Sokolow, David Simon, 8, 9, 13
Soonpaa, Nancy, 262, 272, 282
Stark, Barbara, 225
Stern, Nat, 99, 110
Stuesser, Lee, 57
Sulentic, Alison, 351
Suni, Ellen, 161, 167, 181, 185, 294, 307, 310
Taslitz, Andrew, 196, 198, 203
Tatum, Melissa, 180, 183
Taylor, Celia, 138, 151
Thomas, David A., 340
Toppins, Paul, 285
Veltri, Stephen C., 322
Volokh, Eugene, 124
Wallach, Lori, 278
Wanderer, Nancy A., 281, 282
Weaver, John, 327
Wegner, Judith, 338
Weinberger, Alan, 325
Weisberg, Mark, 296, 303, 308, 311, 391
Wermeil, Stephen, 99, 110, 120
White, Welsh, 191
Wiseman, Patrick, 319, 333, 335, 340
Wojcik, Mark E., 268
Wright, Nancy, 382
Zalesne, Deborah, 5, 12

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Preface
This book is a teaching resource designed for law teachers young and old, veteran and new, adventurous and
risk averse. Included is an amalgam of information, stories, and ideas about teaching the core courses of the law
school curriculum. The goal of this book is to provoke, augment, offer, or initiate a richer and more informative
teaching and learning experience. Each chapter includes approaches to the course, materials used, exercises, brief
gems, evaluation, and feedback.
The contents incorporate contributions from 170 law teachers in the United States and Canada who offer pretested, successful, pragmatic ideas. We hope that the ideas appeal to many law teachers and are presented clearly
and concisely so that they can be quickly and easily implemented. As we stated in our Preface to our earlier work,
Techniques for Teaching Law, we believe that better teaching and learning can have a ripple effect more effective legal education will motivate our students to become better learners and, eventually, to better serve their
clients.
We want to thank the many people who collaborated to complete this book. We owe a debt to Professor
Stephen Sepinuck of Gonzaga University School of Law who offered his vision and organization to the development and planning stage of this project. We deeply appreciate the legal educators who contributed their ideas to
Teaching the Law School Curriculum. Finally, this project could not have become a book without Paula Prather,
Program Coordinator of the Institute for Law School Teaching, who helped develop the basic concept, identified
ideas about law teaching and learning, worked with the contributors in the editing process, and performed a
monumental organizational and word processing feat.
Steve Friedland
Gerry Hess

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Teaching the
Law School
Curriculum

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chapter 1

Business Associations
Introduction
Steven Friedland

Approach

Learning Goals for Business Associations Courses


Deborah Zalesne
Choice of Entity
Joan Heminway
An Organizational Structure for Teaching Corporations
Diane S. Kaplan
Challenges: Real-Life Context and Business Experience
Eric Gouvin, David Simon Sokolow, Linda Harrison, Eric Lustig, Douglas K. Moll

Material

5
6
6
6
8

The Greatest Show on Earth


Linda Harrison
Top Five Cases
David Simon Sokolow
Slides
Eric Lustig
Handouts and Outfits
Joan Heminway

10

Exercises

10

8
9
9

Exercises for the First Day of Class


Eric Gouvin, Eric Lustig, Joan Heminway, Diane S. Kaplan
Simulations and Small Groups
Deborah Zalesne

Brief Gems

10
12
13

Surviving, Dealing, and Laughing


David Simon Sokolow
Preserving Relationships
Eric Gouvin

13
13

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Business Associations

Writing across the Curriculum


Joan Heminway
Teaching Corporate Governance through Shareholder Litigation
Jill E. Fisch

Feedback and Evaluation


Class Participation
Diane S. Kaplan
Final Exam Preparation and Feedback
Joan Heminway

13
13
14
14
15

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Business Associations

Introduction
The basic course in business associations, also called corporations or enterprise organizations, is an upperlevel course that is offered in some schools as an elective and required in others. The University of Michigan Law
School, for example, had a course titled Enterprise Organization. See E. Orts, Quality Circles in Law Teaching, 47
J. Legal Educ. 425 (1997). The course provides students with the basic foundation in the various important phases
of business entities, ranging from formation, to duties and relationships during existence, to termination. More
specifically, there are legal consequences relating to corporate requirements, the fiduciary duties of corporate officers to other officers, to shareholders and other business entities, and the business judgment rule. The legal
requirements in each phase warrant considerable attention and analysis.
Approaches to the business associations course vary in methodology and coverage, but they usually concern the
different phases in the life of a business entity. A common curricular challenge for teachers in this area is the need
to reconcile the students wide disparity of business knowledge. To facilitate the learning process, many teachers use
real-world cases and contextual materials, ranging from slides and handouts to wearing case-appropriate outfits.
Steven Friedland, Nova Southeastern University Law Center

Approach
Learning Goals for Business Associations Courses
My introductory course in business associations focuses upon the problems and issues that confront people
wishing to form and operate small businesses and upon the ways lawyers can help solve these problems. It also
studies the role of business entities in the market economy and the effect that corporations have on the environment, consumers, workers, and political process.
The readings for the course compare the formation, organization, and management of the most common
forms of business entities corporations, limited liability companies, and partnerships. Because the focus of the
course is primarily on the problems encountered by owners and managers of small business organizations, it
does not cover securities law, and acquisitions, recapitalization, or other issues that arise solely in large corporate
organizations, other than questions relating to the role of shareholders and public interest lawyers in making
large corporations socially responsible.
The goals of the course are: (1) to learn the law of business associations for purposes of passing the bar examination and representing clients effectively (including neighborhood businesses, community development
groups, and other public interest organizations); (2) to learn, through studying an area of law governed by
statutes, how to read statutes closely, how to interpret them, and how to use cases that interpret and apply them;
(3) to learn, through the simulated representation of a small company, how to set up a business and how to draft
its governance documents; (4) to learn about the responsibilities of a lawyer representing an organization rather
than an individual; (5) to learn about the governance of corporations, partnerships, and limited liability companies and about the different roles played by owners and managers in each, in order to be able to advise clients
about which form of business association suits them best, as well as how best to operate within that form; and
(6) to understand the role corporations play in the politics and economy of our society, the ways in which corporate law does (and does not) promote corporate social responsibility, and some of the means available to public interest lawyers to make corporations act responsibly.
To best accomplish these goals, I teach the course through the problem method. Each class session centers on
student discussion of a simulated client problem. Students attempt to resolve the problem using the statutes and
cases assigned for that days class.
Deborah Zalesne, City University of New York School of Law

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Business Associations

Choice of Entity
I teach my business associations course from a choice-of-entity perspective. I practiced corporate law in a private firm for 15 years, and I teach to my strength in this regard. Also, I believe this is the best way to make the
connection between legal theory and practice. I begin with definitional issues, then proceed through agency and
sole proprietorships, followed by entity characteristics of partnerships, other unincorporated business associations, and corporations. Then, within the area of corporations, I teach a variety of depth issues, including (among
others) special rules relating to close corporations and the federal securities law overlay. This is a tall order for a
one-semester, four-credit-hour course.
Joan Heminway, The University of Tennessee College of Law

An Organizational Structure for Teaching Corporations


The corporations course can be unwieldy to organize for both the professor and the students because it covers a breadth of topics, such as agency, partnership, closely held corporations, publicly held corporations, fiduciary duties, balance sheets, corporate finance, proxy regulation, securities regulation, insider trading, and
mergers and acquisitions. Many texts also infuse these materials with some degree of economic theory. Students often find this range of materials difficult to organize for study purposes. The problems raised by the
scope of the course also are compounded by the fact that many corporations students have no business background and, therefore, are unfamiliar with corporate vocabulary, concepts, values, and transactions. In light
of these problems, I have organized my corporations course around six themes that recur throughout the semester:
1.
2.
3.
4.

The legal consequences of failure to comply with corporate formalities


Fiduciary duties
Corporate finance
The lawyers role in negotiating value conflicts between rational business objectives, the requirements
of the law, and ethical constraints
5. The business judgment rule as a legal standard of managerial conduct
6. The doctrine of shareholder primacy
This theme approach imposes an organizational structure on the readings that brings unity and focus to the
very diverse topics covered in the course. I explain this organizational structure to my students on the first day
of class. From that point on, every case, statute, or issue covered in the course is examined in relation to one or
more of these recurring themes.
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)

Challenges: Real-Life Context and Business Experience


A large-enrollment or required class like Business Organizations always presents the problem of figuring out
where to pitch the material so that the maximum number of students derive the maximum benefit. On one hand,
you are bound to have students in the class who were business majors in college or who are jointly enrolled in
your institutions MBA program, or who even run their own businesses. On the other hand, it is likely that a
number of students in the classroom either have minimal interest in the subject or are taking it only because it
is required or because they fear it will be on the bar. Many in the class will have absolutely no understanding of
basic business ideas and will be under the impression they will not be able to understand the Business Organizations course material as a result.

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Business Associations

I have developed a strategy to deal with the gulf between these two groups of students. My approach includes
the components of evaluation, remediation, and personalization.
My evaluation is diagnostic. On the first day of class, I take inventory of my resources. I require all students
to complete a questionnaire that tells me about what they have studied and where they have worked. I also ask
them to tell me how much they know about business concepts. This questionnaire allows me to gauge the general sophistication of the class (although sometimes I can sense they try to sandbag me) and also to make more
meaningful requests for participation. For instance, if I know from the questionnaire that one of my students is
interested in environmental law, I might call on her to talk about a case where the EPA seeks to impose clean-up
liability on the parent for contamination caused by a subsidiary. It makes the case more meaningful for that student.
The remediation component focuses on translating the business jargon and buzzwords into terms the English
majors in the class can cope with. Helping students become comfortable with business concepts is an important
goal of my course. I have found that the language of business sometimes scares non-business types away from
full participation. To remedy the situation I take pains to make sure the class understands the underlying business deal in every case before we get to the legal issues. Students have thanked me for these simple explanations
of business and finance and I think it makes class discussion more fruitful.
Finally, I personalize the material to make the cases more immediate and make the students realize that the organizations are composed of real people. As already mentioned, I call on people according to their areas of interest
as revealed by the first-day questionnaire. In addition, I tailor hypos in class to their particular interests. I conduct
a lot of role-playing exercises in order to make students appreciate that the people involved in these cases are real
people with real problems. Because the students are classmates and these classmates-turned-business-people now
must address a number of vexing business law issues, students begin to identify that they themselves could actually
be in those roles in real life. I want the students to leave the course with an appreciation of the fact that most of
their business clients will not be Fortune 500 companies but, rather, closely held concerns, and that many of the
legal issues they encounter will really be rooted more in family or interpersonal issues than the niceties of corporate law.
Eric Gouvin, Western New England College School of Law
By far the biggest challenge when teaching Business Associations is the spectrum of business experience (or
inexperience) in the class. There are CPAs and MBAs together with people who are scared of numbers. Trying to
keep everyone engaged is virtually impossible. I use newspaper articles as real-world examples so the concepts
wont remain pure abstractions. Another challenge is that Business Associations is statutory, and most students
dont have much experience in this area. I include problems in my supplementary materials so students can work
through the more confusing statutory provisions.
David Simon Sokolow, The University of Texas School of Law
One of the more challenging aspects of teaching Corporations is to get the students to see that the cases they
study are very real situations for the parties and that the decisions made by them and the advice given by their
lawyers can have far-reaching consequences for long periods of time. One way of getting them to focus on this
is to bring in current material which proves this point.
Linda Harrison, Nova Southeastern University Law Center
The business organizations course I teach is a four-credit class that surveys agency, partnership, corporations,
and limited liability companies. This course is strongly recommended to our students, so the vast majority of
them take the course. Most business organizations students have little or no business background and are either
intimidated by or uninterested in the subject matter. Given these dominant reactions, throughout the semester

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Business Associations

I endeavor to keep the course both stimulating and accessible. While the former is a typical goal in any law school
course, the latter raises more sensitive pedagogical issues. The following explains how I address these two interrelated pedagogical issues.
I am always on the lookout for newspaper and magazine articles that help the students put the course material into a familiar context. Recent corporate and accounting scandals and the bursting of the stock market bubble have yielded rich material with which to accomplish this. I have used a PBS Frontline special, Bigger Than
Enron, which provides an effective opportunity for students to see the accounting and auditing issues involved,
as well as questions raised by stock options. This has certainly stimulated the students interest in the course.
Eric Lustig, New England School of Law
When thinking about communicating with my students in the most effective manner, I wholeheartedly believe that recalling the students perspective, as best as possible, is critical to being a successful teacher. I believe
law professors face a peculiar problem that, if left unchecked, seems to worsen with experience. Simply put, as
the professors knowledge grows with each passing year, it becomes increasingly more difficult to remember the
complexity presented by the material when it was confronted for the first time. Of course the students, year after
year, are confronting the material for the first time. Thus, the challenge for the experienced professor is to constantly remind oneself of the students perspective. In so doing, the professor can focus on communicating the
material in a manner that can be understood by those who are literally brand new to the subject. Amassing
knowledge in a field is an essential part of being an academic, but communicating that knowledge to students is
an essential part of being a teacher.
I strive to define every business term that is encountered in my materials. For example, while stocks and
bonds may be second-nature to a professor or to a person with business experience, they are often puzzling
concepts to students who have not previously studied them. Most of the students who enroll in my courses are
taking a business-related class for the first time. Consequently, they are unfamiliar with basic business transactions and they are often terrified of the material. I spend a great deal of time using the board to diagram the
transactions underlying our cases or problems. Through a question-and-answer dialog with students, I try to
make sure that the class understands the nature of the particular transaction at issue.
By developing the students abilities to comprehend basic business transactions, my goal is to make them less
afraid of the material and more capable of analyzing the parties actions and the legal issues involved. After all,
until students understand the nature of the transaction, they cannot grasp why the parties have acted in particular ways. Once again, although the structure of a merger or a mortgage may be clear to someone with business experience, it is typically foreign (at least initially) to most of the students in my classes. I try very hard not
to lose sight of this even as my own knowledge increases over the years.
Douglas K. Moll, University of Houston Law Center

Material
The Greatest Show on Earth
A case which lends itself to showing students the real-world consequences of a lawsuit is one involving the
Greatest Show on Earth, Ringling Bros. v. Ringling, 53 A.2d 441 (Del. 1947), found in Corporations by Robert
Hamilton (6th ed. West Pub. Co.). It is presented as a case in which the court is asked to determine the outcome
of a contested shareholders election for the board of directors and an arbitrators power to enforce an agreement
between shareholders (the Ladies Agreement) made in 1941. But the real story is found in the facts not included
in the case. Besides the family bickering that followed the death of John Ringling in 1936, this case centers around

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Business Associations

a tragedy still being written about today: the circus fire that took the lives of 169 people and injured over 500
more in Hartford, Connecticut, in 1944.
In class I read excerpts from The Great Hartford Circus Fire by Henry S. Cohn and David Bollier (Yale University Press 1991). This book does such a good job of describing the fire that you can all but smell burning gasoline and paraffin-soaked canvas and hear the screams of trapped men, women, and children. It also richly details
the in-fighting that occurred thereafter for control of the circus and gives the students an interest in the outcome
of the case and the story behind it. This year a second book was published on the same subject, The Circus Fire:
A True Story by Stewart ONan (Doubleday 2000). While I have yet to use this source in class, it helps establish
the main point, which is that the case presented in the textbook is not the start, nor the end, of the story. I believe that when students learn to think in terms of the potential far-reaching effects of these agreements, it helps
them to understand and appreciate the context in which disputes arise and to craft agreements that protect more
than just the immediate realities of the clients lives. What we learn is that these agreements, made between otherwise friendly relations, can and often do have consequences far into the future.
Linda Harrison, Nova Southeastern University Law Center

Top Five Cases


Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928): The classic partnership fiduciary duty case
Donahue v. Rodd, 367 Mass. 578, 328 N.E.2d 505 (1975): One of the earliest cases to recognize that closely held
corporations merited special treatment
Smith v. Gross, 604 F.2d 639 (9th Cir. 1979): This federal securities case involves worm farming and is weird
enough to evoke shouts of Gross! from the class!
Zapata v. Maldonado, 430 A.2d 779 (Del. 1981): Interesting opinion that raised an uproar from the business bar because it thought (erroneously, as it turned out) that the case posed a threat to the Business Judgment Rule
Ringling v. Ringling, 53 A.2d 441 (Del. 1947): A seminal case on shareholder voting agreements, involving a bitter dispute between two sisters-in-law. I enjoy teaching this case partly because the reasoning is obviously
flawed. I read aloud a great poem about the case (authored by Dan Sharp) that warns against doing business with your sister-in-law.
David Simon Sokolow, The University of Texas School of Law

Slides
I use a basic set of slides in conjunction with a frequent rotation of casebooks. I have found that frequent changes
provide a way of checking students who rely on last semesters notes and outlines. To facilitate such frequent shifting, as well as for additional pedagogical reasons, I use a basic set of slides that can be easily modified from casebook
to casebook. My move to slides was triggered by a couple of factors. First, my poor handwriting and the time needed
to reproduce (and sometimes re-create) my diagrams on the board resulted in a high degree of frustration both for
me and for the students (What is that word on the board?). Second, it seemed to me that students were spending
too much time copying down diagrams from the chalkboard instead of listening to the class discussion. Unlike notes,
which reflect some degree of synthesis, this was a purely rote exercise. So I turned to using transparencies and an
overhead projector. The immediate benefits were obvious. No longer did I need to take class time putting up diagrams on the board. Nor did I have to worry about the right scale or my penmanship. Moreover, I could distribute
copies of the slides to students at the beginning of class, so they could incorporate them into their notes immediately, rather than have to copy the diagram from the board. (This presents an obvious risk of reduced attention to
the instructor while students are focused on the slide copies before them. On the whole, I think the benefits of increased contemporaneous comprehension outweigh these risks, although at least one of my colleagues disagrees.)

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I prepare my slides with PowerPoint. Initially I prepared them as discrete slides (one slide per show) because
I was printing them out and copying them as transparencies, so there was no need to have an assembled slide
show. I also copied as transparencies relevant statutory material and illustrative handouts such as annual reports
and financial statements. As my school has retrofitted classrooms with built-in computer projectors, I have moved
to using projected slide shows instead of transparencies. Having sat through too many PowerPoint presentations
with too many gimmicks, I was initially wary of using the slide shows. However, it seemed like a smoother and
more effective method than the overhead/transparency method I was using.
Thus far, the technology has been very reliable and I have had no regrets about the shift. In particular, I have
dealt with my two main concerns. First, I believe the bells and whistles many PowerPoint shows utilize are distracting from a pedagogical viewpoint. Thus, I have created my slides in black and white and in very plain form.
My other concern was whether I could maintain the spontaneity and flexibility of being able to mark up and annotate the slides as I had done with the transparencies. Although PowerPoint does have the capability to highlight and draw lines, I did not want to be tied down to the computer or a portable mouse. Another possibility
was to use an additional piece of equipment available at our school the SMARTBOARD interactive white board.
Adding one more piece of equipment seemed to complicate matters, so I settled for an easier solution. My slide
show is projected on the built-in white board which I mark up with dry erase markers and simply erase from
slide to slide. Thus far it has proven simple and effective.
The subject matter of the slides varies. Some are simply road maps of content. Others set forth the facts of
cases. Still others illustrate the operation of a statutory rule or doctrine. As I change books, I find that the roadmap
and problem slides need to be changed, but the core case and statutory slides can remain largely intact.
Students seem to like and appreciate the slides (from my spot-inspections most seem to take notes directly on
the slides). This system remains a work-in-progress for me. I am constantly adding new slides, modifying existing ones, and deleting those I believe to be redundant or ineffective. I am also trying to subject them to more
critical analysis by asking colleagues to observe my classes and by submitting ideas to projects like this book.
Eric Lustig, New England School of Law

Handouts and Outfits


I am the Queen of the Handout, and I supplement the standard statutory reference and case book with a lot
of handouts (made available electronically) over the course of the term. I honestly believe that some students
need a handout, either to reinforce classroom learning or to teach them, in a primary way, things they are having trouble accessing from the readings or class meetings. Most of my handouts summarize an analysis that we
come to collectively in a class discussion. I do, however, create some handouts in advance to help explain or organize complex or confusing concepts. Admittedly, I also dress up in stupid outfits sometimes to reinforce something about the material. (For example, I wear a Ringling Brothers & Barnum and Bailey clown school jumpsuit
during our discussion of the Ringling Brothers case.)
Joan Heminway, The University of Tennessee College of Law

Exercises
Exercises for the First Day of Class
I start the first day of class with a role-playing exercise. I give $100,000 worth of play money to one student
and then award a diploma in Doctor of Upholstery Arts to another student. I try to make sure that one student is a man and the other a woman and that they are sitting on opposite sides of the room. I start by asking

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the student with the money some basic questions like What are you going to do with the money? and Are you
worried about anything as you sit there with $100,000? Eventually I get the students to see the interplay of Klein
and Coffees four deal points risk, return, control, and duration. As the class develops, I have the money
student and the skills student shake hands and go into business selling futons to college kids. The money student contributes the $100,000 in exchange for half of the profits, and the skills student contributes hard work
and genius for the other half. After this simple handshake, we proceed to discuss what kind of business association has been formed. This is a nice introduction to the indeterminacy of some business association doctrines. I
keep the hypo vague in important particulars so the two may have formed a partnership, or a sole proprietorship where the skills student has borrowed the money, or a sole proprietorship where the money student has
hired the other as a manager.
I started using this hypo when I first taught the course and used the Hamilton book, which starts with a similar hypo. While I am not currently using the Hamilton materials, I still use the furniture store hypo because it
is quite homey and easy for the students to get a handle on. I return to the furniture store hypo throughout the
course as different areas of corporations doctrine are covered.
I do this for a couple of reasons. First it is fun. Using props like the wad of fake bills and the phony diploma
on the first day breaks the ice nicely and makes students open to the idea that the course might be enjoyable. Second, asking the two students a series of questions about what they want to get out of the deal in terms of economic and non-economic payoffs, and the worries they have about the business they are about the embark upon,
gives them some comfort that they have at least an intuitive grasp of important business ideas.
Eric Gouvin, Western New England College School of Law
For a number of years, I have introduced the course with a newspaper article that chronicles a legal battle over
a local brew pub. The students familiarity with the establishment and the articles coverage of several issues discussed in the course make it a more effective way to stimulate discussion than a faceless hypothetical.
The article profiles a closely held business in which there is a falling out between two of the founders (who
are brothers) and the third founder. The author of the article inadvertently creates a wonderful point of entry by
referring to the business at one point as a partnership and elsewhere as a shareholders agreement. I begin the
discussion by asking whether it matters if the business is a partnership or a corporation, which naturally leads
into a treatment of the legal differences between the two. The problems among the partners involve fairly classic
examples of management disagreements and the Meinhard v. Salmon type of fiduciary duty issues.
Eric Lustig, New England School of Law
I occasionally use props in class. One role-playing exercise was a class business making footballs. So, I brought
in a big, leather UT football. I then wrote all over the football the ideas students had raised in class about entity
characteristics (in the form of the participants needs and wants in founding the business enterprise) and brought
it back to class periodically over the term when it became relevant to the class discussion.
Joan Heminway, The University of Tennessee College of Law
On the first day of class I introduce students to the corporations course by explaining the syllabus, assignments, preparation and participation requirements, exam, and my methodology for covering the course materials. Afterwards, I distribute a short set of corporate bylaws. I instruct the class to close their books, set down their
pencils, and read the bylaws. A few minutes later I ask them what they thought. The usual response is that the
bylaws are unintelligible and indigestible. I assure them that although the bylaws are incomprehensible today, by
the end of the course they will understand every word and concept contained in them. I then suggest that an excellent measure of how much they have learned in the course is to reread the bylaws before they begin to study

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for the final. By that time they should be able to read them with ease. Students tell me this little exercise gives a
nice boost to their self-confidence around exam time.
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)

Simulations and Small Groups


Throughout the semester, I use various in-class simulations in my business associations course, many of which
were developed collaboratively with Professor Jean Zorn. The substance of the simulations is taken directly from
the casebook I assign. See Bauman, Weiss, and Palmiter, Corporations Law and Policy: Materials and Problems (5th
ed. 2003). This casebook employs the problem method, often using recurring fact patterns as a means of maintaining continuity.
At the beginning of the semester I assign students to small study groups with whom they will work all semester. Each group is assigned one of four roles: three are clients with varying interests and the fourth is an attorney representing the three clients in the formation and operation of a small corporation. (Since there are only
four roles, some groups are assigned the same role.)
Each group is given a description of the role they are to undertake, including information about their financial and educational backgrounds; their work history and expertise; the risks they are willing to take; their interests, needs, and concerns; and their long-term goals. Using the same roles throughout the semester, study groups
meet regularly outside of class to prepare for simulations.
Prior to each simulation, students are given a description of the issue facing the three clients. Students then
meet with their study group prior to class. Based on their characters requirements, clients discuss their optimal outcome and attorneys meet to decide how they will counsel the three clients in order to reach the most
mutually advantageous result. Issues they address over the course of the semester include: which organizational
form best meets all their individual needs and concerns, where to incorporate, whether to seek joint representation in the incorporation process in light of ethical and practical considerations, and what type of securities
to issue once they incorporate. They also simulate a directors meeting where they are asked to vote on several
substantive issues.
In class, students separate from their study groups and gather in new groups of four, with each student in
the group representing a different role. The lawyer is generally asked to run the meeting and offer counsel. The
clients, who are aligned by interests in many ways but also have some differing goals, negotiate for the best result for the corporation in light of their personal interests. They are encouraged to reach a conclusion that accounts for their individual needs, while maintaining, to the extent possible, a non-adversarial relationship with
their colleagues.
As the mid-semester project, having already decided to start a corporation and answered some preliminary
questions about its form, students (with their study groups) draft the incorporation documents, including the
articles of incorporation, the bylaws, a shareholder agreement, and minutes of the first directors meeting. Although three of the four students play the client in class, they all, of course, participate equally in the drafting.
(Although some might say the only important learning role is the lawyers, I believe that having students play the
client role is great for them in lots of ways and certainly does not detract from their learning about the law and
being a lawyer. In particular, the client role is important for inputting the information lawyers need and for showing that lawyers plan and think with clients and do not just make decisions on their own.)
These simulations, I hope, keep students actively engaged in the learning process, help them relate to the subject matter, and give them experience in counseling, negotiating, and drafting. I have found that these exercises
also give much-needed confidence to students in a subject they might have had limited exposure to and possibly fear of in the past.
Deborah Zalesne, City University of New York School of Law

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Brief Gems
Surviving, Dealing, and Laughing
My supplement includes a one-page document prepared by former students on How to Survive in Professor
Sokolows BA Class. It puts students on notice that there is a considerable amount of work, so they had better
not fall behind. It seems to do the trick. I also sometimes play Lets Make a Deal to get volunteers for discussing
the problems in class. I have Sokkies Cookie Jar (which usually has a small check in it, unbeknownst to the students) and a package with a BA study aid inside (ditto). Someone will usually take the bait and volunteer. When
the student is done discussing the problem, he/she gets to pick. The students yell for the jar or the package
just as they do on TV.
You have got to have a sense of humor to teach this stuff because its very dry. I use Yiddish expressions from
my mother and grandmother to enliven the proceedings, and I discuss my parents dress shop and my sons travails in opening a restaurant when appropriate. For example, in explaining that many clients dont want to negotiate a partnership agreement because theyd rather let sleeping dogs lie, I use the Yiddish equivalent: Als
man nemmt dreck und gemischt das oof, schtinct das (When you take doo-doo and stir it up, it stinks!) Personalizing the material goes a long way toward making it accessible to those who have no business background.
David Simon Sokolow, The University of Texas School of Law

Preserving Relationships
Because I believe business associations is essentially about relationships, I always take one case from the casebook and mediate it in class as an alternative to the litigation proceeding the students are so accustomed to. The
need to preserve relationships should be foremost in any commercial lawyers mind but especially in corporate
representation because so often the principals in the business are also related to each other.
Eric Gouvin, Western New England College School of Law

Writing across the Curriculum


I am a big believer in writing across the curriculum (however, Ill spare you the merits argument here). Accordingly, I assign two out-of-class writing assignments during the semester. The first is a one-page memorandum focusing on four entity characteristics of limited liability partnerships, and the second is a set of practice
essay questions, usually regarding proxy regulation. Both involve the use or analysis of fact patterns. I grade writing assignments on a pass/fail basis, but the only consequence of a failing grade (which is given based on my assessment that the student lacks a fundamental understanding of the substantive concepts involved in the assignment) is that the student has to rewrite the paper until it passes.
Joan Heminway, The University of Tennessee College of Law

Teaching Corporate Governance through Shareholder Litigation


Litigation abuse has received considerable public attention in the last several years. The shareholder suit is at
the forefront of this debate. Corporate America, claiming that strike suits are crippling business profitability, has
pressed for litigation reform. Regulators, at a variety of levels, have responded to complaints of excessive litigation. One of the most prominent of these responses was congressional adoption of the Private Securities Litigation Reform Act of 1995, which created a number of new procedural and substantive barriers to securities fraud

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class actions. At the same time, defenders of shareholder litigation stress its importance and warn that efforts to
curtail litigation will reduce management accountability. These warnings seem particularly prescient in light of
recent corporate governance scandals at Enron and other major corporations.
The debate, which is a lively one, offers a variety of teaching issues. Through the material on shareholder litigation one can explore the basic themes of corporate law and corporate governance, including questions about
the appropriate degree of separation of ownership and control in the public corporation, the relative merits of
different governance mechanisms that seek to reduce agency costs and increase management accountability, and
the appropriate role of litigation in business law. In this essay, I attempt to illustrate the relevance of shareholder
litigation to some of the major themes I cover in the basic corporations course.
Resisting the cynical view that the corporation always wins, my emphasis in this material is on the extent to
which the rules established through shareholder litigation influence primary conduct. Thus our discussion focuses on the role of litigation in setting norms of corporate behavior and deterring corporate misconduct. The
material also enables students to evaluate the role of the market and to consider whether regulation is necessary
or appropriate as a response to market problems.
This analysis is most effective in the context of specific examples. Recently I have used two particular topics
executive compensation and corporate philanthropy as a basis for my students to evaluate the effectiveness of
shareholder litigation and to compare litigation to other governance mechanisms. This process allows my students to assess critically the traditional wisdom on the limited role afforded to shareholder litigation as a means
for challenging business decision making.
(This idea is excerpted from Jill E. Fisch, Teaching Corporate Governance through Shareholder Litigation, 34 Ga.
L. Rev. 743 (2000).)
Jill E. Fisch, Fordham University School of Law

Feedback and Evaluation


Class Participation
When teaching Corporations I use the following opt in participation format. (This particular format is based
on a similar method devised by Professor Randy E. Barnett, Austin B. Fletcher Professor of Law, Boston University School of Law.)
Everyone who is ready and willing to participate in that days class signs a Participation List, located at my
podium, before the class starts. I call on only those students (Participating Students) who sign the List. Any student who signs the List x number of times during the semester automatically qualifies for up to a full grade increase
unless she is dropped for unprofessional conduct. For example, if a Participating Student does not answer when called
on or gives consistently poor answers demonstrating lack of preparation, he is dropped from the program. The nonparticipating students are allowed to freeload off the efforts of the Participating Students with the understanding that
a participating student may bump them out of a grade slot if the grade curve requires me to make a choice.
I find this approach works well with Corporations students because:
Most are third-year students who are taking Corporations for the bar exam, have no special interest in corporate study, and would rather be anywhere else than in a Corporations class.
Most are third-year students whose grade averages are set in stone and, therefore, will not be affected by a
class participation award and would rather be anywhere else than in a Corporations class.
A critical mass of students are very interested in Corporations and/or want to take advantage of the grade
increase option. The Participation List allows me to gear the course to these students, move quickly and
thoroughly through the materials, and avoid policing unwilling students.

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Although I find the Participation List appropriate for a large third-year elective, I would not use it in required
or first-year courses where I place a premium on professionalism, preparation, participation, time management, civility, and listening or in a seminar that is attended by self-selected students who have a high interest
in the topic.
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)

Final Exam Preparation and Feedback


I have a bias against exams being the only form of student evaluation. Yet, in my BA class, 100% of the students grades in the class are based on a four-hour final exam (which consists of both essay and multiple-choice
questions). To prepare students for the exam, I conduct an in-class, midterm review session and an in-class, endof-term review session. Moreover, I strongly believe in letting the students know what to expect from me early
in the term, and my class scheduling and preparation are geared to meet that goal. I also conduct a traditional,
post-term, out-of-class Q&A exam review.
Joan Heminway, The University of Tennessee College of Law

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chapter 2

Civil Procedure
Approach

19

Introduction to the Civil Procedure Puzzle


Robert M. Bloom
A Problem-Based Approach Using Real Court Documents
Robin Kundis Craig
The Two-Course Approach
Christopher David Ruiz Cameron
Teach the Whole Class
Walter W. Heiser
Motivating Students to Learn Forum Selection
Greg Sergienko
Supplemental Jurisdiction: Decision Tree Analysis
Diane S. Kaplan
Training First-Year Students to Work like a Lawyer:
A Sneaky Virtual Classroom Experiment
Alfred R. Light
Plans of Attack
Robin Kundis Craig
Symposium on Teaching Civil Procedure
Gerald Hess

Material

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21
22

23
24
25
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Pennoyer v. Neff: A Play in One Act


Roberta M. Harding
Concept Sheets
Diane S. Kaplan
Film Clips
Christopher David Ruiz Cameron
Turn Off the Oldies Station
John P. Lenich
Illustrative Litigation Documents Provide Context
Michael Finch
Forms Are Nice, Explanations Are Better
John P. Lenich
Fortenbaughs Files
Gerald Hess

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Civil Procedure

Handouts Prior Exam Packet and PowerPoint Slides


Christopher David Ruiz Cameron
F.R. Civ. P. 4: Service of Process Exercise
Diane S. Kaplan
The Importance of Procedure
Gerald Hess

Exercises
Collaborative Creation of Flow Charts
Laura J. Cooper
Joinder Hot Potato
Robin Kundis Craig
A Drafting of Pleadings Exercise for a Large Class
Walter W. Heiser
Pleading Workshop
John P. Lenich
Oral Arguments
Gerald Hess

Brief Gems
Calling Cards
William Slomanson
Role-Playing Client Autonomy
Lawrence W. Moore, S.J.
The Walk Through
Walter W. Heiser
A Devilish Case
Robin Kundis Craig
Mini-Reviews
Walter W. Heiser

Feedback and Evaluation


Using Grading Sheets to Improve Exam Feedback
Stephen Shapiro
The Practice Midterm
Walter W. Heiser
Make the Student the Professor
Katharine F. Nelson

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Approach
Introduction to the Civil Procedure Puzzle
In assembling a jigsaw puzzle, it is most important that you see the entire puzzle. The individual pieces are
meaningless unless you are familiar with the final product. Civil procedure is somewhat similar. To most students
the individual steps or pieces are meaningless unless they have some idea as to how these pieces relate to the
whole game of litigating disputes through the court system. Thus, in commencing a course in civil procedure, I
will quickly take the students through the entire process so that when we look at the individual pieces in greater
depth they will have an appreciation of how the piece relates to the whole process. I will also point out that the
puzzle solver is the lawyer and begin to get them to focus on why the lawyer did what she did.
I introduce an overview of civil litigation by first pointing out that there are two basic systems in operation,
a state system and a federal system. The choice as to the system will depend on how the puzzle solver, or lawyer,
designs the lawsuit.
I go through the process using three tools. First, the book: I use Civil Procedure (5th ed.) by Yeasel, which has an
introductory overview section. (Note: Many books have this. See Subrin, Minnow, Brodin, and Main.) I use this text
mostly as background to explain and to further elaborate my class discussion. The second tool I use is a hypothetical involving an individual (Sam Smoker) with a dispute against a large company (R.J. Reynolds). (Note: This hypothetical was originally devised by my colleague, Mark Brodin.) I begin with Sam and explore his initial options,
i.e., can he call Reynolds and say their cigarettes injured him? This discussion points out the complexity of the system and the need for a lawyer. Ultimately, Sam goes to a lawyer who decides whether or not to sue. Then he decides
whom to sue and where to sue. Suit is ultimately filed and we talk about each of the steps along the process through
appeal. This usually takes no more than two classes. While doing the Sam hypo, they will be reading The Buffalo Creek
Disaster by Gerald Stern, a story about a lawsuit involving a coal mining disaster. Using The Buffalo Creek Disaster, I
will take them through the same pre-trial steps that Sam Smoker went through. Since most of our emphasis in Civil
Procedure involves pre-trial issues, they see for a second time such issues as choosing whom to sue and where.
(Throughout the course when I introduce a new topic I will often utilize a Buffalo Creek Disaster hypothetical.)
The overview gives the students a better appreciation of how the various topics that make up a course in civil
procedure interrelate to one another and their role in the design of the lawsuit.
Robert M. Bloom, Boston College Law School

A Problem-Based Approach Using Real Court Documents


I approach Civil Procedure as a problem-based course and work problems into class discussion on a regular
basis. My use of problems includes both shorter hypotheticals, such as a series of Rule 8 notice pleading problems, and scheduled Problem Days, where the entire class revolves around a particular problem. In addition,
because I managed as a law student to not see a real complaint until my third year, my Problem Days are almost
always based on real pleadings from federal and state courts, doctored to eliminate unnecessarily complicated issues and the names of the parties and the attorneys involved. In the course of a year of Civil Procedure, therefore, my students see real-life legal problems on the following issues: (1) federal notice pleading compared to
state fact pleading (Oregon, where I began teaching law, is a fact-pleading state); (2) the differences between the
various Rule 12 motions; (3) amended pleading and relation back; (4) essential parties; (5) summary judgment;
(6) jurisdiction and venue; (7) removal; (8) the Erie doctrine; and (9) right to a jury trial. In addition, at the end
of the class discussion, I often distribute the actual court opinion on the case my students have just been wrestling
with. In addition to validating their own reasoning, the court opinion often cites to cases the students have been
reading especially in the jurisdiction, venue, Erie, and jury trial problems and thus gives my students a much

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stronger sense than I think they otherwise would have had that they are, in fact, learning valuable and useful
law.
The use of problems and real-life court cases introduces students in a meaningful way to how the court process
actually works and what the documents actually look like. In addition, the real-life pleadings show students how
civil procedure issues actually arise, filling a gap that many students feel at the end of a civil procedure course regarding how to translate the Federal Rules of Civil Procedure into actual litigation. Finally, the use of actual
court documents allows me to introduce my students to some of the realities of federal court practice, such as
the existence of local rules and intervening Supreme Court decisions.
Robin Kundis Craig, Indiana University School of Law-Indianapolis

The Two-Course Approach


Whether it is taught over one semester or two semesters, Civil Procedure is really two courses.
The first course deals with the exercise and allocation of power in and among the courts of our federal system. The main subject is power the power of federal courts to hear controversies submitted for adjudication
(subject matter jurisdiction, including supplemental jurisdiction, and removal and remand), the power of state
courts to bind litigants to decisions (personal jurisdiction and notice, and the opportunity to be heard, together
with the related topics of venue and forum non conveniens), and the allocation of power between federal and
state sovereigns in choosing rules of decision (Erie doctrine).
The second course deals with the nuts and bolts of federal litigation in a more or less chronological fashion.
I refer to these as the Three Ps: pleading (complaints and answers, amendments, sanctions, joinder, and class actions), practice (discovery, summary judgment, right to jury trial, post-trial motions for judgment as a matter of
law, new trial), and preclusion (final judgment rule, appeals and res judicata, and collateral estoppel).
At my school, Civil Procedure is a six-unit, two-semester course. I think of the first course as theoretical and
the latter as practical. I think the nuts and bolts of practice and the role of tactics and strategies make more
sense once the student has been exposed to the underlying historical and theoretical framework.
I like to start with personal jurisdiction. This is one of the few topics that, with a relatively modest investment
of time, first-year students can follow from its common law origins to its modern presentation. In the first six
weeks of school, students learn the traditional bases of personal jurisdiction at common law (physical presence,
citizenship, and consent or waiver), explore the relationship between the common law and the concept of due
process (Pennoyer v. Neff), discover the limits of the traditional bases in the modern economy (various cases),
track the expansion and contraction of long-arm jurisdiction (International Shoe and its progeny), and run into
the problem of jurisdiction in cyberspace (recent cases).
Of course, it doesnt hurt that personal jurisdiction is the most frequently tested civil procedure topic on the
California Bar Exam. Or that, as a traditionalist, I enjoy teaching a number of cases with names that every American law graduate, no matter how old, still remembers.
Christopher David Ruiz Cameron, Southwestern University School of Law

Teach the Whole Class


As a teacher, I believe I have a duty to educate each member of my class. Consequently, I try not to teach to
the middle or teach to the top. Instead, I try to structure each Civil Procedure class so that every student will
remain interested and learn something.
Through questions and answers, I always make sure to elicit the basic facts of the case. Through the same
process, I make sure that the basic rules and doctrines are stated. I frequently will repeat each important rule or
doctrine for emphasis. Only then do I attempt to make the discussion more challenging by examining such things

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as policy concerns and practical problems. If the case itself does not lend itself to discussion of more challenging issues, I use hypotheticals that will raise these issues.
Of course, this all sounds very basic and mundane. But structuring a class this way is more difficult than it appears. As to each element, you should be working toward the goal of making sure that all of your students are
learning the basics of the material covered. As to the more complex questions arising from these basic concepts,
your goal should be to engage all the students even if not all of them will fully comprehend every aspect of the
complexities discussed.
Walter W. Heiser, University of San Diego School of Law

Motivating Students to Learn Forum Selection


People find it difficult to learn material when they dont understand its significance. Much of the difficulty of
understanding civil procedure stems from its having little apparent significance in the absence of some dispute.
For example, the significance of the venue rules is difficult to understand until one has some background in the
choice-of-law issues that can be manipulated by a choice of venue.
I recently had this lesson reinforced in a casual conversation that included a non-lawyer and someone who
had finished the first year of law school with a less-than-distinguished grade in Civil Procedure. The non-lawyer
was a pilot and was interested in the rules that governed where suits arising out of aircraft accidents could be
brought. The pilot had noticed that these suits were sometimes brought in the place of the accident but were
often brought in a variety of different places and wondered what was going on. I explained that sometimes the
law differed, so that the prudent plaintiffs attorney would consult the law on this point. Of course, I added, the
venue rules constrained the choices that could be made. Later, the former 1L told me that she had instantly and
for the first time understood the significance of the venue rules in that conversation.
Unfortunately, substantive law issues are often unproductive examples to use in explaining the significance of
rules governing accessibility to federal court, personal jurisdiction, and venue. After all, choice of law is a complicated field, and the substantive law issues associated with substantive choices would often take the civil procedure course far afield.
Fortunately, though, civil procedure itself often provides choice-of-law issues. Examples of this arise where
Erie principles do not apply to make the rule in federal court the same as the rule in state court. Two particular
examples of this are the granting of injunctive relief, which often has different standards in state and federal court,
and the Seventh Amendment jury trial right, which does not extend to proceedings in state court.
Forum-shopping is also significant in areas in which courts in different jurisdictions interpret the same procedural rules differently. Thus, until very recently the federal Second Circuit applied heightened pleading
standards to employment discrimination cases. Courts are widely divided over the appropriate interpretation
of the supplemental jurisdiction statute, 28 U.S.C. 1367. Outside the area of civil procedure, but comfortably
close to it, the federal Eighth Circuit has interpreted Fed. R. Evid. 407 to allow the admission of subsequent
remedial measures in strict products liability cases. Both these varying interpretations of what is supposedly
the same rule can provide enormous opportunities for clever lawyers seeking to obtain the best law for their
clients.
Having exposed students to the possibility of the forum selection provisions which I use here to include the
rules governing federal jurisdiction, personal jurisdiction, and venue one can then provide students with situations in which selecting the forum becomes important. Once that is done, the students will understand the
significance of the rules in real cases and become motivated to learn them.
Greg Sergienko, Western State University College of Law

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Supplemental Jurisdiction: Decision Tree Analysis


The Supplemental Jurisdiction statute has caused considerable academic and judicial controversy since its enactment in 1990. And, since its enactment, conventional wisdom has foretold its demise. However, until it is either amended or repealed it will continue to provide countless hours of wicked hypotheticals for civil procedure
professors.
I teach supplemental jurisdiction between jurisdiction and joinder since the construction of 1367 bridges both
topics. I begin by explaining the pre- 1367 status of the law: United Mine Workers v. Gibbs, 383 U.S. 715 (1966);
U.S. v. Finley, 490 U.S. 545 (1989); Owen Equipment v. Kroger, 437 U.S. 363 (1978); the common nucleus of operative facts test; and pendent, ancillary, and pendent-party forms of jurisdiction. Once the historical cases and
concepts are set out, I move into the Supplemental Jurisdiction statute. As I read the statute to the class, I explain
how each phrase is the same or different from its historical precedent and how each sub-part relates to the other
sub-parts. By this time the students eyes are glazed shut. Collectively, they have decided that 1367, like Mt. Everest, is not worth the effort. To revive them, I acknowledge their pain and distribute the following chart, which I
refer to as a Decision Tree Analysis. Their eyes open.
The Five Questions:
1.
Is there a jurisdictionally sufficient claim?
If yes, go to Question 2.
If no, this is not a supplemental jurisdiction problem.
2.
Is there a jurisdictionally insufficient claim?
If yes, go to Question 3.
If no, this is not a supplemental jurisdiction problem.
3.
Does the insufficient claim arise from the same case or controversy as the sufficient claim?
a)
If both claims arise from the same case or controversy and the sufficient claim is not based on
1332, then the insufficient claim qualifies for 1367(a) treatment, even if it requires the joinder
of an additional party. Go to Question 5.
b) If both claims arise from the same case or controversy and the sufficient claim is based on 1332,
go to Question 4.
c)
If the insufficient claim does not arise from the same case or controversy as the sufficient claim,
then there is no supplemental jurisdiction. Dismiss the insufficient claim and file it in state court.
4.
If the sufficient claim is based on 1332, is the insufficient claim subject to any of the exceptions of
1367(b)?
a)
If yes, then there is no supplemental jurisdiction. Dismiss the claim.
b) If no, then you have a supplemental claim even if it requires the joinder of an additional party.
Go to Question 5.
5.
Does the supplemental claim fall within any of the four guidelines of 1367(c)?
a)
If yes, dismiss the claim and refile it in state court within thirty days or before the statute of limitations runs.
b) If no, then you can proceed to litigate the supplemental claim in federal court.

We read through the chart together. Their eyes close again. Then I say, Watch this, and put the following hypothetical on the board:
A (IL.)

v.
B (IL.)
Antitrust Complaint
Contract Counterclaim

Same case
or
Controversy

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I direct them to the Decision Tree Analysis.


Question 1: Is there a jurisdictionally sufficient claim?
Yes, A v. B satisfies 1331 (federal question jurisdiction) and 1337 (antitrust jurisdiction).
Go to Question 2:
Question 2: Is there a jurisdictionally insufficient claim?
Yes, B v. A fails to satisfy 1331 because it does not arise under federal law and fails to satisfy 1332
(diversity jurisdiction) because the adverse parties do not have diverse citizenship.
Go to Question 3:
Question 3: Do the sufficient and insufficient claims arise from the same case or controversy?
Yes, the hypo tells us that they do. Since the sufficient claim is based on 1332, Question 3(a) tells
us to go to Question 5 which asks if the supplemental claim falls within any of the four guidelines of
1367(c). B v. A, the supplemental claim, is a contract claim that is neither novel nor complex; it
does not predominate over the antitrust claim; the antitrust claim has not been dismissed; and,
there are no other compelling reasons for the federal court to decline jurisdiction over B v. A. Therefore, the federal court has supplemental jurisdiction over Bs counterclaim against A.

Their interest is piqued but only because they think I have slipped them a crib sheet. I then ask them to apply
the Decision Tree Analysis to a series of hypotheticals that explore the twists and turns of supplemental jurisdiction. I published a similar, but not identical Decision Tree Analysis for 1367 in A Users Guide to Supplemental Jurisdiction, 27 U. of Tol. L. Rev. 85 (1995).
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)

Training First-Year Students to Work like a Lawyer:


A Sneaky Virtual Classroom Experiment
Law students today frequently do not appear as the compulsive self-starters that we baby boomers envisioned
ourselves to have been in law school. Many of us struggle to encourage the diligent work habits students will need
when they assume the rigors of law practice. In a world of case notes, outlines, and roadmaps, how can we ensure that students study the primary materials? In a world where only a few must perform in any first-year class
session, how can we ensure that students prepare for, or even attend, each class? In a world with only a single examination, how can we ensure that students do not fall hopelessly behind?
During the fall of 1999, as an experiment, I tried passing out my class notes following each class session. My
Civil Procedure students thus became accustomed to including these notes among their core materials for the
course. During spring semester 2000, instead of photocopying the notes following each class, I posted a days
notes as a link on my courses virtual classroom website along with supplementary materials related to that days
topic. The vast majority of Civil Procedure students visited the website regularly to find and copy these notes.
Once there, some even looked at the supplemental materials.
That semester, I also tried out a new class participation policy, under which class participation would affect
the students final grade. Class participation was measured through several criteria: prompt attendance, demonstrated class preparation when called upon, volunteering in class, participation and performance on web quizzes
and exercises, participation in the websites discussion forum, and email communications or office visits with
the professor. For a couple of weeks after my announcement of the class participation policy, there was substantial activity under each of these categories. Thereafter, communications with students waned. For example,
after an initial flurry of interaction in the discussion forum, there were no postings at all between February 28
and March 27.

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Another experiment proved to have more staying power. Over the past several years, first-year students at St.
Thomas have begun to cut classes during late January and early February as they complete their briefs for Appellate Advocacy. No amount of professorial exhortation about the duties of law students or the professional obligations of future attorneys had been effective to stem the tide. Not even the law schools rather draconian attendance policy could induce the St. Thomas student to attend class under the pressure of the legal writing
deadline.
The classic pattern of absences began to appear in early February 2000, with absences rising to a crescendo of
twenty out of seventy enrolled students missing class on February 9, 2000. Anticipating the phenomenon on that
day, I prepared a homework assignment for the class as I had done in past years as a signal of my displeasure with
this undergraduate approach to ones studies. My first inspiration was to modify my punitive approach slightly
by assigning the homework only to the offending parties, i.e., those who had skipped class. A few students rediscovered their email accounts. One complained of the unfairness and inequity of my assigning homework on
the one day he had missed all semester, which had resulted from forces outside his control, namely his legal
writing partners dilatory and incomplete work on their joint work product.
This complaint provoked my second inspiration. Why not make homework assignments a regular consequence
of ones missing class? I had already committed myself to preparation of class notes to be posted after each class
was held. This was becoming quite time consuming. However, to ask a homework question that could be answered with reference to such class notes involved little additional effort. Class notes could be held (not posted)
until shortly prior to the next class; then each student receiving an assignment could review the material bearing on the question that had been posted (which other students presumably had received in class). This seemed
exactly the right set of incentives an encouragement to attend class and a remedy for students missing class to
demonstrate that they had read and understood that days topic.
The short-term impact of this policy, which I announced via email as well as during the following class, was
dramatic. The next class had absolutely perfect attendance. Absences on following days were extremely rare, usually only a student or two, never exceeding five. This high attendance persisted despite subsequent legal writing
assignments and other distractions of the average law school semester. I knew that I was on to something here
when a student came to me asking where his homework assignment was when I had accidentally marked him as
present on a particular day.
Student evaluations at the conclusion of the semester were quite interesting. The overwhelming majority of
students (89%) found the course among the top two in difficulty, with 39% finding it the most difficult. Civil
Procedure students were divided in their level of interest in the course, with a majority (62%) finding it among
their more interesting courses. About a quarter (27%) listed it as the most interesting course, while 10% listed it
as the least interesting. Nonetheless, almost half (44%) ranked Civil Procedure as their best course among the
four three-credit courses they had taken that semester. This seems a high degree of customer satisfaction for such
a difficult course.
Alfred R. Light, St. Thomas University School of Law

Plans of Attack
Part of students frustration with the first year of law school in general, and with the more complicated civil
procedure doctrines specifically, is figuring out how to attack a problem how to recognize that the problem
exists, where to start, and which issues are logically prior to other issues. I work with my students to help them
develop plans of attack for complex issues. For example, for the Erie doctrine, my students end up with a plan
of attack that looks something like this:
I.

Is the federal court hearing a claim based on state law?

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II.
III.
IV.

V.

25

If so, is there an apparent conflict between state and federal law regarding an issue within that
state-law claim?
If so, is it an absolute conflict (Walker v. Armco Steel Co., Gasperini v. Center for Humanities, Inc.),
with no way to reconcile the state and federal provisions?
If so, what kind of conflict is it?
A. State law v. U.S. Constitution: unconstitutionality analysis
B. State law v. federal statute: pre-emption analysis
C. State law v. FRCP: Hanna v. Plumer, Walker v. Armco Steel Co.
D. Any other conflict:
1. Is the issue substantive or procedural under the outcome determinative test (Guaranty Trust
Co. v. York), viewed from the perspective of forum-shopping at the time a plaintiff is deciding whether to sue in state or federal court (Hanna v. Plumer)?
2. If the issue looks substantive, does it nevertheless involve important federal interests, such
that federal law should nevertheless govern (Byrd v. Blue Ridge Rural Electric Cooperative,
Inc.)?
If state law applies, what is the state law?

I also work with my classes to develop plans of attack for subject matter jurisdiction and personal jurisdiction.
Robin Kundis Craig, Indiana University School of Law-Indianapolis

Symposium on Teaching Civil Procedure


An excellent resource for civil procedure teachers is the symposium issue of the Saint Louis University Law
Review (volume 47, number 1, Winter 2003), Teaching Civil Procedure. The symposium contains eight articles on approaches to the course, two articles on teaching skills, and two articles from the students perspective.
SAINT LOUIS UNIVERSITY LAW JOURNAL (VOL. 47)
TEACHING CIVIL PROCEDURE
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Michael A. Wolff

USING CIVIL PROCEDURE TO TEACH PRACTICAL SKILLS


Exploring Some Unexplored Practical Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Jack H. Friedenthal

Teaching Procedure: Past and Prologue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .George Rutherglen

13

APPROACHES TO TEACHING CIVIL PROCEDURE


Projecting Civil Litigation Through the Lens of Film Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Melissa Cole

21

A Parting Reprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Lonny Sheinkopf Hoffman

43

One Proposed Tool for Learning, Playing, and Reducing


Anxiety in Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ana Maria Merico-Stephens with
the assistance of Aaron F. Arnold

59

Civil Procedure in Substantive Context:The Exxon-Valdez Cases . . . . . . . . . . . . . . . . . . . . . . . . . .Keith E. Sealing

63

Reflections on Fifty Years of Teaching Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Joseph J. Simeone

87

Teaching Civil Procedure Using an Integrated Case-Text-and-Problem Method . . . . . . . . . . . . . .Larry L. Teply


Ralph U. Whitten

91

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TEACHING IMPORTANT CIVIL PROCEDURE CONCEPTS


Teaching Civil Procedure Through Its Top Ten Cases, Plus or Minus Two . . . . . . . . . . . . . . .Kevin M. Clermont

111

Using Reeves to Teach Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .David Sloss

127

Gerald Hess, Gonzaga University School of Law

Material
Pennoyer v. Neff: A Play in One Act
Over the years Ive watched students struggle identifying the legal concepts and rules introduced in Pennoyer
v. Neff. I believe some of this difficulty can be attributed to the students confusion about what exactly happened between Neff, Mitchell, and Pennoyer. To remedy this situation I decided to develop a visual and aural
presentation of the facts. This resulted in me authoring Pennoyer v. Neff: A Play in One Act. I randomly select students to play the various roles. Recently Ive started using props, such as a cigar and mustache for John
Mitchell, which makes the undertaking a bit more entertaining. Since this case is usually taught very early in
the semester Ive also found it to be an excellent way for the students to get to know one another better. The
play follows.
Roberta M. Harding, University of Kentucky College of Law
PENNOYER v. NEFF: A PLAY IN ONE ACT
MARCUS NEFF: Well, the year is 1848. Im a young man of 24 years and I think it is about time that I leave Iowa and
head west for Oregon.
NEFFS MOTHER: But Marcus, Oregon isnt even a state yet!
MARCUS NEFF: But Mama, the United States Congress is considering making Oregon a state right now and if I get
to Oregon soon, then I can make a homestead claim for lots of land and submit a land patent. It is a great opportunity for a young man like me!!!
NEFFS MOTHER: Well son, Im sure you know what is best. At least youll be traveling with others in a wagon train
so I wont fret so much.
MARCUS NEFF: Thank you, Mama. Im glad I have your blessing. I promise that Ill go to Oregon and make you
proud of me.
NARRATOR: Neff joins a wagon train of five companies of wagons and heads west from Iowa to Oregon.
MARCUS NEFF: Boy am I glad I came to Oregon. It is a beautiful place and there is so much land available for
homesteading under the Oregon Donation Act. Im glad this is where Ive decided to live.
NARRATOR: A couple of years pass.
MARCUS NEFF: Gosh . . . I now wish that I had learned to read and write. Knowing how to read and write would
sure make it easier to figure out these rules under the Donation Act so I can register my land and get my land
patent much easier.
NARRATOR: To qualify for land under the Oregon Donation Act, the person had to be a citizen living in Oregon
and submit a request for land by December 1, 1850, approximately two years after Neff arrived in Oregon.
Neffs land patent was originally dated December 15, 1850, approximately two years after Neff arrived in Ore-

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gon. Later someone crossed out December and wrote in September. Someone (a fellow homesteader? an employee at the land patent office?) must have told him about the affidavit requirement that follows the filing of
the request for land. Although Neff did get two affidavits stating that he had cultivated the land for his own
use, he prematurely submitted them. He submitted them in 1853 and the registration rules required that they
be submitted after four years have lapsed from the date the initial claim was filed, which would have been in
1850.
MARCUS NEFF: Well now that I have corrected my earlier mistake with the filing of the affidavits by submitting
them now in 1856, I should be getting my official land patent any day now.
NARRATOR: Apparently Neff had no idea about the inefficiency of government administrative agencies.
MARCUS NEFF: Great balls of fire!!!! What is going on here????? It is now 1862, six years since I filed those blasted
affidavits, 12 years since I filed the original claim, and 14 years since I arrived in Oregon and I still have not received my land patent!!!! Maybe I ought to contact a lawyer????????
JOHN H. MITCHELL: Well, Mr. Neff, you came to the right place. Im notorious for my legal acumen in land matters. Tell you what Im going to do. Im going to write one of these letters that lawyers are famous for writing and
obtain another affidavit, even though the rules only require two, and send everything to Washington and see if we
cant get your land patent issued 1, 2, 3. How does that sound?
MARCUS NEFF: That sounds great!!! Ive been working the land as required, I left my home and my folks in Iowa 14
years ago, and all I want is what I deserve to be officially recognized as the owner of the land. I was told that
you would be the one to help me since having only moved to our glorious state in 1860, two years ago, youve already had great success as a land lawyer and have been elected to the state senate.
NARRATOR: Later Neff paid Mitchell $6.50, which, from early 1862 to 1863, was probably sufficient compensation
for writing a letter, obtaining an additional affidavit, and postage. In late 1862 or early 1863, Neff did receive a
document from the government notifying him that he had met the criteria for an issuance of a patent.
NARRATOR: It is now November 3, 1865, approximately two to three years since Neff contacted Mitchell, and
Mitchell presumably did legal work for him, and approximately two to three years since Neff received official notice that he qualified for the issuance of a land patent.
OREGON STATE COURT CLERK: What can I help you with today, Mr. Mitchell?
JOHN H. MITCHELL: Id like to file this action in our state court system against Marcus Neff to get the money he
owes me for legal work I did for him from 1862 until 1864. He owes me $215.50, but only paid me $6.50!! Can you
imagine the nerve of that fellow!!!! What an insult to me, a state senator of Oregon and the past president of the
Oregon Senate! Anyway, the suit against Mr. Neff is to seek a judgment against him in the amount of $253.14 plus
costs.
OREGON STATE COURT CLERK: Sure no problem, Ill take the complaint, stamp it and give you a summons to serve
on Mr. Neff so he knows about your lawsuit.
JOHN H. MITCHELL: What a shame, I cant seem to find where Mr. Neff is in Oregon. Seems like he is now living
somewhere in California and I cant find him there, so I guess Ill have no other option but to constructively serve
him by publishing in some newspapers, as is permitted by an Oregon state statute. Hmm . . . in which newspaper
should I run the legal notice of suit???? How about the Pacific Christian Advocate? Its a very nice weekly paper published by the Methodist Episcopal Church. Six weeks in there ought to just do the job.
OREGON STATE COURT CLERK: Well, it is past the statutory deadline and we still have not received an answer or
any other type of response from Mr. Neff. I guess you know what that means, Mr. Mitchell.

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JOHN H. MITCHELL: I most certainly do and I plan on exercising my rights to the fullest and making a motion that
a default judgment be entered against Marcus Neff.
BAILIFF: On this day, February 19, 1866, the esteemed state court of Oregon enters a judgment against Mr. Marcus
Neff and in favor of Mr. John H. Mitchell in the amount of $294.88. Mr. Mitchell, as the prevailing party in this action, you have an immediate right to enforce the judgment.
JOHN H. MITCHELL: Yes, thank you for apprising me of that. But remember that Im a lawyer and I know that type
of information.
NARRATOR: Poor Mr. Neff. Apparently he is no longer in Oregon. Maybe he got tired of waiting for that land
patent and went to make his fortune elsewhere. But then on March 22, 1866, the land patent giving Neff title to
the land was sent from Washington, D.C. Given the status of the postal service (we are talking Pony Express) it is
unlikely that the actual title and, hence, notice that Neff had been granted the patent, reached Oregon before
June of 1866.
JOHN H. MITCHELL: Well, now that it is early July of 1866, I guess Ill go ahead now and seek a writ of execution to
enforce this judgment I have against Neff. Since he isnt here, Ill just go ahead and have the judgment enforced by
seeking a writ of execution against Neffs property, the one to which the government issued the land grant on
March 22, 1866, to satisfy my judgment against Neff.
NARRATOR: Mitchell complied with the writ of execution statute and posted and published notice for four weeks.
On August 7, 1866, the sheriff held an auction and sold the property.
MITCHELLS FRIEND: Hey, Mitchell. Congratulations on being the winning bid at the sheriffs auction of Neffs property. It is a nice piece of land and you got it for what, $341.60? Talk about a bargain, thats a real steal!
JOHN H. MITCHELL: Yeah, well . . . thanks. Got to run.
NARRATOR: It is August 10, 1866, three days after Mitchell purchased Neffs property that was sold to satisfy
Mitchells judgment against Neff for monies due.
JOHN H. MITCHELL: Good morning, Sylvester. Come in, have a seat.
SYLVESTER PENNOYER: Thanks and a good morning to you, John. Do you have all the paperwork completed?
JOHN H. MITCHELL: Yes . . . all the documents necessary to assign to you the land I purchased the Neff property are completed. All we have to do is sign them.
SYLVESTER PENNOYER: Well then, pass the pen and the inkstand and lets get this deal rolling! I am really looking
forward to living out there. It is so beautiful. If necessary, I can always cut down and sell some of that timber that
covers the land.
JOHN H. MITCHELL: Congratulations, Sylvester! You now hold title to that land.
NARRATOR: Mr. Pennoyer is now living on Neffs land. He has been paying the taxes, has indeed cut some timber,
and has even sold a small portion of the land. However, after living there for eight years, trouble starts brewing
around April or May of 1874 . . .
SYLVESTER PENNOYER: Welcome back to Oregon, Mr. Neff. Where have you been and what the dickens brings you
back?
MARCUS NEFF: I have been living in California, which is where I went when I left Oregon. I ended up settling in the
San Joaquin Valley. Theres great farming there. In fact, Im doing quite well now . . . I have lots of property and livestock. Im married and have children and we live in a big house and have servants. The reason Im back is now that
I have more time and more money I decided to come check on my property here. After I left for California the Ore-

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gon land office sent me the land patent the U.S. government had mailed out on March 22, 1866. But Ive been
told that you have been living on my land and think you own my land, which you dont. So Id like for you to just
move on off the land because it isnt yours, its mine.
SYLVESTER PENNOYER: Now I understand why you might be under the impression that this is still your land, but
you are wrong. It is my land now and has been for the past eight years. Maybe no one properly explained to
you what happened. You left here, for California I guess, owing Mr. Mitchell, your former attorney, money. Since
you hadnt paid him the monies due to him, he was left with no choice but to take the only course of action
available to him, which was to sue you for the the money you owed him. Then, since you never responded, he
again did what was permissible under the law, he sought a default judgment against you, which he was
granted. Then he again couldnt find you in order to enforce this judgment against you so he could collect the
money you owed him, so once again he followed the law and sought a writ of execution to have the sheriff sell
your property, this property, so he could collect the money awarded to him from the judgment entered against
you. Mr. Mitchell just happened to be the highest bidder at the sheriffs auction so he became the owner of
your property. He assigned the property to me, which made and continues to make me the lawful owner of the
property. So while I can understand how you feel, Im afraid there is nothing that can be done as it was all done
according to the law.
MARCUS NEFF: But this isnt fair. I didnt even know about the lawsuit, when Mr. Mitchell claimed that I owed him
money and sued me for the money.
SYLVESTER PENNOYER: Well, thats none of my concern. But as I recall, Mr. Mitchell did try to locate you, but you
had left for California and he followed the law by publishing a notice of his lawsuit in a newspaper, and ran it for
six weeks, so that hopefully you would see it, then know about the situation and come back and defend yourself,
if you so desired.
MARCUS NEFF: But I couldnt read or write. Mr. Mitchell knew that. In fact, my inability to read or write was a
major reason why I hired him to help with the land patent paperwork, because of some previous mistakes I had
made due to my illiteracy when I first tried to register the land patent.
SYLVESTER PENNOYER: Yes, yes . . . well, I think everyone should learn to read and write and I am a big supporter of
public education, but thats neither here nor there. I must say good day sir to you here as I think Ive indulged you
enough.
SYLVESTER PENNOYER: I hope my explanation makes him see that he no longer owns this property and that I do.
However, to be on the safe side, I dont want him causing any trouble, I had better look into a few things. After
all, caution is the better part of valor.
NARRATOR: After Neffs visit, Pennoyer, who must be a bit concerned about the sanctity of the transaction and,
thus, the validity of Neffs claim to the property, begins to take some steps to protect the validity of the title he received by assignment from Mitchell after Mitchell received title to the property when he purchased it at the auction to satisfy the monetary judgment he had against Neff. On July 21, 1874, Pennoyer obtains the signature of
the current sheriff on a second deed. Then on July 24, 1874, he acquired a third deed, this one signed by the man
who had been the sheriff when the property was sold eight years earlier in 1866.
MARCUS NEFF: I dont care what Mr. Pennoyer says about the property rightfully being his because Mr. Mitchell
purchased it when it was sold to satisfy a monetary judgment Mr. Mitchell obtained against me in 1866 for a suit
he brought in 1865. I know that it is my property and Ill sue Pennoyer to get him off my land so I can get my land
back even if I have to go all the way to the United States Supreme Court!!!
NARRATOR: And, as you know, that is precisely what Mr. Neff does.

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Concept Sheets
I hand out the following Concepts Sheets for Pennoyer v. Neff and International Shoe v. Washington after each
case has been covered in class. I tell my students that they can effectively review these cases by writing out explanations for all of the terms listed and that they have mastered each case if they can cogently articulate each
concept. If not, they know what they have to re-study. Pennoyer and International Shoe are the only cases for
which I provide concepts sheets. Once we finish these cases the students are left to their own devices to determine from class discussions and the texts the terms and concepts that are important for understanding each case,
statute, or doctrine.
Pennoyer v. Neff
Mitchell v. Neff
Neff v. Pennoyer
Pennoyer v. Neff
Notice
Landowners Presumption
Service Statutes
Personal
Constructive
Publication
Attachment
Territorial Jurisdiction
14th Amend. Due Process Clause
In personam jurisdiction
In rem jurisdiction
Quasi in rem jurisdiction
Full faith and credit clause
Collateral Attack: Jurisdictional
Exception to FCC
Default judgment
Sheriff s sale

International Shoe v. Washington


Presence
Implied consent
Amenability to service of process
Doing business
Special appearance
General appearance
Minimum contacts
Fair play and substantial justice
Quid pro quo
Benefits and protections
Irregular or casual activities
Systematic and continuous activities
Substantial activities over time
Pervasive presence
Specific jurisdiction
General jurisdiction

Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)

Film Clips
I show film clips to illustrate concepts mostly because they break up the routine of the Socratic method. The
learning literature I have been exposed to does suggest that some students process visual information better than
oral or written information. But the fact is that just about everybody in my diverse first-year class likes to watch
flickering imagines in a darkened room. If I can show a clip once a week or so, then I am going to hold somebodys attention a few minutes longer.
I am especially fond of showing The Wizard of Oz to illustrate the problems of exercising long-arm jurisdiction. Take the case of Dorothy, a resident of Kansas, who landed her house on the Wicked Witch of the East, a
resident of Oz. Suppose Easts surviving sister, the Wicked Witch of the West, sues Dorothy for wrongful death
in federal district court for the State of Oz. Would Oz have personal jurisdiction over Dorothy? To answer that,
we must analyze whether Dorothy has purposefully availed herself of the benefits and protections of Oz. Dorothy
will say no, because she didnt fly the house from Kansas and land it on East in Oz a twister did that. Besides,

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it was an accident, not a purposeful act. But West will say yes, because Dorothy accepted a bunch of goodies
the gratitude of the Munchkins, a lollipop from the Lollipop League, and, of course, the valuable ruby slippers
once she landed in Oz. You get the picture.
I also like to show significant portions of The Verdict, which stars Paul Newman. It is rich in illustrations
and object lessons in a variety of areas. And the films key trial testimony concerning whether an obstetrician committed malpractice by giving the patient an anesthetic too soon after she had eaten her last meal
can be used to take up a hypothetical motion under Fed. R. Civ. P. 50(b) to grant judgment notwithstanding
the verdict, on the theory that, based on the official record, no reasonable jury should have found for the
plaintiff.
Occasionally, I throw in a humorous clip with tangential value. For instance, from Chinatown, which stars Jack
Nicholson, I show a scene in which Nicholsons character trespasses on private property, then himself is trespassed upon by the owners sons. This has at least something to do with the most common type of claim one
finds in the casebook: trespass on the case (negligence). It also provides a chance to watch Jack in action.
I use the following clips:
Concept

Film

Scene

Time

Trespass

Chinatown

Jake Geddes enters a private orange grove

3:40

Purposeful availment

Wizard of Oz

Dorothys house is swept away by a tornado and


kills East in Oz

13:43

Willy Wonka and the


Chocolate Factory

Kids may not enter Wonkas factory unless each


signs an adhesion contract

8:00

Chinatown

Appearance of the real Evelyn Mulwray in


Geddes office

5:00

Forum selection clause


Service of process
Service of process

Wizard of Oz

West sky-writes Surrender Dorothy

3:33

Pre-judgment seizure

Alice in Wonderland

Alice is tried for causing Queen of Hearts to lose


her temper

3:55

Miss Gulch takes Toto from Gale family with


sheriffs writ

2:30

Dorothy uses ruby slippers to return to Kansas


(Theres no place like home)

4:26

Pre-judgment seizure
Transfer of venue

Wizard of Oz
Wizard of Oz

Importance of writing
clearly on exams

Take the Money and


Run

Woody Allen tries to rob bank with note saying,


I have a gub

5:00

Study smarter, not harder

Wizard of Oz

Scarecrow sings If I Only Had a Brain

3:45

Plaintiff counsel

The Verdict

Instead of conducting discovery, Frank Galvan


hits the bottle

3:04

Galvan visits comatose client, meets sister and


sisters husband

5:25

Whos the client?

The Verdict

Professional responsibility

The Verdict

Galvan rejects $210K settlement offer

4:11

Professional responsibility

The Verdict

Clients in-law attacks Galvan for failing to advise


family of settlement offer

2:33

David v. Goliath

The Verdict

Over-prepared big law firm gets ready for med mal trial

3:01

Settlement conference

The Verdict

Trial judge encourages Galvan to accept defendants


final offer

4:05

Under-prepared solo practitioner gets ready for


med mal trial

3:02

David v. Goliath

The Verdict

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Medical exam

The Verdict

Prep of Dr. Lionel Thompson

2:42

Subpoena

The Verdict

On eve of trial, Galvan scares one key witness but


snares another

3:48

Galvan explains jurys role as providing chance


for justice

4:25

Right to jury trial

The Verdict

Opening statement

The Verdict

Galvan takes leap of faith (Today you are the law)

3:51

JNOV

The Verdict

Dr. Robert Towler testifies on direct

2:35

JNOV

The Verdict

Dr. Robert Towler testifies on cross; admitting


nurse testifies in rebuttal

13:46

Jury finds for plaintiff; asks judges if its okay to


award more money than plaintiff sought

1:39

JNOV and new trial

The Verdict

Christopher David Ruiz Cameron, Southwestern University School of Law

Turn Off the Oldies Station


Pennoyer, International Shoe, Gibbs, Erie, Hanna. Every law student should know the names of those cases, but
there is no reason why any law student should read them. They are not only tough to read but are also yesterdays news. You can cover the same ground more quickly and more effectively by substituting a few modern cases.
For example, take the Erie doctrine. You could assign the classics in the casebook and spend a couple of weeks
on the doctrine, or you could distribute a modern case like Trierweiler v. Coxton and Trench Holding Corp., 90
F.3d 1523 (10th Cir. 1996), and spend a couple of days on it.
The issue in Trierweiler was whether a federal court sitting in diversity must apply a Colorado certificate of
review statute. Because the case sets out all the key principles and policies, you can cover everything you need to
cover (traditional Erie analysis and federal rules analysis) without ever leaving the case. The case provides a relatively easy-to-understand example, which facilitates learning. It also mentions the classic cases, which facilitates
legal literacy.
Perhaps you do not like Trierweiler. No problem. There are plenty of other cases from which to choose. The
same is true of so many other areas, including, for example, personal jurisdiction. It may be fun for us to trace
the history of an area by discussing one classic case after another, but it is not necessarily the most effective way
of helping our students understand the law in that area. Although the music on the procedural oldies station may
be familiar to us, the music on the procedural pop station is clearer to our students. So turn the dial every so
often. You might like what you find.
John P. Lenich, University of Nebraska College of Law

Illustrative Litigation Documents Provide Context


Most of our students will not have the luxury of clerking or associating with large firms that thoroughly train
them. So, I have migrated to an approach to teaching Civ Pro that attempts to acquaint students with the processing of a civil suit from start to finish.
At the outset of the course, I provide the students a packet of Illustrative Litigation Documents. These
typically include a complaint, answer with counterclaims, motion for default, motion for default judgment,
entries of default and default judgment, motion to dismiss, motion for summary judgment, notice of deposition, interrogatories, requests to produce, requests to admit, jury instructions, sample verdict form, and final
judgment.

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These documents are based on a hypothetical case I construct. At present, I use a hypothetical sexual harassment suit.
I continually refer to this case during the semester to teach procedural points. For example, I ask whether,
under Rule 26, an interrogatory asking plaintiff to describe his sexual past extending back five years is objectionable based, e.g., on relevance, burden, or privilege. Another example: When studying rules of joinder and the
doctrine of supplemental jurisdiction, I ask whether the multiple parties and claims included in the hypothetical case pleadings are proper.
This requires a lot of up-front work for me, but I believe it gives context to procedural issues. It also permits
students to track the progress of a suit through real-life illustrations. Finally, it permits me to illustrate fundamentals of good drafting (pleadings, discovery) before the students begin clerking and, often, acquire bad habits.
Time permitting, I also demonstrate a mock deposition of one of the characters.
Finally, I try to draft review questions and exam questions that build on the hypothetical suit. This gives students a familiar fact pattern to work with throughout the course. In addition, students have greater incentive to
study closely the hypothetical suit.
Michael Finch, Stetson College of Law

Forms Are Nice, Explanations Are Better


One way of helping make procedure more real for first-year students is to give them sample documents.
But students often lack the knowledge to understand the purpose of the component parts of the document at
which they are looking. As a result, the document does not mean all that much to them. You can make a document more meaningful, however, by annotating it for them. The annotations not only help to dispel some of
the mystery that surrounds procedure but also helps to counteract the tendency to copy forms blindly. If students understand why things are in the form, they are better able to draft their own documents when the time
comes. An example follows.
John P. Lenich, University of Nebraska College of Law

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Annotated Rule 12 Motion to Dismiss


A motion is a request for a court order. Like most other documents that are filed in a case, a written motion
contains a caption that lists the name of the court, the name of the case, the file number, and the title of the motion. The body of the motion usually contains a reference to the statute(s) or rule(s), if any, on which the motion is
based, a statement of what the moving party wants the court to do, a statement of the grounds for the motion,
and a reference to the documents, if any, filed in support of the motion. Then comes the signature block.
Name of Court

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEBRASKA

YOUNG RIDERS CATTLE CO.,


a partnership,

File Number

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
TEASPOON HUNTER,
Defendant.

Case No. 4:CV01-0001

Document Title

DEFENDANTS MOTION TO DISMISS


FOR LACK OF SUBJECT MATTER
JURISDICTION, INSUFFICIENCY
OF SERVICE PROCESS, AND
FAILURE TO STATE A CLAIM

Title of the Action

Authority

Defendant Teaspoon Hunter hereby moves pursuant to Rules 12(b)(1), 12(b)(5),


What the moving party wants

and 12(b)(6) of the Federal Rules of Civil Procedure for an order dismissing this action. This
motion is based on the grounds that (1) this Court lacks subject matter jurisdiction of this action
Grounds

because this action does not arise under federal law and both the Plaintiff and Defendant are
citizens of Nebraska, (2) Defendant has not been properly served with process in this action, and
(3) the complaint fails to state a claim upon which relief can be granted.

Consolidating all Rule 12 defenses


in one motion per Rule 12(g)

This motion is also based on the Affidavit of Teaspoon Hunter in Support of Defendants
Motion to Dismiss, the Affidavit of Lou McCloud in Support of Defendants Motion to Dismiss,
Defendants Brief in Support of Defendants Motion to Dismiss, and on all the pleadings and
Identification of Supporting
Documents (including evidence
for 12(b)(1) and 12(b)(5) motions)

evidence before the Court in this action.

DATED: November 28, 2001


[attorney signature block]
Required by Rule 11(a)

Required by Rule 5(d)

Certificate of Service

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Fortenbaughs Files
My students often struggle with the scope of discovery in federal court in particular, concepts of attorney/client privilege, work product, and mental impressions. Many students are confused after reading how the
Supreme Court dealt with those issues in Hickman v. Taylor and how the rule drafters handled them in FRCP
26(b). A simple visual aid helped many of my students understand.
The day that we covered Hickman, I came into class with a manila folder marked in big letters Fortenbaughs
Files and five pieces of paper. Each piece of paper was a different color and was marked in big letters as follows:

Fortenbaugh Notes of Interview with Client


Witness Statement (front); Fortenbaugh Notes About Witness Credibility (back)
Investigator Notes of Witness Interview
Trial Plan
(Blank; which represented Fortenbaughs memories about a witness interview that had not been reduced
to writing)

Before class I gave one of these pieces of paper to five students scattered throughout the room. I quickly explained to each student the nature of the document represented by the piece of paper. At the beginning of class,
I called on a student who briefly described the Hickman facts. Then I assumed the role of Fortenbaugh, the defendants attorney, and talked with each of the five students with the documents. Each student explained to the
class the nature of the document and then I put the piece of paper in the file.
As we discussed Hickman and FRCP 26(b), I removed each of the documents from the file and had the class
analyze its discoverability. After we discussed each document I posted it on the board. Then, as we went through
a series of problems applying Hickman and 26(b), the students could analogize the discovery requests in the problems to the documents from Fortenbaughs File. The presence of the documents in class helped give the students
a context and a visual representation for the abstract concepts of privilege, work product, and mental impressions.
Gerald Hess, Gonzaga University School of Law

Handouts Prior Exam Packet and PowerPoint Slides


During each semester, I publish and make available two sets of written materials: my prior exam packet and
copies of the slides in my PowerPoint presentation. For this reason, I strongly urge students not to waste their
money on treatises, commercial outlines, and other materials written by people who are neither teaching nor
grading their examinations in Civil Procedure.
My prior exam packet (PEP) contains about ten years worth of essay examinations that I gave and later released, together with the answer keys that I used to grade those exams. I believe, and I tell students, that the PEP
is the most important study tool in the course. For baseball fans, I offer the following analogy. Even the best
pitcher has only a few pitches. Although you can teach yourself something about his pitches from talking to other
hitters, watching videotapes, or even taking batting practice against other pitchers, the only way to figure out
whether you can hit a particular pitcher is to get into the batters box and face the guy. No umpire will award you
first base because you can describe how to hit him. Sure, youre going to make mistakes, but eventually, youre
going to figure him out.
Same thing with my essay exams. There is value in reading the cases, attending and participating in class, taking notes, making an outline, and working with a study group. But you will be graded on none of these things.
Instead, you will be graded on what you write in the bluebook. The only way to figure out whether you know
how to do that (before taking the final) is to practice on my old exams. If you do, youll see all my pitches. You
can compare your practice answers to the detailed outlines of the answers that I use in grading. But unlike in

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Civil Procedure

baseball, your mistakes wont count against you. And youll develop a pretty good sense of what to expect on the
final. I will read as many prior exam answers as you can write.
I provide students with a hard-copy version of the PowerPoint slides that I work through during the course of the
semester. I cover about fifty slides during each semester. For the most part, the slides are summaries of the black-letter rules I expect them to commit to memory. I encourage students to take notes, if any, right on the handouts. This
means there is no reason to write all over again what I have already presented on a slide. During class, I want them
to think less about note taking and more about applying the rules to the facts of the cases they have read for class.
Christopher David Ruiz Cameron, Southwestern University School of Law

F.R. Civ. P. 4: Service of Process Exercise


My coverage of Rule 4 includes the following in-class statutory construction exercise. Although the exercise is
very straightforward, the students make many errors because they are unaccustomed to statutory construction.
However, since the entire class is participating in this exercise, each student receives the benefit of the other students mistakes and successes.
1. Section 4(a).

What information does the summons contain? What happens if there is a


mistake in the summons?
2. Section 4(b).
What role does the court clerk play?
3. Section 4(c)(1).
What is served? Who is responsible for service?
4. Section 4(c)(2).
Who can serve? Who cant serve?
5. Section 4(d)(1).
Who does waiver of service mean? Does waiver of service mean that the
defendant has consented to the courts assertion of personal jurisdiction?
6. Section 4(d)(2).
What duty is imposed on the defendant? Why?
7. Section 4(d)(2)(a-g). How does the plaintiff request a waiver?
8. Section 4(d)(2)(g). What is the consequence of refusing to waive?
9. Section 4(d)(3).
How much time does a defendant who waives service have to answer the complaint?
10. Section 4(e).
If there is no waiver, how is a defendant served?
11. Section 4(h).
If there is no waiver, how is a corporation served?
12. Section 4(k)(2).
Under what circumstances can Section 4(k)(2) be invoked?
13. Section 4(l).
How is service proved?
14. Section 4(m).
How much time does the plaintiff have to serve the defendant? Why is there
a time limit placed on service after filing?
15. Section 4(n).
What can the plaintiff do if it cannot serve the defendant?

Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)

The Importance of Procedure


In the middle of the course, when students could use a little motivation and good humor, I give them the following handout, which I compiled from comments on the CIVPRO listserv:
The history of American freedom is, in no small measure, the history of procedure. Malinski v. New York, 324 U.S.
401, 414(1945)(Justice Frankfurter, concurring opinion). (William Slomanson, Thomas Jefferson School of Law)
In the beginning there was procedure. (Hans Smit, Columbia)
Before God created the heavens and the earth, he had to give notice and an opportunity to be heard to the universe next door. (Arthur D. Wolf, Western New England College School of Law)

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Ill let you write the substance . . . and you let me write the procedure, and Ill screw you every time. (Rep. John
Dingell, Regulatory Reform Act: Hearings on H.R. 2327 before the Subcomm. on Admin. Law and Govtl. Regulations of the House Comm. on the Judiciary, 98th Cong. 312 (1983).) (Thomas H. Odem, Oklahoma City University
School of Law)
Last year the torts professor who taught in my section referred to civ pro as the onramp to the superhighway of
torts. I told the class that civ pro is the nine-course meal and torts (or any other substantive law) is the after-dinner
mint. Alternatively . . . I said I consider civil procedure the film and torts the closing credits. (Melissa Cole, St. Louis
University Law School)
Procedure is to law as surgery is to medicine: the most brilliant diagnosis wont save the patient if no one knows
how to operate. (T.B. Wolff, U.C. Hastings)
It is procedure that marks much of the difference between rule by law and rule by fiat. Justice Douglas (writing
for the Court) in Wisconsin v. Constantineau. (Thomas H. Odom, Oklahoma City University School of Law)

Gerald Hess, Gonzaga University School of Law

Exercises
Collaborative Creation of Flow Charts
Traditional teaching in Civil Procedure, as well as in other law school courses, proceeds in linear fashion, moving from topic to topic, offering little opportunity for learning and experience in complex synthesis and application, skills that are critically important both on final examinations and in the practice of law. As law teachers,
we have assumed that it was our role to guide the students through new material but that they were responsible,
without guidance, to develop the skills of synthesis and application. It is, however, obvious to any teacher who
has read a set of first-year bluebooks that the skills of synthesis and application are not self-evident. The law
teacher can contribute successfully to the students development of these skills. Collaborative creation of flow
charts is one technique for doing this.
In the Civil Procedure course, whenever I complete a section of material sufficiently complex to warrant guidance in integration, I ask each student, in preparation for the next class, to construct his or her own flow chart
of the analytical steps required for resolving a legal problem in this area of law. The topic could be a rule-based
subject, such as Rule 19 joinder or discovery from experts; a case-based subject, such as personal jurisdiction or
Erie; or a subject drawn from both rules and cases, such as summary judgment.
At the start of the class in which the flow chart will be constructed, I ask a student to serve as scribe for me, to
provide me at the end of class with a copy on paper of the flow chart that the class constructs. Then, using a Socratic dialogue, I develop the flow chart on the blackboard, seeking class consensus: What is the first question we
should ask? Would anyone ask a different question? Why? What is the next step if the answer to the question is yes?
What is the next step if the answer is no? This typically involves a lot of writing, reconsideration, erasing, and
rewriting.
When the flow chart is finished, I obtain from the student scribe a copy of the flow chart created by the class.
I then put the flow chart into a neater format, using the basic flow chart tool in the software program Microsoft
Visio. I bring copies of the Visio-formatted flow chart to class on the following day when we use the flow chart
to analyze a complex hypothetical problem distributed to the students in advance, usually a previously used final
exam question, to provide experience in applying the analytical structure to specific facts.
Below are flow charts on Rule 19 and personal jurisdiction created in my Civil Procedure classes.
Laura J. Cooper, University of Minnesota Law School

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Civil Procedure

JOINDER UNDER RULE 19


Does the absence of the absent party:
Preclude complete relief for those already parties?
Impair the absent partys ability to protect its interest?
or
Leave existing parties subject to multiple or inconsistent obligations?

If the answer to all


questions is NO

No Joinder Problem

If the answer to any


question is YES

Is there personal jurisdiction over the absent party?


Will joinder of the absent party not deprive the court of subject matter jurisdiction?

Join the
absent party

If the answer
to both
questions is
YES

Does the absent


party object
to venue?
Would joinder of
the absent party
render venue
improper?

If the answer to
either
question is NO

Prodeed with the


case with the added
party included.

If the answer
to either
question is
NO

Four Factors:
1. Prejudice to absent and existing parties.
2. Availability of protective
measures
3. Adequacy of remedy in partys
absence
4. Adequacy of Plaintiffs
remedies if action dismissed.

Can the action proceed without the absent party in


equity and good conscience
(taking into account the four
factors)?

If the answer to
both questions
is YES

Dismiss
the new
party.

NO
Dismiss
the
action.

YES
Proceed
without the
absent party.

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PERSONAL JURISDICTION

Is there a basis of personal jurisdiction


under Rule 4(k) other than 4(k)(1)(a)?

YES
Is the jurisdictional application
consistent with due process?

YES
Personal
Jurisdiction
OK

NO

NO
Is assertion of personal jurisdiction consistent with state common law or statute?

YES
Is there general jurisdiction under federal
constitutional law?

NO
Are there sufficient minimum contacts
based on the defendants purposeful
availment to satisfy due process?

NO
Personal Jurisdiction
Unconstitutional

Five Factors:
1. Burden on defendant
2. Forum interest
3. Plaintiffs interest
4. Judicial efficiency
5. Shared social policies

Analysis in a Federal
Court begins here

Analysis in a State
Court begins here

NO
No Personal
Jurisdiction

YES
Personal
Jurisdiction
OK

YES
Is there an appropriate nexus between those
contacts and this lawsuit?

YES
Has the defendant demonstrated
by compelling evidence, related
to the five factors, that personal
jurisdiction would be unreasonable in light of the extent of
contacts?

NO
Personal Jurisdiction
OK

NO
Personal Jurisdiction
Unconstitutional

YES
Can concerns be otherwise satisfied
(choice of law, change of venue)?

YES
Personal Jurisdiction
OK

NO
Personal Jurisdiction
Unconstitutional

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Joinder Hot Potato


Its late October or early November. The newness of law school has worn off for most first-year students, but
most of them do not yet feel completely comfortable with the case method of learning the law. In addition, in
Civil Procedure they have been learning rule after rule delineating who can and who must be part of a lawsuit
and what claims and defenses those parties can or must present. Only a few students, however, have begun to
move facilely from rule to rule, from issue to issue, with any general sense of how lawsuits come together overall. Its time to break the routine and play a game of hot potato.
In my approach to teaching Civil Procedure, I schedule a day to review the Federal Rules of Civil Procedure
governing joinder of claims and parties right after my students finish interpleader (FRCP 22) and intervention
(FRCP 24). Because I cover the Federal Rules of Civil Procedure more or less in order, my students by that point
have also covered notice pleading and Rule 8, special pleading rules and Rule 9, Rule 12 motions, counterclaims
and cross-claims under Rule 13, third-party practice under Rule 14, amended pleadings under Rule 15, joinder
of claims and remedies under Rule 18, mandatory joinder under Rule 19, permissive joinder of parties under
Rule 20, and misjoinder and nonjoinder of parties under Rule 21.
Rather than rely on a dry review of the rules or even my own hypotheticals, however, I use half of review day
to play hot potato. The equipment required is simple: something to serve as the potato (a real potato, a small
bean bag, a toy, etc.) and a timer. The rules are only slightly more complex:
1. The professor starts the game by constructing a basic scenario, such as a car accident, out of which a
simple (one plaintiff, one defendant) lawsuit arises. The game works best if the professor keeps the facts
to a minimum.
2. The goal for the class is to use up a list of available rules before time is up. My list of rules consists of
FRCP 8(a), 8(c), 9(b), 12(a), 12(b), 12(c), 13(a), 13(b), 13(g), 13(h), 14(a), 14(b), 15, 18, 19, 20, 21, 22
(or statutory interpleader), and 24. I give my students 30 to 40 minutes for the exercise and use the
timer to prevent second-guessing about when the time is actually up.
3. The goal for the student holding the hot potato is to come up with something that a party in the lawsuit can do and to pass the hot potato on to another student. In order to get rid of the hot potato, the
student must: (1) tell which party (2) is doing what action (3) under which rule, (4) making up appropriate facts as necessary to explain the new claim or the new party. The student cannot get rid of
the hot potato until he or she has legitimately expanded the lawsuit.
4. Once the student has appropriately used a Rule (or more than one Rule), the student must walk the hot
potato to another student.
5. Other students can volunteer to take the hot potato, if they want, but the decision as to who gets it next
is entirely the prior students.
6. Students can work in groups.
7. If the class uses up all of the listed Rules within the available time, they earn some prize. Prizes dont
have to be elaborate. For example, I have allowed class to end at the same time the game does (generally five to ten minutes early) and made participation in the next class entirely voluntary instead of relying on my normal quasi-Socratic method of calling on students.
8. If the timer goes off before the class finishes the list, the student left holding the hot potato is it for
the next class i.e., the first person to answer questions.
9. During the game, the professor keeps track of how the lawsuit has expanded and what Rules the students have used. An initial list of Rules written on the blackboard, with the professor crossing off Rules
as students use them, works well. In addition, the professor needs to ensure that each student has met
all aspects of the Rule in question including checking for jurisdiction problems.

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The benefits of playing build-a-lawsuit hot potato are several. Academically, the game inspires close reading
of the Rules and forces students to identify fact patterns that will allow them to apply specific Rules, an exercise
that seems to help them apply the law to facts throughout the rest of the course. The game also gives students a
sense of how the Rules can work together particularly when a student figures out how to use two or three Rules
in conjunction, a feat generally cheered by the rest of the class.
The hot potato game has benefits beyond teaching details of Civil Procedure, however. First, it provides a welcome change of pace at a point in the semester when students energy is beginning to wane. Second, the game
shows students how to create their own practice problems, a study device that I encourage. Third, because I encourage collaboration, the game allows students to meet their classmates and to experience a sense of community effort toward a common goal. Fourth, when the class wins, as it usually does, students have shown themselves that they can, in fact, master Civil Procedure.
And finally, perhaps most important, the facts students create inevitably get us all laughing something that
everyone in law school can use!
(This idea appeared in The Law Teacher, Spring 1999, pp. 4, 11.)
Robin Kundis Craig, Indiana University School of Law-Indianapolis

A Drafting of Pleadings Exercise for a Large Class


I have used a pleading exercise for several years that works well in a large-class setting, provides some individualized feedback, and yet requires very little of my time. I do not grade this exercise, but I make its completion a class requirement.
I assign this exercise after we have covered a suitable pleading case in class. I use the Gomez v. Toledo case, page
589, from Pleading and Procedure by Hazard, Tait, and Fletcher. (If you use another casebook that does not include this case, look for a pleading case where the plaintiff did not use notice pleading or made some correctable
pleading error.) I then hand out the Complaint Drafting Assignment based on the facts of that case. The students
are instructed to re-plead the complaint in Gomez consistent with notice pleading. Note that this is not a research
assignment. In addition to the case selected for re-pleading, the students need read only the relevant Federal Rules
of Civil Procedure applicable to pleading and refer to the FRCPs Appendix of Forms as pleading samples. It is a
drafting assignment, but I tell the students to concentrate on stating a cause of action based on notice pleading
and not to worry too much about the format details of the pleading. For example, the complaints should contain a caption, body, and a prayer for relief, but they need to be in the precise form expected by the local federal
district court.
I usually give the students one week to complete their complaints. They are instructed to file one original
and one copy with me in class on the deadline day. (Note: It is important to have two filing baskets or piles,
one for the original and one for the copy, because you will keep the original and redistribute the copy back to
another student, as explained below.) At the end of the class when the complaints are turned in, I pass out the
Answer Drafting Assignment. I also tell the students that each should take a classmates complaint from the copy
basket or pile as they leave the classroom. Each student is instructed to prepare an answer to the complaint so
selected and any appropriate motions if the complaint is faulty, as well as a critique of the classmates complaint. These answers are due on a specified date and must be served on opposing counsel (i.e., given to the classmate who drafted the complaint).
I keep the originals of the complaints and survey them enough to make a few general comments to the class
as a whole on the day the answer is due. I also make available to the students a sample Complaint and Answer I
drafted for the exercise. The students always seem to find this exercise valuable and even fun. They get a good
understanding of what goes into a complaint and answer and of how easy notice pleading makes drafting a complaint that will withstand a motion to dismiss for failure to state a claim.

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Complaint Drafting Assignment


This writing assignment is designed to introduce you to the interplay among law, facts, and clear expression in
drafting a Complaint. This is not a research assignment, so you need not consult any resources beyond those indicated below.
You should assume that you are the plaintiffs attorney in Gomez v. Toledo, pages 589592 of Pleading and Procedure by Hazard, Tait, and Fletcher. Your assignment is to redraft Mr. Gomezs complaint for the U.S. District Court.
You should use the facts and law of the actual Gomez case, but should change the location to San Diego, California. (The appropriate federal court would then be the U.S. District Court for the Southern District of California; the
defendant is the Superintendent of Police in San Diego, etc.). However, do not simply repeat the allegations stated
in the Gomez opinion. Instead, you should attempt to re-plead them in a manner consistent with the ruling in
Gomez; with Rules 8(a) & (e), 10, and 11 of the Federal Rules of Civil Procedure; and consistent with the requirements of notice pleading.
In preparing this Complaint, you may use anything we have covered in Civil Procedure as background material
(e.g., readings on complaints, other cases, etc.), as well as anything discussed in the Lawyering Skills I course. Also,
you should read Rules 3, 7(a), 8(a), & (e), 10, and 11 of the Federal Rules of Civil Procedure, and consult Forms 218
in the Appendix of Forms.
Your Complaint should be your own work product, and should be typed or clearly written. An original and one
copy should be handed in at the beginning of our class on Thursday, January 23, 2003. Your complaint will not be
graded but will be generally reviewed by me, and then distributed to a classmate for editing and for preparation
of an Answer.
Answer Drafting Assignment
Instructions for the Answer: Assume that you are now the attorney for the defendant Astol Toledo, the Superintendent of Police in San Diego. Your client has been properly served with the attached Complaint, and would like
you to prepare and file an Answer. Your Answer should respond to the allegations of the Complaint, and should
raise the defenses indicated in the actual Gomez case. You should admit allegations that are objectively true, and
deny those you wish to contest in good faith. In preparing the Answer, you should consult the facts and law discussed in the actual Gomez case, plus Rules 7(a), 8, 9(b), 10, 11, and 12 of the Federal Rules of Civil Procedure. You
should also consult Form 20 of the Appendix of Forms, and pages 655666 in the casebook.
In addition to preparing an Answer, you should also indicate which, if any, motions you would address to the
Complaint. You may want to accompany these motions with a brief critique of the Complaint. Your Answer and
critique of the Complaint are due on Tuesday, January 28, 2003. The original should be served on your opposing
party prior to class; one copy should be handed in at the beginning of the Civil Procedure class. The Answer
should be your own work product and should be typed or clearly written.

Walter W. Heiser, University of San Diego School of Law

Pleading Workshop
It is sometimes hard to evaluate how much students understand by simply reading what they write. For example, if you ask students to draft a pleading and give them a form to follow, they may well draft you a pleading that looks pretty good. But looks can be deceiving. They most likely did not understand what they were doing
and why they were doing it. As a result, what you think may be a good hands-on learning experience for them
may in fact be a waste of their time.
I learned that lesson a few years ago when I wandered into the student computer lab and began talking with
two students who were trying to do the pleading exercise that I assigned to my first-year Civil Procedure class. It
was a simple enough exercise. It involved a car accident with two causes of action negligence (against the driver)

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and imputed negligence (against the drivers father) in a code pleading jurisdiction. I had given them a factual
summary, a sample negligence complaint, and a case that listed the elements of the imputed negligence cause of
action. I had also spent time in class talking about how to draft a pleading. In short, it should have been a snap
for them but it was not.
They agonized over the simplest of things. They were afraid to vary from the form on one cause of action,
even when they needed to vary from the form. They were paralyzed without a form for the other cause of action. They understood on an intellectual level the significance of the elements of a cause of action but they
could not translate the facts or the forms into the elements of a cause of action. Had I not sat down with them,
they would not have learned anything.
I therefore decided to scrap my old approach to drafting. The following year, I cancelled two classes and replaced them with a two-hour pleading workshop. I broke the class into teams of two students and had each team
sign up for one of the workshops (maximum of seven teams at any one workshop). I conducted the workshops
with the help of another faculty member. We used a room that had a computer station for each team (laptops in
a seminar room work fine) and enough space for us to circulate among the teams. The basic idea was for us to
work with the students while they were drafting.
Before the workshop, the students had to read the assigned materials, which included, among other things, the
facts of the case for which they would have to draft a federal court complaint. The case involved a claim for which
there was a form (an overtime claim under federal law) and another for which there was no form (a promissory
estoppel claim under state law). After a brief overview discussion, they went to work and my colleague and I
began circulating among the teams, answering their questions, explaining things to them, helping them draft,
and reinforcing what they were learning.
Having tried various ways of teaching pleading, I believe that this method is the most effective way of doing
it because it allows you to give instantaneous feedback and guidance. It also allows you to interact with students
one-on-one, which is something we rarely do in large, first-year classes. Furthermore, it fosters positive attitudes,
especially if you are able to persuade your dean to cover the cost of providing food during the workshops! Although you will be tired at the end of the day, you will have given your students a special learning experience
and had a lot of fun in the process.
John P. Lenich, University of Nebraska College of Law

Oral Arguments
May it please the court. Every one of my students utters those or similar words at the beginning of an oral
argument on a motion in Civil Procedure. Each time I teach the course, whether in a five-credit, year-long format or a three-credit, one-semester portion, I require my students to perform an oral argument. This exercise is
a highlight of the course for many students and leads to learning skills, analysis, and content.
I schedule the oral argument exercise in the middle of the semester when the students begin to feel a bit more
comfortable with procedure and when the day-to-day grind of their classes may be a bit tedious. I prepare a onepage hypothetical for an argument to a trial court on a motion; for example, to dismiss, to strike, or to compel.
The substance of the motion involves a complex topic, such as personal jurisdiction, joinder, or the right to a
jury. The arguments are very short six minutes per person. But even a tiny, make-believe argument is enough
to motivate nearly all students to prepare well to show their stuff or to deal with their fear of public speaking.
I help students prepare for their arguments in three ways. First, I give them a four-page handout about oral
argument to trial courts (Michael A. Posner, Playing to the Bench, ABA Journal, January 1995, at 7072.) Then I
give a ten-minute lecture about oral advocacy and I answer students questions about oral advocacy in general
and this exercise in particular. Finally, I arrange for demonstration arguments in class. Some years I have arranged
for members of one of the competitive moot court teams to give a demo. They do a great job of demonstrating

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excellent oral advocacy. Other years, volunteers from the class have done their arguments in front of all of their
classmates. I believe that students enjoy the latter type of demonstration more because they know the people
doing the arguments and they gain confidence because they see their peers perform well, but not perfectly.
The logistics of this exercise are quite manageable. I have used this assignment even when I taught three sections of Civil Procedure with 80 students in each section (yep, you read that right, 240 students total!). The arguments take place outside of class (except for the demonstrations) in study rooms in the library. The students
sign up to represent one of the parties. Some years, one student represents each party; other years, two students
argue for each side. The judges are upper-level students whom I solicit by email. I give each judge the one-page
hypothetical and a two-page bench brief. I instruct the judges to ask questions of the lawyers during the argument and to give the students feedback after the arguments, including both positive comments and suggestions
for improvement.
The exercise is worth 10 points (to put that in context, the total points available for the course is from 300 to
600). Each student who participates in the argument and writes a half-page, single-spaced reflection on the exercise earns the full 10 points (almost every student gets 10 points). In the reflection papers and in their comments to me, students articulate a number of benefits of the exercise:
The process of preparing for the argument leads to deep understanding of the law at issue and the applicable analysis (I really understood personal jurisdiction for the first time.).
Working with other students to prepare and deliver the argument teaches important lessons about the difficulties and value of collaborative effort (We enjoyed working as a team even when we struggled to agree
on the proper approach to the argument.).
Delivering the argument gives confidence to students, both those who fear public speaking and those who
are refining existing oral advocacy skills (I was afraid of this assignment from the moment you described
it in class but I actually enjoyed the argument and am eager to try again.).
The assignment rekindles motivation for some students who are starting to doubt their decision to attend
law school (The argument experience reminded me why I came to law school and what I will be able to
do when I am in practice.).
Gerald Hess, Gonzaga University School of Law

Brief Gems
Calling Cards
Give your lLs about one minute to refresh their recollection of each case assigned for class. Allow them time
to privately discuss the upcoming case immediately beforehand in class. Just before this brief time out, I select at
least two playing cards each with a students name on it, which they filled out on the first day of class to represent the plaintiff and the defendant (sometimes judge, appellant, etc.). This helps them to buy into a case that
otherwise is not theirs. Thus, the two whom I will probe in their capacities as plaintiff and defense lawyers are
not as uptight about participating. There is much more student buy-in to case analysis during the class. The
advantage of the playing cards is that Lady Luck calls on them, rather than me. Put another way, the professor
never calls on anyone, because Lady Luck does so in every class. As a result, no student can possibly think that I
intentionally or unwittingly call on/dont call on any select group of students. While my students occasionally
complain that they now have to be more prepared than in other classes, they like the gaming aspect of letting
Lady Luck determine who will be called on for class discussion.
William Slomanson, Thomas Jefferson School of Law

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Role-Playing Client Autonomy


One of the most popular features I use when doing client interviewing and mediation is role-playing. I give
several students a secret set of instructions. They play the role of clients. I ask another student to play the role
of the attorney. In most instances, the student playing the attorney fixates on litigation without investigating other
modes of dispute resolution and the clients preferences. I am sure that the other students remember better the
lesson of the exercises than if I merely lectured about client autonomy.
Lawrence W. Moore, S.J., Loyola University New Orleans School of Law

The Walk Through


Some civil procedure cases involve facts so complicated that the students become totally confused and tune
out. For example, I assign Harris v. Balk, 198 U.S. 215 (1905), when I cover the historical perspective of personal
jurisdiction because it is the grossest example of the traditional presence doctrine and, subsequently, has been
disapproved under the modern minimum contacts doctrine. But the facts are difficult for first-year students to
master, so I sometimes utilize the walk through method of class presentation.
When I assign Harris v. Balk, I also designate certain class members (actually, I take volunteers) to play the
roles of the key parties. (One student is assigned to be Balk, another to be Harris, a third to be Epstein, etc.) I
tell these students that they must be prepared to state the facts relevant to that party as they walk through the
events of the case. During the next class, I have each party identify himself or herself (I sometimes use props,
such as a sheriff s badge or at least a name tag, and occasionally the students will dress the part, to help the remainder of the class keep the identities straight). Then I ask them a series of questions designed to get out the
basic facts. (For example, I might ask Harris to explain who he is and his relationship to Balk, ask Balk about
his relationship to Epstein, etc.) As each party is telling his or her story, I ask them to act out the events that
took place in each state (e.g., walking to another area of the classroom that represents the State of Maryland,
the sheriff serving the writ of attachment on Harris in Maryland, etc.). This walk through is usually fun for the
students and can even be pretty silly at times, but it does allow the entire class to visualize the facts of this case.
There are other benefits as well. Instead of one student reciting the facts, as many as four or five are involved
in the presentation.
Walter W. Heiser, University of San Diego School of Law

A Devilish Case
I always introduce personal jurisdiction with United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282
(W.D. Penn. 1971), both to add some humor to an otherwise complex subject and to make the serious point
about the limits on a courts power.
Robin Kundis Craig, Indiana University School of Law-Indianapolis

Mini-Reviews
Professors tend to view their classes as occurring sequentially such that the material just covered in the last
class is still fresh in their minds, and those of the students, at the beginning of the next class. Of course, this is
rarely the case. Students have many courses during a semester and, depending on the schedule, may have your
Civil Procedure course every other day. In the meantime, they have other classes and activities and will not think

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about your Civil Procedure course until they prepare for the next class. When they do prepare, they are unlikely
to review the material or their notes from the previous class. Consequently, I begin each class with a mini-review of the material covered in the last couple of classes to put the current class in context. How far back and
how extensive the review is depends on what I think is necessary to orient the students to the materials and issues in the current class.
I also provide a different type of mini-review at the end of each chapter or major segment of material covered in the course. This varies with the nature of the topic covered, but I always tell the students in general terms
what I expect they should have learned from that segment. For example, when I complete the chapter on joinder of claims and parties, I tell the students that they should be conversant with the FRCP requirements for permissive joinder of parties, compulsory joinder of parties, intervention of right, compulsory versus permissive
counterclaims, interpleader, etc. As to each of these joinder devices, I also briefly review with the students, often
by asking questions to the entire class, whether or not a federal court may assert supplemental jurisdiction based
on 28 U.S.C. 1367. I do an even more elaborate review when we have completed the materials on personal jurisdiction. I think these mini-reviews are valuable to the students, particularly students in their first semester
of law school, because they often have difficulty knowing what their own reviews should focus on in preparation for the final exam. The question-and-answer aspect of these reviews also helps me gauge whether the students have indeed learned what I think they should know. If they have not, more instruction or review may be
necessary.
Walter W. Heiser, University of San Diego School of Law

Feedback and Evaluation


Using Grading Sheets to Improve Exam Feedback
I think that if we are going to give law school exams it is important that we give appropriate feedback to our
students as to what they did right and wrong and why they got the grade that they did. I think this is particularly important with first-year students, who still have the interest and opportunity to improve their exam-taking skills. It is most important at law schools that have a significant number of students who may be at risk for
failing the bar exam because of a deficiency in those skills.
I teach a first-year, two-semester course in civil procedure. Because I believe in the importance of post-exam
feedback, I have always tried to finish my fall semester grading before the start of spring semester. Then I devote
the entire first class of the second semester to reviewing the fall exams. I have always given the students back their
exams, along with my comments and point notations that are sprinkled through their bluebooks in the margins.
I give them some time to review their exams and then devote the rest of the class to going through the questions
and what I thought the answers should have looked like. I go through the same procedure for a first-semester
midterm.
I also have recently developed a system of exam grading that gives the students much more information about
their exam performance. What I used to do is write a short outline of the answer for myself, assigning points to
each part of the outline. I would then go through each bluebook, putting points in the margin at the appropriate section of the bluebook.
What I do now for each student is make a copy of the outline (in a slightly fuller version) that shows the points
allocated for each issue. I enter my point totals directly onto the outline. Then, when the students later review
their exams, they can see an outline version of an A answer and also see at a glance on which parts they did well
and on which parts they were deficient. The outline also makes it much easier for me to see where their problem
areas were, if they come to see me about the exam. In addition, I still make some written comments in the margins in cases where I feel that the student needs an explanation of what was done wrong.

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Below is an example of part of an essay question on federal subject matter jurisdiction, followed by a sample
of what one of my grading sheets looks like. This is one part of a 30-point question, where the answer sheet is
two pages long.
QUESTION
Plaintiff, who is a citizen of Maryland, is injured in an automobile accident in Pennsylvania with a citizen of
Pennsylvania. Plaintiff brings suit for personal injuries of $100,000 in state court in Pennsylvania.
A. May Defendant remove the case to federal court in Pennsylvania?
B. Given the purposes for which federal courts exist, does this result make sense?
ANSWER SHEET
Total
Points
A. The basic removal statute, 28 U.S.C. 1441 (a), allows removal if there was
original jurisdiction.
This is satisfied because there is diversity of citizenship and amount in
controversy as required by 28. U.S.C. 1332.
But 28 U.S.C. 1442(b) prohibits removal in a diversity case if any defendant
is a citizen of the state in which suit is brought. Since Defendant is a citizen
of Pennsylvania and suit is brought in Pennsylvania, removal is not allowed.

Student
Score

1
1

Total
Part A
B. Yes, this result makes sense. The main purpose of diversity jurisdiction is to
protect out-of-state parties from judicial bias against them in favor of in-state
parties.
D has no reason to fear bias in his own state court. If anyone has reason to fear
bias in this case, it was the Plaintiff, but obviously, she did not care about this,
since she brought suit in Pennsylvania state court, even though she could have
brought it in federal court under 28 U.S.C. 1332.
Total
Part B

3
5

3
5

Stephen Shapiro, University of Baltimore School of Law

The Practice Midterm


My law school requires each professor teaching a first-year course to give the students a midterm experience
during the fall semester. The midterm may be a graded exam, but in a large class this usually means reliance on
multiple-choice questions. A graded essay exam, even if only one question, simply takes too long to grade with
comments. Moreover, the students have to wait a long time for meaningful feedback. I have therefore opted for
a practice midterm one that is administered in the same way as a graded exam but does not actually require
me to assess individual answers and assign grades. However, I have developed an assessment method that provides the students with some sense of how they are performing and, more importantly, with direct insight into
how I will grade their essay answers when the real exam occurs at the end of the semester.
I prepare a one-hour essay question that focuses on some recently covered aspect of the course (I usually focus
on issues concerning due process limitations on pre-judgment attachment). I tell the students a week before the
practice exam what the focus will be so they can review appropriately. I administer the exam as if it were a graded
exam (i.e., exam numbers, bluebooks, proctors, etc.) so they get the feel of a real exam experience. The practice

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exam may be administered during class time or on a different time and day. I collect the bluebooks and exam
questions at the end of the allotted time.
At the beginning of the next class, I distribute back to the students their own bluebooks and the exam questions. I then methodically explain issue by issue, rule by rule, and application by application what I expect
from a good answer. For example, I explain that in the answer I expect a clear statement of the basic rules relevant to whether notice and a hearing are required by due process before the prejudgment attachment, and I then
spell out the content of those rules. I tell the students, If your answer contained this clear statement, give yourself X (e.g., 1, 2, or 3, etc.) points. I continue in this manner through the entire answer, telling the students how
I would award points for stating the relevant rules and applying those rules to the facts of the exam question.
At the end of this review, the students should have a very good idea of what I expect in an essay answer and
how I will assess their scores. In addition, because our law school requires use of a strict grading curve, I ask each
student to total up his or her self-assessed points and pass in the total to me. I do this anonymously, usually asking each student to write down his or her total on a folded sheet of paper, so as not to embarrass anyone who
has performed poorly. I then curve these raw scores using our law schools mandatory grading curve and post
them with indications as to the A, B, C, and D cutoffs. I caution the students that these grades are very
rough approximations after all, they have each reviewed their own answers and assessed their own scores
but they actually seem to appreciate this information regarding relative class standing. Of course, they really appreciate knowing what my essay questions are like and what I will be looking for in an essay answer.
Walter W. Heiser, University of San Diego School of Law

Make the Student the Professor


Like many teachers, I often use old exam questions to help students review specific course material and prepare for final exams. Typically, the students prepare the answers for class discussion. A twist on this method of
review is to make the students the law professor and have them critique and grade sample student answers to an
exam question.
For this exercise I choose an issue that provides a good review of the subject area and involves the type of multistep analysis that students often find difficult on exams. For example, in Civil Procedure transfer of venue under
28 U.S.C. 1404 works well. To determine whether an action should be transferred to a different venue, the students must analyze whether the new venue would be proper under 28 U.S.C. 1391. They must also evaluate the
convenience of the parties and witnesses and determine whether the transfer would serve the interests of justice.
At the end of the unit on venue, I give the class a fact-intensive essay question in which the students are asked
whether the court should grant a motion to transfer venue. The students prepare the answer for the next class. I
generally have them write out the answer or at least do a detailed outline. At the beginning of the next class, we
walk through the possible answers and deal with any questions. Then I waive my magic gavel and declare that
the students have all been promoted to the exalted rank of law professor. (The students are always delighted to
learn that they have survived Civil Procedure, graduated from law school at the top of their class, passed the bar
exam, and had brilliant careers.)
Next, I give the students two sample student answers and two detailed grading sheets. The grading sheets have
general point values for the major sections of the analysis. One of the sample answers is weak. The other is a good
answer. Both contain the types of flaws often found in student exams. I generally start with actual student answers from a prior class and then doctor them as needed to illustrate both good legal analysis and the problems
that I want the students to see.
Working in groups of three, the students analyze the sample answers, score them, and give them letter grades.
I circulate through the class answering questions, often with I dont know how many points to take off (or give).
You are the professor; its your call. I also commiserate with their frustration over poor organization, sweeping

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conclusions without proof, and gaps in factual analysis. Toward the end of class the students share their comments, scores, and grades with the rest of the class. I chart both their scores and grades on the board. The students are usually harder on the weak answer than I would be. I tell them that in the hope of alleviating some
exam jitters.
This exercise generally provokes lively discussion within both the small groups and the larger class. It also provides a good review of the subject matter, a different approach to evaluating written analysis, and a break from
the normal routine. By becoming the professor, they gain some insight into the mysterious process of grading
exams. More important, the ego threat of critiquing their own writing or having me critique it is removed. The
students can be more objective in evaluating not only the substantive content of the sample answers but also the
way in which that content is presented. They become more sensitive to the need for logical organization and good
factual development in answering exam questions. This sensitivity, in turn, should help the students improve
their own written analysis. It should also facilitate communication between the professor and the students on future writing assignments and in exam conferences. The class can use the good student answer, the detailed grading sheet, and their insights from grading the sample answers to assess their own answers to the question. Finally,
the students enjoy being the professor for a change, which results in a fun class for them and me.
(This idea appeared in The Law Teacher, Fall 2001, p. 16.)
Katharine F. Nelson, Widener University School of Law (Hazrrisburg)

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chapter 3

Clinical Law
Approach

53

Clinical Legal Education: An Annotated Bibliography


Gerald Hess
Using Difference Analysis to Teach Problem Solving in the Clinical Setting
Kimberly E. OLeary
The 10 Commandments of Externships
Larry Krieger

53
54
55

Material

57

Video Reenactments
Lee Stuesser

57

Exercises

59

Teaching Collaborative Skills to Students


Sue Bryant
Broken Squares: An Exercise to Demonstrate the Shift from Individualistic to
Cooperative Problem Solving
Beryl Blaustone
Teaching Creative Problem Solving
Linda Morton
Mirror, Mirror: Using Non-Traditional Reflective Exercises
Kim Diana Connolly
A Proxemics Exercise to Teach Observation, Communication, and Reflection
J.P. Ogilvy
How Terms and Ways We Think about Clients Influence Our Lawyering
Sue Bryant
Teaching Alternative Client Counseling Models in the Clinical Course
Kimberly E. OLeary
Parallel Universe Thinking
Sue Bryant
Transferable Rhetoric
Paul Bergman

59

60
61
67
68
70
70
71
72

Brief Gems

73

Encouraging Attendance; Dealing with Absences


John Barkai

73
51

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Little Words, Big Difference


Gail Hammer
Teaching Communication Skills and Mediation Skills
John Barkai

Feedback and Evaluation


Student Journals to Increase Reflection on Legal Practice and on
Personal Professional Development
Harriet N. Katz
Recommendations for More Effective Use of Academic Dialogue Journals
J.P. Ogilvy
Educational Goals and Evaluation Criteria (Battered Womans Rights Clinic)
Sue Bryant and Maria Arias

73
74
74

74
76
77

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Approach
Clinical Legal Education: An Annotated Bibliography
Clinical teachers are blessed with an outstanding resource, the annotated bibliography of clinical legal education prepared by J.P. Ogilvy and Karen Czapansky. The bibliography is in three parts. Part One describes the development of the bibliography and contains an outline of the topic headings (set out below). Part Two lists hundreds of articles, essays, and books organized by topic and compiled in alphabetical order by author within each
topic. Part Three contains a synopsis of each item.
This resource gives teachers and scholars easy access to the extensive literature on clinical legal education. The
bibliography contains dozens of articles that address approaches to clinical education, exercises, feedback, and
evaluation.
The annotated bibliography begins on page 1 of volume 7 (Special Issue) of the Clinical Law Review (2001).
Updates are posted in an online version hosted by Columbus School of Law at http://faculty.cua.edu/ogilvy/
Index1.htm.
PART ONE: OUTLINE OF TOPIC HEADING
I.

Clinical Legal Education


A.
History
B.
Clinical Methodology & Pedagogy
C.
Critique of Clinical Legal Education
D.
Clinical Integration
E.
Political Interference
F.
Non-U.S. Clinical Programs
G. Future of Clinical Education

II.

Clinical Teaching
A.
Clinic Design
B.
Clinic Administration
C.
Seminar Design
D.
Supervision
E.
Assessment & Evaluation/Grading
F.
Externships/Internships
G. Simulation

III.

Theoretical Backdrop of Clinical Legal Education


A.
Cognitive Theory
B.
Feminist Theory
C.
Lawyering Theory & Practice

IV.

Reflections & Critique of Scholarship


A.
Reflection on Clinical Teaching
B.
Student Experiences
C.
Critique of Scholarship

V.

Lawyering Skills
A.
Skills
B.
Interviewing
C.
Counseling
D.
Trial Advocacy

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E.
F.
G.
H.
I.
VI.

Mediation
Negotiation
Problem Solving
Collaboration Among Professionals
MacCrate Report

Professional Responsibility
A.
Ethics/Professional Responsibility/Professionalism
B.
Lawyer-Client Relationship
C.
Values

VII. Difference/Diversity
VIII. Poverty Law/Political Context of Clinical Legal Education
A.
Poverty Law
B.
Pro Bono Publico
C.
Critical Lawyering
D.
Public Interest Lawyering
E.
Social Justice
F.
Community Law Practice
G. Community Education
IX.

Book Reviews

X.

In Memoriam

Gerald Hess, Gonzaga University School of Law

Using Difference Analysis to Teach Problem Solving in the Clinical Setting


A key part of learning to be a lawyer consists of learning to generate good options for clients. Lawyers must
generate both legal and extra-legal options to assist clients in obtaining their goals. It can be challenging to teach
law students and new lawyers how to generate good options for clients, especially because most students by definition do not have sufficient experience with the law or with life experiences relevant to the clients to imagine a
sufficiently wide range of good options. I have found that it is helpful to consciously teach students how to solicit, hear, and use multiple perspectives to generate a better array of options for the client. The rationale, methods, and goals of such an approach are described in detail in my article, Using Difference Analysis to Teach Problem-Solving, 4 Clinical L. Rev. 65 (1997).
The goals of a perspective-based clinical course include: helping students learn to recognize their own viewpoints and assess how their own viewpoints might assist or hinder the problem-solving process; teaching students the skills of uncovering, articulating, and understanding the diverse viewpoints of a diverse range of actors who might be affected by a legal problem or the processes used to resolve it; and teaching students how
to use their understanding of diverse viewpoints to help a client obtain a long-lasting solution to his or her
legal problem that serves both the clients interests and the interest of the lawyer in promoting a better legal
system.
I have developed a model that I call Difference Analysis. The model consists of the following steps:
1. Understand client needs (brainstorm legal and non-legal ways to help client achieve goals).
The difference analysis model will not work properly unless the clinic faculty member teaches the students
how to first become rooted in the clients needs. Clinic faculty need to expose students to interviewing and counseling skills, especially exposing students to a diversity of counseling models. Books such as Lawyers as Counselors
by Binder, Bergman, and Price; Lawyers, Clients and Moral Responsibility by Cochran and Shaffer; and The Coun-

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selor-at-Law: A Collaborative Approach to Client Interviewing and Counseling by Cochran, DiPippa, and Peters
provide useful ideas for teaching a variety of counseling skills. After each client interview, the students should be
required to list what they perceive to be the clients goals and brainstorm an array of legal and non-legal options
to help the client achieve his or her goals. Such brainstorming can take place in a written memo, a supervision
session, in a classroom setting, or in case rounds.
2. Identify all actors affected by the legal problem.
Clinic students should be encouraged to think broadly about different actors involved in a case. Rather than
focusing solely on legal parties (the client and his or her opponent), students should name all actors (people,
groups, and institutions) who might have a stake in the outcome. While taking care to remind students that their
loyalty belongs to the client alone, identifying other actors will open them to more perspectives on the problem.
This step is also a critical time to launch a discussion of conflicts of interest and client confidentiality.
3. Research and understand diverse perspectives (brainstorm legal and non-legal ways to meet diverse
needs).
Once students have identified a range of actors involved, they can ask how diverse actors would approach
solving the underlying problem. Again, being careful to maintain client loyalty and confidentiality, students
can approach others to learn their views on the problem. Where it is not possible to learn actual views (due
to strategic concerns about client confidentiality, inability to talk to or read about other actors views, etc.),
clinic faculty can engage students in brainstorming exercises to encourage them to imagine alternative views
on the problem to stimulate a wider array of strategies for solving the problem. Considering alternative views
on the problem can also assist the students in meeting potential roadblocks thrown by other actors involved.
Clinic faculty should assist students in using diverse views as a vehicle for generating a wider range of options more options than would be apparent by relying solely upon either client-generated options or lawyergenerated options. Students should be encouraged to imagine whether any consensus-building options are
possible or desirable.
4. Pose options, including a consensus-building option, to the client.
The difference analysis model assumes that clients are entitled to something akin to an environmental impact
statement from the lawyer. That is, clients should know how potential solutions to their underlying problem will
affect others around them. This is true because it is the client, not the lawyer, who will live with the consequences
of the chosen course of action. If a consensus-building option is available, it should be presented along with more
traditional options (e.g., litigation, lodging a complaint, etc.). Students should be taught to outline potential risks
and benefits to each option presented as honestly as possible and in a manner related to the clients goals. Ultimately the client will choose the course of action.
There is a variety of in-class exercises and reading assignments that stimulate students to think about diverse perspectives, thus opening their minds to more possible solutions for their clients. Specific exercises and
reading assignments are listed in my article, Using Difference Analysis to Teach Problem-Solving, 4 Clinical L.
Rev. 65 (1997). In addition, the clinical faculty supervisor should explicitly discuss the process in supervision
sessions.
Kimberly E. OLeary, Thomas M. Cooley Law School

The 10 Commandments of Externships


The externship teaching method has tremendous potential for developing student skills and critical thinking.
This approach to education also requires particular attention, because of the variability in supervisory skill and
other factors at the field placement. The following are concepts which may be helpful in developing a strong externship program.
I. Thou shalt love the externship, thy Program, with all thy heart, with all thy soul, and with all thy might.

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Create a program you can passionately believe in, and support/defend it without hesitation. Articulate and address directly any concerns that you have, including consultation with adult learning specialists if necessary. If
you doubt your program, who wont?
II. Thou shalt bear no false gods before thee, but shall prosper in the Truth in all thy ways.
Be alert to recognize and address directly any biases and assumptions that suggest externships are not responsible programs generally. If your program is designed and administered well, you will not have (long-term)
problems. Avoid accepting negative stereotypes, and dont fall into the trap of defending apparent imperfections
in externships. The best scholars and teachers have classroom students daydreaming in the back rows, and no inhouse clinic is perfect either. Why apply the (impossible) standard of perfection only to field placements?
III. Yea, though thou walkest through the valley of the shadow of uncertainty, thou shall fear no evil, for thy Program is with thee.
It is crucial to create a clear and descriptive set of educational objectives and methods, and to have them approved by your Curriculum Committee or overall faculty. Live by them, and amend them as necessary to reflect
the reality of your program. The inevitable uncertainty of some field placements (and supervisors) is a reflection
of the reality of law practice and real lawyers, and will not undermine the learning opportunity if your program
design addresses unavoidable imperfections at the placement office.
IV. Thou shalt humbly render thy faculty and the regulators their due, but thou shalt not bow down before them. And
through thy steadfast righteousness it shall come to pass that they also shall believe upon thee and upon thy program.
Develop camaraderie with the faculty and work against any we-they attitudes. Generate an educationally responsible program that complies, at least largely, with the accreditation standards. Be consistent and confident
in the administration of the program, and avoid reacting to, or generating, negativity.
V. Let there be no wailing, nor gnashing of teeth, over thy status or thy rewards, for verily I say unto thee that thence
shall be planted many dark seeds in thy heart; and they shall be as a blight upon thy Countenance and upon the
Countenance of thy children.
Complaining can make you miserable, and is likely to affect your home life as well as your job satisfaction.
Avoid comparisons youll always come out better or worse than someone else. Work for salary and status
parity, but dont forget to appreciate the great job you have and your chance to shape skilled and decent lawyers.
If thats not enough, try remembering how happy you were to leave the old job for this one; and if that doesnt
restore a positive attitude, consider going back to the old job!
VI. Neither shalt thou bow down before the God of the In-house Clinic, for She is a True God, but She is not the
One True God, nor is She thy God.
One of the particular assumptions that creates a defensive posture for externships is that the in-house clinic
is the superior (or, perhaps, only legitimate) approach to clinical training of good and decent lawyers. It is clearly
the more established and accepted approach, but look out for the unspoken standard that a good externship must
necessarily model a good in-house clinic. That is a setup for guaranteed stress, as you try to ignore, deny, or cover
up the obvious differences between the two. The legitimacy of your program will depend only on its own design,
educational objectives, and whether it is conducted to responsibly meet its objectives.
VII. Thou shalt teach Goodness, Self-Reflection, and all these Truths to thy students, so that they may go forth and
prosper in the whimsical Land of Externship.
Look realistically at the goals of your program, and the general level of reliability and expertise of your field
supervisors; then decide how much preparation and relative autonomy your students will need in order to have
a successful learning experience. Prepare them fully with these factors in mind. If sufficient preparation is not
feasible, change placement offices or amend the goals or structure of the program.
VIII. In thy dark moments quaver not before the plight of thy students, nor the fancy of their supervisors, but in
all ways be true to thy Scriptures.
Inevitably, some students will have problems with their supervisors. They may learn well from the experience
if properly prepared and counselled, and/or they may need to be transferred to a new supervisor or even a new

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office. Work to amend the supervisors approach (if errant), by reference to your published objectives, methods,
and supplementary materials (which the supervisor should have received and agreed to before finalizing the placement!). If that fails, make the necessary changes to maximize the students semester, and consider suspending the
placement or amending the relevant objectives and credit award.
IX. Suffer not the little accreditors to come before thee, for theirs is the Kingdom of Power and Glory. Neither tremble nor prostrate thyself in fear before them, though their ways be vexatious and strange. For I tell you, verily shall
they lift thee up in thy time of travail, and shall anoint thee in righteousness before thy dean and thy faculty.
Theirs is, indeed, a position of relative power; and unfortunately, different teams will have different approaches and attitudes. Try to learn the identities of the members early, and hope for someone with externship
experience, or at least a minimum of biases. But remember a few things: If, as suggested by the previous principles, your program makes sense educationally and you are convinced and passionate about its worth, the team
is likely to see things clearly. And if you need resources, the team is likely to note that in the report, thereby encouraging the administration to respond. Few programs have been closed as the result of accreditation visits.
Approach the visit openly as a learning (and teaching) opportunity, in your own thinking and when interacting with the team. Communicate with the assigned visitor well before she/he arrives, to arrange for a cooperative and time-effective visit.
X. Go forth in Light, and joyfully sow the seeds of thy placements upon the fields. For though thou dwellest in toil
with the doubtful and the weak of understanding, thou shalt be delivered mightily by the Light of thy Program, and
shalt prosper in the Fields of Externship forever.
This should be the natural result of creating an educationally responsible program, standing confidently behind it, and avoiding negative reactions to possible biases. The worth of your program will be well articulated
and supported for you by your students, alumni, and at least some of your faculty. Additionally, quality clinical
programs are increasingly demanded from outside the college both by hiring attorneys and more skills-oriented
regulatory standards. Stand clear and firm, approach difficulties honestly, care about your students, appreciate
your work, stay positive . . . and thrive.
(This summary appeared in The Law Teacher, Spring 1999, pp. 12.)
Larry Krieger, Florida State University College of Law

Material
Video Reenactments
A staple teaching method in many clinical courses is the simulation. A problem is posed and the scenarios are
handed out to the would-be witnesses, who are then interviewed or examined by the student lawyers. The trouble is that the witnesses have seen nothing, heard nothing, and experienced nothing. They are actors pure and
simple, who have no true memory of the alleged incident. The result is that the simulated exercise lacks realism.
It is a work of fiction that requires the witnesses to re-create the incident in their minds.
To make simulations more realistic, try videotape reenactments. These are forms of crime stopper vignettes.
The witnesses are given background information. They are told who they are, where they were, and what they
saw. The witnesses then watch a videotape of the incident only once. Following the viewing they write a witness statement, which ties them to what they have seen. The student witnesses can then be interviewed by counsel and examined upon what they actually saw.
Professor Michael Ahlen at the University of North Dakota first developed this technique. He used clips from
Cops. You know the ones, in which a police officer is shown in pursuit of a stolen car or making an arrest. A problem is then posed surrounding the clip, and students are instructed to prepare a direct and cross-examination.

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An Example
One clip involves the pursuit of a stolen truck. The camera is in the police car. It follows the pursuit, which
ends when the truck spins out of control, rolls, and lands in a field. The accused is charged with causing death
by dangerous driving. The witnesses are told that they are law students who were in the police car as part of a
ride along program offered by the local police department. The issue is whether the accused actually was the
driver of the truck and, if so, was he driving in a dangerous manner. The witnesses watch the videotape, write
their statements, and are interviewed by counsel, who prepare and present direct examination. The witnesses
statements are turned over to opposing counsel who conduct cross-examination.
I have added to the videotape vignette idea by creating trial problem reenactments. Our students are required
to prepare and conduct a full trial. They work in pairs and the problems are designed to have two witnesses per
side so that each counsel conducts one direct and one cross-examination. The examinations are designed to be
done in 15 to 20 minutes. For the trial reenactments videotapes are prepared from the perspective of each witness. Therefore, instead of watching one scenario, each witness sees the event through his or her own eyes. Four
witness perspectives are created.
A Sample Trial Problem
An action is brought against the local police department for assault and battery. The police shot a young
woman as she was driving away from a liquor store. The police thought she was the driver of a getaway car. The
officers received a dispatch call that a robbery was taking place at the liquor store. A description of the robber
was given. When the officers arrived at the scene they saw a young man run from the store. He fit the description. They chased the suspect on foot until he got into the getaway car. As it was leaving the parking lot one of
the officers fired twice. The young woman was shot. She survived. It was a mistake. The young man seen running actually was fleeing from the real robber. The issue in the case is one of reasonable use of force by the police. The videotape is shorter than three minutes.
The police officers view a videotape that starts with the dispatch call. The camera shows the man running from
the scene. It then follows the two officers as they pursue.
The driver and the young man watch a videotape that begins with them arriving at the liquor store. The camera then follows the young man to the store and his return to the car. Another camera remains with the driver
in the car.
The case is built on the witness statements supplemented with other material. I give counsel a map of the scene
and a transcript of the dispatch call. I also provide a medical report so that counsel can prepare proper pleadings and conduct a meaningful settlement negotiation.
As a final exercise, we show the examining students the videotapes that their witnesses saw. This exposes two
important realities: 1) The frailties of eyewitness testimony (it is amazing how differently witnesses will interpret
and retain information on a given incident) and 2) the need for counsel to conduct a thorough and well-structured interview to uncover all the pertinent information from witnesses.
A Series of Reenactments
I have prepared five other videotape reenactments.
1. Police Assault and Battery The police pursued a speeding white van. They momentarily lost contact
but saw a white van parked in the driveway of a home. The engine was still warm. The officers entered
the home. The homeowner resisted arrest and he was pepper sprayed.
2. A Lawyers Duty to Warn A lawyer represented a man charged with the attempted murder of his wife.
The man underwent a psychiatric evaluation and was released on bail. Family members came to the
lawyer with concerns about the man. A rifle was missing and so was the husband. Later that day the
husband murdered his wife and killed himself.

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3. An Intoxicated University Student Brings an Action Against the University and Supplier of Alcohol
An underage student living at a university became intoxicated in his residence room. He was provided
with free samples of alcohol from a marketing representative of a rum distillery. The residence floor supervisor allowed the representative to distribute the samples on the floor and was aware that the student was drinking. The student fell down a flight of stairs and his football career was ended.
4. Acting in Defense of a Third Person A couple were drinking in a bar. The husband engaged another
patron in a pool game. The husband lost and was not happy. The couple left. Outside the bar they argued over the car keys. The wife wanted to drive and the husband refused to give her the car keys. They
struggled and she fell to the ground. At this moment the bar patron who won the pool game came out.
He saw the husband standing over the wife. The man reacted by hitting the husband.
5. False Arrest A young woman entered the university bookstore. She did not leave her bag in the lockers provided. Store security observed her put a book in her bag. As she left the store the alarm went off.
She claimed innocence. She also had a rental videotape with her. These rental tapes have in the past set
off the alarm.
Readers can obtain copies of the reenactments by contacting me.
(This idea appeared in The Law Teacher, Fall 2001, pp. 45.)
Lee Stuesser, University of Manitoba Faculty of Law

Exercises
Teaching Collaborative Skills to Students
I assign students part of my article, Collaboration in Law Practice, 17 Vt. L. Rev. 461, 491525 (1993). I give
the students an intake memo and ask them by themselves to brainstorm a list of tasks that would be needed to
be done to accomplish the clients goals, the priority that they would assign to the tasks, and a rough timetable
for when the tasks would be completed. (This usually takes at least 15 minutes and can be assigned outside of
class.)
I then ask the students to pair up and compare lists, priorities, and timetables. If they are already working
within teams, I ask that they work with their teammate for this part of the class. I ask that they note similarities
and differences in their lists and try to arrive at a joint plan.
About 15 minutes into this conversation, I ask them to break the flow and examine conversation style issues.
Is one teammate talking more than the other is? Is debate mode or discussion mode the predominate mode? Is
one partner more comfortable with brainstorming and sharing incomplete thoughts? I ask them to make notes
about conversation styles.
I ask them to go back to planning and spend about five minutes finishing a tentative plan.
Finally I ask them to spend 10 minutes or so outlining their similarities and differences, identifying where
there were complimentary differences and where there might be problems. Do their similarities mean they might
miss something? I ask them to analyze where the differences come from.
Now, we are ready for a lively class discussion about what they learned from the exercise. Some of the lessons
that I hope they learn are that by working together they came up with a more complete list than they otherwise
would have and that collaboration requires planning and a recognition of our own and others work and communication styles.
Students usually identify different priorities and starting places, and we have discussions about whether there
is a right starting place or ones based on personal preference. If students know that they need to learn the law
how do they do that? Talk to someone, go to handbooks, go on the computer, or head to the library? Students

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often have differences about when they want to learn more facts and how they will do that. When we compare
lists of one group to another, we see that groups may miss important tasks. Do similarities in the initial group
account for that? We focus on the task of brainstorming and note that it is a good one to use multiple voices in.
We compare it to some of the other tasks that the students have listed. We try to identify which of these tasks will
benefit from collaborative work and which would be particularly difficult to do collaboratively. Often partners
will differ in this assessment, signaling the beginnings of possible conflict between the pair about how they ought
to work together and separately.
Sue Bryant, City University of New York School of Law

Broken Squares: An Exercise to Demonstrate the Shift from


Individualistic to Cooperative Problem Solving
Broken Squares is an exercise that develops the perspective of the lawyer as problem solver. This exercise requires participants to analyze aspects of cooperative problem solving in group settings. I also use this exercise to
discuss behaviors and attitudes that promote or detract from effective group problem-solving activity.
The task for each group in Broken Squares is to form five squares of equal size. The instructor should emphasize this goal. Broken Squares involves groups of six members, including five participants and one observer/judge. Each of the five participants is given a set of cardboard pieces to be used for forming squares. The
group has 12 minutes to solve the problem. There are rules for all participants that prohibit any communication
other than a non-invasive, non-verbal offer. Any other communication results in 10-second penalties added to
the groups time for solving the problem. The exercise is introduced with both instructor explanations and written instructions. The instructor should entertain any questions before starting the exercise. Each group requires
table space in order to observe each others pieces of the broken squares. The entire exercise, including debriefing,
takes no less than 45 minutes. I prefer more thorough participant debriefing lasting another 30 to 45 minutes
depending upon the total number of participants.
I begin the exercise with a discussion of cooperative problem solving in both lawyering and mediation. I also
discuss the importance of reevaluating potential solutions in group decision making. When training law students
and lawyers, I discuss the relevance of rethinking solutions as part of the expanded role of lawyers and the broader
range of skills increasingly expected from lawyers. I highlight the process goals stated by the author and editors
of Broken Squares:

Each person should understand what the overall problem is.


Each person should understand how s/he contributes towards the solution.
Each person should be aware of the potential contributions of the others.
Each person should recognize the difficulties of others in order to aid them in making their maximum
contribution.
Groups that pay attention to their own problem-solving process are more likely to be effective than groups
that do not.
(Adapted by J. William Pfeiffer in A Handbook of Structured Experiences for Human Relations Training, University Associates, Inc. (Volume I, Revised 1974), with permission from Alex Bavelas, Communication Patterns in Task-Oriented Groups, Journal of the Acoustical Society of America, 1950, 22, 225230.)
During the exercise, the instructor should keep time and keep track of the penalties on a large blackboard or
a large piece of newsprint so that afterwards all groups can see all the group scores. The observers/judges should
be calling out penalties for the instructor and keeping time for their respective group. As you stop the exercise
after 12 minutes, you should convene the large-group discussion. You should anticipate remarks that the communication rules are limiting and artificial. I always acknowledge these reservations and indicate that the exer-

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cise is designed to demonstrate certain issues for discussion and is thus limited in its construction. I try to take
such observations and tie them back into what the exercise illustrates regarding individualistic versus group problem solving and the necessity of rethinking individual solutions.
As an introduction to the debriefing, I indicate that the average time for a solution by U.S. workers (dominant
culture) is six minutes and 48 seconds; the average time for a solution by Japanese workers is two minutes and
56 seconds. An average U.S. group (dominant culture) will spend approximately three minutes in a competitive
struggle before someone breaks up a completed square and commences collaborative behavior. The problem is
then usually solved in another three to four minutes. Some groups fail to solve the problem within the 12-minute
time limit and also may have additional penalty seconds imposed. The discussion from such groups is often insightful about how the task was interpreted. I emphasize that success comes from the lessons learned from the
exercise and that we often benefit the most from the comments from groups that did not achieve the goal of the
exercise. (Data supplied by Mr. Blaine Hartford (B.S., M.Th.) of ChangePoint Associates, Inc., Durham, NC.)
Debriefing this exercise often yields very rich discussion about the need to break up ones own square several
times in order to achieve the group goal or to achieve the best result. This discussion serves as a good metaphor
for the challenges of engaging in creative problem solving with others and staying open to rethinking solutions.
Often, participants reflect on the difference between individualistic versus collaborative approaches to working
with others. These observations are significant in discussions about the professional role as lawyer. In my mediation/negotiation instruction and training, I find this a useful exercise to set the tone for the remainder of the
semester or workshop. I continually refer to the necessity of breaking up our squares in discussing subsequent
material later in the seminar or workshop.
I hope you enjoy incorporating Broken Squares into your instruction and training. I hope you experience
rewarding debriefing sessions from this exercise with your participants. Lastly, I would enjoy hearing from you
about your particular experience with Broken Squares.
Please feel free to contact me directly for a complete set of instructions for Broken Squares.
Beryl Blaustone, City University of New York School of Law

Teaching Creative Problem Solving


I find that law students are often frustrated by the lack of structure to the somewhat amorphous skill of problem solving. Following is an exercise I use in all my clinical courses (externship, in-house, and simulation) to
teach creative problem solving. The exercise can be used in doctrinal courses, as well. (For descriptions of how
faculty may use this exercise in a property or constitutional law course, see Linda Morton, Teaching Creative Problem Solving: A Paradigmatic Approach, Cal. W. L. Rev. 375, 386387 (1998).)
I begin with a scenario from my own law practice, with the students playing the role of the new lawyer. If there
is time in class, I have an outsider role-play the client; otherwise I play her myself or simply narrate. One scenario I use goes as follows:
You just started your own practice. A client walks into your office with a broken shoe. Apparently, the shank
broke the first time she wore the pair. They were moderately expensive, and a shoe repair person told her this
should never have happened. She took the shoes back to the store, expecting a new pair, or, at a minimum,
a store credit. Instead, the manager refused to do anything for her. When she began to complain more loudly,
the manager placed his hand on her back, physically ushered her out the door, and shut the door behind her.
As she talks to you of her experience, the woman is visibly upset, with emotions running from outrage to tears.
In an initial brainstorming session, I ask the students what they should do in terms of this potential client.
Generally, some speak of causes of action; others talk of letters demanding apologies. Students are unsure of what
category of law the matter falls under and are uncomfortable with the potential clients emotional state. They

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clearly want to help and have some excitement over having an actual case. Nonetheless, when I ask them specifically what the problem is and how to solve it, they have difficulty articulating it, much less knowing where to
begin solving it.
I explain that this, like the majority of legal problems, does not arrive at our office doorstep in a neatly wrapped
package. I state that the first course of action is to attempt to comfort the client, as we try to get a handle on what
the problem is. I then offer a variety of visual models for diagnosing and solving problems. I offer my own model
in visual and in outline form, as illustrated in the attached Appendices A and B. Once we have talked through
the model (eliciting from the students, if time, the steps and relevant questions to ask at each phase), I have the
students, in groups, use it to analyze the shoe case and come up with an action plan. At this point, I do not discuss creative thinking but allow the students to focus on a more linear, legal analysis, with which the vast majority is more comfortable.
The groups action plans generally reach the same types of conclusions we reached in our initial brainstorm
session, only they are better thought through, with a greater awareness of client needs, parties values, problem prevention, and information required. As a result, the students are far more confident in their proposed
action steps.
Once their confidence has accelerated, I take them to the next step (possibly in the following class): If our
client decides she does not want to sue the store, what do we do? How can we approach this clients dilemma creatively? Referring to my own model, I tell students the process of creative thinking most frequently arises when
considering general approaches to the clients problem, as illustrated in the visual model.
To legitimize creative thinkings place in lawyering, I tell the students my belief that creativity in problem solving is one skill that separates great lawyers from good ones. To further ground the concept for the disbelievers, I
briefly explain to the students, in simplistic neurological terms, how our brains become stuck in a rut and what
we can do to have them leap to new neurological pathways. (For a more detailed description of the brains neurological processes and potential exercises for jumping these neurological ruts, see Janet Weinstein and Linda
Morton, Stuck in A Rut: The Role of Creativity in Problem Solving and Legal Education (draft available from the
authors).) Then, I explain a series of creative thinking methodologies (Appendix C) and relate how I have used
each one in the practice of law.
I divide the class into six groups, assigning a different creative thinking technique to each group. After we try
the exercises in our groups (see Appendix D for instructions), students produce another series of action steps for
our shoe case some humorous, as well as creative. For example, students have suggested the following: going
back to the shoe repairperson to further discuss the matter of possible repair; taking a picture of the client with
the broken shoe, to perhaps reveal additional issues (a faulty ankle, perhaps?); and even breaking the other shoe
to start a new footwear trend. Although they seem to enjoy the process, the main purpose is to have them think
about the problem in a different way than they did previously. Despite the occasional skeptic, students have reacted to the exercise quite favorably. Comments from an anonymous survey were as follows: I like the concept
of thinking from a different angle; I want to learn more; Good-different ways of looking at problems and creating solutions; The topic was beneficial and applicable not only to the internship, but to life in general. Two
students expressed that they would like to spend more time on the topic.
I conclude the class by having students apply the entire problem-solving model, including the creative exercises, to one of their own problems, either personal or legal. If we have run out of time, I have them do it as a
journal assignment for the following week. Throughout the remainder of the semester, I make an effort to have
students identify instances of creative problem solving and discuss them with the class in order to reinforce this
important skill.
Teachers are free to copy this exercise for use in law and graduate school courses, provided that appropriate
acknowledgement of the author is made. For permission to use this exercise for any other purpose, contact the
author.
Linda Morton, California Western School of Law

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Appendix A
A Process for Creative Problem Solving
1. Situational Analysis

2. Problem
Diagnosis

6. Evaluation

Goals
Values
Investigation
Prevention

5. Action
Plan

3. Information
Gathering

4. General Approaches

Creative Thinking

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Appendix B
A Process for Creative Problem Solving
Below is a description of a problem-solving model. Each phase incorporates potential inquiries to better understand and solve the problem.
The model must be viewed as fluid and flexible: neither phases nor questions proceed in lockstep order. Problem solving frequently requires returning to earlier phases, or may even skip a phase. Some questions may be redundant or inapplicable. Throughout each phase, the clients and lawyers values and objectives, as well as the
concepts of further investigation and problem prevention, should be considered.
I. Situational Analysis
What is happening right now?
What is wrong with the clients/lawyers current situation?
What are the symptoms?
What is the clients/lawyers preferred situation?
II. Problem Analysis
What is the clients problem?
Do we need anyone elses help in identifying the problem?
Whom/what does the problem affect?
Who/what is responsible for the problem?
Is it part of a larger problem? If so, which should we address first?
Could it have been prevented?
What are the clients/ lawyers objectives?
What are the clients/lawyers underlying interests?
III. Information Gathering
What else do we need to know? (facts? feelings? legal issues?)
Who/what can help us?
Are we the appropriate person/entity to fix this problem?
How could this problem have been prevented?
IV. General Approaches
What would the client like us to do?
What approaches does the law allow us to do?
What other approaches might there be? (creative thinking)
What are the costs and benefits of each approach?
What new problems might each approach create?
Can any potential new problems be prevented?
Which approaches might be most effective?
Whose values and objectives does each approach reflect?
V. Action Plan
What is our course of action to solve this problem?
Who should be involved?
Who is responsible for its implementation?
How should decisions be made?
What specific steps should we take now?
What effects will these steps have?
What steps should we take to prevent further problems?
VI. Evaluation
Are we on the best path?
What new problems have been created?
Do we need to re-evaluate?

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Appendix C
6 Ways to Jump Out of a Rut
1. Theoretical Overlay
Take a theory from one discipline and use it in another.
For example, many lawyers now use a psychological theory of client-centered counseling in their law practices.
2. DeBonos 6 Hats (Edward DeBono, Six Thinking Hats (1985))
Isolate aspects of a problem (factual, emotional, positive, negative) and examine them separately.
For example, you might ask, What are my feelings about the problem? What are its positive aspects?
3. Synectics
Apply words from a different context or comparative adjectives (smaller, bigger, tighter) to the problem.
For example, apply the word toast to the problem of an underfunded organization, and you might come up with the
idea of inviting potential donors to breakfast. Or, if you make the underfunded organization wider, you might develop
branch offices to attract local donors.
4. Mind Mapping
Write the problem in the center of a piece of paper and delineate your trains of thought in different directions
from the center.
For example, if you are trying to think of a title for an article or a more specific topic, write down the general subject in
the center of a blank sheet of paper and record your trains of thought in lines radiating outward from the center.
5. Visualization
View the issue from a photograph or visual model or imagine the issue from a different view (aerial, underneath, future, etc.).
For example you might ask, What will the problem look like one year from now? If the problem were sculpted, how
would it appear?
6. Incubation
Once youve given the problem some thought, interrupt the process by doing something completely different,
then go back to it.
For example, shelve a problem begun in one class and discuss it in the next.

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Appendix D
Creative Thinking Instructions
Theoretical Overlay
Write your problem down, and think through how someone other than a lawyer (e.g., a doctor, artist, businessperson, psychologist, child, and/or teacher) might approach it.
Six Hats
Before you begin, assign someone the Blue Hat. That persons role is to run the process. Then, analyze your
issue as follows, giving about one minute to each hat:
1. Put on the White Hat and discuss only the facts pertaining to the issue.
2. Put on the Red Hat and discuss only how you feel about the issue.
3. Put on the Yellow Hat and discuss only what is actually positive about the issue.
4. Put on the Green Hat and discuss any and all possible solutions to the issue.
5. Put on the Black Hat and discuss the flaws of the potential solutions.
6. Write down your results.
Random Word Analysis
Pick any word, unrelated to your problem, and apply it. Or, try an adjective to make your problem larger,
more narrow, less expensive, etc.
Mind Mapping
Write your issue in the middle of a blank sheet of paper. Draw a circle around it. Write out your trains of
thought from the center and see where this takes you.
Visualization
Imagine what your issue looks like. Imagine the people, place, objects involved. Try looking at it from another
view, such as an aerial view, futuristic, or underground view. Describe, or draw a picture of it for others.
Incubation
Think about the problem, go for a walk, or check your to do list, then go back to the problem.

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Mirror, Mirror: Using Non-Traditional Reflective Exercises


The best practitioners in various professions develop their skills through continual reflection about the uncertainties, complexities, and value conflicts they confront in practice situations. In his essay Educating the Reflective Legal Practitioner, 2 Clinical L. Rev. 231, 247 (1995), Donald A. Schn describes the processes of reflection-in-action and reflecting on actions as follows:
[R]eflection-in-action is the process by which a new response is generated in the situation, in response
to surprise and under conditions of uncertainty, in a way that involves on-the-spot experimentation and
that does not necessarily take place in words. Reflection on that process, however, does have to take place
in words or at least in formal symbols. This reflection on reflection-in-action is an attempt to describe
the knowledge that was generated and the conditions under which it was generated and the on-the-spot
experimentation that was carried out.
Many of my favorite professors and role models in the academy integrate reflection (both reflection-in-action
and reflecting on processes) into their teaching.
As a group, law students are not particularly reflective, and the majority of their experiences in law school do
not help them become reflective practitioners. In light of the importance of learning this skill, one principal goal
of my teaching has become motivating law students to adopt a more reflective attitude and assisting them in developing corresponding practices. In addition to accomplishing the objectives set forth by Schn above, reflective practices incorporate the process of critical inquiry and evaluation. This dual process recognizes that while
knowledge of reality is subject to our own perceptions and interpretations, it permits us also to consider the how
and why of actual success or failure. By requiring students to observe and evaluate themselves (their thoughts,
feelings, learning, and/or actions) in a number of situations throughout the semester, I cause students to engage
in exercises that I hope improve their ability to be reflective in all aspects of their future professional lives. As I
tell my students, I hope the required reflective exercises will improve problem-solving skills, foster self-awareness, nurture a lifetime of self-directed learning, and help process some of what they actually are doing in law
school classes.
Yet, encouraging students truly to reflect seems to require nudging them to step far outside the box that
has become their perception of what law students and lawyers do. To this end, I now incorporate non-traditional reflective exercises into my teaching. My original exercises focused on simple written and oral discourse
on an event or concept. I found, however, that this approach limited many students abilities to truly reflect. My
non-traditional exercises ask students to think and communicate without traditional prose or from an unusual premise.
As I was about to design a series of non-traditional reflective exercises for my new environmental law clinic,
I sent an email to the humanizing legal education listserv. This listserv is made up of professors and administrators committed to adding a humanizing dimension to the legal education process. (You can get more information about this initiative at http://www.law.fsu.edu/centers/hle/index.php and can subscribe to the listserv by
sending an empty email to legaled-subscribe@mail.law.fsu.edu from which you should receive an immediate confirming reply.) I received many helpful suggestions from listserv members that led me to design the four exercises described below.
The first exercise asked students to reflect on their initial client interview. I provided the following format instructions: Your reflection should be in writing, using whatever format you feel is most appropriate (simple text,
memorandum, poem, etc.) and whatever language style you feel helps you best reflect (formal, stream-of-consciousness, iambic pentameter, etc.). I wanted students to go beyond a review of the mechanics in their reflections on the interview. Over half of the students elected to submit poems or classic stream-of-consciousness
type pieces. I have permission from one student to share his haiku (and some accompanying explanatory text)
in which he reflected on his failure to offer his client a drink:

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Talking rapidly
A drink of water for her
Would have been real nice
I felt really bad for not offering [Ms. T] something to drink. I dont know why I didnt do this. I watch
attorneys every day at work bring people into the office and immediately ask if they want something to
drink. Sometimes it seems like they say it just to have something to say but that is not why I didnt ask.
I think I was too wrapped up in what I had to get done and what I had to accomplish at the beginning
of the interview and getting her something to drink did not cross my mind. It didnt even cross my
mind later in the interview. But time was just flying by in the interview and I didnt realize [Ms. T] had
talked for two hours until it was over. For the rest of my life I will always think about asking someone
if they would like something to drink. But I wont ask just because there is nothing else to say (or will
I?). . . .
The second reflective exercise was during the class session that met at a pub near our law school. It involved
students (all third years) telling their colleagues what they would say if they could go back in time and give themselves advice as 1Ls. It was the only non-clinic-specific exercise, but it was very rich and led to some discussion
about how they could use those thoughts in preparing for their imminent future as attorneys. My purpose for
this exercise was to encourage students to apply creatively past experience in planning for the future.
The third exercise was not very successful, but Im thinking of revamping it and trying it again with my next
clinic. I asked students to write a memo in their clients voice, reflecting on a counseling session (or initial interview, for those who had not yet met with their client to counsel). I hoped this experience would get them
outside their own heads in thinking about client interactions. Most of the responses, however, were very much
like minutes of the meeting and didnt contain anything very deep. I suspect I didnt give them sufficient direction to imagine what their client really was thinking about or direction to explore the clients experience from
multiple levels. I think a diary entry (rather than a memo) in the clients voice may encourage more reflection
next time.
The fourth exercise was during the final clinic class. I taped together four sheets of flip-chart paper and asked
students to gather around a table to reflect through drawing (using crayons) on their clinic experience. This exercise is somewhat similar to my large-class crayon exercise, although because it happens at the end of the semester and is a group project the students approach it both with some level of familiarity regarding what my
purposes might be and with a sense of team spirit. My purpose was to give them experience reflecting as a group
and seeing what they could take away by connecting with their colleagues as part of their reflection. After some
initial reluctance, it became a raucous and fun exercise that truly elicited some deep conversation about the implications of what they were putting on paper.
These non-traditional reflective exercises supplemented a few more traditional writing exercises and discussions
on reflective practice. In the end, however, the non-traditional exercises seemed to provide students the freedom they
needed to get out of their typical law-school lock-step and really start reflecting on the process of becoming a lawyer.
(This idea appeared in The Law Teacher, Fall 2001, pp. 67.)
Kim Diana Connolly, University of South Carolina School of Law

A Proxemics Exercise to Teach Observation,


Communication, and Reflection
This exercise seeks to engage the student in three goals that are important to my pedagogy: observation, reflection, and communication. Lawyers must be trained or at least reminded to be keen observers of their
personal and physical environment. A lawyers ability to imagine, perceive, and recall detail is essential to the

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lawyers craft. Reflection and an attitude that embraces reflection are necessary to convert experiences into learning and growth. Effective communication is the sine qua non of the lawyers craft.
The exercise asks each student to observe the personal work space of a professional. It could be a doctor, dentist, lawyer, professor, or any other professional who has a personal work space that she or he has some autonomy in furnishing. After observing the work space, the student is asked to describe the space, to reflect on the
metamessages that the physical space and accessories communicate, and then to communicate the students findings in writing. A section of the textbook that is used in the course, Bastress and Harbaughs Interviewing, Counseling and Negotiating (Little, Brown & Co. 1990), is assigned as background reading. After the papers are submitted, we spend some class time discussing the exercise and the students reflections. One way to personalize
the conversation is to ask each student to describe his or her office (in the future).
The assignment:
As the textbook notes, non-verbal communication affects the interviewing process through three primary
channels of expression: proxemics the importance of spatial relationships to communications; kinesics body
movements (or the failure to move) as a communications device; and paralinguistics vocal phenomena (pace,
pitch, tone, and volume) other than the actual content of speech.
We will look at both kinesics and paralinguistics in our review of videotaped simulations or exercises, but proxemics are difficult to access on a typical videotape, which usually focuses on the talking heads of the participants.
This assignment is designed to give you an experiential base for examining proxemics.
During a visit to a professionals office, take notes (either mental or recorded) with respect to the proxemics of
the encounter. The professional may be a law professor, a lawyer or judge, or any other professional, such as medical doctor, accountant or dentist. After the visit, review your notes and draft a short (35 page) paper describing
the proxemics of the situation and discussing the implications for the purpose of your visit. The paper is due in
three weeks.
If you are in an externship, you could choose to study the proxemics in the office of your fieldwork supervisor
during a session in which you are getting an assignment or receiving feedback on a completed task. You could
study the proxemics in the office of a law professor with whom you are discussing course materials, a directed research project, an assignment as a research assistant, career planning, etc. You are welcome to make an appointment with me and study the proxemics of my office, but I encourage you to find someone else so that we can
have a variety of situations to discuss in class. Your choice may remain anonymous.
Before you visit the office, re-read the section in the text on proxemics (pp. 13337). Think about the types of observations that you want to make. Think about how you are going to remember (record) your observations so that
you will have the most complete data set available for analysis. Some questions that you may want to ask include:
1.

What message(s) does the office send?

2.

How do the type, style, and placement of the furniture assist or inhibit communication?

3.

What are the wall treatments; what message might the offices occupant wish to convey?

4.

Which aspects of the office are institutional and which are personal to the occupant?

5.

What is the feel of the space? For instance, an office containing stacks of paper may convey messiness
and disorganization or the sense that the occupant is very busy and has a number of important, ongoing
projects.

6.

Upon arriving at the meeting, where and how were you greeted?

7.

What were the seating arrangements? What did the seating arrangement convey?

8.

Consider input from all of your senses, not just visual. What sounds could you hear? Could you smell anything? What was the temperature like? Describe the lighting.

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Other resources. In addition to the materials referenced in Bastress and Harbaugh, you may want to refer students to the chapter on learning from observation in Ogilvy, Wortham, and Lermans Learning from Practice: A
Professional Development Text for Legal Externs (West Group 1998).
J.P. Ogilvy, Columbus School of Law, The Catholic University of America

How Terms and Ways We Think about Clients Influence Our Lawyering
(I think I got parts of this exercise initially from Margaret Barry and Katherine Klein at Catholic.) I teach in
a battered womens rights clinic and I do this exercise early in the semester sometimes for the first class.
I put the term VICTIM on one side of the board and the term SURVIVOR on the other side. I ask each
student to take a sheet of paper and list four adjectives that describe a victim and four adjectives that describe
a survivor. Then I ask them to each contribute one adjective as we go around the room until all adjectives are
up on the board. We are able to generate long lists of words that describe people whom we label as victims and
survivors. Next I ask the students to think about and write a list of the things that the victims need from lawyers
and from the legal system and then to do the same for survivors. We put these lists next to the adjectives and talk
about why victims and survivors have these needs.
We discuss how the lawyers role changes depending on whether the client is viewed as a victim or survivor and
the implications for these changes in our work. For example, in the typical student list, victims are much more
likely to be taken care of and survivors much more likely to be informed of legal rights. The class often gets into
debates about whether our clients are victims or survivors and whether it is helpful or hurtful for the court system
to approach clients with a particular mind set. We usually end with the importance of looking at clients as individuals who may need some of what is on both lists. If we do not operate out of assumptions about the client, we
will be more open to trying to assess her individual need. We note that figuring out how to handle judges who often
put clients in categories is a more complex task and one that we focus on as we plan cases and develop theories of
the case.
This kind of exercise can be used for almost any client group where multiple stereotypes exist about who the
clients in the group are and how the application of those assumptions changes how we relate to the clients.
Sue Bryant, City University of New York School of Law

Teaching Alternative Client Counseling Models in the Clinical Course


Most clinic courses teach students how to interview and counsel clients. However, it is not usually possible to
teach an entire interviewing and counseling course within the context of one in-house clinical course. I have
found that students can understand fairly sophisticated concepts related to attorney-client counseling models
through a couple of classes that examine theories of client counseling through short reading assignments and
video-clips of movies. Even in a clinic where faculty determine that the students should practice a strict clientcentered counseling model, I have found that exposure to alternative counseling models enhances the students
understanding and appreciation of what client-centered means.
I have assigned portions of books that describe a range of client-counseling models, or if I am pressed for time
in a clinic course I sometimes summarize the various counseling models. I use Lawyers as Counselors by Binder,
Bergman, and Price to describe client-centered counseling. Lawyers, Clients and Moral Responsibility by Cochran
and Shaffer or The Counselor-at-Law: A Collaborative Approach to Client Interviewing and Counseling by Cochran,
DiPippa, and Peters contains descriptions and examples of other client-counseling models. Also, Better Legal
Counseling through Empirical Research: Psychosocial Softspots and Strategies by Patry, Wexler, Stolle, and Tomkins,
34 Cal. W. L. Rev. 439 (1998), contains useful ideas about the role of the attorney in counseling a client.

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After the students read about different counseling models, I show a series of movie clips to illustrate different styles of attorney-client interactions. The movie clips draw the students into the topic emotionally and they
usually lead to great discussions. I ask the students to identify what counseling model they think the actor-lawyer
is using, and we talk about the strengths and weaknesses of the model in that particular context. I lead a discussion about what contextual factors affect attorney-client interactions. For example, we discuss how the type
of practice affects the interaction. Other factors include power imbalance between attorney and client (including class, race, gender, social status, mental status) and personal characteristics of the lawyer and the client. I
have chosen film clips that illustrate differences in this regard. For example, the movie Class Action has scenes
involving a corporate lawyer and her attorney boss and industry client; Philadelphia contains scenes between a
black solo practitioner and a white former corporate attorney dismissed because he has AIDS; The Good Mother
has an upper-crust white male lawyer and a single-mother middle-income client; Primal Fear has a well-known
criminal defense attorney and a (seemingly) poor, white, mentally limited defendant; Nuts features a mentally
disturbed woman who insists upon testifying and going to a trial and contains a scene where the client forcefully argues with her appointed lawyer that she is capable of making such a choice; Secrets and Lies has a powerful scene in which an upper-class black woman is counseled by a publicly-funded social worker about options
under an adoption law.
Once the students have understood how various factors affect the choice of client-counseling model, and once
they have seen examples of different contexts in which such models might be used (or are poorly used), the students can then discuss their own counseling style with clinic clients. These conversations can be brought into supervision sessions as well. In the in-house clinics in which I have taught, my colleagues and I have usually required students to emulate the client-centered counseling style, but we left it open for students to discuss with
us anytime they thought a different counseling model might be appropriate. I discuss a more detailed approach
in a full interviewing and counseling course in When Context Matters: How to Choose an Appropriate Client Counseling Model, 4 T.M. Cooley J. Pract. Clinical L. 103 (2001).
Kimberly E. OLeary, Thomas M. Cooley Law School

Parallel Universe Thinking


This exercise was developed for a class I co-taught with Jean Koh Peters to teach cross-cultural competence
for lawyers. Parallel universe thinking is one of the five habits that Jean and I developed to describe the competent lawyer. This kind of thinking and teaching exercises used to develop it are described more fully in my article, The Five Habits: Building Cross-Cultural Competence in Lawyers, 8 Clinical L. Rev. 33 (2001). I have also used
this exercise in cross-cultural training with legal services lawyers.
I ask the students to think of a time when they had a negative judgment of a client based on something the
client had done or failed to do. I ask them to write out the behavior and what the behavior meant to them. I use
an example of a client involved in a custody case who has been told that she needs to take the child for counseling and fails to do that. I think that the client must not really care about her case because she has not done what
I told her she should do.
After they all have the behavior and meaning of the behavior listed, I ask them to think of five other reasons
why the client did or did not do the behavior. Then I ask them to get together in groups of two or three, share
information about the clients behavior, and come up with another five to ten explanations for the behavior. I
ask for a volunteer to put the behavior and explanations on the board, and I ask the class for other explanations
of the behavior. When we have 10 to 15 explanations on the board I ask where the explanations of the behavior
come from. (You can skip the small-group brainstorming if you do not have the time.)
I use this exercise to teach the concept of attribution and how culture influences the way we attribute meaning to behavior. For example, in the case of the client who has not taken her child for counseling, perhaps she

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does not believe in counseling, perhaps she thinks that only crazy people go to counseling, perhaps she will be
shamed in her community if she has to go for counseling, perhaps she is worried that a counselor will not understand her, perhaps she has something to hide, perhaps she cannot afford it, perhaps she is so overloaded she
did not get to it, perhaps she does not trust the lawyers advice, etc. Specific information about particular cultures can give lawyers more ideas about what might be going on and encourage lawyers to investigate their assumptions so that they do not attribute meaning based solely on their own cultural norms. But even without the
specific knowledge, we should tread lightly when we attach negative judgments to client behavior, especially when
the client comes from a culture different from our own.
Sue Bryant, City University of New York School of Law

Transferable Rhetoric
A challenge for teachers of lawyering skills courses is to foster students ability to transfer their learning from
the real or simulated cases they may work on in law school to the cases they confront as practicing lawyers. One
method of fostering transfer is to identify reasoning processes that are applicable across a wide range of factual
and legal settings. The closing argument exercise below is one that I use in Trial Advocacy to focus students on
rhetorical techniques that span not only a variety of factual and legal settings but also centuries.
I ask students to read a closing argument that was delivered in a trial that took place in ancient Greece. The
argument, or speech, was written by Lysias for the defense of Euphilitus, who was charged with murdering the
man who had seduced his wife. This particular speech was suggested to me by a professor in the Classics Department, but Im sure that many others would serve equally well. (You may read the argument in a book by
Kathleen Freeman, The Murder of Heracles and Other Trials from the Athenian Law Courts.)
In class, I ask students to identify the rhetorical techniques by which Lysias sought to persuade his audience
that Euphilitus should be found not guilty. I want the students to recognize that many of the same techniques
appear in modern trial advocacy texts and arguments. (In one version of this exercise, I also ask students to identify rhetorical techniques in an excerpt from the defense argument in the O. J. Simpson criminal case.) As students present arguments in real or simulated cases, I reinforce the lesson either by assigning them to incorporate
specified rhetorical techniques in their arguments or simply by identifying those they did use. As a result, they
leave the course armed with the knowledge of a set of rhetorical techniques that they can apply to any kind of
case they may encounter in practice.
A plausibility argument is one such technique. A plausibility argument asks a factfinder to accept or reject
a litigants account of events based on correspondence to or variance from normal behavior or expectations. For
example, Euphilitus claims that he had a right to kill his wifes seducer, Eratosthenes, under Athenian law because
he (Euphilitus) unexpectedly caught the seducer in flagrante delicto. To convince the jury that he did not know
that he would find Eratosthenes in bed with his wife, Euphilitus points out that on the evening of the killing he
had brought a friend home for dinner. And people who expect to find their wives in bed with another man do
not invite friends home for dinner. This is just one of a number of plausiblity arguments sprinkled throughout
Euphilituss argument. (Though the speech was written by Lysias, Athenian trial procedure required Euphilitus
to recite it orally apparently from memory!)
Puffing, or exaggerating a claim for emotional impact, is a second rhetorical technique employed by Euphilitus. Euphilitus argues that if the jury convicts him of murder it is granting full immunity to seducers. This
was not correct. Athenian law may have given Euphilitus the right to kill Eratosthenes under very narrow circumstances, but it also afforded him a variety of other remedies. Euphilitus overstated his claim for its dramatic
effect on the jury.
Education in general, and clinical legal education in particular, is of value insofar as it enables students to
transfer learning in one setting to the variety of settings they are likely to encounter in their professional lives.

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Isolating rhetorical techniques from the factual and legal contexts in which they are employed is one way to facilitate transfer, and an ancient argument is a splendid device for accomplishing that goal.
Paul Bergman, University of California, Los Angeles School of Law

Brief Gems
Encouraging Attendance; Dealing with Absences
If students miss more than one of my ADR classes, I require them to write a one- to two-page report about
the topic of the class they missed. My syllabus states:
After more than one absence (whether excused or not), each additional absence requires the submission of a 12 page report that summarizes an ADR article about the topic of the class you missed. I will
provide a list of possible articles to read and write about, although you may read any ADR article that
interests you. I expect you to read approximately 20 pages for this assignment.
This requirement is intended to do several things. First, students dont easily miss class because it costs them
about as much time in making up the class as they save by not coming to school and not attending the class. Second, many students do outside reading for the class based upon this assignment. Third, they are told that their oneto two-page report is supposed to be an executive summary of the article from which others could learn from reading. I havent yet made these papers available to other students, but it is possible and, I think, would be useful.
John Barkai, University of Hawaii William S. Richardson Law School

Little Words, Big Difference


Words are powerful. It makes sense to use them wisely in providing feedback to students. Verbal techniques,
including the one described here, are available to help guide people to accomplishing their goals without getting
sidetracked in unproductive resistance.
At appropriate times I use the word and instead of the word but, even when it does not seem to make sense
grammatically. But dismisses all that comes before it and emphasizes what comes after it. It invites resistance.
And acknowledges the truth of both. It enlists cooperation.
These sentences illustrate the power of the difference imagine hearing them from your significant other:
I love you, but I cant stand this anymore. This says its over.
I love you, and I cant stand this anymore. This says we have some work to do.
I use and instead of but in working with clients who continue to talk about issues irrelevant to their legal
case or issues we have already discussed repeatedly. This venting youre doing is important, but I have to focus
on the legal issues leaves a client still wanting to vent, resentful, with the perception that I do not understand
and will not listen. This venting youre doing is important, and I have to focus on the legal issues leads the client
to understand my position too and to think about who else might be a good person to listen.
A large part of clinical teaching is finding ways to decrease students defensiveness and increase their willingness to learn. Sometimes when we provide feedback to students we start with a positive observation and then
cancel it with a but. I can see students tense as I get close to what they think will be the big but. When I dont
say but and say and instead, they visibly relax and listen to what I say.
A colleague and I had a meeting with a student whose behavior created problems in the clinic. We anticipated
defensiveness and resistance to any suggestions. I said You have much passion. It is powerful and energizing and

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it sometimes leads you to blow up and yell at people inappropriately. Because I acknowledged the positive and
did not dismiss it with a but, the student did not need to defend. In fact, the student came up with specific ideas
about how to prevent the yelling without sacrificing the energy.
But is useful when you intend to discard or de-emphasize the first clause, e.g., You wont learn everything
you need to know about contracts in this course, but you will learn enough to know how to approach a contract
issue. I often suggest that clinical students and beginning attorneys use statements like I dont have much experience, but I have a lot of enthusiasm or I cant promise that well win, but I can promise my very best efforts.
Gail Hammer, Gonzaga University School of Law

Teaching Communication Skills and Mediation Skills


Students have a difficult time becoming proficient at asking questions, active listening, and talking like a
mediator. They can understand the theory; they cannot perform the skills. I have developed what I call readalong scripts to help students learn to perform these skills. Students read out loud in class certain phrases
and sentences that I have scripted for them in advance. Students do seem to learn to perform the skills (asking open and probing questions, actively listening, talking like a mediator, reframing, etc.) after the in-class
practice. My methodology is much more fully described and several scripts are presented in my article, Teaching Negotiation and ADR: The Savvy Samurai Meets the Devil, 75 Neb. L. Rev. 704 (1996). Heres one example
of a read along:
What do you think is one of the most important issues facing Hawaii in the next 10 years?
Tell me more about that.
What do you mean by that?
Can you put that in other words?
How do you feel about that?
What do you mean by ________?
Can you be more specific?
How so?
In what way?
Thats helpful, keep going.
Humm, hum.

John Barkai, University of Hawaii William S. Richardson School of Law

Feedback and Evaluation


Student Journals to Increase Reflection on Legal Practice and on
Personal Professional Development
Legal education ought to help a law student become a reflective practitioner, aware of her own developing skills
and values, with thoughtful critical judgment about the profession, the legal system, and her role. Yet, teachers control much of the content of our doctrinal classes and of some aspects of our clinical courses, as well. How can we incorporate individualized, introspective learning into a course of legal study? Most students have personal reactions

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to course content. How can we bring those thoughts to the foreground as an important educational outcome for a
course, when appropriate? How can we encourage the less reflective students to participate in that type of learning?
One strategy used extensively in clinical externships, where individually established learning goals have long
been an explicit educational aim, is assigning students to write personal journals reflecting on their experiences.
These journals, submitted to the teacher at regular intervals and handled confidentially, are contemporaneous
writing including notes, essays, or narratives commenting on experiences at the fieldwork placement. Journals
have most obvious application in courses dealing with clinical experience and lawyering skills.
In my experience using journal assignments with students at varied criminal, civil, and judicial placements,
students comment on a range of topics that are important to them. Chief among these topics have been observed
skills and professional competence of lawyers, insight about how a part of the legal system really works, and the
impact of a legal institution on the people affected by it, including victims, witnesses, and families. The best student journals often express emotions and exercise critical judgment, discerning or questioning practices that they
observe. Students are angry at a criminal justice system that delays cases so significantly that victims give up or
at a child protection system that cannot provide resources for families in need. They express empathy with clients
in trouble, surprise at the varied quality of work by lawyers, pleasure at their own developing skills, and anxiety
at the thought of the responsibilities they are about to undertake. Students sometimes consider and question the
priorities, mission, and resource allocation of public agencies, but they also often express deeper understanding
and respect for the agencies, their personnel, and their goals.
There are challenges for teachers who want to maximize the benefits of this strategy for all students:
How do we intervene to encourage genuinely thoughtful writing, while respecting student autonomy?
Some students seem naturally less reflective, at least in writing. How do we work with such students?
Some students may be in courses of study or in clinical placements presenting material or experiences less likely
to stimulate student reactions. In the Rutgers externship program, for example, I found that students in direct
exposure to the people and processes of criminal justice, family crises, or the well-being of children had more
to say than students placed in judicial chambers. How do we help such students find insight in their work?
To address these concerns, I evaluated topical and thematic qualities of student journals that had been produced over a period of an academic year in the Rutgers-Camden Externship Program and researched academic
studies of effective pedagogical use of journals for professional development in both law and other professional
education fieldwork programs (Harriet N. Katz, Personal Journals in Law School Externship Programs, 1 T.M. Cooley J. Pract. Clinical L. (1997)). As a result of this work, I implemented two strategies that have worked well to
improve student journal writing.
One has been a topic list generated from past student writing. I culled topics that had appeared frequently in
past student journals, emphasizing those that had appeared in journals that were particularly well done: insightful,
attentive to detail, demonstrating depth of interest, and helpful to student professional development. These suggested journal topics appear in student orientation materials. I still stress that students are to reflect on topics
important to them individually. My observation has been that rather than overly limiting student imagination,
the topic list seems to help students get started and that no student continuously relies on the list. A mandatory
topic list is also a reasonable option. While limiting student imagination somewhat, the list could be designed to
elicit personal response, and options could be provided to allow for additional expression. A required list or schedule of topics may be particularly useful if journals are used in a course in which the material itself is less likely
to provoke strong intuitive reactions.
The second helpful strategy has been to add student-teacher dialogue. I communicate to each student in response to each journal submission within a few days, responding to a description or observation with a relevant
personal experience and insight of my own or asking questions to try to deepen the students reflection. My comments may challenge the student, share a reaction, provide a contrasting thought, or encourage the student to think
about systemic reasons for the problems they have encountered and criticize. Probably because the comments are

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private and informal, using email where possible, they are sometimes more personal than comments in class. My
experience confirms what other research demonstrates, that a teachers thoughtful response to student journal
writing encourages increased detail, insight, and candor in subsequent student journals. An expectation of response
seems to change the perspective of the student. Journal response/dialogues have added value to me as a teacher;
moreover, they are interesting and informative and keep me in touch with what my students are learning.
Harriet N. Katz, Rutgers-Camden School of Law

Recommendations for More Effective Use of Academic Dialogue Journals


Academic dialogue journals are used frequently in clinical legal education, particularly in externship programs,
although journals can be used effectively in substantive courses as well. In every context, the principal goal of a
journal assignment is to provide an opportunity for the student to reflect, in writing, on some aspects of her educational experiences.
The power of written expression to enhance the educational experience is well understood. (Writing seems to
help learners run thoughts through their minds repeatedly, a cyclic activity that often results in embedding or
engraving the new information into the existing cognitive structure.) Writing also is a stepping stone to further
thought and an instrument for making connections. Writing sharpens the learners powers of observation as well
as awareness, both as a causative factor and as a consequence. Writing serves as a valuable attention-getting or
focusing device. Writing has the capacity to force the learner to maintain a focus on the problem under investigation and to encourage the learner to be precise. Writing triggers systematic follow-up. It permits the learner
to clarify thoughts, reach conclusions, and search for alternatives, as well as to initiate and pursue the enterprise
of critical thinking. By writing down what she is doing and recording concurrent thoughts, the learner can open
the door to new thoughts and techniques. (Vera H. Goodkin, The Intellectual Consequences of Writing: Writing as
a Tool for Learning (1982) (Ph.D. dissertation) (University Microfilms International, 1986), pp. 31415.)
A dialogue journal combines the power of writing with the value added of a two-way conversation between
teacher and learner. The addition of the outside audience (the teacher) to the process helps to sharpen the communication both by encouraging the writer to spend more time and thought on the product and by providing feedback from the teacher to the writer. This dialogic feature helps to broaden and deepen the reflection by the writer.
Typically, I give students free rein with respect to topic selection for their journal entries. Therefore, I get entries on a wide range of topics. First-year students will write about the stress of law school and third-year students about the stress of the job search and approaching bar examination. Some students will ask questions about
the course material, while others will relate the course materials to other courses or to experiences outside of
class. Some teachers prefer to narrow the range of topics on which students can write journal entries. For example, a journal exercise in a professional responsibility course could restrict students to identifying and resolving
an ethical dilemma observed in their workplaces, externships, or clinics. In an externship seminar, students may
be asked to reflect on how the externship experience is influencing their career paths. A journal assignment in
Commercial Transactions could ask students to identify a course-related problem found in a financial newspaper and discuss the problem in light of the course content.
To make the journal assignment more useful, the teacher should respond in writing to some of the students
journal entries. Among the possible response types or strategies are responses that answer questions raised in the
entry, share the teachers perspective on a topic raised by the student, give the teachers opinion, ask additional
questions, provide guidance, or convey empathy.
One or two comments on a typical journal entry are usually sufficient to validate the exercise for the student,
deepen the reflection by the student, and encourage a continuing dialogue. The comments need not be lengthy;
a sentence or two written in the margin of the entry usually will suffice. If longer responses are appropriate, the
teacher can attach a separate paper.

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To achieve the optimal dialogic effect, teachers should respond to journal entries and return the feedback
within a couple days of receiving the journal. Because journal entries often are written in response to time-sensitive concerns of the student, delay in receiving feedback from the teacher can undercut the value of the teachers
response because the student has moved beyond the point at which she was when writing the entry.
For a more detailed discussion of the academic dialogue journal, see J.P. Ogilvy, The Use of Journals in Legal Education: A Tool for Reflection, 3 Clinical L. Rev. 55, 1996, and the chapter on journals in Ogilvy, Wortham, and Lermans Learning from Practice: A Professional Development Text for Legal Externs (West Group 1998).
J.P. Ogilvy, Columbus School of Law, The Catholic University of America

Educational Goals and Evaluation Criteria


(Battered Womans Rights Clinic)
Professional Responsibility and Professional Relationships.
Works in a way that ensures high-quality representation:
Follows procedures which are necessary for high-quality representation (e.g., thorough record keeping and
use of tickler);
Produces work on timetable for court, supervisors and as agreed to with clients or seeks postponement;
Attends class, follows intake and interview procedures;
Produces professional-looking work product (e.g., grammar, spelling, typos, proper form); and
Seeks supervision when appropriate.
Participates in running an office which promotes the public as well as the private good:
Recognizes the choices involved in intake and other office practices and how those choices impact clients;
Thinks of/works on projects which effect the public good; and
Recognizes a lawyers professional responsibility to insure access to legal services.
Operates in a way that provides expertise without domination of clients:
Recognizes how choices about the organization of the office influence relationships with clients;
Understands and accepts counseling role;
Sees connections between the way clients are interviewed and counseled and the impact on relationships
between clients and lawyers; and
Develops enhanced understanding of clients, their differences from the lawyer, and how these differences
may impact representation.
Recognizes the professional responsibility issues raised by zealous representation of clients:
Maintains clients confidences;
Researches, develops theories, and investigates facts in a conscientious manner; and
Interacts with court, opposing counsel, and court personnel appropriately.
Works well with colleagues for the benefit of clients and the office:
Produces work in a timely fashion so that others can give feedback on and contribute to joint work product;
Shares individual work product and research with colleagues when appropriate;
Contributes to the educational environment by sharing information; and
Contributes to the overall service goals of the office by helping others with intake, client cases.
Clinical Judgment.
Generates a variety of options for solving clients problems:

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Identifies clients concerns;


Identifies legal and non-legal alternatives for addressing clients problems; and
Identifies strengths and weaknesses of various options.
Develops effective strategies for litigating:
Identifies known facts, investigates and discovers unknown facts; and
Generates multiple theories of the case and evaluates them.
Anticipates potential problems and raises them with the client.
Learns from experience:
Uses feedback from teachers and colleagues to improve performance; and
Reflects on experiences.
Refers appropriate cases to other professionals.
Legal Reasoning.
Develops a working knowledge of the Family Court Act, the Domestic Relations Law, and the Immigration Law
affecting battered women.
Frames issues for research.
Understands and applies legal research to clients problems.
Develops theories of the case consistent with the applicable law and clients goals.
Makes creative use of the law to accomplish clients goals.
Theoretical Perspective.
Understands the value and limitations of developing a definition of the role of the lawyer.
Understand the choices in defining the lawyers role in helping clients and the implicit assumptions in these
choices.
Develops a critique on how law enforces family norms.
Develops a critical perspective on how law is practiced.
Recognizes that individual case analysis occurs within a context:
Understands battered womens syndrome and other theories about battering;
Applies other theoretical frameworks for analyzing a clients situation including sexism, racism, poverty,
and classism; heterosexism; and
Integrates an understanding of family violence in designing theories of the case.
Develops strategies for working on clients problems that go beyond individual case work.
Communication.
Drafting:
Drafts pleadings and motions that are clear, carefully written, and persuasive.
Interviewing and counseling:
Questions framed in a manner to elicit information;
Listens effectively;
Recognizes personal biases which effect listening and communicating; and
Communicates information effectively.

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Other professional communications:


Effective letter writing; and
Respectful communication with colleagues, courts and clients.
Courtroom advocacy:
Questions effectively to obtain relevant information and listens to responses;
Presents arguments in clear, effective manner; and
Effectively communicates clients story.
Management of Effort.
Works cooperatively with colleagues.
Seeks appropriate supervision in the development of case work.
Attends all classes, training sessions, and clinic office meetings.
Plans work effectively to meet demands of studying, exams, free time, court/clinic work.
Meet deadlines imposed/agreed to by courts, clients, colleagues, supervisors, opponents.
Keeps time sheets and submits time sheets on time.
Maintains files in a manner which promotes efficiency.
Sue Bryant and Maria Arias, City University of New York School of Law

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chapter 4

Constitutional Law
Introduction
Steven Friedland

84

Approach

85

Setting, Achieving, and Evaluating Course Goals


Wilson Huhn
Five Common Approaches
Steven Friedland
At the Heart of a Course in Constitutional Law
Sanford Levinson
On Interpretation: The Adultery Clause of the Ten Commandments
Paul Finkelman and Sanford Levinson
Embracing the History of the Constitution
Sanford Levinson
Teaching a Course on the Constitution: Finding and Using Founding Documents
Thomas E. Baker
Self-Reflection within the Academy: The Absence of Women in Constitutional Jurisprudence
Karin Mika
Problem Solving and Storytelling
William Kaplin
Setting the Stage for Interpretation
Stephen Wermiel
The State of the Canon in Constitutional Law: Lessons from the
Jurisprudence of John Marshall
David E. Marion
Biggest Challenges
Nat Stern, Paul Finkelman, Stephen Wermiel, Andrew R. Klein, Sanford Levinson
The First Class: Marbury v. Madison or Other?
Steven Friedland
Yes to Marbury
Evan Caminker
No to Marbury
Sanford Levinson
Teaching Dred Scott
Diane S. Kaplan
Teaching the Freedom of Speech: Simon & Schuster; Prior Restraints; Obscenity;
Fighting Words; Commercial Speech; and the Freedom of Association
Stephen L. Sepinuck
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Employing the Socratic Method


Dan T. Coenen
Top Cases
Nat Stern, Stephen Wermiel, Sanford Levinson
Circles of Indecency
Richard J. Peltz

Material
Casebook and Supplement
Thomas E. Baker
Problem-Solving Materials
William Kaplin
Storytelling Materials
William Kaplin
On Discrimination
Dan Levin
Web-Enhanced Constitutional Law
Alfred R. Light
Constitutional Law on Videotape
Steven Friedland
Internet Sites Can Make a Web-Based Course
Thomas E. Baker

Exercises
A List of Regulated Types of Speech
Stephen L. Sepinuck
Mock Oral Arguments
Stephen Wermeil
A Quiz on the Constitution
Steven Friedland
Illustrating the Levels of Scrutiny in Equal Protection Analysis
Stephen L. Sepinuck
Humanizing Papers
Stephen L. Sepinuck
Mock Admissions Committee
Steven Friedland
Drafting Student Opinions in Roe v. Wade
Stephen L. Sepinuck

Brief Gems
Using Hypotheticals as Advocacy Practice
Andrew R. Klein
Teaching the Free Exercise of Religion: Employment Division, Department of Human Resources
Stephen L. Sepinuck

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Constitutional Law

Reading Out Loud


Sanford Levinson
Teaching Roe v. Wade
Peter Shane
The Second Amendment as Teaching Tool in Constitutional Law Classes
Eugene Volokh

Feedback and Evaluation


Using Quizzes
Thomas E. Baker
Extra Optional Reviews
Steven Friedland
Opinion Writing Assignment
Thomas E. Baker

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Introduction
A basic course in constitutional law covers the powers of government and, depending on the course structure,
associated limits, such as due process and equal protection. The course generally emphasizes Supreme Court case
law interpretations of the Constitution. To some students surprise, there is generally little time devoted to the
Constitution itself and its history.
The course is taught either as a first- or second-year subject and in most schools is required. While the Constitution is a relatively brief document, the cases interpreting it are not. In deference to the subjects voluminous
nature, schools allocate a variety of credit hours based on different course configurations. One common institutional response to the quantity of material is to divide up constitutional law into several component courses,
rather than treat it as a monolithic whole. Schools might spin off the First Amendment as a separate course, treat
the two religion clauses within the First Amendment as a stand-alone course, or even parse the subject of constitutional rights from constitutional powers and allocate three or four credit hours to each subject.
Some constitutional doctrines are cabined in courses outside of the constitutional law umbrella. In many
schools, for example, the basic course in criminal procedure is effectively taught as a constitutional law course
concerning the Fourth, Fifth, and Sixth Amendments. The Fourth Amendment segment emphasizes the prohibition against unreasonable governmental search and seizure, the Fifth Amendment section focuses on the privilege against self-incrimination, and the Sixth Amendment component covers the right to counsel.
A salient characteristic of constitutional law distinguishing the subject from the more traditional and historically based courses such as property law is its protean-like growth. Each and every new term of the Supreme
Court yields a critical mass of modifications and refinements of existing law that must be assimilated into the
course. The continual expansion of the subject matter has a sweeping impact on how the course is taught. Some
favorite cases or doctrines from years past may play a diminished role in the reformulated course or be omitted
altogether. Consequently, constitutional law teachers become practiced in the art of updating and merging, especially with the assistance of casebook authors, who offer regular supplements.
One consequence of the creation of new layers of constitutional law sediment is the impact on professorial familiarity and complacency. Regarding familiarity, constitutional law teachers must regularly learn new cases and
place themselves in the position of once again reading cases for the first time. This exercise allows professors to
better relate to the learning process and to develop more accurate expectations of student performance. Regarding complacency, constitutional law teachers must continually experiment with new material or with old material in a repackaged form to make room for additional cases.
One illustration of the coverage conundrum lies in the Commerce Clause doctrine, which encompasses a broad
and historical array of cases stretching for almost two centuries. The doctrine includes numerous important cases,
providing illustrations of conflicts and contrasts in doctrinal development. The most recent seminal case occurred in 1995 in United States v. Lopez, 514 U.S. 549 (1995), signaling another must-read shift in Commerce
Clause analysis. Yet, as compelling as it is to focus exclusively on Lopez and its progeny, the nineteenth-century
Supreme Court interpretations of the Commerce Clause remain extremely interesting and informative, yielding
numerous insights into the history of the United States. On the other hand, extensive coverage of Lopez and its
subsequent progeny is imperative to understanding the current analytical framework, forcing the professor to
decide how much time to devote to the old and now outdated Commerce Clause interpretations and how
much time to Lopez and its successors.
Perhaps because of the intersection of constitutional law with significant aspects of the culture, values, and
ideology of the country, the subject appears to be especially malleable in the hands of the professor teaching it.
The course undergoes transformations depending on the professors organization and treatment of the material,
whether the professor chooses to orient the reading list toward the approach taken by the different members of

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the Supreme Court, the constitutional arguments made, the legal history surrounding the case, or the philosophy and values the case embraces, among other things.
Steven Friedland, Nova Southeastern University Law Center

Approach
Setting, Achieving, and Evaluating Course Goals
Identifying Goals
On the first day of class I discuss with my students the goals I want them to achieve. These are:
1. To be able to identify, create, attack, and evaluate the five types of legal arguments, both orally and in
writing.
2. To be able to brief constitutional law cases in a logical and thorough manner.
3. To learn the textual content of the Constitution.
4. To learn the doctrine of constitutional law.
5. To learn the relation between American history and the evolution of constitutional doctrine.
6. To be able to apply constitutional law doctrine to novel and contemporary problems.
7. To question ones own understanding of the fundamental values of this nation.
Achieving the Goals
1. To be able to identify, create, attack, and evaluate the five types of legal arguments, both orally and in writing.
The principal goal I set for my students is for them to be able to recognize arguments based on text, intent,
precedent, tradition, and policy. They then learn the characteristic ways to attack each type of argument, and, in
the final stage, they practice methods of comparing the relative strength of each argument. (This process is set
forth more fully in The Five Types of Legal Arguments (Carolina Academic Press 2002)). We start by identifying
the types of arguments in cases, law review articles, and newspaper editorials. We then consider what the weak
points of each argument might be and what alternative arguments could be mounted. Students are required to
write papers creating or attacking each of the five types of legal arguments.
2. To be able to brief constitutional law cases in a logical and thorough manner.
The four parts of a brief the issue, the facts, the law, and the holding correspond precisely to the four
parts of a syllogism the question, the minor premise, the major premise, and the conclusion. Furthermore, a
judicial opinion comprises not a single syllogism but many logical arguments, connected as links in a chain from
the base premises to the ultimate holding of the court. (See The Use and Limits of Syllogistic Reasoning in Briefing
Cases, 42 Santa Clara L. Rev. 813 (2002)). In class we break down Marshalls opinion in Marbury v. Madison into
its constituent elements. We utilize this structure in order to identify that which is not logical about the reasoning of the court that is, those aspects of the opinion that express and invoke values.
In constitutional law, by the way, the issue in every case may be expressed in the following form: Is this governmental action constitutional under this provision of the Constitution?
3. To learn the textual content of the Constitution.
Most people have never read the Constitution throughout. Near the beginning of the course I require students
to prepare and turn in an outline of the Constitution, and I ask them to identify one provision that was surprising to them.

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4. To learn the doctrine of constitutional law.


Constitutional law is not, for the most part, a set of rules like the law of evidence or commercial law. It is instead like administrative law, a collection of evaluative standards used to judge the limits of governmental power.
It is not possible to achieve an understanding of constitutional law by memorizing general rules and exceptions;
rather, it is necessary to master an approach to resolving problems of constitutional law.
In some areas of the law such as substantive due process, equal protection, and freedom of expression, I present my students with outlines that they can follow to a decision. In equal protection, for example, I offer the
following outline to students:
I.
II.
III.
IV.
V.

Was there state action?


Did the government treat two groups differently?
Did the government intend to discriminate?
Did the law affect a suspect class, use a suspect classification, or affect a fundamental right?
Apply the relevant standard of review (strict scrutiny, intermediate scrutiny, or rational basis scrutiny).

These decision trees always follow the same pattern. First, one or more scope or threshold questions determine whether the constitutional provision applies. In the above example, these are the first three questions. Then one
or more steps establish a standard of review. The final step in every area of constitutional law is to apply the law to the
facts, that is, to determine whether the governmental action is constitutional under the relevant standard of review.
5. To learn the relation between American history and the evolution of constitutional doctrine.
To achieve this goal the students and I read relevant speeches and dialogue from American history. Included
are exchanges between Governor Morris and John Rutledge, Robert Hayne and Daniel Webster, Stephen Douglas and Abraham Lincoln, Learned Hand and Oliver Wendell Holmes, and many others. The use of a dialogue
format illustrates the social conflict that underlies much of constitutional law.
6. To be able to apply constitutional law doctrine to novel and contemporary problems.
We constantly discuss the burning issues of the day. Constitutional law never disappoints in this respect. I
often copy and distribute newspaper articles to facilitate discussion. In recent years, of course, impeachment, the
2000 election, the war power, gay marriage, and a host of other constitutional issues have engrossed the nation.
7. To question ones own understanding of the fundamental values of this nation.
In class I encourage my students to express their opinions openly and to engage each other in debate. One purpose of this is consistent with the first goal listed above to be able to orally construct sound legal arguments and
to probe their weak points. But in constitutional law there is more at stake than just learning the law and honing ones
professional skills. This course embodies and expresses what it is to be an American. It is healthy for our students to
question their fundamental beliefs and to listen to the honest and devoutly held understandings of their colleagues.
Performance Evaluation
Some of the foregoing goals are not evaluated at all. I do not grade on the basis of class participation and I see
no way of evaluating personal growth, so Goal 2 (briefing cases), Goal 7 (personal understanding of our fundamental values), and the oral portion of Goal 1 (mastering legal arguments) are not evaluated. I do not explicitly
cover American history on the examination, and so Goal 5 is evaluated minimally, if at all.
I evaluate the written portion of Goal 1 (legal arguments) by means of assigned papers. These papers, however, are not competitively graded. Instead, papers are worth five points, and students are awarded one point for
each type of legal argument (text, intent, precedent, tradition, and policy) that is competently created or attacked.
Students achievement of Goal 3 (constitutional text), Goal 4 (doctrine), and particularly Goal 6 (applying
doctrine to novel and contemporary problems) is tested and competitively ranked on the final examination. I

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typically give a three-hour closed-book essay examination, graded with a detailed answer key listing about 100
issues and sub-issues I expect them to discuss. I show my students a sample answer key from one question of a
prior examination so that they know that I expect them to discuss the breadth of issues that are raised rather
than present an in-depth discussion of one aspect of the problem.
Following the examination I encourage students to review their answers with me in order to identify ways to
improve their performance. Students typically make a variety of strategic errors poor time management, missed
issues, superficial analysis, failure to follow or distinguish cases we studied, or failure to make policy arguments.
Some students study and learn all the details but dont know how to organize them. We identify and work on
these problems. If they want to challenge their grades, why not? After all, we are teaching them how to argue and
how to stand up for themselves and others. Only rarely am I persuaded to change a grade, but mistakes happen.
I always keep in mind what a privilege it is to teach this subject to my students.
Wilson Huhn, University of Akron Law Center

Five Common Approaches


Instructional approaches to a course in constitutional law often include the following emphases: legal and social history; Supreme Court decision making; substantive doctrinal analysis; the relationship between law and
other disciplines, such as politics and economics; ethical advocacy and common forms of constitutional arguments; the proper role of government institutions, such as Congress and the president; and ideological underpinnings. Usually, a constitutional law course will combine several, if not all, of these perspectives.
Historical Review
Most constitutional law courses commence with an historical review, either through Marbury v. Madison, 1
Cranch (5 U.S.) 137 (1803), or the creation of the Constitution itself. The historical discourse includes seminal
cases such as Marbury, McCulloch v. Maryland, 17 U.S. 316 ((1819), Ex Parte McCardle, 74 U.S. 506 (1868), and
Gibbons v. Ogden, 22 U.S. 1(1824), cases as important for their impact on American history as their setting forth
the initial legal relationship between the federal and state governments and the three branches of government.
Throughout the historical review, John Marshall, the fourth chief justice of the United States, who led the Court
for more than three decades, looms large. Chief Justice Marshall was able to paint constitutional law on a virtually clean canvas, and the impact of his interpretations still remains in modern constitutional decision making.
The prism of historical analysis also illustrates the role of the Supreme Court in almost all of the important
issues of our times, from the scope of governmental powers, to slavery, commerce, abortion, and affirmative action, among others.
In but one historic example, the Constitution and Supreme Court cases played a large role in the history of
slavery in the United States. The Constitution contained several veiled references to slavery and effectively legitimized it by declaring it not to be subject to change by the federal government until the year 1808.
Another historical thread often followed in basic constitutional law courses involves the Commerce Clause of
Article I, Section 8 and the cases that interpret it. The interpretation of this clause attempted to find the proper
balance for the coexisting authority of federal and state governments to regulate commerce. Given the development of America from a rural, agrarian society to an urban, industrial one, tracing the Supreme Court cases in
this area can be quite revealing.
Supreme Court Decision Making
Given the importance and breadth of constitutional law decisions, many constitutional law courses focus on
the decision makers as much as on the decisions themselves. While many lay persons could name the characters
of popular television shows well before they could name the members of the United States Supreme Court, the
decision-maker focus is intended to illuminate the process of creating predictable and general interpretations of

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the Constitution by the people who have the responsibility of doing so. This approach consequently is people
oriented, describing cases by philosophy, rhetoric, and rationale, among other judicial attributes.
Much of the debate about the Supreme Court is whether and how the members of the Court can decide cases
using objective considerations those that are distinguishable from subjectivity and politics. Given that the
tenure of an Article III judge is life (during good behavior), unelected judges must not usurp the political power
of the legislature and act as a super legislature. In light of this limitation, it is of considerable significance
whether judges set aside their own values and opinions in deciding cases and, if so, how they do it.
Substantive Doctrinal Analysis
Another approach to a constitutional law course is to focus on the doctrinal rules. While incorporating an evaluation of how justices decide cases, the emphasis here is on how decisions affect doctrinal areas, not necessarily
on the legitimacy or propriety of a particular judges analysis. This approach has the versatility of comparing cases
and doctrines, while accommodating forays into historical, economic, and other nondoctrinal analyses.
The two basic divisions of powers federalism and separation of powers could be covered in a few weeks
of classes or take an entire semester. The time spent on powers often depends on the number and nature of limits to be covered in the course. Most constitutional law courses do not cover all of the constitutional limits. Some
limits, like the First Amendment, are spun off into a distinct course, and other limits, like Bills of Attainder, may
not be covered at all or merely referenced in passing.
The Relationship between Law and . . . Politics, Economics, Etc.
Constitutional law lends itself to connections with other disciplines, from politics to economics, to sociology,
to medical science, and so on. The law and . . . approach conceives of law not in isolation but as inherently related to other academic disciplines. Including other disciplines within legal analysis not only enriches the understanding of the law, but also models an integrative approach to students. A law and . . . approach often resonates with those students who need an additional anchor by which to understand constitutional law theory.
An Advocacy Perspective
Teaching advocacy is especially fruitful within the confines of a constitutional law course because of the dynamic nature of the issues and the diverse rationales adopted by the justices. Advocacy can be encouraged through
several different avenues. One avenue is role-playing, where students are asked to argue different sides, either in
a mock appellate venue or on an ad hoc basis. Another avenue is to treat the advancement of advocacy skills as
an express goal of the course. To this end, professors could identify and discuss the merits of different types of
arguments, ranging from textual, to framers intent, to policy-oriented assertions. For an excellent discussion of
types of arguments, see James Boyles Anatomy of a Tort Class, 34 Am. U. L. Rev. 1003 (1985).
Steven Friedland, Nova Southeastern University Law Center

At the Heart of a Course in Constitutional Law


The following is from the syllabus that I distribute to students.
Some of you may be under the impression, perhaps from courses you took in undergraduate school, that to
learn constitutional law is simply to learn what the Supreme Court has written about various and sundry issues.
You may have read, for example, the famous (or, for some, notorious) statement of Charles Evans Hughes (who
would later become the Chief Justice of the United States), We are under a constitution, but the constitution is
what the judges say it is. A central purpose of this course is to question that assumption and to point out some of
the difficulties to which it leads. Perhaps the easiest way to begin the critique is to ask the following question: Do
you believe that it is possible for the Supreme Court to make a mistake, i.e., to get it wrong as to what the Constitution, correctly interpreted, means? If you do believe this is possible (that, for example, the dissent in a given

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case might be a better construction of the Constitution than the majority opinion), then, as logical matter, it cannot be the case that the Constitution is [only] what the Court [i.e., a majority of the justices or even, for that matter, all of the justices] says it is. To criticize the Court requires some Court-independent notion of constitutional
meaning. To accept Hughess notion as an analytic truth of constitutional meaning, on the other hand, would
make criticism of the Courts ventures in constitutional interpretation literally meaningless. You could, of course,
criticize the consequences of some particular decision or express the wish that the Constitution meant something
else than what the Court says it does (or even what you think it means after applying your own favorite theories of
constitutional interpretation). I have, with William Eskridge, co-edited a book, Constitutional Stupidities, Constitutional Tragedies, one of whose points is that the Constitution is by no means perfect and may contain some quite
stupid, even potentially disastrous or evil, requirements. But such critiques depend on the notion that there is ascertainable meaning to the Constitution.
Two questions, then, are at the heart of this course: What precisely is involved in the task of interpreting the
Constitution of the United States, assuming that the answer is something else than simply asking (and answering)
what has the Supreme Court said about the matter? Of course, even if one offers that answer, we would still be
forced to ask what precisely is involved in interpreting an opinion of the United States Supreme Court.
You will discover throughout this course that opinions of the Court are scarcely self-evident in their meaning.
With some frequency, especially as we move well into the semester, you will be reading various opinions written
in a given case in which the justices offer quite remarkably different readings of prior decisions. I will, then, often
be asking you what counts as a felicitous example of constitutional interpretation. Or, concomitantly, of a mistake in constitutional interpretation.
Incidentally, you should also ask yourselves if these are interestingly different questions from asking how we
(ought to) interpret any other document, including, e.g., the Uniform Commercial Code, the Federal Rules of Civil
Procedure, the Internal Revenue Code, a will, the rules of the National Football League, Hamlet, or Beethovens
Ninth Symphony.
To whom, if anyone, should we look for authoritative constitutional interpretation? Is this a specialized task, or
can any lawyer and, indeed, perhaps any citizen play the game? Again, think of the examples immediately
above. Ought we treat professors of English as privileged interpreters of Shakespeare, the conductor of, say, the
Vienna Philharmonic, as a privileged interpreter of Beethoven, or, for that matter, Bob Dylan, as the last word on
interpreting songs written by himself? Or can a non-Ph.D. amateur critic or an otherwise obscure musician
nonetheless be the source of genuine insight even as the professor or conductor or composer might be dismissed as an arrogant fool?
Consider the fact that George W. Bush, like all other public officials (see U.S. Constitution, Article VI), took an
oath to faithfully execute the Office of President of the United States, and . . . to the best of [his] ability, preserve,
protect, and defend the Constitution of the United States (see U.S. Constitution, Article II, Section 1, Clause 8). It
is, obviously, no mere academic hypothetical to ask how we can determine if a President has in fact been faithful
to his oath or, on the contrary, has violated it and therefore (possibly) merits impeachment. You will, as an attorney, take and no doubt many of you, because of other positions you have held, have undoubtedly already
taken an oath quite similar to that taken by the President. How could anyone taking such an oath (or any observer) know when the oath is being violated? What techniques of interpretation are available to a President (or to
a law student) committed to upholding the solemn covenant of fidelity to the Constitution?
In trying to figure out what constitutional fidelity means, should a President (or you yourself ) look at the text itself for guidance? Should he (or you) try to find out what the drafters of the language had in mind in putting it in
the Constitution? Should he (or you) read lots of past decisions of the Supreme Court about the topic at hand?
Should he (or you) study carefully the acts of those who occupied the White House before him? Or might he (or
you) think simply of the good of the country, on the premise that surely the Constitution cant prohibit what
would serve the best interests of the United States? If this is your view, then would you recommend amending the
Constitution to have the President promise to the best of [his] ability, to make decisions that will fulfill the aspira-

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tions of the Preamble to the Constitution and make the United States a more perfect Union? If you prefer the
current oath, is it because you believe that adhering to the Constitution is necessarily good for the country?
***
Does there exist, then, somebody to whom one can turn with confidence for correct answers to any particular
constitutional controversy? If so, then the obvious next question is who would that person (or institution) be, and
why did you choose him, her, or it rather than some conceivable alternative? Imagine, for example, that this syllabus included the following sentences:
The Constitution, of course, is a hard document to interpret. Fortunately, you are taking a class from a
certified expert after all, I co-edited the casebook! You can therefore be confident that whatever view I
articulate as to constitutional meaning is the correct one. Indeed, you will be graded at the end of the
course on your ability to repeat my own views, given that they are the correct ones.
Would you accept without question my assertion of expertise and your duty to accept, without significant
question, whatever I tell you? Or would you complain to the dean? And if you did complain, what precisely would
you say: That I am an egomaniac? That I am trying to indoctrinate you? That I am not allowing you to have your
own opinions? That I dont recognize my place within an institutional hierarchy in which the Supreme Court is on
top? (What are the differences among these various critiques?)
****
If you are (properly) hesitant to accept me as the last word in constitutional meaning, why is it more plausible
to accept the United States Supreme Courts self-designated role, as described in a number of recent opinions, as
the Constitutions ultimate interpreter? . . . If you are like most Americans and in fact know almost nothing about
the individual justices, then what, other than sheer faith, supports any assertions as to their competence? Is it that
you necessarily trust the President who nominated them and the Senate that confirmed them?

Sanford Levinson, University of Texas School of Law

On Interpretation: The Adultery Clause of the Ten Commandments


Note: The following is adapted from an article by Professor Sanford Levinson of the University of Texas School
of Law. The article, with this title, originally appeared in 56 S. Cal. L. Rev. 719 (1985).
Consider the following problem:
In 1987, a number of concerned citizens meeting at a national convention in Philadelphia, worried about what
they regarded as the corruption of American life, met to consider what could be done. During the course of the
discussion, one of the speakers electrified the audience with the following comments:
The cure for our ills is a return to old-time religion, and the best single guide remains the Ten Commandments. Whenever I am perplexed as to what I ought to do, I turn to the Commandments for the answer, and I am never disappointed. Sometimes I dont immediately like what I discover, but then I think
more about the problem and realize how limited my perspective is compared to that of the framer of
those great words. Indeed, all that is necessary is for everyone to obey the Ten Commandments, and our
problems will all be solved. [See, statement of President Ronald Reagan, Press Conference, Feb. 21, 1985,
reprinted in N.Y. Times, Feb. 22, 1985 Sec. 1, at 10, col. 3: Ive found that the Bible contains an answer to
just about everything and every problem that confronts us, and I wonder sometimes why we wont recognize that one Book could solve a lot of problems for us.]
Within several hours the following plan was devised: As part of the effort to encourage a return to the old-time
religion of the Ten Commandments, young supporters of this movement would be asked to take an oath on their

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eighteenth birthday to obey, protect, support, and defend the Ten Commandments in all of their actions. If the
person complied with the oath for 17 years, he or she would receive an award of $10,000 on his or her thirty-fifth
birthday.
The Foundation for the Ten Commandments was funded by the members of the 1987 Philadelphia convention,
plus the proceeds of a national campaign for contributions. The speaker quoted above contributed $20 million,
and an additional $30 million was collected, $15 million from the convention and $15 million from the national
campaign. The interest generated by the $50 million is approximately $6 million per year. Each year since 1987,
500 persons have taken the oath. You are appointed sole trustee of the Foundation, and your most important duty
is to determine whether the oath-takers have complied with their vows and are thus entitled to the $10,000.
It is now 2004, and the first set of claimants has turned thirty-five and has come before you. It is stipulated that
all the claimants have complied with nine of the commandments; the only question involves compliance with the
commandment against adultery. [The clause is found in Exodus, 20:14. The King James Version of the Bible states:
Thou shalt not commit adultery. Other translations say: You shall not commit adultery.]
(A) Claimant A is a married male. Although freely admitting that he has had sexual intercourse with a number
of women other than his wife during their marriage, he brings to your attention the fact that adultery, at the time
of Biblical Israel, referred only to the voluntary intercourse of a married woman with a man other than her husband. He specifically notes the following passage from the article Adultery, I Jewish Encyclopedia 314:
The extramarital intercourse of a married man is not per se a crime in biblical or later Jewish law. This
distinction stems from the economic aspect of Israelite marriage: The wife as the husbands possession . . . ,
and adultery constituted a violation of the husbands exclusive right to her; the wife, as the husbands
possession, had no such right to him. [This was also true in Roman Law.]
A has taken great care to make sure that all his sexual partners were unmarried, and thus he claims to have
been faithful to the original understanding of the Ten Commandments. However we might define adultery today,
he argues, is irrelevant. His oath was to comply with the Ten Commandments; he claims to have done so.
Upon further questioning, you discover that no line-by-line explanation of the Ten Commandments was proffered in 1987 at the time that A took the oath. But, says A, whenever a question arose in his mind as to what the
Ten Commandments required of him, he made conscientious attempts to research the particular issue. He initially
shared your (presumed) surprise at the results of his research, but further study indicated that all authorities
agreed with the scholars who wrote the Jewish Encyclopedia regarding the original understanding of the Commandment.
(B) Claimant B is As wife, who admits that she has had extramarital relationships with other men. She notes,
though, that these affairs were entered into with the consent of her husband. In response to the fact that she undoubtedly violated the ancient understanding of adultery, she states that that understanding is fatally outdated:
(1) It is unfair to distinguish between the sexual rights of males and females. That the ancient Israelites
were outrageously sexist is no warrant for your maintaining the discrimination.
(2) Moreover, the reason for the differentiation, as already noted, was the perception of the wife as
property. That notion is a repugnant one that has been properly repudiated by all rational thinkers, including all
major branches of the Judeo-Christian religious tradition historically linked to the Ten Commandments.
(3) She further argues that, insofar as the modern prohibition of adultery is defensible, it rests on the
ideal of discouraging deceit and the betrayal of promises of sexual fidelity. But these admittedly negative factors
are not present in her case because she had scrupulously informed her husband and received his consent, as required by their marriage contract outlining the terms of their open marriage.
(It turns out, incidentally, that A had failed to inform his wife of at least one of his sexual encounters. Though he
freely admits that this constitutes a breach of the contract he had made with B, he nevertheless returns to his
basic argument about original understanding, which makes her consent irrelevant.)
(C) C, a male (is this relevant?), is the participant in a polygamous marriage. C has had no sexual encounters
beyond his two wives. He also points out that polygamous marriage was clearly tolerated in both pre- and post-

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Sinai Israel and indeed was accepted within the Yemenite community of Jews well into the twentieth century. It is
also accepted in a variety of world cultures. He notes, in passing, that King Solomon allegedly had a thousand
wives, but he was still holy enough to build the first temple in Jerusalem. (Does it matter what faith C follows?
What if C is a Moslem, or a member of the traditionalist branch of the Church of the Latter-Day Saints of Jesus
Christ?)
(D) D has had a number of sexual encounters with women who are not his wife. He has fooled around a
good deal, but never gone all the way. He points out that under Scottish Law, before the advent of no-fault divorce, adultery was strictly defined as genital to genital intercourse, which D has carefully avoided. He also quotes
from Blacks Law Dictionary that Adultery is the voluntary sexual intercourse of a married person with a person
other than the offenders husband or wife. He also notes that the same text defines sexual intercourse as carnal
copulation of male and female, implying actual penetration of the organs of the later.
(E) E has been married for a number of years and has never had a physical relationship with anyone but her
husband. However, for the past two years she has been involved in a heated cybersex relationship with a man in
another state. She has never met him in person, but has exchanged thousands of e-mails with him, sent him pictures of herself, and received pictures from her friend, including some in various stages of undress. She argues
that this cannot possibly be adultery, because there has been no physical contact and no sexual intercourse.
(F) F, a woman, is happily married, but has had sexual relations with other women. She asserts that this is not
adultery. She quotes from the first edition of Blacks Law Dictionary that Adultery is the unlawful voluntary sexual
intercourse of a married person with one of the opposite sex. . . . Henry C. Black, A Dictionary of Law (1891) 43. She
further points out that no court or legislature since 1891 has rejected this rule. Finally, she notes that in the state
in which she lives all sodomy laws have been repealed.
(G) G is unmarried and has had relations with various men, some of whom are married and some of whom
are not. She argues that while the men may have committed adultery, she did not, because as an unmarried person, she cannot commit adultery. She points out that this is clearly the case under ancient Jewish law, as noted by
A, with whom in fact she had relations.
(H) H, a practicing Christian, admits that he has often lusted after women other than his wife. (Indeed, he confesses as well that it was only after much contemplation that he decided not to sexually consummate a relationship with a co-worker whom he thinks he may love and with whom he has held hands.) You are familiar with
Christs words (Matthew 5:28): Whosoever looketh on a woman to lust after, he hath committed adultery with her
already in his heart. (Would it matter to you if F were the wife, who had lusted after other men?)
(I)
Claimant I has never even lusted after another woman since his marriage on the same day he took his
oath. He does admit, however, to occasional lustful fantasies about his wife. H, a Catholic, is shocked when informed of Pope John Paul IIs statement that adultery in your heart is committed not only when you look with
concupiscence at a woman who is not your wife, but also if you look in the same manner at your wife. The Popes
rationale apparently is that all lust, even that directed toward a spouse, dehumanizes and reduces the other person to an erotic object.
Which, if any, of the claimants should get the $10,000? (Remember, all can receive the money if you determine
that they have fulfilled their oaths.) What is your duty as trustee in determining your answer to this question?
More particularly, is it your duty to decide what the best single understanding of adultery is, regarding the Ten
Commandments, and then match the behavior against that understanding? If that is your duty, how would you go
about arriving at such an understanding? You may object to the emphasis that is being placed on your deciding.
Instead, you might wish to argue that someone else, whether a discrete person or an authoritative institution, has
the capacity to decide, and your role is simply to enforce that understanding. This argument is certainly possible.
To whom, though, would you look to for such authoritative resolution?
Is it possible that your duty, rather than to seek the best single definition of adultery, is instead to assess the
plausibility of the various claims placed before you? That is, are there several acceptable answers to the question
of what constitutes adultery? Is it enough that you find an argument plausible even though you personally reject

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it as ultimately mistaken? That is, you might not have behaved as did a given claimant, considering your understanding of adultery, but does this automatically translate into the legitimate rejection of someone elses claim to
have remained faithful to the Commandment?
Is the sincerity or good faith with which an argument is made relevant? Would it make a difference to you, in
As case, whether he had researched the original understanding of the Commandment after he had engaged in his
liaisons? What if he had learned about ancient Israel only a week before, after consulting the best lawyer in town
who will receive one fourth of the $10,000 as a contingency fee should you award the money to A?
Let us stipulate that you deny the $10,000 award to A, B, C, D, E, F, G, and H, who promptly race to the nearest
courthouse and sue you in your capacity as trustee. They claim that you have violated your duty to enforce in
good faith the terms of the Foundations contract with the oath-takers. You may further assume that there are no
special contract problems involved: the court determines that an enforceable contract was created by taking the
oath and by the oath-takers detrimental reliance on the Foundations promise to award the money in return for
the expected behavior. H testifies for example, that one reason for his painful decision not to consummate the affair was his familys need for the $10,000. The only question before the court, therefore, is who breached the contract, the claimants or you?
What questions should the court ask in reaching its decision? How, if at all, do they differ from the questions
you have asked as trustee? Is it the task of the court to determine whether you got it right as to what adultery
means, or is it sufficient that you attempted to fulfill your duties conscientiously and that your views are plausible,
even if the court might disagree with you? If you choose the latter alternative, consider the following (possible)
paradox: If your position should be upheld because of your good-faith belief in a plausible view, independently of
the courts agreement with you, how can you justify not applying a similar test in regard to the claimants?
Is the paradox dissolved by your willingness to argue that the views propounded by A-H are necessarily implausible and (therefore?) incapable of being held in good faith (i.e., no rational person could accept the views
of these claimants)? The (therefore?) should cue you about the problem of ascertaining the linkage, if any, between intellectual plausibility, which is presumably established by reference to some sort of external standard,
and good faith, which commonly refers to subjective states of mind and the sincerity with which views are held.
If you searched for the one true meaning and think that you should be upheld because you discovered it, why
shouldnt the court overrule you if it ultimately arrives at a different true meaning? In reflecting on the problem of interpretation, you may wish to consider the following comments, several of which are taken from a
much longer list of instructive quotations about law found in H. L. Menckens A New Dictionary of Quotations
65462 (1942).

It is better that laws should be so constructed as to leave as little as possible to the decision of those
who judge. Aristotle, Rhetoric (circa 322 B.C.), quoted in H.L. MENCKEN, at 655.
We are under a Constitution, but the Constitution is what the judges say it is. Charles Evans Hughes,
speech at Elmira, New York, Mar. 3, 1907.
Let all the laws be clear, uniform and precise: to interpret law is almost always to corrupt them.
VOLTAIRE, PHILOSOPHICAL DICTIONARY (1764), quoted in H.L. MENCKEN, at 658.
To interpret a piece [of music] is to realize its portrait, and what I demand is the realization of the piece
itself and not of its portrait. Igor Stravinsky, Program, Stravinsky Festival, London Symphony Orchestra
41 (1979).
[T]he process of reading is not a half-sleep, but, in highest sense, an exercise, a gymnasts struggle; . . .
the reader is to do something for himself, must be on the alert, must himself or herself construct indeed
the poem, argument, history, metaphysical essay the test furnishing the hints, the clue, the start of
framework. Not the book needs so much to be the complete thing, but the reader of the book does.
That were to make a nation of supple and athletic minds well-traind, intuitive, used to depend on them-

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selves, and not on a few coteries of writers. W. Whitman, Democratic Vistas, in WALT WHITMAN: POETRY
AND PROSE 99293 (1982).
Laws are made for men of ordinary understanding; and should therefore be construed by the ordinary
rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may
make anything mean everything or nothing, at pleasure. Letter from Thomas Jefferson to Justice William
Johnson (1823), quoted in H.L. MENCKEN, at 660.
An such trust have we through Christ to God-ward: Not that we are sufficient of ourselves to think any
thing as of ourselves; but our sufficiency is of God; Who also hath made us able ministers of the new testament; not of the letter, but of the spirit; for the letter killeth, but the spirit giveth life. 2 Corinthians
3:46 (King James).
I pretend not to advance any position of my own, but only to show what are the consequences that
seem to me deductible from the principle of Christian politics, (which are the holy Scriptures,) in confirmation of the power of civil sovereigns, and the duty of their subjects. And in the allegation of scripture,
I have endeavored to avoid such texts as are of obscure or controverted interpretation; and to allege
none, but in such sense as is most plain, and agreeable to the harmony and scope of the whole Bible . . .
For it is not the bare words, but the scope of the writer, that giveth the true light, by which any writing is
to be interpreted; and they that insist upon single texts, without considering the main design, can derive nothing from them clearly; make everything more obscure than it is; an ordinary artifice of those
that seek not the truth, but their own advantage. THOMAS HOBBES, LEVIATHON 395, 396 (M. Oakeshott
ed. 1960).
If words had absolute and constant referents, it might be possible to discover contractual intention in
the words themselves and in the manner in which they were arranged. Words, however, do not have absolute and constant referents . . . The meaning of particular words or groups of words varies with the . . .
verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers (not excluding judges) . . . A word has no meaning
apart from these factors; much less does it have an objective meaning, one true meaning. Pacific Gas &
Elec. Co. v. G.W. Thomas Drayage & Ry. Co., 69 Cal. 2d 33, 38, 442 P.2d 641, 64445 (1968).
With a numinous document like the Constitution or the Bible, the principles and methods of correct interpretation are as important as they are problematical. E.D. HIRSCH, THE AIMS OF INTERPRETATION 20
(1976).

Paul Finkelman, University of Tulsa College of Law


Sanford Levinson, University of Texas School of Law

Embracing the History of the Constitution


I include the following description of constitutional law in my syllabus. It can serve as a useful class handout,
assisting students in plotting a concept map for the course.
The Constitution of the United States has a developmental history or, to use a slightly different metaphor, an archaeology. It did not always look the way it does today, and there is no reason whatsoever to believe that your
children will see the same things in the Constitution that we do now. Your parents, after all, do not now see an
unchanged person when they compare the present you with the you of ten years ago, nor, for better or worse,
are they likely to see, after even your first year of law school, the identical person you were before you embarked
on this path. It is no doubt true, of course, that for many important purposes, you are (and will be) well described
as being the same person now that you were then, but it is also the case that on occasion both onlookers and
yourselves will want to insist on important developmental changes.

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In any event, an obvious question, whether discussing constitutions or persons, is to try to account for such
changes that can be perceived as having occurred and to discuss what lessons can be learned or morals
drawn from their existence. These questions take on added meaning at this particular time, given the seeming
willingness of the current majority of the Supreme Court to reconsider some quite basic issues in constitutional interpretation and thus call into question what had been taught even a decade ago as settled or black-letter law.
And if Mr. Bush wins the next presidential election (accompanied, presumably, by a conservative Senate), much of
what was taught a decade ago as settled doctrine may indeed be consigned to the junk heap, just as occurred
after 1937 during the New Deal and in the 1960s with the so-called Warren Court. One purpose of this course is to
ask, So what? Is there any reason to believe that such repudiation of past doctrine is automatically a terrible
thing and, if you believe so, precisely why would that be the case?
The possibility that the current doctrines of the Supreme Court have a shelf-life considerably less than that of a
Hostess cupcake is an additional reason for structuring this course as I do. I am absolutely confident that the issues we will be discussing will be relevant to you throughout your lifetime as American citizens and lawyers. I
think there is no reason to believe that that would be true if we concentrated on the elaboration of contemporary
doctrines.

Sanford Levinson, University of Texas School of Law

Teaching a Course on the Constitution:


Finding and Using Founding Documents
I want to describe how a professor might use historical documents from the founding era in the basic course
in constitutional law or in an elective seminar. But first, I should explain how a course on the Constitution is different from a course on constitutional law. James Etienne Viator and I called our course The Framers Constitution. We studied how the Constitution was drafted and ratified. We explored the major issues and alternatives
that were debated. We examined how the framers themselves expected the Constitution to function as a practical form of self-government. Our focus was on the intellectual history of the framing of the Constitution. In
short, we set out to recapture the constitutional canon of James Madison and his generation.
The leading constitutional law casebooks tend to give short shrift to the intellectual history of the framers and
the written document. Instead, they put on display modern tracts of the tenure track. And almost every casebook
begins in 1803, with Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). From there, casebooks tour constitutional doctrine using the Supreme Court opinion as a vehicle. The decided emphasis in this opinionology is on
modern constitutional law. See Ronald R. Rotunda, Modern Constitutional Law (7th ed. 2003). Do not misunderstand me, I think this is fine. I use the Rotunda casebook and it serves my purposes and my students purposes extremely well. But I think we con law teachers practice an awful lot of what Harry Potter might call hornbookery whether we want to admit it or not.
As Akhil Amar is fond of saying, today everyone is a doctrinalist to some degree and we are too but in
The Framers Constitution we are first and foremost documentarians. (Akhil Reed Amar, The Document and the
Doctrine, 114 Harv. L. Rev. 26, 26 (2000).) The Framers Constitution course reflects our personal affinity for textualism and originalism. It is simply not enough that a student of the Constitution understand constitutional
doctrine. The curriculum of history provides some needed perspective. History creates a context for a fuller understanding of our constitutional principles. Indeed, I believe that our students need a course on the Constitution to cope with the chaos of modern constitutional law in U.S. Reports.
The course we fashioned was a three-hour elective. We developed 14 lessons or weekly themes. We began with
a lesson on the colonial experience and then considered the ideas and issues behind the movement for independence. Next we studied the Articles of Confederation. We had a lesson on the influence of the classics on the
framers and another lesson on constitutionalism, ancient and modern. The lesson on republicanism emphasized

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Gordon Woods work and the ideals of civic republicanism. There followed four related lessons, one on the theory of mixed and balanced governments and one each on the three branches of the federal government with relevant sub-themes of popular sovereignty, foreign affairs, and judicial review. We did a lesson on federalism. For
the lesson on individual rights, we examined the Declaration of Independence, the Bill of Rights, and natural law
theory. The lesson on slavery explored the Constitution against the background of the Declaration. Finally, we
ended with a lesson on contemporary perspectives that included Beardians, anti-Beardians, neo-Beardians, progressives, Straussians, civic republicanism, and various persuasions of critical legal studies.
We assembled a 400-plus page set of multilithed materials for the elective seminar. These historical documents
exposed our students to the framers thoughts directly, not through some scholars filter. But there are some really good one-volume sets of primary documents out there, such as Neil H. Cogans Contexts of the Constitution
(1999); Daniel A. Farber and Suzanna Sherrys, A History of the American Constitution (1990); and John J. Patricks
Founding the Republic: A Documentary History (1995).
In addition to our multilithed materials, we assigned five paperback texts. As you might expect, we required
students to read The Federalist Papers (in The Federalist Papers, C. Rossiter ed., 1961) and The Anti-Federalist Papers (in The Anti-Federalist Papers and the Constitutional Convention Debates, R. Ketcham ed., 1986).
To help guide our students through the original materials, we required that they read Gordon Woods classic
intellectual history, The Creation of the American Republic 17761787 (1969) and the more accessible and more
broad-ranging survey by Forrest McDonald, Novus Ordo Seclorum (1985).
We also included Jules Lobels provocative book of readings from the radical and progressive viewpoint, A Less
than Perfect Union: Alternative Perspectives on the U.S. Constitution (1988), about which he says, The underlying theme of this volume is how radicals and progressives have addressed the mythology and symbolism that
surround the Constitution.
By the way, in other elective courses I have successfully used compilations of pre-digested historical materials
designed for undergraduates. This makes sense to me because most law students are the equivalent of undergraduates when it comes to the study of history. I have used the two-volume paperback set edited by Kermit Hall,
Major Problems in American Constitutional History, Volume I: The Colonial Era Through Reconstruction & Volume
II: From 1870 to the Present (1992). What I like about Kermits book is that he gives the students an introductory
essay followed by excerpts from original documents and finishes each section with a pair of essays by professional
historians, often arranged to disagree with each other. I also assign John Garattys nifty 1987 paperback, Quarrels That Have Shaped the Constitution, which includes essays on the great cases in constitutional law, written by
leading historians and political scientists. Those essays tell the rest of the story behind the cases to help students to better appreciate the historical context of the decisions in a way that we cannot otherwise hope to do
during a forced march through 200 years of Commerce Clause holdings.
A great deal of criticism has been leveled at so-called law office history. I suppose what we tried to do in The
Framers Constitution could be called law school history. For my sake I would encourage law professors like me
who do not have a formal graduate education in history to collaborate with a colleague who does, perhaps someone in your universitys history department. I know that my own seminars have been missing something since I
went out on my own and Professor Viator is no longer in the room to save me from ignorance.
Sometimes I feel like I am the Everyman-character in those television commercials up in front of the room
teaching history only because I stayed at a Holiday Inn Express last night. But this is not brain surgery or rocket
science. The intelligent novice can pull it off to the benefit of your students and yourself as a teacher of our subject. Maybe that is a good note for me to end on: If I can teach a course in constitutional history you can too . . .
and you should.
(This idea is excerpted and adapted from Thomas Baker and James E. Viator, Not Another Constitutional Law
Course: Rather a Proposal to Teach a Course on the Constitution, 76 Iowa L. Rev. 739 (1991).)

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(For additional information about founding documents, see Internet Sites Can Make a Web-Based Course
in the Material section.)
Thomas E. Baker, Florida International University College of Law

Self-Reflection within the Academy:


The Absence of Women in Constitutional Jurisprudence
One does not have to be an ardent feminist to recognize that the contributions of women in our society have
been largely unacknowledged by both history and education. Individuals need be only reasonably attentive to
recognize there is a similar absence of women within the curriculum presented in a standard legal education. If
one reads Elise Bouldings The Underside of History it is readily apparent that there are historical links between
the achievements of women and nineteenth-century labor reform, abolitionism, the suffrage movement, and the
contemporary view as to what should be protected First Amendment speech. Despite Bouldings depiction, treatises and texts on both American legal history and those tracing the development of constitutional law present these topics as distinct and without any significant intersection. The contributions of women within all of
these movements, except perhaps for the rarely mentioned suffrage movement, are largely ignored.
Karin Mika, Cleveland State University College of Law

Problem Solving and Storytelling


My primary methods are problem solving and storytelling. The problem-solving method entails the use of
written problems, assigned in advance, that become the focus for class discussion and provide the opportunity
for practicing lawyering skills. The storytelling method entails the use of true or fictitious stories, told in class or
read in advance, that are a stimulus for student reflection and empathy and may also provide a backdrop or focus
for class discussion.
The problem method can be used effectively in both introductory and advanced courses and in both large and
small classes. This method can be a particularly potent pedagogical technique in constitutional law courses, lending a concreteness and practicality to what may otherwise appear to be an ephemeral and esoteric subject. The
problem method can also help demystify constitutional law and make it more accessible for students. . . .
In my own view, for an introductory constitutional law course, the most basic and pervasive objective to be
achieved through problem solving is the enhancement of the students capacities for more complex levels of legal
analysis. Legal analysis is itself a fundamental lawyering skill that goes hand in hand with problem solving. Using
problems to teach legal analysis allows the instructor to move beyond the narrow confines of the case-by-case
approach emphasizing individual case analysis and the traditional hypothetical based primarily on a single case
or issue.
Problem-solving methods can also influence instructional objectives and outcomes in at least two other positive ways in an introductory constitutional law course (and in other law school courses). First, problem solving
counters the narrow and sometimes misleading perspective students may attain from a concentrated diet of appellate court opinions, opening up new vistas of dispute-resolution forums other than courts, dispute-resolution
techniques other than litigation, and lawyering competencies other than courtroom advocacy. Second, problem
solving moves students beyond knowing the law to applying the law, beyond the comfortable confines of settled
rules and holdings to new challenges in sometimes unsettled territory, thus stretching students minds and providing them a better sense of themselves as lawyers as well as learners. . . .
In addition, the problem-solving methodology can provide a foundation for collaborative learning in constitutional law. The instructor could, for example, divide the class into small working groups and use problems as

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the focus of work assignments for the student groups. If the instructor were to assign particular roles to different groups or to different students within a group, then a small measure of experiential learning could be added
to the collaborative process. In upper-level courses the collaborative and experiential aspects of the problem-solving method can be greatly expanded, of course, by the use of simulations and role plays.
Stories, like problems, can add reality and humanity to students perceptions of constitutional law. Through
the lens of stories, students can explore life experiences of real people in real struggles experiencing real hurt and
can understand that the courts and the other governmental institutions operating under the Constitution, depending on time and circumstance, may either contribute to the struggles and hurt or help alleviate them. Moreover, through stories students can experience the challenges lawyers face, their successes and failures, and the ways
that they may cause as well as alleviate hurt. In so doing, stories like problems can challenge students with
new understandings of laws applications and lawyers roles, thus moving students out of their comfort zones and
expanding their horizons.
Stories also do some things that problems do not do or cannot do as well. Stories, for instance, can elicit emotional responses from students and thus engage the affective domain. Stories do a better job of setting the scene
for confrontations with reality in which students come face to face with circumstances that are unfamiliar and
unsettling.
Moreover, stories can give voice to the life experiences of marginalized and downtrodden persons in society,
thus presenting alternative perspectives that may not be fully represented in conventional law. In this and other
ways, stories can occasion student reflection on whether the received legal wisdom is indeed wise and the prevailing legal principles indeed right and just.
I have several suggestions [on how to use stories effectively]. First, use storytelling only to supplement legal
analysis and rational discourse, not to replace them. Second, be sensitive to the partiality of stories generally and,
in particular, the stories that you tell and be willing to acknowledge this partiality to the class. Third, emphasize and respect the particulars of the story and be wary of generalizing beyond the storys own context. Fourth,
if you use a story to channel student thinking, make sure the channel is reasonably wide and includes access to
various tributaries for further exploration. Fifth, when you discuss the meaning of a story with the class, avoid
being overly directive. As you suggest themes the story addresses, draw out perspectives the story presents, or
elicit student responses to the story, reserve ample room for students to do their own reflecting and reach their
own conclusions. Avoid the moral-of-the-story-is statements.
I emphasize problem-solving and storytelling methodologies because they help overcome three of the greatest contemporary challenges of teaching constitutional law. The first challenge is to counteract students tendencies to react negatively to constitutional law as being overly abstract, amorphous, and esoteric. Problems and stories help meet this challenge by presenting a real-life and practical perspective on the subject, thus giving concrete
life and utility to what students learn. The second challenge is to facilitate students development of an integrated
understanding of the subject what I call the big picture or forest vs. trees perspective on constitutional law.
Problems and stories help here by moving students beyond rules, doctrines, and clause-by-clause views of the
Constitution and helping them to interrelate theory with practice and substance with process. The third challenge (common to most law school courses) is to insure that students are active rather than passive learners, investing themselves and taking responsibility for their own learning. Problems help here by allowing students to
practice their skills, improve with practice, and reflect on the art of lawyering; stories help by stimulating student interest and by engaging their emotions as well as their intellects in the learning process.
I continue to work on interrelating the problem-solving and storytelling methodologies. Their compatibility
seems clear. A well-drafted problem, after all, usually tells a story, and a client usually has a story to tell, which
the lawyer elicits and develops as part of the problem-solving process. It should follow, then, that the two methods can be used to accomplish similar goals and that, with careful planning, they will be mutually reinforcing.
That is my experience thus far.

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(This is excerpted from Problem Solving and Story Telling in Constitutional Law Courses, 21 Seattle U. L. Rev.
885, 886887, 888891 (1998).)
William Kaplin, Columbus School of Law, The Catholic University of America

Setting the Stage for Interpretation


On the first day of Constitutional Law, I assign the reading of the full text of the Constitution and then ask
the students a series of questions designed to get them to see that the literal words of the document do not expressly answer many questions, for example, What is the authority for Congress to create an Air Force? and
Who presides over the trial for impeachment of the Vice-President? The discussion then turns to how to solve
this problem: whether we should simply say that the courts cant answer a question if it isnt clear from the text,
or whether we should consider other factors to try to find an answer. If we are to consider other factors, then
what are they? We end up with a list on the board and have a chance to discuss as an abstract matter the merits
and problems of different considerations. This usually leads to a fairly lively discussion of the legitimacy of considering different factors in constitutional interpretation and sets the stage for the cases to come.
Stephen Wermiel, American University College of Law

The State of the Canon in Constitutional Law:


Lessons from the Jurisprudence of John Marshall
Constitutional law has been an active battlefield as competing groups within the academy seek to deconstruct,
reconstruct, and/or relegitimize the teaching and practice of law in the United States. Much of the rhetoric of the
debate is couched in the language of rights. There is a danger that diminished attention to powers in the rhetoric and teaching of constitutional law may compromise sober and moderate constitutional reasoning. By reinvigorating reflection on powers-related issues, the legal profession can do its part to promote sobriety and,
hence, an added dose of prudence in constitutional reflection and discourse by a democratic citizenry whose
natural impulse is to make self-serving demands in the name of individual freedom and autonomy. In the constitutional reasoning and jurisprudence of John Marshall can be found considerable support for striking a balance between attention to powers and rights.
(This is excerpted from 9 Wm. & Mary Bill. Rts. J., 385 ( 2001).)
David E. Marion, Hampden-Sydney College Department of Political Science

Biggest Challenges
One challenge is recognizing that most students dont find the course as intrinsically interesting as I do and
my trying to compensate for that fact. Another challenge is filling in gaps that many students have in the historical background of the cases. A third challenge is deciding what material to omit.
Nat Stern, Florida State University College of Law
It is a challenge getting students to understand that constitutional law is political in the broad sense, but at
the same time beholden to rules, precedent, and traditions that do matter, but that every case is not merely political; that the students must read the cases with care and not merely look for a narrow holding; and that the
Dormant Commerce Clause is realizable.
Paul Finkelman, University of Tulsa College of Law

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The biggest challenges in teaching constitutional law are covering all of the material, dealing with students of
different academic backgrounds whose basic knowledge of American government varies widely, and trying to
keep students from getting so cynical about the Courts changes in direction that they believe there are no constitutional principles and that the justices just do as they please.
Stephen Wermiel, American University College of Law
The biggest challenge (concerning federal courts, but equally applicable to constitutional law) is helping students realize that current notions of federalism and separation of powers are not inherent in our system but, instead, are ever changing.
Andrew R. Klein, Indiana University School of Law-Indianapolis
The biggest challenge is getting students involved in the historical materials, since most of them know very little American history.
Sanford Levinson, University of Texas School of Law

The First Class: Marbury v. Madison or Other?


It is almost axiomatic that constitutional law courses commence with Marbury v. Madison, 1 Cranch (5 U.S.) 137
(1803), either immediately or following a discussion of the origins of the Constitution. Marbury v. Madison dominates the opening course landscape, however, not so much for its facts or the way students yield insight into modern
constitutional law from it, but rather for the two doctrines it spawns: the propriety of suit in federal court against the
executive branch; and the recognition of the judicial power to interpret the Constitution, commonly called judicial
review. The doctrine of judicial review, giving the courts the power to strike down governmental actions inconsistent
with the Constitutions proclamations, serves as the predicate for the generations of constitutional law to come.
While Marbury often is described as a brilliantly written case, the writing style of Justice Marshall contains
sufficient historical flourish to confound and confuse even the brightest of law students. For many readers, Marbury is at times an almost impermeable decision mysterious and elusive no matter how much effort is expended to understand it. On the bright side, the challenge of Marbury often pushes students to think about significant issues of jurisdiction and the division of powers almost immediately. It also fronts a progression of
historically difficult cases that eventually give way to a modern era of case law that students find much more familiar and readable. What follows (below) are two representative opinions about whether Marbury should be
taught to students in a basic constitutional law course.
Steven Friedland, Nova Southeastern University Law Center

Yes to Marbury
I have always taught Marbury, and I dont think merely out of respect for the traditional canon. I use it to try
to get my students to see a few things right off the bat:
To learn how to do textual analysis. I have the students play with both Section 13 of the Act and the OJ/AJ
Allocation Clause to see the various plausible readings of both, and then I introduce the point about whether
as a matter of role courts ought to try to read ambiguous texts to conform rather than to conflict.
To learn to question the validity of judicial reasoning. I have found (as many of us do) that 1Ls are too
ready to assume that anything a judge says must be right. This is a case ripe with opportunities to show that
the judge papered over some obvious difficulties, played fast and loose with text, etc.
Evan Caminker, University of Michigan Law School

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No to Marbury
I do not generally teach Marbury v. Madison. The exceptions, over the past 10 years, have involved teaching a
five-hour constitutional law course at New York University and, more significantly, a two-week introduction to
American constitutional law for a group of Eastern European lawyers at the Central European University in Budapest. As for the NYU course, I concluded when it was over that I would return to my common practice of deleting the case from the syllabus even were I ever again to have the opportunity to teach a five-unit course, which,
of course, only reinforced my decision not to teach it in the three-hour introductory course that I teach at the
University of Texas Law School. I would, therefore, be extremely surprised if I ever again teach Marbury at an
American law school, outside of some specialized seminar.
I suppose I should note that I do assign Robert McCloskeys classic The American Supreme Court, which includes what David Engdahl has described as an absurd [and] romanticized account of Marshalls opinion as a
masterpiece of indirection. I certainly agree that it is romanticized; I am not willing to admit to its absurdity,
especially after reading Bruce Ackermans as yet unpublished account of the election of 1800 and its aftermath
or, for that matter, my colleague Scot Powes excellent description of the politics of Marbury in his contribution
to this symposium. In any event, McCloskeys book certainly provides students with enough information to make
them culturally literate, one of the functions of the canon in constitutional law, and my conscience is clear
about spending no class time on the opinion.
I will turn later to why I can imagine teaching it again to Eastern Europeans. The brunt of the remarks that
follow, however, goes to why I do not teach it to American students. My purpose is not only autobiographical. It
would be disingenuous to deny that I also hope to convince readers that they or you! should stop teaching
it as well. Or, if they are unwilling to follow me down this seemingly heretical path, then at least I hope that I
convince them not to teach it at the beginning of the introductory course in constitutional law, though one of
the oddities of the case is that the only other time it makes sense to teach it, if one feels that one must, is at the
very conclusion of the course.
Let me lay out my brief, then, for why Marbury should lose its pride of place in the current conception of how
to teach (and structure casebooks about) American constitutional law.
Understanding the importance of Marbury requires a depth of historical knowledge that almost none of our
students possess and that we do not have time to teach.
The importance of the actual case of Marbury v. Madison, as distinguished from the icon taught in our courses,
obviously derives from its place in the remarkable four-year drama surrounding the election of Thomas Jefferson and his displacement of the Federalist hegemons who had viewed national leadership as simply their prerogative. Those four years include, at the very least, the initial electoral college fiasco that resulted in a tie vote
between Jefferson and Aaron Burr; the deadlock in the House of Representatives that followed, as a result of the
one-state/one-vote rule for breaking electoral college deadlocks; the linked threats both to deprive Jefferson of
his de facto electoral victory and, should the Federalists succumb to those temptations, to call out the state militias in response; the repeal of the Federalist bill establishing intermediate circuit courts of appeal (to be staffed,
surprise, surprise, exclusively by Federalists appointed and confirmed by Federalist lame ducks); the congressional cancellation of the 1802 Term of Court; the Louisiana Purchase; and the proposal and ratification of the
Twelfth Amendment that, among other things, implicitly recognized the legitimacy of the party system that the
Framing Generation (perhaps correctly) thought was simply another name for government by faction and
junto.
If we were to treat this political drama as the equivalent of Hamlet, then we would recognize that Marbury
(and John Marshall as of February 1803) is the equivalent of Rosencrantz and Guildenstern or, perhaps, to be
slightly more generous, of Polonious, insofar as the case is full of portentous and quotable maxims such as the
notion that every denial of a legal right entails the presence of an effective legal remedy that are denied not
only by the case at hand but also by much future constitutional history. As we know, though, the professional de-

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formation of American law professors is that they are determined to make judges the stars of the constitutional
drama, whether for good (e.g., Marshall and, for most of us, Earl Warren) or for ill (e.g., Roger Taney or, for many
of us, William Rehnquist), whatever might be otherwise suggested by the picture of American constitutional development painted by Ackerman, Steven Griffin, Keith Whittington, and others who displace the Court to playing the role, at most, of a supporting actor to Congress and the Executive.
It is, I believe, only this deformation that explains why our gathering is only the first of a number of indeed,
too many symposia on Marbury and judicial review while, so far as I know, only the University of Texas will
be commemorating the 200th anniversary of the Louisiana Purchase and considering its implications for the saga
of American expansionism. Most of our students have literally no comprehension of the fact that the United
States in 1789 did not extend beyond the Mississippi and, of course, included neither Florida nor New Orleans.
(Indeed, they have no comprehension of the fact and potential (meta)constitutional significance that neither North Carolina nor Rhode Island was part of the United States of America when George Washington was
inaugurated as the first president on April 30, 1789.) I have no hesitation in saying that the Purchase was by far
the most important political and constitutional event between 1788 and 1860.
Even if we believe that the 1803 Term of Court was especially important, though, I have been persuaded by
Bruce Ackerman that Marbury is in fact far less significant than the case handed down only a week later, Stuart
v. Laird, which involved a far more significant capitulation by the Federalist majority to the determination of
the Jeffersonians to escape the judicial handcuffs crafted by Adams and his associates in the last days of their
discredited administration. The constitutional arguments against the repeal of the Circuit Court Act are scarcely
frivolous, especially if one takes Marbury seriously with regard to the importance of cordoning off the Supreme
Court (and its members) from unseemly additions to the kinds of cases they can hear on original jurisdiction.
At the very least, one cannot possibly understand Marbury without placing it in the context of Laird, which
rarely happens. Consider only the treatment of the case in the two casebooks edited by members of our symposium. Mark Tushnet et al. mention the repeal of the Circuit Court and then add, A footnote: Six days after
Marbury was decided, the Court upheld the repeal. Stuart v. Laird. . . . Paul Brest et al. say only, In 1802, the
Republican Congress repealed the Circuit Court Act . . . , thereby eliminating the positions of the so-called midnight judges. . . . We do not, I am embarrassed to say, even cite Stuart v. Laird. (You can be assured that the next
edition will rectify this error.) Both of us, I should note, provide more information than Dean Sullivan and the
late Gerald Gunther, who offer no mention of the Circuit Court Act (or of Stuart) in their highly influential
casebook.
It is scarcely the case that our students do not need the supplementation that more extended coverage might
supply. I have no reason to believe that the University of Texas Law School is unique, even among elite law
schools, in the number of its students who arrive without knowing much about American history, especially the
history of the early Republic. What this necessarily means is that very few have the slightest idea of the context
within which Marbury was fought out and decided. Alas, I seriously doubt that we have the time to fill in all of
the relevant blanks. Consider only the time it would take to inform students exactly why the Jeffersonians so mistrusted John Marshall. It is easy enough to point to the spectacularly patent conflict of interest presented by his
having been the Secretary of State who botched the delivery of Marburys commission, but that is only part of
the story. It is certainly of some interest that at least some Federalists in 1801 had toyed with taking advantage
of the (even now uncorrected) constitutional stupidity in the way that the House of Representatives breaks
deadlocks in the Electoral College the aforementioned requirement that a majority of state delegations agree
on one of the contenders by arranging for the deadlock to continue and, therefore, to make Secretary of State
John Marshall the President by operation of the Succession in Office Act. Lest one view this as paranoid fantasy,
I advise that one simply examine the arguments made by such worthies as Harvard professors Charles Fried and
Einer Elhauge with regard to the ability of the Florida legislature to set aside unacceptable results of the 2000
election. Ask yourself if the Jeffersonians had less reason to be suspicious of the Federalists (and Marshall) than,
say, Al Gore did to trust the Florida legislature and William Rehnquist.

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I am, of course, assuming that one must understand the historical context of Marbury (or of Dred Scott,
Lochner, Korematsu, Bush v. Gore, etc.) in order to understand it. Another way of putting this is that I understand
judges to be historically located actors in a complex political process, that one can no more understand a given
case of any significance or, for that matter, its author/judge without placing both the case and judge in context.
It would be like trying to understand Lincoln, Churchill, or James Buchannan (who held perhaps the most spectacular resum of any American president at the time of his election) without paying attention to the circumstances they faced. Oliver Wendell Holmes once famously (or, for some, notoriously) wrote that much of the explanation for John Marshalls greatness was his luck in being in the right place and the right time. Some, of
course, have suggested that the same is true with regard to Holmess exaggerated reputation. In any event, one
can understand neither Marshall nor Holmes, nor anyone else, without an awareness of the contexts within which
they acted, which is precisely what we mean by history.
If one is going to spend class time teaching students about American history, do it about something that is
truly important.
I take it that everyone agrees that the substantive legal topic of Marbury i.e., the ability of Congress to add
to the original jurisdiction of the Supreme Court is of no real significance, especially if we apply the following test: Would any serious adult ever lie awake at night worrying about what the answer to this question is outside of a very particular context where, for example, the fortunes of ones client depended on an answer? Many
students look forward to taking constitutional law because of their belief that the subject actually involves important issues; it is nothing short of bizarre that most courses (and casebooks) begin with a case about a truly
trivial subject (unless, of course, one embeds the case in its specific history). A course on constitutional law should
be, first and foremost, about issues that truly matter, whether to our students or to ourselves. Part of what we
should be doing as teachers is educating our students as to the ways that issues of fundamental importance to
ordinary human beings (and serious adults) are treated when they become legalized. Not even William Marbury
believed that his commission was of fundamental importance, as evidenced by the fact that he apparently made
no effort to litigate his case further. Perhaps this was because his five-year term would almost certainly have run
out by the time the litigation would have been completed; perhaps, as my colleagues Scot Powe and Ernest Young
have suggested, it is because there was in fact no court at the time that was an attractive venue for such litigation, since the local federal district court had no federal question jurisdiction at the time that would not come
until 1871 and state courts might well view themselves as without the power to issue writs of mandamus against
federal officials. Or, he might have accepted the advice of Federalist colleagues that they had gotten everything
they might reasonably expect (rather than wish for) in Marshalls gratuitous denunciation of Jefferson and that
he should return to his private life, along with the victims of the Circuit Court Act who in fact lost far more (life
tenure, for starters) than did Marbury lest he tempt the Jeffersonians to do more mischief. If he gave no genuine
evidence of strongly caring whether he became a justice of the peace, why should we? The answer is, we dont,
and neither will (or should) any of our students.
(This is an excerpt of a law review article that originated as part of a symposium at the Wake Forest University Law School commemorating the bicentennial of Marbury. See Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldnt Either, 38 Wake Forest L. Rev. 553 (2003).)
Sanford Levinson, University of Texas School of Law

Teaching Dred Scott


28 U.S.C. 1332(a) sets forth four categories of litigants who qualify to invoke the diversity jurisdiction of the
federal court. Each category requires that at least one party to the dispute be a citizen of a state. Section 1331(a)(1)
requires that both parties to the dispute be citizens of different states. I use Dred Scott v. Sandford (60 U.S. 393
(1857)) to illustrate the legal and political significance of citizenship. My treatment of this case draws heavily

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from Orlando Pattersons book, Freedom: Vol. 1: Freedom in the Making of Western Culture, (Basic Books, 1999).
Freedom analyzes the development of modern conceptions of freedom from their roots in the institution of slavery. The class proceeds approximately as follows:
Professor: Dred Scott was a slave owned by Dr. Emerson, an Army surgeon. In 1834, Dr. Emerson moved with
Scott to Illinois, which was a free state. Two years later, Dr. Emerson moved with Scott to the Louisiana
Territory where, under the Missouri Compromise, slavery was banned. In 1838, Emerson moved with
Scott to Missouri, a slave state. In 1846, Scott sued Emerson in a Missouri state court seeking his freedom based on the principle that by virtue of his residences in Illinois and the Louisiana Territory he had
been emancipated of his slave status.
According to Missouri legal precedent, it was indisputable that Scott was entitled to his freedom. Up
until this case, the Missouri courts had recognized the principle of once free, always free: Since slavery
could not exist where it was legally prohibited, once a slave reached a free state or territory, the slave
was freed and remained free.
Scott lost in the first trial but in the second trial, which took place three years later, was granted his
freedom. In the meantime, Emerson died and bequeathed Scott to his wife, whose affairs were handled by her brother, Sandford. Sandford appealed the lower courts ruling that Scott had been emancipated to the Missouri Supreme Court. Up to that point, the legality of slavery had not been an issue in
the case. However, by reversing the lower court and remanding Scott back to slavery, the Missouri
Supreme Court repudiated its prior precedent of once free, always free and held, instead, that Missouri did not have to recognize the emancipated status conferred on a slave by a free state or territory.
This ruling added to the case the issue of whether a slave state was required to give full faith and credit
to the laws of states and territories that manumitted slaves once they were physically present within
their borders.
The substantive issues were further complicated by the United States Supreme Courts ruling in
Stroder v. Graham, which required the Court to defer to state supreme court rulings on their own state
laws. The Stroder precedent raised a strategic hurdle for Scotts attorneys since, if Scott appealed the
Missouri Supreme Courts ruling that he was still a slave, the United States Supreme Court was bound by
that ruling. Consequently, it was decided that Scott would abandon the Missouri state case and file a
new suit in federal court raising substantive issues that the United States Supreme Court could review.
In this second suit, Scott, as a citizen of Missouri, sued Sandford, a citizen of New York, under the
federal courts diversity jurisdiction. Sandford challenged the courts jurisdiction on the grounds that,
as a slave, Scott could not be a citizen of Missouri and, therefore, could not invoke the federal courts
diversity jurisdiction. This argument added to the case the issue of whether a Negro could be a citizen
of the United States. Sandford also argued the extreme pro-slavery position that slaves were private
property the ownership of which was protected by the constitution. This argument added to the case
the issues of whether the Missouri Compromise, which allowed slavery to continue in the south but
barred its expansion into the new territories was legal and, consequently, whether Scott had ever been
freed in the first place. As a result, what began as an emancipation case became a lightning rod for the
greater power struggles between the northern and southern states and between the southern states
and the federal government.
Into the fray stepped Chief Justice Taney who attempted to salvage the Union by writing an opinion
that attempted to resolve all the politically charged issues. The opinion decided first that although Negroes could be citizens of a state they could never be citizens of the United States and, therefore, could
not qualify to invoke the diversity jurisdiction of the federal court. Second, the opinion held that Scott
never had been free since slaves were property protected by the Constitution and any laws to the contrary, such as the Missouri Compromise, were unconstitutional. Third, the opinion held that even if a

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slave obtained freed status in a free state, once he returned to a slave state, his status depended on the
laws of that state. Since the Missouri Supreme Court ruled that Scott was a slave as long as he was
physically present in Missouri, he remained still a slave. As a result of this decision, Scott lost his freedom and slavery was given constitutional sanction.

After these introductory comments the following discussion occurs:


Professor: What is slavery?
Students: . . . .
Professor: According to Prof. Patterson, Slavery is the permanent, violent, and personal domination of . . . alienated and generally dishonored persons. It is, first, a form of personal domination. One individual is
under the direct power of another. . . . In practice, this usually entails the power of life and death over
the slave. Second, the slave is always an excommunicated person. He, more often she, does not belong
to the legitimate social or moral community; he has no independent social existence; he exists only
through, and for, the master. . . . Third, the slave is in a perpetual condition of dishonor. What is more,
the master and, as we shall see, his group parasitically gain honor in degrading the slave. . . . [S]lavery [is]
a state of social death. (Freedom, pp. 910)
Professor: How did one become a slave?
Students: . . . .
Professor: According to Prof. Patterson, a person becomes a slave when his or her nation or tribe is conquered
and obliterated. The conqueror has the option to kill or capture the defeated persons and use them for
cheap labor and status. The pre-European Cherokees . . . were typical of slaveholding hunter-gatherers
and primitive agriculturalists. Most prisoners of war were killed. . . . In a few cases, however, captives
were reduced to . . . enslavement. These were the atsi nahsai, people without clan membership and, as
such, without any rights, even the right to live, and over whom the master had absolute power. . . . They
were entirely excluded from participation in the social life of the community. . . . The Cherokees used the
abnormal status of the slave as a way of strengthening their system of classification. . . . [T]he deviant
and outsider condition of the slave helped to establish Cherokee identity, not by proclaiming what
they are, or the norm, but by carefully defining what they are not. The kinless, clanless, socially dead
slave negatively defined all that it meant to be socially alive and an active member of ones clan. . . .
Once a man was enslaved, he could not return to his own tribe, nor could he be promoted to the status of a full member of his captors society. The stain of slavery was indelible. Social death was like
physical death: once dead, you remained dead. (Freedom, pp. 1213)
Professor: What was the slaves civic status in the new community?
Students: They had no status because they were not persons. They were property, not humans.
Professor: Prof. Patterson says they were even less than property. They were the objects of the new communitys
scorn and derision. They became the hated enemy within . . . the primordial outsider who defined internally the nature of belonging and the privileges of membership of a social group. (Freedom, p. 8)
Professor: What did the slave want?
Students: The slave wanted to be restored to:
Human status
Personhood
Freedom
Liberty
Emancipation
Home
Resocialization into the new community as a person, not as property
Insider status

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Professor: Were any of these changes possible?


Students: Only if the slave were freed. Once freed he was no longer another mans property.
Professor: What did freedom get him? Did it restore the slave to personhood? Did he become an accepted member of the new community? Prof. Patterson says: The freed man was no longer a slave, but it is important to note that what he had achieved with the release from slavery was not personal freedom; nor
was he a . . . citizen of his masters community. . . . To make them round again, as the Toradja of Central
Celebes expressed it, took much time, deep rituals, and the exchange of many gifts. First, they were
only half round; and so they remained for the rest of their lives. . . . It was not an easy matter this, the
creation even of a half-free person. For people knew immediately that not just a radically new category
of persons was being created but a profoundly new kind of value. (Freedom, p. 22)
Professor: Is there a difference between being a citizen and being free?
Students: A citizen can participate in the governance of the sovereign. A citizen is entitled to invoke the privileges and immunities of the sovereign. Citizens are politically recognized beings. In contrast, a freed
man is no longer property, but he is still barred from participation in and recognition by the political
community.
Professor: According to Justice Taney, how did one become a citizen of the United States?
Students: A person had to be born or naturalized in the United States and be white.
Professor: According to Justice Taney, what does it mean to be a citizen of the United States?
Students: United States citizenship entitles the person to the privileges and immunities of the constitution, i.e., to
protections from unconstitutional government coercion.
Professor: Is that the same as being a citizen of a state?
Students: No. Taney said that state citizenship was not the same as United States citizenship. The states had no
power to create federal citizenship because they had no power to naturalize. Such power was ceded to
the federal government when statehood was granted.
Professor: According to Justice Taney, why couldnt Scott sue Sandford in federal court?
Students: Scott was neither a citizen of the United States nor a citizen of any state. Therefore, he did not qualify
to invoke the diversity jurisdiction of the federal court.
Professor: According to Justice Taney, why wasnt Scott a citizen?
Students: Negroes were not in the category of the people as contemplated by the Declaration of Independence
or the Constitution. Scott was a slave and slaves were property the ownership of which was protected
by the Constitution. Granting privileges and immunities to Negroes would anger the southern states
and endanger the Union.
Professor: What does it mean to be barred from access to the judicial system?
Students: You cant invoke the system for your benefit although it can be used against you.
You are still an outsider. You are still subject to the enemy within dilemma.
Professor: Would Taneys opinion have come out differently if Scott, a black man, had never been a slave but, instead, had arrived in America free and had remained free?
Students: No. According to the opinion, a Negro could never be a United States citizen and, therefore, could
never qualify for diversity jurisdiction.
Professor: What was the Dissents position regarding Negro citizenship? (Curtis, J.)
Students: Negroes who were citizens of states at the time the Constitution was enacted became citizens of the
United States and, therefore, could invoke the privileges and immunities of citizenship. Naturalization
refers only to aliens, not to persons born in the United States. Even though colored aliens could not be
naturalized, free Negroes did not need to be naturalized if they were born in the United States.
Professor: Does that mean that the Constitution permits lesser degrees of citizenship based on race or other categories?
Students: . . . .

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Professor: In other words, the Dissent thought that the half-round status of the Toradja of Central Celebes was
good enough; that having freedom and being restored to human status were sufficient. Full citizenship
was not required. The Dred Scott case is about status. It addresses the issue of what happens when a
person is divested of human status for political purposes. Diversity jurisdiction is also about status.
Without the status of citizenship there is limited political recognition of the person.
Is the Dred Scott case still good law today?
Students: Yes. The portion of the opinion that says that a person will not be qualified to invoke diversity jurisdiction if he is a citizen of the United States but not a citizen of any state.
Professor: Does current law in this country countenance different degrees of citizenship?
Students: Yes. Fetuses, children, gays, lesbians, aliens, alleged alien terrorists, felons.
Professor: When was the last slave freed in this country?
Students: . . . .
Professor: The last slave was freed in this country in the 1930s when the federal government banned slavery on
Indian reservations.
The Dred Scott case was decided in 1857. In 1858, Scott and his wife were purchased and freed by Taylor Blow, the
child of the Scotts first owners. The Scotts received their licenses to remain in Missouri as free Negroes on May 4,
1858. Scott died four months later on Sept. 17, 1858.

Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)

Teaching the Freedom of Speech: Simon & Schuster; Prior Restraints; Obscenity;
Fighting Words; Commercial Speech; and the Freedom of Association
When covering Simon & Schuster v. NY State Crime Victims Board, which invalidated New Yorks Son of Sam
statute, I ask my students to spend a moment to rewrite the statute to make it pass constitutional scrutiny. Virtually all of them attempt to do this by narrowing the statute. This usually fails to solve the problem because it
almost never removes the content specificity of the statute and thus leaves it subject to strict scrutiny. Eventually,
I get one student to suggest that by broadening the statutes scope to remove the content requirement the statute
will be subject to a lower-level scrutiny and may well be upheld. This reveals to them the paradox of strict scrutiny
in the freedom of speech area: a broader restriction on expression is more likely to be permissible than a narrower restriction. By getting them involved in this manner, they do not forget the point.
When covering prior restraints, I advise one student at the beginning of class that he or she may not participate in the class discussion that day. Near the end of the class period, I disclose this to the entire class and ask
the student how (s)he felt about that bar. I ask the student whether the prohibition in advance felt different from
simply not being called upon after raising a hand to volunteer. This serves to facilitate a class discussion about
the policies underlying freedom of expression.
When covering obscenity, I ask my students to raise their hand if they have ever seen an obscene movie. Almost all raise a hand. Then I suggest that they are in fact wrong. If what they saw was truly obscene, its exhibition would likely have been illegal. What they saw may have been pornographic, but it probably was not obscene.
I do this to challenge their assumptions that may be affecting their views about what should be legal and what
should not.
When covering the fighting words doctrine, I ask each of my students to write down on a file card the most
hateful, insulting, or provocative thing ever said to them. If they wish, they may also describe the circumstances
involved. They do not put their names on the cards. I then read the cards to the class as a whole. I then select
some of the statements for discussion about whether they rise to the level of fighting words, such that their utterance could be punished. This exercise takes only about 10 to 15 minutes, but it helps to both personalize the
subject and provide the opportunity to apply the legal rule to different facts.

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When dealing with commercial speech, I suspect that many students come into class holding several unrecognized assumptions. These include a belief that commercial speech is useless or, worse, simply annoying and a
belief that they do not engage in it. To challenge these assumptions, I ask my students a series of questions. The
first one plays into their preconceptions:
How many of you have received:
Mail solicitations for products or services in which you have no interest
Annoying telephone solicitations
E-mail that you dont care about
A chain letter or e-mail spam
A product that did not work as well as the advertising led you to believe

The second begins the challenge.


How many of you have received:
A solicitation that turned out wonderfully
An advertisement for a product you wanted at a really good price
An advertisement for a product/service/opportunity that you did not know about but were excited to
learn of

Then I ask how many have submitted an unsolicited application for a job and whether any government agency
reviewed their resume to evaluate whether it was deceptive or sent out to so many places as to be a nuisance. This
gets them to see that they too are commercial speakers with a personal stake in what the rules governing commercial speech are.
When covering freedom of association, I ask students how they would feel if they just learned that a recently
nominated and confirmed U.S. Supreme Court justice had been a member of the Ku Klux Klan. I ask if they
would want the justice removed from the bench. When some say yes, I advise them that they have just excluded
from the high bench one of the greatest protectors of individual rights it ever had. I then describe the revelations
following Justice Blacks confirmation and his nationwide radio address. I also show them an original poster I
have from 1937 proclaiming October 4, 1937 as Black Day . . . the Blackest Day in the history of American Justice. The poster is signed by the Independent Young Americans. Judging people by their associations is fallacious.
I end this by asking students if they have ever belonged to a group or organization that did or espoused something with which they did not agree. All of them have.
Stephen L. Sepinuck, Gonzaga University School of Law

Employing the Socratic Method


One teaching tip I would offer to any law professor is this: Take a day, away from the rat race, to write a carefully thought out two-page summary of your own teaching philosophy for a non-lawyer audience. I believe that, almost always, engaging in this exercise will bring improvement to ones teaching, as well as some new insights about
ones own values and goals. Teaching is always an extension of self; as a result, there are and should be as many valid
law teaching styles as there are individual law teachers. I personally gravitate toward a hard or intense or highly
interactive brand of Socratic teaching. This essay explains why:
Why Socratic Teaching (in Constitutional Law and otherwise)?
My philosophy of teaching law focuses on classroom use of the so-called Socratic method. This method of instruction involves devoting most of the class hour to posing a logically sequenced series of questions to students
who are called on at random that is, regardless of hand raising and without prior notice. Assigned materials

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typically consist of two or three appellate court opinions that set forth legal principles and apply them to a particular set of facts. Assignments sometimes also include statutes, brief summaries of related cases, or relevant
scholarly commentary.
Questions typically focus on the soundness and implications of decided cases and often take the form of hypothetical variations on the facts of the case under discussion. In United States v. Lopez, for example, the Supreme
Court struck down a federal prohibition on possessing guns near schools on the theory that the enactment violated principles of state autonomy by reaching beyond Congresss enumerated power to regulate Commerce . . .
among the several States. Questions about this case might include: What if the statute applied only if the possessed gun had previously moved across a state line? If the person who possessed the gun had previously moved
across a state line? Recently? At any time? What if the challenged statute prohibited possession of cocaine? Near
a school? Anywhere? Against the legal background that Congress had previously prohibited interstate shipments
of cocaine? Interspersed among these questions might be comments or, more likely, further questions constructed by the teacher on the spot to steer attention to relevant textual passages, previously studied cases, or soft
spots in the students response. These interspersed comments and questions serve important purposes. They focus
analysis. They help students recognize the relevance of particular materials. They guide students toward reaching through their own effort deeper levels of understanding.
In answering questions about hypothetical cases (which typically do not have demonstrably right or wrong
answers), students must grapple with the limits and subtleties of legal doctrine. In particular, students must offer
something more than unreasoned, gut-reaction answers. Instead, they are required to focus on the precise language and logic of assigned texts, to develop thoughtful arguments and counter-arguments based on those texts,
and to offer all observations in an articulate, step-by-step, general-to-specific fashion. This work is demanding
for teacher and student alike. It is not neat and clean. It sometimes generates periods of confusion and of silence.
Questions may be left unanswered. Student note taking becomes complicated. Forced to think and to speak about
difficult concepts in extemporaneous fashion, students may become frustrated and flustered. (And the teacher
may, too!)
The question thus becomes: Why, on earth, teach this way? The answer, for me, is simple: Because this way of
teaching best begins to prepare prospective lawyers to do the work of real lawyers. But how is that? Consider these
explanations, which are based primarily on my own work experience as a practicing attorney:
Socratic teaching forces students to prepare for tasks painstakingly and to interact with complex materials
in an independent, energetic, creative, and problem-solving way. In a Socratic classroom, students cannot
function if unprepared. This is the case because the focus is not on reviewing and supplementing information presented in texts; the focus instead is on applying texts and the tools of legal reasoning to distinctive, new problems which is what lawyers constantly do. This process is undertaken directly by the particular student on whom the teacher calls. Even more important, it is undertaken vicariously by all other
students as they internally follow and deal with questions asked and answers given.
Socratic teaching pushes students to think like lawyers. By way of the written materials and professorial
cuing, students receive an overview of the field of law under study. (Through later review and outlining
again, independently undertaken by the student this important learning of vocabulary, doctrine, doctrinal origins, and doctrinal relationships is reinforced.) But Socratic teaching reflects, in large measure, the
unwisdom of devoting precious classroom and reading time simply to presenting vast fields of information. Lawyers cannot (and do not need to) learn the library, particularly because doctrinal information
constantly changes as new laws are passed and new court decisions come down. The skills of most value to
law students and of greatest interest to prospective employers thus become skills that are foundational
and transmittable across doctrinal lines; skills like issuing spotting; issue focusing; distinction drawing; characterizing; reading closely and efficiently; logically organizing ideas; sorting wheat from chaff; sensing nu-

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ance; moving efficiently through tough concepts; anticipating challenges; constructing reasons; working simultaneously with multiple lines of analysis; and expressing thoughts with clarity and precision. Habituating these skills is at the heart of Socratic teaching.
Socratic teaching hones practical abilities that are indispensable to good lawyering in group settings. These
abilities include listening carefully; speaking audibly; thinking on ones feet; dealing with follow-up questions; operating effectively in front of an audience; and engaging in note taking in realistically fast-paced,
subject-shifting situations. Socratic questioning also helps students become representation oriented. Making students argue against themselves, for example, helps communicate the uncertainties of law, the critical value of open-mindedness and objectivity, and the need constantly to push beyond personal outlooks
to find ways to advance the objectives of ones client.
Socratic teaching forces students to deal with disagreement, rejection of their point of view, curve balls,
confusion, unanticipated difficulties, static, discord, unanswered questions, and (yes) stress. These things
are pervasive in the workaday world of lawyers. And while students often feel intellectually and emotionally stretched in the Socratic classroom, the fact is that that classroom provides a very safe environment in
which to begin to deal with the inevitable challenges of attending with competence to the lives, liberty, and
property of actual clients.
Socratic teaching pushes students away from being information absorbers toward being information users
and problem solvers. This style of teaching forces students to move beyond prior academic experiences that
often have focused (not inappropriately) on memorization, personal opinion formation, informal styles of
communication, and the treatment of complex subjects at high levels of generality. In this way, Socratic
teaching gives legal education a transitional aspect. Students begin to learn, as they must, how to do in addition to what to know.
Dan T. Coenen, University of Georgia School of Law

Top Cases
Five of the cases at the top of my teaching list, based on significance, include:
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); United States v. Lopez, 514 U.S. 549 (1995)
Youngstown v. Sawyer, 343 U.S. 579 (1952)
Roe v. Wade, 410 U.S. 113 (1973)/Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992)
If a sixth case could be added, it would be Hunt v. Washington Apple Advertising Commission, 432 U.S. 333
(1977), as an exemplar of the Dormant Commerce Clause doctrine.
Nat Stern, Florida State University College of Law
A list of top cases to teach in the course includes:
Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), for the establishment of judicial review
Dred Scott v. Sandford, 60 U.S. 393 (1856), for historical background and for thinking about the role of the
Court
Brown v. Board of Education, 347 U.S. 483(1954), for its social significance and absence of legal justifications
Stephen Wermiel, American University College of Law

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As for a list of top cases:


McCulloch, 17 U.S. 316 (1819) (by far in first place and then, more arbitrarily) and materials on the constitutionality of the Bank of the United States, including:
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 536 (1842)
Lincolns suspension of habeas corpus
Strauder v. West Virginia, 100 U.S. 303 (1879)
Home Building and Loan Assn v. Blaisdell, 290 U.S. 398 (1934)
But an important part of my course is to look at nonjudicial decisions. Thus, I believe that the Louisiana Purchase was by far the most important political and constitutional event between 1791 and 1860, and that Lincolns
decisions as a war president are far more important than anything the Supreme Court said during that time.
I do not assign Bush v. Gore. There are so many more important cases that could be used to demonstrate the
interplay of law and politics. Of the older cases, my own favorite is the aforementioned Prigg v. Pennsylvania,
in which Justice Story, who was also Dane Professor of Constitutional Law at Harvard and the author in 1833 of
the most influential constitutional law treatise of his time, admitted in effect that there is no better way of defending the egregious results of that case than by pointing to the possible threat to the Union that would follow
if the Court recognized fugitive slaves as even minimal rights holders i.e., not to be returned to slavery without the guarantee of a judicial hearing that they were in fact the fugitives they were alleged to be. Thus slave owners have a constitutional right to engage in self-help repossession of their chattels.
Take another, later, favorite: Justice Holmess opinion in Giles v. Harris that whatever may be the extent of
Alabamas disdain for the Fifteenth Amendment, it was simply unrealistic to believe that the legal system could
supply any remedy for African Americans denied the right to vote. Or a more recent case that certainly is the
focus of much contemporary discussion, Ex parte Quirin, in which the Supreme Court clearly submitted to pressures from the President of the United States to rubberstamp the summary trial and execution of German saboteurs. And, of course, Korematsu is certainly relevant to any such discussion, not to mention the already noted
Bush v. Gore. Why anyone would prefer Marbury to any of these other cases, if one is simply interested in conveying to students a Realist mode of analysis, is beyond me. Persons with more conservative views than mine
might have their own candidates, including, perhaps, Blaisdell, Baker v. Carr, or Casey, but the point still stands.
Any of these, by any stretch of the imagination, is more significant than Marbury.
Sanford Levinson, University of Texas School of Law

Circles of Indecency
I developed this handout to illustrate the categories of indecent and sexual speech for which the Supreme
Court has granted only diminished constitutional protection in certain or all contexts and the interrelationships
of these categories. The child pornography and obscenity categories are [i]llegal in the sense that federal and
state laws generally prohibit that content. Obscenity as to minors, pornography, and indecency may be illegal in
certain contexts.
The case references at left state the cases typically credited with having first, or best, propounded the definition of each content category. In a constitutional law or First Amendment class, this timeline might raise interesting points of discussion of politics, jurisprudence, and even legal education; consider, for example, why Ginsberg and Miller are often presented to students in reverse order.
The right column means to give an example of content in each category. I elaborate on these examples in class,
suggesting more difficult content examples and asking in which category they should go. For example, I ask students to place Playboy in the diagram, considering that the magazine juxtaposes explicitly sexual text and sexually suggestive photographs of nude women with intelligent commentary on First Amendment law and policy.

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That exercise prompts students to more closely examine the case law definitions of each category. The handout
does not state a specific example of child pornography, but for a challenging example I suggest the photography
of Sally Mann, whose graphic pictures of her children naked have prompted controversy in many a community
bookstore. Finally, with regard to the usually preceding Deep Throat the movie, I refer to the thought-provoking United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 565 F. Supp. 7 (S.D.N.Y. 1982).
My favorite space in the diagram is where circle OM (obscenity as to minors) slightly exceeds the bounds of
circle P (pornography). This space prompts discussion of whether sexuality is a necessary component of Ginsberg-style obscenity. See generally Kevin W. Saunders, Violence as Obscenity: Limiting the Medias First Amendment Protection (1996); American Amusement Mach. Assn v. Kendrick, 115 F. Supp. 2d 943 (S.D. Ind. 2000), revd
& remanded, 244 F.3d 572, 29 Media L. Rptr. 1577 (7th Cir.), cert. denied, 534 U.S. 994 (2001).
Richard J. Peltz, University of Arkansas at Little Rock School of Law

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Circles of Indecency

OM

Ob
CP

Indecency (Cohen, 1971)

Carlin, Seven Dirty Words

Pornography (Hudnut, 7th Cir. 1985)

Anita Hill testimony

Obscenity to Minors (Ginsberg, 1968)

OM

so-called girlie magazines

Child Pornography* (Osborne, 1990)

CP

lewd photos of children

Obscenity* (Miller, 1973)

Ob

usually, Deep Throat the movie

* Illegal

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Material
Casebook and Supplement
I use Modern Constitutional Law (7th ed. 2003) by Ronald Rotunda. For a review of the casebook, with detailed worksheets and handouts that include problems, hypotheticals, and exercises for students, see my article
Mastering Constitutional Law, 21 Seattle U. L. Rev. 927 (1998).
Today there are some notable exceptions to the general observation that casebooks lack historical context. Two
examples are Processes of Constitutional Decisionmaking Cases and Materials (4th ed. 2000), by Paul Brest, Sanford Levinson, J.M. Balkin, and Akhil Reed Amar, and The American Constitutional Order History, Cases and
Philosophy (1998), by Douglas Kmiec and Stephen Presser.
If you are reluctant to assemble your own comprehensive supplementary materials, you can always try some
of the paperback supplements that are currently available, such as Political Dynamics by Louis Fisher and Neal
Devins or A History of the American Constitution by Daniel A. Farber and Suzanna Sherry. An excellent supplement to a traditional casebook is John Garattys nifty 1987 paperback, Quarrels That Have Shaped the Constitution, which includes essays on the great cases in constitutional law, written by leading historians and political scientists. My students get a lot out of reading David OBriens great little paperback Storm Center The Supreme
Court in American Politics (6th ed. 2003). Constitutional Law Stories (2004) by Michael C. Dorf, ed. is hot off the
press.
(For more information about constitutional law materials, see Teaching a Course on the Constitution: Finding and Using Founding Documents in the Approach section.)
Thomas E. Baker, Florida International University College of Law

Problem-Solving Materials
[Numerous] problems and problem sets appear throughout the text of Constitutional Law: Themes for the Constitutions Third Century by Farber, Eskridge, and Frickey (FEF). These materials support the problem-solving
method and its attendant benefits in conjunction with the case method. The problems present hypothetical scenarios that raise contemporary legal issues whose resolution requires students to apply the cases and materials
in the immediately preceding pages and sections. The problems are frequently mentioned in the authors Teachers
Manual, and the manual occasionally includes answer guidelines or suggestions for using the problems in class
assignments or discussions. The problems usually do not ask students to assume specific roles and usually contain only a minimal amount of new facts. Thus many of the FEF problems are more like traditional classroom
hypos than full-scale problems. See Myron Moskovitz, Beyond the Case Method: Its Time to Teach with Problems, 42 J. Legal Educ., 241, 246, 250, 256 (1992). Instructors seeking to employ a more fully developed problemsolving methodology, using longer and more complex problems, may wish to add roles and other enhancements
to the FEF problems, or may obtain more complex problems from other sources. For example, Kaplin, The Concepts and Methods of Constitutional Law (Carolina Academic Press, 1992), includes 14 complex, role-based problems along with an appendix of review guidelines for each problem and various sets of analytical frameworks
for use in problem solving.
(This is excerpted from 21 Seattle U. L. Rev. at 899902.)
William Kaplin, Columbus School of Law, The Catholic University of America

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Storytelling Materials
Stories are highly selective and should be chosen with close attention to pedagogical goals. At least two major
choices are involved at the initial stages of selection. The first is whether to select stories that are already in the
law that is, stories that can, in part, be found and documented in court opinions and other legal records as
opposed to stories that derive solely from other sources such as literature, history, and oral tradition. I use both
types but usually prefer the former. With a law-based story, the instructor can focus on what happened before the
litigation but was not in the court records because it was considered legally irrelevant or unimportant or because
it was unknown at the time. The story I use about Mildred and Richard Loving is an example. Similarly, the instructor can focus on what happened after the litigation that sheds further light on how law impacts peoples
lives. The story I use about the Cruzan family is an example. There are also two stories [in Constitutional Law:
Themes for the Constitutions Third Century by Farber, Eskridge, and Frickey] the Brown story and the Carrie
Buck story that are law-based and cover both the before and the after of litigation.
The second choice is whether to select true stories or fictitious stories. Again, I use both, but my clear preference is the true story (a story we consider to be true as best we can tell given the difficulties of objectively ascertaining truth). Law-based stories are generally true in this sense, although that is not always the case. Stories
drawn from history are also true in this sense; my story of the Okies is an example. In contrast, stories drawn
from literature or oral traditions may be fictitious for example, the story of the Joad family in the Grapes of
Wrath but may nevertheless provide important insights into constitutional law and may have a basis in fact
even though the genre is fiction. In short, there is a broad range of sources from which effective story selections
may be made. . . .
To supplement the Brown story and the Carrie Buck story, I have added other stories to my course, and I am
continuing to develop them. First, is the story of Mildred and Richard Loving, the interracial couple whose conviction under a miscegenation statute was invalidated in Loving v. Virginia. I am enhancing this story with new
information recently presented at a conference at my law school. Second, is the story of the Cruzan family, whose
daughter, Nancy, was the subject of the U.S. Supreme Courts first right-to-die case, Cruzan v. Director, Missouri
Department of Health. This compelling story extends far beyond the Courts decision and culminates with the
apparent suicide of Nancys father, Joe. Third, is the story of the Okies who migrated during the Depression
from the Dust Bowl of the Midwest to California. This story provides a perspective from which to consider the
freedom of interstate movement and can be personalized into the sub-story of Fred Edwards, who was prosecuted for driving his unemployed and impoverished brother-in-law, Frank Duncan, from Texas into California,
and whose plight reached the U.S. Supreme Court in Edwards v. California.
In a somewhat different vein, at the beginning of the course I also use the story The Princes Cook a magnificent story about the art of ox butchering to introduce storytelling to the students and to make some points
about the art of law study and practice. (The Princes Cook was told by Chuang Tzu, a Chinese Monk in ancient times. See Cutting Up an Ox in The Way of Chuang Tzu 6467 (Thomas Merton (trans.), Shambala 1992.
The story was rediscovered and used with great effectiveness by Professor Siliciano of Cornell Law School in a
graduation speech. See John Siliciano, A Campfire of the Mind, Cornell Law Forum, v. 22, no. 2, pp. 913 (Nov.
1995).)
Usually I tell these stories myself during class time. Sometimes I solicit student reaction, often emphasizing
affective reactions more than cognitive. At other times I suggest one or two points to be drawn from the story
rather than engage the class in discussion, or I merely ask the students to reflect on the story.
(This is excerpted from 21 Seattle U. L. Rev. at 903905, & 904 n. 119.)
William Kaplin, Columbus School of Law, The Catholic University of America

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On Discrimination
A substantial portion of American constitutional law addresses the problem of discrimination. In 1976, economist Kenneth Boulding published a brief essay called Toward a Theory of Discrimination. The essay appeared as
chapter 2 of Equal Employment Opportunity and the AT&T Case (MIT Press, 1976).
In the essay, Professor Boulding presents his analysis of the reasons why people discriminate against other people. Although only six and a half pages long, Bouldings essay appears, in my view, to explain the causes behind
a wide variety of discriminatory behavior.
I assign Bouldings essay as we begin our examination of equal protection. During class discussion of the essay,
I pose such questions as:
Boulding distinguishes between good and bad discrimination. He says an example of good discrimination appears in the expression the discriminating taste. What is an example of the discriminating taste?
Can one use a discriminating taste in differentiating among people and, if so, how?
Boulding observes that, according to economist Gary Becker, people with a taste for discrimination can
lose income as a result. How? Do you think people with a taste for discrimination can ever gain income
as a result and, if so, how?
According to Boulding, [t]here may indeed be some rational grounds for believing false generalizations
and forming images with imperfect cues if the cost of improving the generalizations is too great. This may
be so in the case of highly complex realities, where ignorance, if not bliss, is at least cheap. This problem
emerges very clearly in the assessment of persons, each of whom is an extremely complex reality. (Equal
Employment Opportunity and the AT&T Case, ch. 2, at page 12) Does this provide a justification for racial
profiling by police in their efforts to combat crime and terrorism?
Our examination of Bouldings essay leads to a lively and enlightening discussion about the nature of discrimination.
Dan Levin, Minnesota State University, Mankato College of Business

Web-Enhanced Constitutional Law


The key historical currents and events surrounding major Supreme Court decisions in constitutional law are
the subject of courses in American history and United States government in secondary schools throughout the
country. The major secondary school textbooks in use today do an excellent job in describing the major historical watersheds at the center of constitutional law. Many students attending law school today, however, have never
had the type of course in U.S. history that my son presently is taking in high school. They do not know the historic context or political or public policy significance of the decisions they are assigned to read. This is a serious
problem.
Several years ago the law faculty at our institution decided to expand the Constitutional Law requirement from
one four-hour course to two three-hour courses. Part of the reason was that students appeared overwhelmed by
the materials now covered in Constitutional Law I. The first course in the two-semester sequence, taught in the
second semester of the first year, focuses on the Supreme Court and the powers of the American government.
Matters discussed include the nature and scope of judicial review, the relationship between Congress and the federal courts, federalism and intergovernmental relations (the relationship between federal and state government),
and the separation of powers among the branches of the federal government. Most matters involving individual
rights are deferred until Constitutional Law II, taken in the fall of the second year.
For the past several years, I have recommended that first-year law students who feel their background lacking
read a textbook, such as that written by Joan Biskupic and Elder Witt, who also have written Congressional Quar-

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terlys highly regarded Guide to the U.S. Supreme Court. In their text, The Supreme Court and the Powers of the
American Government (CQ Press, 1997), the authors examine the relationship between the Court and federal and
state governments for an undergraduate audience. While organized along lines similar to most law school casebooks, the text describes in detail the historical controversies underlying the Supreme Court decisions excerpted
in typical law school casebooks. While somewhat duplicative of the material in the notes and questions after the
cases in the casebook, the additional text helps to fill the gap left by the educational malpractice fostered on the
current generation of law students. I have sold this extra work to my students as a substitute for any recommended commercial outline for the course. Professor Chemerinskys treatise, Constitutional Law: Principles and
Policies (Aspen, 2d ed. 2001), is also highly recommended.
While the addition of these supplementary texts to the course has improved things, this is a less-than-complete remedy. From experimentation during the summer of 1999, I learned about some of the available electronic
resources in the area of constitutional law, such as FINDLAW (http://www.findlaw.com), Cornell
(http://www.law.cornell.edu/topics/constitutional.html), and the Northwestern Oyez! Project. Also, I became familiar with RealPlayer (http://www.real.com), the audio streaming technology, which fed my occasional obsession during the summer and fall months to listen to Atlanta Braves baseball games. Oyez! contains recordings of
the oral arguments for many of the major Supreme Court decisions from recent years in RealPlayer format, accessible from most home computers. It also contains abstracts of and links to the full text of the opinions in these
cases. The Law Professors network at the University of Pittsburgh (http://jurist.law.pitt.edu/) links video webcasts of lectures from many law schools. For Constitutional Law I, therefore, during spring semester 2000 I conducted an experiment to address this issue through technology. The experiment also proved a means for improving my own skills in researching and using materials on the Internet. I also hoped to engender interest and
enthusiasm for my subject among the students.
On the virtual classroom website for my course I created lessons linked to each days class session, providing extra materials on historical or other background of the cases we were reading. A few quick searches with Internet search engines turned up a wealth of historical materials, often with multimedia components. The History Channels website (http://www.historychannel.com/speeches/) contains excerpts from famous political
speeches in RealPlayer format, dating from the turn of the century. Thus, I was able to supplement a brief class
discussion on Theodore Roosevelt and the trusts with actual audio of his voice on the topic, an excellent biography from an online encyclopedia, and a priceless editorial cartoon image from the era. Discussion of the Great
Depression was supplemented with an aerial image of Wall Street on October 29, 1929, Norman Rockwells images on Roosevelts Four Freedoms, and audio excerpts of FDRs inaugural addresses. In the separation of powers segment of the course, I added links to the federal agencies and other entities at issue in a case, such as the
United States Sentencing Commission, the Comptroller General of the United States, and the National League
of Cities. Finding and adding these materials to each lesson was great fun, albeit time consuming.
Student response to the Constitutional Law extras was mixed. An article in the student newspaper described
the Oyez! site with its recordings of oral arguments but without reference to my courses links into the pages for
particular cases within that site. Occasional comments to the law librarian and other law faculty indicated student pleasure of the same sort I had originally experienced upon listening to key arguments. After my Constitutional Law site was closed, a couple of my Civil Procedure students and other law faculty even asked for a password into the site to access materials posted there. On the other hand, frequently references made in class about
materials posted for that session would draw blank stares from most students, with only a few students apparently having gone the extra mile to look at any of these materials. It became apparent that a few students avoided
regular use of the website.
The very low reported use of the web enhancements I spent so much time compiling for the Constitutional
Law class was disheartening. For example, only 25% of Constitutional Law students reported in a course evaluation that they had visited the Oyez! website at all, although in most Lessons I had provided links from the
course website to cases and arguments on the Oyez! site and frequently had made references to these materials

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in class. Students who reported visiting these sites did tend to find the course to be more interesting but not dramatically so. Twenty-five percent of students listing Constitutional Law among their more interesting courses had
visited Oyez!, while only 6% of those finding it among their less interesting courses reported such a visit. Overall, however, only 15% of those responding reported any use of Oyez! at all. Based on this experience, there may
be a serious risk of law student overload where the professor tries to do too much with web enhancements in
a traditional law school course. The next time around I plan to cut back on casebook assignments in order that
I could require students to use web materials. This worked a lot better.
Alfred R. Light, St. Thomas University School of Law

Constitutional Law on Videotape


Constitutional law lends itself to multimedia materials because of its close relationship with cultural and ideological issues in the public eye. Since many students have grown up with a steady diet of film and television,
materials on videotape often augment and generate crossover interest into the subject areas of the constitutional
doctrines studied in class. Some videos and their uses are described below.
Sun City (EMI 1985). This commercial videotape was created by Steven Van Zandt, also known as Little
Steven, a human rights activist as well as a member of Bruce Springsteens E Street band and an actor on
the HBO show, The Sopranos. He organized a group of rock musicians in the mid-1980s to protest the appearance of other musicians in the lucrative South African resort of Sun City. The protest concerned the
segregationist policy of apartheid. Van Zandts song and video feature many musicians, from Springsteen
to Bono to Bob Dylan, and include film clips of protests in Black homelands. A representative excerpt
from the lyrics follows:
Relocation to phony homelands,
Separation of families I cant understand.
23 million cant vote because theyre black,
Were stabbing our brothers and sisters in the back.
I aint gonna play Sun City.
The students enjoy the music, relate to the musicians, and get the point about a significant episode in the
history of discrimination.
A Personal Matter: Gordon Hirabayashi vs. the United States, (The Constitution Project 1992)(Producer: John
de Graaf)(available for purchase or rent from the National Asian American Telecommunication Association ). This videotape describes the story behind Hirabayashi v. United States, the famous Supreme Court
decision upholding the government curfew for Japanese-Americans during World War II pursuant to Executive Order 9066. (Its companion case, concerning the relocation issue, was Korematsu v. United States).
It is the story of Gordon Hirabayashi, a senior at the University of Washington (and later a professor). The
videotape explains how, after the imposition of the curfew, Mr. Hirabayashi came to be arrested and charged
with violating the Curfew Order. As he was returning from studying in the library one night, Hirabayashi
thought to himself, Why am I dashing back and my roommates are not? As soon as the question came
up, Hirabayashi noted, he knew he couldnt accept the curfew. After being convicted and serving time in
prison in 1942, he was ordered to find his own way to the relocation camp, hundreds of miles away in another state.
More than four decades later, a San Diego State University professor, Peter Irons, uncovered wrongdoing by
the government in the original case. The case was reopened and the governments wrongdoing, including
deliberate misstatements made to the United States Supreme Court, became the subject of the retrial.

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The videotape is a terrific supplement to the curfew and relocation cases, with actual footage of the events
in question. Students find it illuminating and their reactions are often palpable.
Eyes on the Prize: Americas Civil Rights Years, 19541965. This videotape is the progeny of the book of the
same name by journalist Juan Williams. It describes the civil rights movement from the mid-1950s through
the mid-1960s, starting around the time period of Brown v. Board of Education and ending with the time
of the Civil Rights Acts. The six one-hour segments are Awakenings (19541956); Fighting Back
(19571962); Aint Scared of Your Jails (19601961); No Easy Walk (19621966); Mississippi: Is This
America? (19621966); and Bridge to Freedom (1965).
One of the segments, Fighting Back, includes the attempt to integrate the all-white high school in Little
Rock, Arkansas, with nine black students. The segment shows actual footage of the frenzied reaction and
intolerance faced by these school children as they went to school.
Who Can Ever Get Used To This? (Producer: Hope Fair Housing Center, Wheaton, Illinois). This eightminute videotape describes an incident of housing discrimination personally experienced by Howard University Law Professor Okianer Christian Dark. The videotape does a terrific job of illuminating the consequences of discrimination.
May It Please the Court: 23 Live Recordings of Landmark Cases As Argued before the Supreme Court, Including the Voices of the Attorneys and Justices, (Edited by Stephanie Guitton and Peter H. Irons, New Press 1993).
These audio tapes provide the actual arguments in many landmark cases, augmenting the opinions and
their rationales. The students benefit from the questions and responses both substantively and from an advocacy perspective.
Steven Friedland, Nova Southeastern University Law Center

Internet Sites Can Make a Web-Based Course


There are many Internet sites that could be linked together into a web-based course. For example, Philip Kurlands and Ralph Lerners splendid five-volume anthology The Founders Constitution (1986), which has aptly
been hailed as the Oxford English Dictionary of the American Founding is now available online at http://presspubs.uchicago.edu/founders/. The Founders Constitution covers the early 17th century to the 1830s and includes
everything from tracts of philosophy to political pamphlets, from public debates to private correspondence. Other
useful Internet sites include University of Texas Tarlton Law Library Guide to Legal History Resources
(http://www.law.utexas.edu/rare/legalhis.htm); University of Oklahoma College of Law Chronology of U.S. Historical Documents (http://wwwllaw.ou.edu/hist); and Library of Congress Historical Searchable Historical Documents
(http://lcweb2.loc.gov/const/mdbquery.html).
Another comprehensive set of historical documents is the Avalon Project at Yale Law School (http://
www.yale.edu/lawweb/avalon/avalon.htm), which contains a rich online library of documents related to the
founding and the intellectual history of the Constitution, interlinked to supporting and related documents. Your
students could just point-and-click to read the Articles of Confederation alongside Benjamin Franklins draft and
then read what Thomas Jefferson said about the Articles in his autobiography, online at http://www.yale.edu/
lawweb/avalon/artconf.htm. Or they could read Alexander Hamiltons Opinion as to the Constitutionality of the
Bank of the United States (http://www.yale.edu/lawweb/avalon/amerdoc/bank-ah.htm) alongside McCulloch v.
Maryland. When these dusty historical documents are digitized and displayed on a computer monitor they might
even seem more real to the current generation of students.
Set your Web-browser in motion and you will find numerous sites with excellent general resources. Some of
my favorites include: The Archives (http://www.archives.gov); the Oyez Project (http://www.oyez.org); the National Constitution Center (http://www.constitutioncenter.org); Legal Information Institute at Cornell Univer-

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sity (http://supct.law.cornell.edu/supct); the Library of Congress (http://www.loc.gov/rr.law); and the University


of Chicago Law Library (http://www.lib.uchicago.edu/~llou/conlaw.html). And dont forget the Supreme Courts
own homepage (http://www.supremecourtus.gov).
Thomas E. Baker, Florida International University College of Law

Exercises
A List of Regulated Types of Speech
When I begin the subject of freedom of expression, I ask my students in class to spend a moment to write
down as many types of speech as they can that they believe the government will be able to restrict to some extent. I then create a list on the board based on what they wrote.
This exercise serves two purposes. First, it suggests to them immediately that the protections provided by the
First Amendment are not nearly as absolute as its text would suggest. Second, the students invariably identify almost all the subjects we will end up discussing, and thus they themselves will have outlined a significant portion
of the course.
Stephen L. Sepinuck, Gonzaga University School of Law

Mock Oral Arguments


When I have the luxury of teaching a small section (50 or 60, instead of 100), I have them do oral arguments
of hypotheticals drawn from real cases based on concepts they have already studied. So, for example, as we finish the Commerce Clause, I might give them the facts of some new congressional enactment that is drawing commerce power challenges in the lower court. Ill have two students on each side and nine justices who are expected
to ask questions. Sometimes Ill also have them act as a constitutional convention, deciding what they would like
to change and why.
Stephen Wermeil, American University College of Law

A Quiz on the Constitution


On the first day of the course, students can be asked to take a quiz on the Constitution. The quiz, which does
not count, serves to focus the students on the document itself perhaps for the only time in the course and
helps them to understand how it is organized. Sample questions include: How many courts are required by the
Constitution? What is the Vice-Presidents role in the Senate? Can Congress amend the Constitution? Can the
President declare war? Where is the Right to Privacy located? Where are three implied references to slavery in the
articles of the Constitution?
Steven Friedland, Nova Southeastern University Law Center

Illustrating the Levels of Scrutiny in Equal Protection Analysis


When my class starts the subject of equal protection, my students are already familiar with the distinction between low-level scrutiny and strict scrutiny (from our discussion of both free speech and due process). I begin

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the new subject by explaining when strict scrutiny applies in the equal protection arena and then attempt to make
clear that the scrutiny applies to the classification, not to the deprivation. To make sure my students understand
this distinction, I give them about 10 minutes to write down an example of each of four things: (1) a statute that
would survive a low level of scrutiny; (2) a statute that would fail a low level of scrutiny; (3) a statute that would
survive strict scrutiny; and (4) a statute that would fail strict scrutiny. I then have the class discuss for a few minutes what they wrote. This really helps make sure they understand both what prompts strict scrutiny and how
equal protection analysis focuses on distinctions among people.
Stephen L. Sepinuck, Gonzaga University School of Law

Humanizing Papers
One of my goals for Constitutional Law is to humanize the subject: its not whether children must salute the
flag, its whether Lillian and William Gobitas can be expelled for refusing to do so. Similarly, its about whether
Fred Korematsu may be incarcerated simply because of his Japanese ancestry, whether Allan Bakke gets to attend
medical school, and whether Captain Simcha Goldman may remain true to his faith by wearing a yarmulke while
on duty as a chaplain in the U.S. Air Force.
One of the ways I attempt to reach this goal is by assigning my students to write a paper on the one case covered in this course about which they feel most passionate. As part of this exercise, they are instructed first to learn
more about the facts of the case or the parties involved (by which I mean principally the litigants, but potentially
also their lawyers and the judges at each level) than is reported in the opinions of judges. I permit them to consult any source that may be useful and advise them that many cases decided by the United States Supreme Court
have been the subject of one or more books, most are the subject of several law review articles, and virtually all
were discussed in contemporaneous newspaper accounts. I also note that several are profiled in The Courage of
Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court by Peter Irons, which I place
on reserve.
In their papers, they are to report what they learned and to explain why they feel so strongly about the case
or the issue with which it deals; how, if at all, the Courts opinion has affected their views on the underlying issue;
and how, if at all, what they learned about the facts or the parties has affected their views about the Courts decision.
The first time I did this, my 48 students wrote about 25 different cases, suggesting a great variety of interests
and passions. The responses also provide me with information about cases that I can then use in future semesters (I specifically advise students that I may do this and give them the option of whether they wish to be cited).
This assignment gives students a forum in which to vent their passions without having to share them with their
classmates.
Stephen L. Sepinuck, Gonzaga University School of Law

Mock Admissions Committee


The case law, from Bakke to Hopwood and now to Grutter and Gratz, offers students the rules and rationales
of affirmative action under the Equal Protection Clause. The use of an in-class exercise where students are asked
to role-play admissions committee members offers the students a strikingly different perspective, as well as additional insights into the cases. The class is divided into groups of four or five and asked to play an admissions
committee. They are given relevant and perhaps some irrelevant information about four or five students
and asked to admit two, wait-list one, and deny two (only one if four students are being used). The students are
then asked to vote in their committees. After the vote, the class talks as a whole about whom they admitted, re-

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jected, and wait-listed, and, even more importantly, why they did so. Here are the capsule summaries of four student applicants:
David Smith, age 23, Caucasian Male, graduate of the University of Florida, 3.2 GPA. LSAT: 152. Major: Political Science. Family income: $250,000. Parents have their own successful firm and have promised David
a place if he graduates from law school. Personal Statement: Law school would be good for me.
Arlene Rodgers, age 26, Black Female, graduate of Spellman College, 2.9 GPA. LSAT: 149. Major: English.
Family income: $40,000. Father is factory worker. Personal Statement: I have been intrigued by the law
since I was 14 and watched my first show of Law and Order.
Allyson Paul, age 39, Hispanic Female, graduate of the University of Minnesota, 2.8 GPA. LSAT: 148. Major:
Economics. Single mother; son, age 8. Family income: $27,000. Personal Statement: I want to be an attorney to create a better life for myself and my child; Im willing to work as hard as necessary to succeed.
Grace Chun, age 24, Korean Female, graduate of the University of California at Riverside, 3.4 GPA, LSAT 147.
Major: Biology. Family income: $65,000. First to graduate from college in the family. Father is owner of a small
business. Personal Statement: I wish to learn about law and medicine and eventually to practice in the area.
Steven Friedland, Nova Southeastern University Law Center

Drafting Student Opinions in Roe v. Wade


One of the difficulties in teaching Roe v. Wade is that students come to the case not only with their own deeply
rooted personal judgments about the morality of abortion, but also with the belief that they know what the Court
did. As a result, they may not be reading the case as closely as they should. To focus the discussion away from
morality and on to the legal analysis, I have my students draft their own opinions. I form groups of six to eight
students into courts. I then advise them that it is December, 1972. They are the justices of the Supreme Court of
the United States. The Courts decisions in Buck v. Bell, Skinner v. Oklahoma, and Griswold v. Connecticut all exist,
as does the decision in Eisenstadt v. Baird, rendered earlier this year in the previous term. To the extent they are
relevant, Meyer v. Nebraska, Loving v. Virginia, and Stanley v. Illinois are also available as precedent. I advise them
that the case of Roe v. Wade has been briefed and argued and now stands ready for decision. I then instruct them
to decide the case, based on constitutional law, not personal opinion or religious faith. I explain that they should
want their decision to be as clear as possible in its methodology and grounded as soundly as possible in precedent. I permit them to write concurring and dissenting opinions if they are not unanimous.
I give some class time for this but ask that they complete their drafting before the next class. I then randomly
select one courts work for class discussion. We compare what the student group did to what the Court did. Students have a lot of fun, we have a fairly detailed analysis of the case, and students receive feedback on their own
work product. If my students request it, I then distribute to them my own written opinion on the case.
Stephen L. Sepinuck, Gonzaga University School of Law

Brief Gems
Using Hypotheticals as Advocacy Practice
I have great success using hypotheticals as opportunities for students to apply what we have covered in class.
By guiding discussion in the classroom, I can actually demonstrate what I mean when I tell the students that they
need to advocate using precedent and policies.
Andrew R. Klein, University of Indiana School of Law-Indianapolis

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Teaching the Free Exercise of Religion:


Employment Division, Department of Human Resources
In discussing the free exercise of religion and in particular the Supreme Courts decision in Employment Division, Department of Human Resources v. Smith, 494 (1990) I ask my students to write down a practice, rite,
or ceremony of their faith or of another faith with which they are familiar that outsiders to that faith may
regard as unusual, odd, or even distressing. The list will typically include such things as polygamy, circumcision,
fasting and other food restrictions, and smoking peyote. I then ask students to devise a law that would infringe
upon that practice. Some of the students examples will be blanket prohibitions; others will be more focused restrictions aimed at serving some plausible governmental interest. I then select one or two examples for the class
to analyze in light of Smith. This exercise prompts a fairly deep understanding of both Smith and its implications
in a way that students may be able to personalize.
Stephen L. Sepinuck, Gonzaga University School of Law

Reading Out Loud


Probably the most important thing I do out of the ordinary is that I begin the course by having students read
aloud Madisons speech on the constitutionality of the First Bank of the United States, and I also have them read
aloud the first five paragraphs of McCulloch and then, much later, Strauder.
Sanford Levinson, University of Texas School of Law

Teaching Roe v. Wade


Anyone who teaches substantive due process faces the delicacy of trying to elicit analytic discussion of abortion rights despite the emotional intensity of the subject and what may be the reluctance of some students to
share their views forthrightly in a public forum. The following exercise has always worked for me. Before the class
on Roe v. Wade, I let the students know that I will be handling the material differently. Instead of using questions
to elicit their understanding of what Roe v. Wade actually held, I tell them that I will pose as a designated
spokesperson for the U.S. Supreme Court. The Court is inviting an unusual form of reargument of the case and
has asked me to proceed as follows. First, I will set out what I take to be the holding and rationale. Then, I will
invite all counsel present to make statements of the following kinds: The holding and rationale of Roe v. Wade
should be reaffirmed because . . . , The holding of Roe v. Wade should be reaffirmed on the basis of the following, stronger rationale . . . , The holding of Roe v. Wade should be reversed because . . . I let the students know
that, as Court spokesperson, I am not authorized to adopt any position that the various counsel may take, but I
am authorized to share various issues that each counsels position may leave unresolved in the justices minds, at
least as each counsel expresses his or her position. Each time I try it, this format, however artificial, succeeds in
drawing out intelligent statements in class from a variety of perspectives and appreciative comments after class
about the freedom people felt to speak their minds.
Peter Shane, Moritz College of Law, The Ohio State University

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The Second Amendment as Teaching Tool in Constitutional Law Classes


Basic con law classes are meant to teach students some fundamental legal skills:
considering contentious moral questions from all sides, even those sides for which one has a visceral revulsion;
using the various modalities of interpretive argument interpretation focused on text, original meaning,
the interplay of political structures, changed circumstances, precedent, and the implications of fundamental, though unwritten, values within the American ethos;
thinking about how law can check power;
arguing articulately about the clash between solemn constitutional guarantees and eminently worthy countervailing government interests.
Few of our students will go on to spend much time litigating separation of powers cases, or even equal protection or due process cases. We cannot plausibly claim to base the contents of our courses on the direct utility
of certain constitutional doctrines to a lawyers everyday life, or even their likely appearance on the bar exam.
Rather, we try to find topics that help sharpen students habits of constitutional thought and, more broadly, legal
thought and perhaps even help make them better citizens.
The Second Amendment turns out to be a surprisingly useful tool for all these purposes. This is not because
Second Amendment law is particularly important; in fact, if law is defined in its all-too-common con law
class sense of Supreme Court cases, then theres next to no Second Amendment law to be taught. Rather, incorporating the amendment as a small part of the con law syllabus helps serve in a way that students will probably find immediately interesting some important broader goals:
(1) Teaching Students to See Things from the Other Side. Second Amendment arguments tend to run counter
to traditional political divides; the experience of making what is usually the other sides argument might make
students more open to the other sides argument in other cases.
(2) Teaching Students Different Modalities of Constitutional Argument. The Second Amendment, unburdened as it is with much Supreme Court baggage, is a particularly good tool for discussing the entire range of
interpretive modalities, such as those that focus on text, original meaning, tradition, constitutional structure,
claims of changed circumstances, and other forms of interpretive argument, and not just on precedent.
(3) Deepening Students Understanding of Checks on Government Power. For many of the Framers, the armed
citizenry was the ultimate check on government excess. Whether one reads the Second Amendment as creating
an individual right or a states right, it has a huge importance for the con law issue: the allocation of power.
(4) Teaching Students How to Debate Clashes Between Constitutional Guarantees and Powerful Government
Interests. The clash between constitutional rights (whether individual or state) and some of the most profound
government interests is rarely presented more starkly than in the Second Amendment.
(5) Enriching Understanding of Other Provisions. The Second Amendment casts extra light on the general
matter of protection for subversive activities, whether its First Amendment protection for subversive speech, or
the barriers that the Fourth and Fifth Amendments place in the way of suppression of antigovernment conspiracies.
(6) Reminding Students That Constitutional Protections Neednt Be All Good: Many of the students who
most revere the Bill of Rights take a very different view of the Second Amendment (whether they conceive of it
as securing an individual right or as securing a states right). Confronting this problem of possible constitutional
stupidity or even constitutional evil can be generally valuable to such students; and it can shed light on specific arguments, such as the notion that the Bill of Rights should never be amended.

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(This is excerpted from The Second Amendment as Teaching Tool in Constitutional Law Classes by Eugene
Volokh, Robert J. Cottrol, Sanford Levinson, L.A. Powe, Jr., and Glenn Harlan Reynolds, 48 J. of Legal Ed. 591
(1998), http://www1.law.ucla.edu/~volokh/2amteach.htm.)
Eugene Volokh, University of California, Los Angeles School of Law

Feedback and Evaluation


Using Quizzes
What the great English legal historian Frederic Maitland said about the common law also can be said about
the queen subject in American law schools: Constitutional law is tough law. It is tough to master tough to
teach and tough to learn.
There are several reasons for this thorough difficulty. Constitutional law is as important as it is controversial,
which is understandable when you consider that it comprises all the great issues of American history, down to
the present day. The subject is equal parts law, politics, history, and philosophy. The Supreme Court is a fascinating institution that often mystifies students. Beyond the five hundred volumes of U.S. Reports, full of contradictory opinions, there is so much academic commentary. Each October Term presents novel issues, and each
new nomination and confirmation renders much of constitutional law indeterminate, so there is a constant sense
of uncertainty, anticipation, and discovery in the field. Constitutional analysis if one thinks more deeply and
more broadly than mere doctrine and three-pronged tests can take on metaphysical, even quasi-religious qualities of immanence and transcendence that are most profound.
Thus, I believe that constitutional law is the toughest course in the curriculum. So I am always looking for
ways to help my students overcome that difficulty and master our subject. One of the ways I have hit on is to give
unannounced quizzes.
Consistent with our law schools formal written student policy, I take into account a students preparation and
performance in class for a one-grade, up-or-down adjustment in his or her course grade (actual examples, B+
raised to an A or a D lowered to an F). We have a law school rule that we must announce our intention to
implement this policy in our class at the beginning of the semester, to put students on notice of the course requirement. Most professors make this announcement in terrorem but not many actually follow through to adjust final course grades. I am one of those who does adjust the grades, however, and it has become part of my
passed-down reputation among our students. After all, tongue-in-cheek, I announce on the first day of classes
that mine is the Honors Section. I base this up-or-down adjustment primarily on unannounced quizzes, which
I think are very beneficial. Here is how they work.
At the beginning of the hour, I announce we are having a quiz. The question always is based on that particular days reading. Sometimes it is the question I left them with at the end of the previous class meeting. I state
the brief question and repeat it once. The quiz question is focused and specific; usually the emphasis is on the
Rule in the Issue-Rule-Analysis-Conclusion or IRAC logical sequence.
Questions vary from year to year, of course, but here are some illustrative examples from early in the semester:
What does the Constitution say about judicial review?
What are advisory opinions and what is the Supreme Courts position on them?
Define property for purposes of the 5th and 14th amendments.
My students have 10 minutes to write an answer. I take the quizzes home and grade them, using the same three
categories as the law schools grade adjustment policy (+ or 0 or -). Often I write comments to explain the
point of the quiz and to respond to the individual answer. Sometimes I add a word or two of encouragement, if

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for example the student took the lead that day in class discussion and helped in our effort to understand the material. My secretary records the grades and returns the papers to the students law school mailbox.
Typically, I will start that days session with some in-class discussion of the quiz question. Sometimes I will
begin the class with some brief comment to reinforce how the previous days quiz fits into the organization of
the course.
Over the semester, I administer between 10 and 15 quizzes. At the end of the semester, I adjust final course
grades with a plus or a minus largely based on the quizzes, taking into account attendance and the notes of inclass participation that I make on my seating charts during the term. Usually, the semester adjustments describe
a slightly-skewed bell-shaped curve with about 20 percent pluses, 10 percent minuses, and 70 percent no adjustments.
I submit that the benefits of unannounced quizzes far outweigh the costs. Really, the only costs are the lost
class time, which totals at most only two or three class meetings over the semester, plus my own grading time
and effort, which amounts to two or three hours for each quiz.
The benefits for the students are substantial. In effect, this technique allows me to call on every student individually to recite on that particular days reading, which is far more fair than calling on random students in a
Socratic lottery, and it avoids some of the stress and pressure of oral recitation. The quizzes also help me to provide my students with personal feedback on individual course topics of some importance.
While I may not be as great a teacher as the legendary Mark Hopkins, each quiz sits me on one end of a log
and one of my students on the other end to discuss the assigned topic. More generally, students also benefit from
knowing sooner rather than later if what they are doing to learn the material is adequate, far in advance of the
winner-take-all final examination, after which it is simply too late to regroup or to seek help. They know, if they
rack up a series of minuses, that they should come talk to me, sooner rather than later. And I can review their
quizzes to help diagnose their problems and to prescribe what they should do to solve them. The quizzes reward
preparation and performance and thus reinforce professional work habits. Indeed, I have the sense that the quizzes
have had the salutary by-product of toning up the overall level of class preparation and participation.
I am convinced that this evaluation and teaching technique is valuable and effective. I believe that unannounced
quizzes can easily be adapted for any law school course, though I think quizzes make the most sense in first-year
courses. Any number of variations suggest themselves. A professor need not record the grades but could implement non-credit quizzes to provide each individual student some personal feedback on an ongoing basis outside
the tyranny of grades that plague first-year students. Someone might adapt the quiz system to administer them
using the law schools email or Web page technology.
I highly recommend unannounced quizzes, and I would encourage law professors to experiment with them
and to report their experiences.
(This idea appeared in The Law Teacher, Fall 1998, pp. 7, 10.)
Thomas E. Baker, Florida International University College of Law

Extra Optional Reviews


For some students, constitutional law seems esoteric and difficult to grasp. To provide students with formative feedback and a structured venue for additional practice of their legal analysis, extra and entirely optional
class sessions can be offered to the class. These sessions, lasting from one-half hour to an hour and occurring
several times during the semester, include responding to student questions about the subject matter and reviewing hypothetical questions not covered in class. The hypotheticals could be mined from old released exam questions or newly created ones, composed by the professor. Reviewing such questions informs students about what
they know and how well they know it. The review also provides feedback for the professor, helping to distill
how effectively the material has been communicated to the students. The reviews can be strategically placed to

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follow especially difficult or nuanced course material and primarily during the latter part of the semester, when
the material accumulates. Students appreciate not only the opportunity to reaffirm the doctrinal concepts but
the chance to do it through problem solving as well.
Steven Friedland, Nova Southeastern University Law Center

Opinion Writing Assignment


I assign the following:
Constitutional Law Honors Section
Opinion Writing Assignment Fall 2003
Professor Baker
Congratulations! You have just been appointed to the Supreme Court of the United States. You are an instant
leader on the Court. Four of your colleagues, who were appointed by the same President who appointed you, will
vote with you on any issue simply upon your request, assuring you of an automatic majority. Given your newfound influence and the large variety of cases on the Courts docket, you may make any change in constitutional
law that you desire.
You are limited to the subjects and doctrines found in the principal cases in Chapters 16 & 8 of the Rotunda
casebook and its Supplement. Describe the facts of a case and write a majority opinion that accomplishes the
change you desire. Of course, your craftsman-like opinion will be a careful exposition of your own theory with a
specific treatment of precedent and a discussion of opposing arguments. The hypothetical opinion will determine
approximately thirty percent (30%) of your final grade in the course.
* * * *
On the first page, indicate the case you are overruling and enter your Exam Number. The maximum length is
3000 words. At the end of your opinion, perform a word count and indicate your word total and what word processing program you used, e.g., 2999 words; Word Perfect 6.0. Print your opinion on regular-sized paper, doublespaced, in 12 pitch Times New Roman type, with a 1-inch margin around the page. Use only a staple in the top left
corner to fasten the pages. Follow the ALWD Citation Manual for all internal citations and do not use footnotes. If
you use the exact words of another, show quotations; if you borrow an idea, cite your source. See generally Joe
Mirarchi, Plagiarism: What Is It? How to Avoid It? And Why?, 4 T.M. Cooley J. Prac. & Clinical L. 381 (2001). Your work
should be your own; you should not consult with anyone else about this assignment.
Because this opinion writing assignment will be graded anonymously, Professor Baker will not answer specific
questions that might identify a students hypothetical opinion. Nota bene: One of the examples of Academic Misconduct in the College of Law Student Code of Conduct is to unreasonably interfere[ ] with others use of library
materials. . . . If you experience any unusual problems with access to library materials, inform Professor Baker with
an anonymous note identifying the missing and needed materials.
* * * *
This opinion writing assignment is due in class on Friday, November 14, 2003. Obtain an Exam Number from
the Registrar of the College of Law. Use only your Exam Number as identification. One letter grade (e.g., A lowered
to A-) will be deducted from your opinion grade for each day or fraction of a day it is late, without regard to any
explanation or excuse.

Thomas E. Baker, Florida International University College of Law

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Contracts
Approach

131

Learning about Rules from the Legal Duty Rule


Joel K. Goldstein
International Law in First-Year Contracts
Mark A. Drumbl
Getting to Know Students and Involving Them in Class Pedagogy
Charles Calleros
Active-Learning Overview in Contracts
Greg Sergienko
Symposium on Teaching Contracts
Gerald Hess

Material

131
132
133
134
135
137

Teaching Consideration from Original Leading Cases


Val D. Ricks
Great Contracts Cases
Celia Taylor
Using Electronic Commerce to Teach a Transactional Viewpoint
Christina L. Kunz
Ethics: Client Interviews and Witness Preparation
Charles Calleros
Disney Films Teach the Basics of Contract Law
Gerald Hess

Exercises

137
138
139
140
141
141

A Contracts Drafting Challenge


Ron Brown
Contract Negotiating and Drafting
Alison Grey Anderson
The Parol Evidence Rule and the Living Contract
Paula A. Franzese
Exploring the Difficult Concept of Reciprocal Inducement
Charles Calleros
A Soap Opera and Lesson on Contract Damages
Hazel Glenn Beh

129

141
142
144
145
148

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Williams v. Walker-Thomas Exercise


Alison Grey Anderson
Contract Interpretation and Life Experiences
Irma S. Russell

149
150

Brief Gem

151

Unannounced Student Teaching


Celia Taylor

151

Feedback and Evaluation

152

Feedback Form
Charles Calleros
Preparing Students for Outlining and Exam Taking
Charles Calleros
Final Class Session Maintaining Perspective
Charles Calleros

152
152
152

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Approach
Learning about Rules from the Legal Duty Rule
The legal or preexisting duty rule is a staple of most courses in contracts. Its value is not, however, primarily
as just another bit of contracts doctrine. Rather, it offers an opportunity to teach lessons about rules that will
help students better understand and appreciate law. (See generally Joel K. Goldstein, The Legal Duty Rule and
Learning About Rules: A Case Study, 44 St. Louis U.L.J. 1333 (2000).)
The legal duty rule provides that a partys promise to do what she is already obligated to do does not provide
consideration to make the reciprocal promise enforceable. (Restatement (Second) of Contracts 73)
Thus, if Rachel is already contractually bound to Josh to rake Joshs yard for $20 on Tuesday afternoon, her
subsequent promise to rake the yard (or performance of her preexisting duty) is not consideration for Joshs
promise to pay $25. Historically the rule rests on two different rationales, the formalistic requirement of consideration and the instrumental goal of preventing extortion. In modern times, courts have developed ways to circumvent the rule, by mutual modifications (e.g., Rachel agrees to rake Tuesday morning) or by rescinding the
original agreement, then entering the second (i.e., rescind the $20 contract, then contract for the $25 raking).
The law also developed alternative doctrines, the excuse of economic duress, Restatement (Second) of Contracts
89 (which trumps the legal duty rule if the modification is fair and equitable in view of unanticipated circumstances), and U.C.C. 2-209 (which provides that, with respect to a sale of goods contract, a modification is enforceable without consideration).
What can all of this teach students about rules? Lots. The following are simply 10 suggested lessons.
1. Rules are generally not arbitrary constructs but are, or were, designed to serve specific purposes (e.g.,
prevent extortion, protect consideration).
2. Rules sometimes have multiple purposes (see 1 above).
3. Fostering one of a rules purposes may undermine another. For instance, mutual modification and mutual rescission advance consideration theory but may mask some extorted changes (e.g., the sophisticated extorter can give a nominal modification or extort a rescission).
4. Judicial resort to fictions, like mutual modification or mutual rescission, may, in the short term, provide flexibility to prolong the life of a rule by avoiding some of its harshest applications. But when courts
start creating or relying upon multiple fictions, the rule is probably under some stress.
5. Proliferation of exceptions or alternatives to a rule often signal that the rule is eroding. The doctrines
of Restatement 89 and U.C.C. 2-209 reflected a loss of confidence in the legal duty rule.
6. Proliferation of exceptions or alternatives to a rule often hasten the rules demise. As cases apply the alternatives, it becomes more difficult to tell when the original rule should apply. The precedents which
avoid the rule compete with those that apply it.
7. Rules erode as society perceives a distance between the rules rationale and its performance. The legal
duty rule lost favor as an instrument against extortion because, over time, it allowed some extorted
modifications to stand and invalidated some based on real consent.
8. Rules erode because law develops alternative rules to achieve desired ends. The development of economic duress proved a more precise instrument against extorted modifications. Whereas the legal duty
rule did not examine the motive behind the modification, duress attacked only modifications based on
improper threats. Thus, it could filter out extorted, from consensual, modifications.
9. Bright-law rules and multi-factor approaches offer different strengths and weaknesses. The legal duty
rule, as a bright-line rule, contrasts as a means of policing modifications with multi-factor Restatement
89 and bright-line 2-209. As a weapon against extortion, it contrasts with multi-factor duress. The

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bright-line rule may seem to operate more certainly, but does it really once exceptions and fictions multiply? The multi-factor approach may result in greater transaction costs.
10. Rules, like the legal duty rule, that emphasize formalities may favor those with knowledge and resources.
They may be better able to comply with esoteric requirements than less sophisticated parties.
These 10 lessons about rules do not all have equal pedagogical value. They certainly do not exhaust the possibilities. They do suggest a way to use the legal duty rule as a springboard to explore larger lessons about the law
that will help students later in law school and as members of the bar.
Joel K. Goldstein, Saint Louis University School of Law

International Law in First-Year Contracts


I find my 1Ls particularly interested in international contract law and transnational deals. I have taught at two
different types of law school (a small state school where graduates largely intend on practicing locally and a national private school where graduates have diverse career aspirations). Student interest in transnational approaches
abounds in both environments.
But this is not just a question of student interest. Without some knowledge of international contract law, attorneys no longer can adequately represent clients engaged in international business deals. Moreover, transnational business increasingly affects even primarily local practitioners at some point in their careers. There are two
pertinent documents: (1) the Vienna Convention on Contracts for the International Sale of Goods (CISG)
(reprinted in 19 I.L.M. 671 (1980) and 15 U.S.C.A. App. 332-62 & Supp. at 3249 (West 1998 & Supp. 1999));
and (2) the UNIDROIT Principles of International Commercial Contracts (UNIDROIT) (http://www.unidroit.
org/english/principles/contents.htm).
American exporters and importers have been subject to the CISG since January 1, 1988. CISG covers goods
bought and sold internationally instead of simply within the U.S. The CISG is a treaty which preempts state common law as well as the U.C.C. Unlike the CISG, application of UNIDROIT is not mandatory. UNIDROIT is,
loosely speaking, analogous to an international Restatement of contract law. It is well suited to international commercial arbitration in areas not covered by the CISG.
Law professors by and large are not teaching the CISG in first-year contracts. This is troubling insofar as the
CISG is the governing law of many transactions; an inability of a lawyer to recognize governing law, let alone
have some familiarity with it, may well constitute a professional responsibility concern. In the end, parties may
find themselves subject to the provisions of the CISG without even being aware of it.
For these reasons, I think it is important: (1) to present an overview of the CISG in my first-year Contracts
course; (2) to outline the areas where it differs from the U.C.C. (and the common law of contract); (3) to raise
awareness so that lawyers know when they are facing a CISG issue; and (4) to provide some source materials to
facilitate researching CISG issues. A secondary aim is to discuss UNIDROIT, which can present significant advantages to clients engaged in international deals who would prefer disputes to be settled flexibly by arbitration.
UNIDROIT also serves a pedagogical function by fostering discussions of comparative law and law reform. I have
found that the inclusion of international issues in first-year Contracts reinforces understanding of core domestic concepts.
For the most part, international materials are not found within the traditional 1L contracts texts (although
the Selections for Contracts designed to accompany the Farnsworth and Young materials reproduce the CISG
and UNIDROIT principles in full). So I integrate these materials on a supplemental basis.
In terms of pedagogy, what I find helpful is introducing students to a basic principle of contract law and then,
after they have developed a familiarity with that principle, to mention how the international legal regime may
(or may not) treat that principle somewhat differently from either (or both) the common law and U.C.C. Some
of the several important areas of difference include:

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Remedies, particularly the availability of specific performance.


Scope of the duty of good faith.
Pre-contractual liability.
Frustration and economic hardship excusing performance.
Revocation of offers and options.
Statute of frauds.
Contract formation: battle of the forms.
Parol Evidence Rule.
Fundamental breach and the perfect tender rule.
Limitation to consequential damages (i.e., the rule in Hadley v. Baxendale).

At the end of the course, I present the students with a lengthy fact pattern that I ask them to work through in
class assuming a variety of applicable substantive contract law, ranging from U.S. to the CISG, UINDROIT, and
even discrete elements of foreign law.
My experiences have made me a partisan of anchoring certain notions of international law within the 1L curriculum. Contracts appears to be a particularly fertile course for such an endeavor. Looking beyond the substantive contract law learned, this integration leaves 1Ls with: (1) a broader sense of the importance of international legal materials; (2) an understanding that other nations may have legal systems that are different from the
U.S. system (in certain cases this can constitute a basis to learn how to improve our own system); (3) familiarity
with the differences between comparative law and international law (and how international law can alleviate
the uncertainty and confusion which may arise when contracting parties rely on foreign law to resolve disputes);
(4) basic exposure to the role of United Nations committees as well as the treaty-making process; and (5) early
exposure to the role of arbitration as a tool of alternative dispute resolution.
Should anyone be interested in the materials and cases relied upon to introduce these international legal
regimes in specific areas of contract law, please contact me. These shall form part of a casebook presently under
contract with the West Publishing Group. Perhaps of assistance is a CLE paper I have prepared on international
contract law, available on my home page (http://home.wlu.edu/~drumblm).
Mark A. Drumbl, Washington and Lee University School of Law

Getting to Know Students and Involving Them in Class Pedagogy


I follow the example of many faculty in handing out a questionnaire in the first week of class to help me
(1) become familiar with the expertise and experiences that students bring to class, (2) learn about and perhaps respond to their learning styles, to the extent that they are aware of how they best learn, and (3) schedule
office hours convenient to the students academic and personal schedules. Typical questions or prompts on the
questionnaire [with my comments about the questionnaire] include the following:
1. Please summarize any professional or personal experiences or characteristics that may be relevant to your
study of law and more particularly to your studies in this course. Tell me whether I have your permission to
call on you in class to share your experience when it might advance class discussion.
[Entry #1 shows students that I value them, their experiences, and their contributions to class discussion. It sometimes provides a basis for calling on a student in class to share a particularly interesting and relevant story. I also try to find the time to type up a one-page collection of one-liners that present one interesting fact about each student. One year, I distributed the collection without revealing the name of each
student described. I asked the class to determine the identity of the student associated with each description
before the end of the semester. Sometimes Ill also spend a few minutes in the first class dividing the students
into pairs, so that each can interview the other to get a brief picture of the other students background and

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interests. All of this helps to establish a class rapport, which should help generate a class atmosphere conducive to learning.]
2. What kinds of teaching techniques have you found to be most effective for your learning style? For example,
do you learn material best by reading, listening to lecture, monitoring visual aids, discussing material with
faculty or peers, or working with material in a writing assignment, problem method, role-playing, or group
activity?
[Entry #2 encourages students to think about the learning process and to share the responsibility for developing a class pedagogy, particularly when supplemented with a separate sheet that solicits their views on
how a particular class might have been better.]
3. Why did you decide to attend law school? What are your goals for law school and after graduation?
[Entry #3 may prompt me to cover material relevant to student interests and goals, but I include this
question mainly to remind students to keep their hopes, dreams, and goals alive during the exceptionally intense academic experience of the first year. I often return the questionnaires to students a few weeks before
they graduate so that they can have a nostalgic look back to their first week of law school and perhaps gauge
how their plans and expectations have changed over the course of three years of legal education. Their answers to the questions in entry #3 are often the ones that inspire the most reflection when revisited at the
end of their journey through law school.]
4. What schedule for faculty office hours would work best for you?
[Entry #4 helps me to hold office hours that are more than perfunctory. This question also conveys to
the students that I really am interested in being accessible to them. Frankly, however, the new generation of
plugged-in students reaches me even more effectively through email contact or through questions or comments in a discussion forum on our Internet course site.]
Charles Calleros, Arizona State University College of Law

Active-Learning Overview in Contracts


Learning theory tells us that many students benefit from having an overview of a course. The overview provides an outline into which students can integrate particular topics within the course. A common way of providing such an overview is in the syllabus. Most syllabuses provide a guide to the terminology in the course and
some idea of the overall structure and hierarchy of ideas in the course. Unfortunately, the words of the syllabus
often do not succeed in conveying to the students the real-life situations underlying the legal rules and the conflicts in principle that the rules resolve.
One way to convey to students a real sense of the issues involved in a course is to provide a problem that encompasses many of the issues in the course. Contracts professors (and their students) are especially fortunate in
this regard. First, contracts is a course with relatively few themes, so it is comparatively easy to imagine examples
that cover a broad range of the concerns of the course. Second, contracts is an accessible subject on which students will often have ideas that are surprisingly accurate as to general issues, although much less accurate at identifying particular rules. (Because all Im interested in at this point, in contracts or another subject, is illuminating issues, these general intuitions are enough.)
To provide a more meaningful overview of course material, I often devote the first few days of a course to an
overview based on problems. The overview increases comprehension and may speed up learning in the long run.
I invite you to draft your own problems, but heres an example of mine which you are welcome to use if
you like to get you started.
On a piece of standard paper, I type up the following:

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Dear Mom:
I promise to give you my apartment on Queen Anne Hill.
Merry Christmas!!
Your son,
Greg

In class, I wad up the paper into a ball and throw it into the class. The person who catches it opens up the
paper and reads it, and we put the words onto the board. Then, we start talking about whether this is an enforceable contract.
The discussion illuminates the difference between promise and contract. Promises, as we professors all know,
are not necessarily contracts. For contracts professors, doubts about the enforceability of a promise are expressed
in doctrines apparent absence of intent to be bound, absence of consideration, absence of reliance.
Students do not know the doctrines, but they do know the underlying issues. Should a promise to make a gift
be binding? This involves a letter to a mother from a son, with wishes for a merry Christmas, and includes a statement that this is a gift. Adding to the facts can lead to fruitful further discussion. Suppose Mom relies on the gift
by selling her house. Suppose the promise was sincerely made but the paper was crumpled and tossed into the
waste basket, never to be delivered.
Once a discussion of the purpose of contract is over, the class can discuss additional issues. What if I have three
apartments on Queen Anne Hill? Does that raise any issues? Is there a need for devices to protect against ill-advised promises? Overall, this discussion can illuminate issues of formation and the roles of intent, manifestation,
consideration, and reliance in the formation of contracts, and special issues regarding the Statute of Frauds.
When these discussions wane, I bring out another sheet of paper. This one says:
Reward!!
To the first person who clears my driveway of snow,
$50 in cash
Greg Sergienko

This leads to a discussion of the risks that take place when performance is balanced against a promise. Contracts professors know that the contracts law has had different treatments of the issues of acceptance of an offer
calling for performance. The possibility of non-contractual remedies leads to quantum meruit claims. Students,
of course, dont know these labels, but an illumination of these issues provides a context for much of the course
that was not covered by the problem of a promise to give an apartment to ones mother.
Greg Sergienko, Western State University College of Law

Symposium on Teaching Contracts


An excellent resource for contracts teachers is the symposium issue of the Saint Louis University Law Review
(volume 44, number 4, Fall 2000) Teaching Contracts. The symposium contains articles and essays from 21 experienced contracts teachers that explore pedagogy, concepts, leading cases, and skills.
SAINT LOUIS UNIVERSITY LAW JOURNAL (VOL. 44)
TEACHING CONTRACTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Dean Jeffrey E. Lewis

1195

APPROACHES TO TEACHING CONTRACTS


Enriching Case Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Robert A. Hillman

1197

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Use of the Contracts Courses as a Vehicle for Teaching Problem Solving . . . . . . . . . . . . . . . . .Vincent C. Imme

1205

A Property Law Instructor Looks at the Contract Law Course . . . . . . . . . . . . . . . . . . . . . . . . . .Peter W. Salsich, Jr.

1215

Teaching Contracts from a Socioeconomic Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Jeffrey L. Harrison

1233

Teaching Interdisciplinarily: Law and LIterature as Cultural Critique . . . . . . . . . . . . . . . . . .Deborah Waire Post

1247

Legislation and Pedagogy in Contracts 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .H. Miles Foy, III

1273

How not to Teach Contracts, and Any Other Course:


Powerpoint, Laptops, and the CaseFile Method . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Douglas L. Leslie

1289

TEACHING IMPORTANT CONTRACTS CONCEPTS


Consider Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Peter Linzer

1317

The Legal Duty Rule and Learning About Rules: A Case Study . . . . . . . . . . . . . . . . . . . . . . . . . . .Joel K. Goldstein

1333

Reconsidering the Reliance Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Christopher W. Frost

1361

Teaching Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Caroline N. Brown

1377

Teaching Unconscionability Through Agreements to


Arbitrate Employment Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Susan A. FitzGibbon

1401

Ruminations on Teaching the Statute of Frauds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .John Kidwell

1427

GREAT CONTRACTS CASES


(Baby) M is for the Many Things; Why I Start with Baby M . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Carol Sanger

1443

In Search of Best Efforts: Reinterpreting Bloor v. Falstaff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Victor P. Goldberg

1475

Exercising with Neri v. Retail Marine Corp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Mark Pettit, Jr.

1487

Teaching Law Through Contracts and Cardozo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Christopher L. Eisgruber

1511

USING CONTRACTS TO TEACH PRACTICAL SKILLS


Drafting in the Contracts Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Scott J. Burnham

1535

Introducing Negotiation and Drafting into the Contracts Classroom . . . . . . . . . . . . . . . . .Carol Chomsky and
Maury Landsman

1545

Gerald Hess, Gonzaga University School of Law

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Material
Teaching Consideration from Original Leading Cases
Consideration confuses students. It makes assent redundant, for instance, because promise and mutual inducement imply assent. And considerations bargain focus seems like laissez faire next to unconscionability. On
the other hand, considerations paternalism seems exceptional next to assents focus on autonomy. And so on.
Contracts teachers resolve these difficulties variously: by scapegoating our legal ancestors; by doctrinal dogmatism, economic theory, or sociology of law; by asking students to accept the contradictions as background assumptions; or by simple refusal to recognize these kinds of questions. But the last 28 years have produced solid
explanations of these difficulties from the history of contract law, without contempus-centric criticism of past
judges. Assents redundancy and considerations bargain focus can be explained. With the proper history in place,
we can understand the logic the historical logic of the consideration doctrine.
I have been sharing this history with students for some time now, primarily by teaching the doctrine from
original materials mostly cases in which the doctrine developed. This is a common, leading-cases approach,
comparable to reading Hadley v. Baxendale to begin the discussion of remedies. Foundational consideration cases
do not suffer from Hadleys inconsistencies as an opinion, however. Most are condensed lawyers notes or case
briefs of what was done in court. Students must read them carefully (after slight editing by the professor), but
careful reading reveals simple facts and a common-sense approach to legal problems. The materials also allow
students to understand how todays seeming anomalies developed. I do not teach just old stuff (as I indicate
below). But after reading the old, students are prepared to see how contingent is the doctrinal approach in contemporary cases, and how little of the policies of contract law contemporary judges care about or even understand, or how the policies change. Students are less intimidated by the paradoxes and better able to educate themselves, opposing counsel, and judges they will later meet.
I have here listed cases that I use to teach consideration, in the order in which I use them. Some editing will
be necessary, but teaching them is rewarding. I begin with the words of Egerton in Goldings Case, 2 Leon. 72,
74 ER 367 (1586), In every action on the case, there are three things considerable: consideration, promise and
breach of promise. I also have the students study an explanation of how assumpsit grew out of medieval contract law and how the word consideration was probably chosen. Quid pro quo was already established as a term
of art elsewhere in the law (in the debt form of action), pro was too close to quid pro quo, and causa was too
rigid and civilian; consideration was just ambiguous enough to bear the varied legal constructions judges
wanted to give it. (David Ibbetson, A Historial Introduction to the Law of Obligations 14143 (1999); J.H. Baker,
Origins of the Doctrine of Consideration, reprinted in The Legal Profession and the Common Law 369, 37174
(1986).)
Bargain/Reciprocity:
Christopher St. Germain, Doctor & Student, 2d Dial., ch. 24 (1531) (passage at the end of the students 1st
speech, from and a nude contract to be not performed, explaining reciprocity in contract law long before 1539 when the assumpsit form of action adopted a consideration-like requirement).
Sharington v. Strotton, Plowden 301, 75 English Reports (ER) 454 (1565) (a few sentences of argument from
Fletewood and Wray (Plowden 302), and also from Plowden (Plowden 309), regarding what is consideration in contracts, and why the law requires consideration (better stated here than by Fuller in Consideration and Form) (on the country means before the jury or at trial).
Hunt v. Bate, Dyer 272a, 73 ER 605 (1568)(past consideration).
(These sources give a background for the reciprocity requirement. I assign Vian v. Mariah Carey (unreported,
S.D.N.Y. 1993) (love and affection) and Borelli v. Brusseau, 16 Cal.Rptr.2d 16 (App. 1993) (prior duty), immediately after these older materials.)

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Benefit:
Reynolds v. Pinhowe, Cro. Eliz. 429, 78 ER 669; Moore 412, 72 ER 663 (Queens Bench 1594) (use both reports (Croke and Moore), then later contrast this case with Foakes v. Beer, which reaches the opposite result on the same question).
Riches v. Bridges, Cro. Eliz. 883, 78 ER 1108; Yelv. 4, 80 ER 4 (Queens Bench & Exchequer Chamber 1602)
(later compare with Wood v. Lucy, Lady Duff-Gordon).
Game v. Harvie, Yelv. 50, 80 ER 36 (Kings Bench 1605).
Detriment:
St. Germain, infra, 2d Dial., ch. 24 (passage near middle of students 2d long speech: If he to whom the
promise is made have a charge to lieth at the common law.).
Webbs Case, 4 Leon. 110, 74 ER 763 (1576).
Storers Case, Dyer 272a, 272b n.32, 73 ER 605, 607 (1615) (cannot tell here whether the promisor was induced by the detriment or by something else; the ambiguity gives an opportunity to introduce non-bargained-for detriment).
Keyme v. Goulston, 1 Lev. 140, 83 ER 338 (1664) (same difficulty as Storers Case).
Mutual Promises:
West v. Stowell, 2 Leon. 154, 74 ER 437 (Common Pleas 1577) (a bet on an archery match; also useful later
when talking about mutuality of obligation).
Strangborough v. Warner, 4 Leon. 3, 74 ER 686 (Queens Bench 1589) (contrast this case with Game v. Harvie;
youll have to note that in Strangborough the loan was actually promised before it was made (notwithstanding the language in the report)).
Nicholas v. Raynbred, Jenk. 296, 145 ER 215; Hob. 88, 80 ER 238 (Kings Bench and Exchequer Chamber
1615) (the requirement that the promises occur at the same time is a surrogate for the requirement of mutual inducement or reciprocity, a surrogate later rejected in Adams v. Lindsell).
Background reading for considerations doctrinal development:
The works of Baker and Ibbetson cited above, passim (or at least in Ibbetsons book the part about contract
law, through page 151).
David Ibbetson: Consideration and the Theory of Contract in Sixteenth Century Common Law, in Towards a
General Law of Contract 67 (John Barton, ed. 1990); Sixteenth Century Contract Law: Slades Case in Context, 4 Oxford J. Legal Stud. 295 (1984); Assumpsit and Debt in the Early Sixteenth Century: The Origins of
the Indebitatus Count, 41 Camb. L.J. 142 (1982).
J.H. Baker, Introduction to Spelmans Reports, 94 Selden Society 28698 (1977).
A.W.B. Simpson: A History of the Common Law of Contract: The Rise of Assumpsit (1975); Legal Theory and
Legal History (1987) (especially the Innovation essay).
Val D. Ricks: The Sophisticated Doctrine of Consideration, 9 Geo. Mason L. Rev. 99 (2000); In Defense of Mutuality of Obligation: Why Both Should Be Bound, or Neither, 78 Neb. L. Rev. 491 (1999).
Val D. Ricks, South Texas College of Law

Great Contracts Cases


My favorite cases tend to be things that arise in the real world during the course (i.e., the question of which
Miss North Carolina was entitled to go the Miss America Pageant). In terms of cases that appear in text books,
I like a mix of the old standards and new ones. Favorite old standards include Mills v. Wyman, which is a beautifully written opinion in which the judge does not like the law but feels compelled to apply it. It is good for all
kinds of teaching goals: clear writing, clear delineation of the law, and still leaves room to discuss policy and so-

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cial choices. I also like the Pepsico case about a teenage boy trying to claim a Harrier jet because it is current and
has some great visuals I can use with it and because students both relate well and find it a great source of discussion. The Frigaliment case also generates great discussion and amusement and is a good reinforcement of my
constant admonishment about the importance of language. The Shirley Parker case about mitigation of damages
opens up both legal and policy choices, allows students to see gendered issues in the law, and links to Hollywood interests.
Cites to the cases are:
Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F. Supp. 116 (1960)
Mills v. Wyman, 20 Mass. (3 Pick.) 207 (1825)
Leonard v. Pepsico, Inc., 88 F. Supp. 2d 116 (S.D.N.Y. 1999)
Parker v. Twentieth Century-Fox Film Corp., 474 P.2d 689 (Cal. 1970)(en banc)
Celia Taylor, University of Denver College of Law

Using Electronic Commerce to Teach a Transactional Viewpoint


One of the key questions in electronic commerce is whether and when mutual assent has been manifested in electronic form agreements. These proposed contracts appear on websites and CD-ROMs that offer services, software
and other forms of intellectual property, and goods. They often request the user (the person accessing the website
or using the CD-ROM) to manifest assent to the terms in the electronic form by clicking a screen button that says I
Agree or by performing a similar action, so they are known as click-through, click-wrap, or click-on agreements.
Transactional attorneys have found it difficult to advise their clients about how to set up an electronic form
agreement so that the users would manifest assent by a means that would reliably satisfy the courts, in the event
of litigation. Some large companies Ticketmaster, AOL, and Netscape have been unable to enforce the terms
of their electronic form agreements, for lack of assent by the user. (Ticketmaster Corp. v. Tickets.com Inc., No. CV
99-7654 HLH, 2000 WL 525390 (C.D. Cal. Mar. 27, 2000); Williams v. America Online, Inc. No. CIV. A. 00-9622001 WL 135825 (Mass. Super Ct. Feb. 8, 2001); Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585
(S.D.N.Y. 2001).) The consequence of the unfavorable rulings was also to render invalid thousands of identical
but unlitigated agreements.
During 2001, the case law on users assent to electronic form contracts matured to the point that it became
possible to predict the direction of this evolving case law. In response, the ABA Working Group on Electronic
Contracting Practices developed 15 strategies, which, if followed, would result in valid electronic form agreements, at least as to the assent issue.
The article containing those strategies, the supporting analysis, and a bibliography of all cases and most commentary to date was published in The Business Lawyer. (Christina L. Kunz, Maureen Del Duca, Heather Thayer,
and Jennifer Debrow, Click-Through Agreements: Strategies for Avoiding Disputes on Validity of Assent, 57 Bus. Law.
401 (2001).) It has turned out to be a superb teaching tool for a first-year contracts course because 10 of the 15
strategies deal directly with mutual assent and essentially deconstruct the concept of manifestation of mutual assent into small understandable pieces that are not readily apparent in the paper medium of contract formation
but apply equally as well in the paper world, once understood in the electronic world.
I assign students to read the article at the end of the textbook unit on mutual assent. After they have read the
article, each student must go onto the Internet or any CD-ROMs that they have at home (usually containing software) to locate a click-through agreement that meets most or all of the 15 strategies, as well as an online agreement that is seriously deficient in meeting one or more of the strategies and perhaps does not result in a valid
assent by the user. Each student must print out all of the relevant screens leading to the assent process, so that
the format and wording of the assent process are apparent. In class, I ask for examples of defects that violate a
particular strategy for instance, screens with an I Agree button before the user has had a chance to read the

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terms, or screens showing that the user can gain access to the service or the software before assenting to the terms.
I then ask for examples of electronic agreements that comply with that particular strategy. I put the students
print-outs up on an opaque projector and zoom in to show the pertinent features. (The zoom feature is necessary because the font size is rarely large enough for the whole class to read. If an opaque projector is unavailable
to you, you could collect the printouts ahead of time and put the best of them on overhead transparencies before class and then use an overhead projector in class.) Alternatively, in my all-laptop class last year, the student
read out the website address, and the class went directly to the website to see the website firsthand. In many of
these sites, the sequence of screens and hyperlinks, as well as their layout, is crucial to determining whether valid
assent results.
This assignment distinguishes between the vantage points of transactional lawyers and litigators. Before assigning the article and again in the class, I stress that the transactional lawyer who uses these strategies to advise
a client wants to have a margin of safety beyond the actual line between valid and invalid assent. The client will
be well served if the validity of the assent process does not result in litigation, let alone a loss in the courts. On
the other hand, a litigator trying to enforce a term in an electronic form agreement does not care whether the
client had any margin of safety; he or she is trying merely to determine whether the assent process in that particular case was over the line between valid and invalid assent. In support of this point, the article mentions several cases in which assent was upheld, even though not all of the strategies were met. This distinction between
transactional and litigative settings introduces a valuable lesson to first-year students, who spend much of the
year reading the results of litigation and seldom understanding how differently a transactional lawyer must look
at the law.
An additional benefit to this assignment is that it exposes students to contract language and gets them to think
about the language that they have been ignoring in their everyday life, as they scroll past screens to get to the assent button. Each semester in which I have made this assignment, about 10% of the class has inadvertently ordered goods raising a superb question about the validity of inadvertent assent.
Christina L. Kunz, William Mitchell College of Law

Ethics: Client Interviews and Witness Preparation


In addressing lapse of an offer by death of the offeror, the contracts casebook poses the case of an aunt who
offers to pay her nephew $5,000 if he attends, or agrees to attend, her funeral after she has died. (E. Allan
Farnsworth, William F. Young & Carol Sanger, Contracts: Cases and Materials 18586 (PROBLEM) (6th ed.
2001)). Did the aunt make an offer for a bilateral contract, which the nephew validly accepted during the conversation with his oral assent? Or was she bargaining for a unilateral contract, in which only his performance of
showing up at the funeral would constitute acceptance? If the former, and if the nephew can prove it, the contract obligation is a debt that the aunts estate owes to the nephew. If the latter, the offer terminated on her death
before the nephew could accept through performance, and he has no contract rights. The aunts wording of her
offer may be determinative on this issue, but she is no longer alive to testify to that. The nephew is the only remaining witness to this conversation, and he is the client of each student.
I will play the role of the client and ask the students to interview me. When they get around to asking questions about my conversation with my aunt, I pretend not to remember the details of her offer and I eventually
ask why the details are important. Should the students/attorneys inform me of the distinction between bilateral
and unilateral contracts and explain that I will recover only if my aunt and I exchanged promises during her lifetime? Would that encourage me to remember the facts in a way that supports my claim? Is that any concern of
the attorney, so long as the attorney reminds the client to tell the truth? When preparing the witness for a hearing, how far can the attorney go in helping the witness tell a clear, convincing story?

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To help address these questions, I distribute a short article from a bar journal on witness preparation: Robert
S. Luft, Preparing Witnesses, California Lawyer 57 (Nov. 1986). My syllabus also cites to an article to which students may refer if they are interested in exploring the issue further: Liisa Renee Salmi, Dont Walk the Line: Ethical Consideration in Preparing Witnesses for Deposition and Trial, 18 Rev. Litig. 135 (1999). In class, I show students two movie clips: (1) the client interview scene from the movie Anatomy of a Murder, in which attorney
James Stewart cleverly leads his client to search his memory for facts that might support a defense of temporary
insanity, and (2) the witness preparation scene from the movie The Verdict, in which James Mason prepares a
physician witness for trial both in ways that are clearly acceptable and in ways that arguably go beyond the ethical by possibly influencing the substance of the witnesss testimony. These are vivid, concrete ways of generating animated discussion of ethical questions raised by the problem in the casebook.
Charles Calleros, Arizona State University College of Law

Disney Films Teach the Basics of Contract Law


An article by Michael A. Baldassare (Cruella De Vil, Hades, and Ursula the Sea Witch: How Disney Films Teach
Our Children the Basics of Contract Law, 44 Drake L. Rev. 333 (2000)) describes an alternative set of materials
for Contracts. The article begins:
This Essay explores how Disney films teach our children the basics of contract law. Each Part begins
with the general fact-pattern of a film, then offers legal analysis of the dialogue and actions of the characters. This reveals the contractual lessons children learn from each film. Many of the contracts discussed
are oral and thus teach children the seminal lesson that few classes of contracts must be in writing. However, a close analysis reveals the contractual lessons of these films are more complex.
Part II analyzes The Little Mermaid and its contractual lessons: offer, acceptance, consideration, and
novation. Part III deals with Hercules and its lessons: accord and satisfaction, liquidated damages, and
the implied covenant of good faith. Part IV analyzes 101 Dalmations and the contractual issues that drive
the plot: the non-binding nature of preliminary negotiations, the proper rejection of an offer, and the
implied duty of good faith.
Gerald Hess, Gonzaga University School of Law

Exercises
A Contracts Drafting Challenge
Five years ago, I was looking for a hook to get the students interested in contracts on the first day of class. How
could I show new 1Ls that contracts really was as interesting as criminal law or torts? The only thing that might
interest them more than the blood and guts was, of course, themselves and surviving law school. So the very first
thing I did was to write on the board in very big letters, If you do exactly what I say, then you will get an A in
Contracts. After introducing myself and briefly reviewing the syllabus, I asked them to read what was on the
board. Then I asked them, Will you be able to force me to give you an A in Contracts based on what is on the
board? What followed, after a little prodding, was a spirited discussion that revealed their preconceptions about
contracts. It was information that proved helpful and interesting to me.
Then I told them that the rest of the semester would be devoted to answering that question; that question was
what contracts was all about. That stimulated more questions. A quick trip through the casebooks table of contents revealed that the subject covered the creation of obligations and the remedies available to enforce them. I

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brought up the problem a few times during the semester as we completed sections of the book. Each time, they
seemed interested in the possibility that a valid contract might guarantee them an A.
Three years ago, I decided to incorporate a drafting exercise into the Contracts course. I wanted the exercise
to be something they would want to do. Of course, they would want a contract that would get them an A, so I
built on the first-day hypo to create a challenge they would find irresistible. I decided to make it an extra-credit
opportunity, rather than an assignment, in hopes that would stimulate a more positive attitude. Since it was irresistible, they would all do it anyway. During the second class I presented them with the following:
Professor X wrote on the board, If you do exactly what I say, you will get an A in this course. He
hoped that would motivate students to approach the course in a way that would maximize their learning experience. Unfortunately, he has learned that the students dont take what hes written seriously.
Your task is to write an educational contract that Professor X can use with his students. You must produce a valid and enforceable contract. The contract is to be written in plain language, not legalese. You
are also to write a memo to accompany your contract. In that memo, you are to explain your contract
and address the relevant issues raised by each chapter in the casebook. This is not a research project; you
need not go beyond the casebook and hornbook. You may discuss the issues in general with classmates
and the professor, but you are on your honor to do all the writing without consultation of any kind with
any other person. You may not have any person review what you have written. Your project must be
turned in to Student Services, identified by only your exam number, no later than the beginning of the
final exam in this course. A successful project may earn you enough extra credit to raise your grade to
the next grade level (e.g., from a C+ to a B).
I specified that the memo should consider the issues raised by each chapter in the casebook to promote a thorough examination of contracts doctrine in a practical setting. The setting is one they can all easily understand;
they are not distracted by and do not waste time trying to figure out the transaction or the parties expectations
as might occur if I used a real estate sales contract or a construction contract. I pointed out that working on the
project should improve their understanding of the doctrine on which they will be tested at the end of the semester, so doing the project would provide them with a triple benefit: a drafting experience, extra credit, and the
likelihood of a higher grade on the exam. How could anyone resist?
One obstacle, of course, would be time. Students might worry that the project would take too much time in
a semester, their first in law school, when time seemed in very short supply. To address this, I encouraged the students to work on the project over the course of the term rather than leave it for the end. Approached in this way,
the time required each week would not be too great. To encourage them during the term, I make it a point to
discuss the drafting issues raised by the cases whenever possible.
I have now used this project in my last two Contracts classes. I must admit that a significant number of students were, somehow, able to resist its allure. However, a more significant number did take part. Based on anecdotal evidence, it appears that it did provide students with the benefits promised because they did well on the
exam and felt the experience was highly beneficial.
(This idea appeared in The Law Teacher, Spring 2001, p. 4.)
Ron Brown, Nova Southeastern University Law Center

Contract Negotiating and Drafting


In my first-year Contracts class I do a three-part contracts negotiating, drafting, and applying exercise. The
students do most of the work outside of class in teams of four (two clients, two lawyers). I set forth the instructions for the first part of the exercise below; the fact situation involves a student carpool simple facts that all
students can relate to. I assign this early in the course. In the middle of the course (after material on interpreta-

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tion, parol evidence, etc.), I ask the same teams to draft the actual language. I hand out brief instructions and attach some brief drafting tips, along with a sample form contract. Finally, near the end of the course, I hand out
brief descriptions of eight different scenarios (one student breaks leg, quits law school, totals car, etc.). Each team
draws a number out of a box, and each team must then apply its own contract to the situation and resolve it
somehow; teams report orally in class on their resolution of the problem, as well as hand in a brief form reporting
whether they had relevant language and, if not, how they resolved the situation. I spend some time in class explaining and talking about the exercises, but the students do most of it outside class time. I dont comment on
the memos unless there is some clear problem; I hand the contracts back with brief comments and discuss some
sample language in class to illustrate common drafting problems. The whole three-part exercise takes very little
class time and not much of my time, but it works very well to familiarize students with a simple real-world contract situation.
Exercise 1A
Exercise 1 is a three-part exercise (A, B, C) which we will do over the course of the semester so that you can get
some sense of the experience of negotiating, drafting and performing (or not performing) a contract. Each of you
is part of a four- or five-person team for the purpose of the exercise (although I will ask you to switch roles in different parts of the exercise). A list indicating the teams and numbering the team members from 1 to 4 is attached.
There are three teams of five, so I have asked students on those teams to double up on role number 4. For exercise 1A, the roles will be assigned as follows:
Team Member 1.
Team Member 2.
Team Member 3.
Team Member 4.

Mike/Mary Mendes
Lawyer for Mendes
Susie/Sam Carr
Lawyer for Carr

The basic facts are that Mendes (Mike or Mary) is just starting law school at UCLA. She/he does not have a car
and could find an affordable apartment only in Culver City. Bus service is somewhat slow and erratic. During the
first week of class, Mendes discovers that a fellow member of section 1-2, Carr (Susie or Sam) lives quite near
Mendes and not only has a car but even has a UCLA parking permit. Mendes and Carr decide to see if they can
agree on some kind of mutually beneficial ride-sharing arrangement.
Each client should meet with his/her lawyer to discuss his/her contract goals, and the two sides should then
meet to negotiate the contract terms. Clients can decide whether to be present at the negotiation, whether to
leave it to the lawyers, or whether to negotiate with the other side without lawyers present its up to the client.
(Ethical rules prohibit a lawyer representing one party from communicating directly with another person if the
lawyer knows that person is represented by a lawyer. So Carrs lawyer could not ethically deal directly with
Mendes without consent of Mendes counsel. The clients can of course speak directly to each other without their
lawyers at any time.)
The contract terms may be short and simple or very elaborate and may contain any provisions the two sides
agree on. At the conclusion of the negotiation, each side (Mendes and lawyer, Carr and lawyer) should write up a
summary of what has been agreed on. Each lawyer-client pair should submit the summary to me at the beginning
of class on Thursday, January 25. Typed would be nice but clearly written is ok both students should have their
names on the product but it is up to you how to allocate the work. (If you want to allocate over the semester, Exercise 1B will involve the actual drafting of the contract language one product from each four-person team; Exercise 1C will just involve submitting a brief description of how the parties applied their final contract to resolve a
performance problem.) I will read them over and hand them back I will only comment if the writing or the
meaning is not clear or if there seem to be radical differences between the two sides as to what they agreed on,
and we will spend a little time in class talking about the exercise.
I am not asking you to draft and agree on actual contract language at this point; your statement should simply
accurately reflect what you think you agreed on as a result of the negotiation with the other side. In lawyering

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terms, this would be an informal memo to the file which a lawyer would prepare following a negotiating session
as preparation for either further negotiation, the drafting of a preliminary memorandum of understanding (when
negotiations are complex parties often agree on such a memo while the contract language is being drafted) or the
drafting of the actual contract.
It is up to each lawyer-client pair to work out the terms of the relationship (i.e., who does what, who makes
what decisions, who speaks at the negotiating session, etc.). Lawyers should abide by standard ethical obligations
(loyalty to the client, confidentiality, competence, and care, etc.). I have attached copies of three of the ABA Model
Rules of Professional Conduct which speak to the lawyer-client relationship. If any of you have questions at any
time about the exercise, or about how lawyers and clients generally behave, please feel free to email me or see me
and ask questions, and I will try to answer any questions you have.

Alison Grey Anderson, University of California, Los Angeles School of Law

The Parol Evidence Rule and the Living Contract


The Parol Evidence Rule, 2-202 of the U.C.C., is designed to give certainty to written agreements and to guard
against perjury. The rule tells us that final writings may not be contradicted by any prior or contemporaneous
agreement. However, the rule contemplates two levels of finality when it describes final writings: 1) the partially
integrated final writing, best described as one that is entered into with some modicum of care, but that is not
so thoroughly and carefully executed as to qualify for the second, more exalted level of finality and 2) the fully
integrated or final, complete, and exclusive writing. The distinction between partially and fully integrated writings is important because partially integrated agreements cannot be contradicted by any previous understanding but may be supplemented by so-called consistent additional terms. By contrast, a fully integrated writing is
not only immune from contradiction but cannot be supplemented even by a consistent additional term. The potential for confusion is compounded by the statutes insistence that evidence of course of dealing, course of performance, and trade usage (what I affectionately refer to collectively as the triplets) is freely admissible to explain the deal, regardless of the extent of the contracts integration.
To give life to this model, I use problem sets, cases, and even more hypotheticals. Then, mindful that learning
is assimilated through all five senses and that a multi-modality approach facilitates understanding and retention,
I ask a student to come to the front of the class and be a living, breathing, three-dimensional contract. To carry
out this exercise, I bring at least three props with me. For purposes of this summary, those props will be a t-shirt,
a fishing hat, and a towel. Heres how the exchange proceeds. (Assume that the student asked to be the contract
is named Leonard.)
Professor: [Leonard is now in front of the class. He may be very well dressed (perhaps hes going to work later
in the day or to a job interview) or he may be less than very well dressed. Either way, the exercise works.] Id like
all of you to imagine that Leonard is a contract. This morning, all of us, parties to this contract, gathered in
Leonards closet to determine this deals relevant terms. Heres what we came up with. Imagine that each item of
clothing, piece of jewelry, and accessory now worn by this contract is a relevant term. Take a look at the finished
product. Our first step is to determine this deals level of integration. Is Leonard put together well enough to at
least qualify as a final contract, worthy of some protection under 2-202? [Invariably, the groups conclusion is
yes.] But just how final is Leonard? Is he partially integrated, which is the norm, or is he so meticulously wellcrafted, so finely put together, as to be fully integrated? [Here, some discussion ensues. Typically, the conclusion
is that our deal is only partially integrated. Factors relevant to that conclusion are discussed at some length.]
Professor continues, now holding up the t-shirt: Suppose that I, one of the parties to this contract, now assert,
after the fact, that No, it wasnt this shirt term [pointing to the shirt that Leonard is wearing] that we agreed on,
but this one [pointing to the t-shirt in my hand]? Is my proffer admissible? [Here, the conclusion is no, the
proffer should not be admissible because it is contradictory. Quite literally, the variant t-shirt term doesnt fit.

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When we met in the closet this morning, we obviously talked about and decided on a shirt term. Thats why our
contract, Leonard, is wearing one. Deals entered into with some modicum of care dont deserve to be contradicted in this way.]
Professor, now holding up the fishing hat: How about this fishing hat term? Is it contradictory? What would
the proponent of this proffer argue to get it in? [The proponent of the term would assert that it is a consistent
additional term. Notice, after all, that Leonard, our contract, does not yet have a hat term. (If, by contrast, our
contract happens to be wearing a cap or other headwear, that becomes the springboard for arguing that the fishing hat term is indeed contradictory.) Here, let the contract try the hat on. Ask the class how our deal looks. Does
it seem a compatible term, or, even as a visceral matter, does that term seem out of place? Which additional facts
would be relevant? For example, what if we knew that we were going fishing today? What role do the triplets have
to play in determining the admissibility of this proffer? For example, what if, in the past, we always included a
fishing hat term for good luck. (Course of dealing). Or, what if every deal of this sort, in this jurisdiction, on this
date, tends to include a fishing hat term? (Trade usage).]
Professor, now ready to throw in the towel: What about this towel term? Is it contradictory (in which case its
out), or is it consistent with the tenor of this deal? Can we hook it up to the triplets? For example, did we understand, based on previous experience, that a portion of this deal would probably occur in a sauna? Context,
after all, is everything.
Paula A. Franzese, Seton Hall University School of Law

Exploring the Difficult Concept of Reciprocal Inducement


Our contracts casebook introduces the reciprocal inducement or bargain branch of the consideration requirement with Kirksey v. Kirksey, 8 Ala. 131 (1945) (reprinted in E. Allan Farnsworth, William F. Young & Carol
Sanger, Contracts: Cases and Materials 5051 (6th ed. 2001)). In Kirksey, the promisor includes the following statement in a letter to his recently widowed sister-in-law:
If you will come down and see me, I will let you have a place to raise your family, and I have more open
land than I can tend; and on the account of your situation, and that of your family, I feel like I want you
and the children to do well.
In response, the sister-in-law abandoned her current possession and moved her household 60 miles to the
promisors land, but the promisor ejected her from his land before performing the full terms of the promise. A
divided court found the promise to be gratuitous and unenforceable, but the courts opinion cryptically explains
majority and dissenting votes in two sentences, leaving much room for students to speculate about the courts
rationale and to develop their own arguments. If one were simply to ask students to read, analyze, and brief
this case, they would probably be left scratching their heads. To get the most out of this case, I ask them to fill in
the gaps in ways suggested by the entry below from my syllabus.
Prepare Problem 5 in this HO; and Kirksey v. Kirksey & notes, CB at 5052. After you summarize the issue, holding, and facts of Kirksey, try to rationalize its surprising result in terms of reciprocal inducement rather than on the
illogical basis that moving 60 miles is not an act that could be a performance (take guidance from the notes that
follow Kirksey). Then, for purposes of class discussion and not to hand in (unless you want to), argue both sides of
the issue of reciprocal inducement. Specifically, in place of the Reasoning section of your case brief, present your
arguments in either of two ways:
(1) In place of the last paragraph of the opinion, draft two opinions: (a) a majority opinion authored by Justice Ormonds fellow justices, explaining in detail why the transaction lacks consideration and (b) a dissenting
opinion authored by Justice Ormond explaining in detail why the consideration requirement is satisfied; or

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(2) Draft the argument section for each of two appellate briefs to the court on behalf of each party. Each
argument should (a) state your clients desired conclusion, (b) summarize the legal principle that you invoke,
(c) apply your rule to the facts, and (d) restate your conclusion.
You can state the same legal rule in both opinions or both briefs, but you should argue the facts differently.
Suggested Problems for Review after class: problems 67 in this HO.

As suggested by the excerpt from my syllabus, the casebook follows the Kirksey case with note problems that
help students draw distinctions in cases that raise close questions about reciprocal inducement, specifically about
whether a promisor was induced to make his promise by the prospect of some promise or performance by the
other party or whether the other partys act was simply a means of collecting on a gratuitous promise, which is
generally not enforceable. Also as suggested by the excerpt, I have developed my own problems, which I hand out
to the students with my syllabus, a few of which relate to this concept of inducement:
5.

Consider each of the dialogues in sections a and b below. Which describes a bargained-for exchange and
which does not? What is the material distinction of fact between them? How does that distinction relate to the
concept of bargained-for exchange? What further questions do you need to ask to help resolve section c?
a. Bob and Jan meet for brunch after a wild New Years Eve party and discuss their resolutions for the New
Year:
Bob I promise you this, Im not going to take another drink for the rest of the year.
Jan Good for you. Ive quit smoking; I promise you that I wont have another cigarette for the rest of
the year.
b. Bob and Jan meet for brunch after a wild New Years Eve party and argue about which of them has the
most will power and which of them has the most irritating vice. Finally, they decide to take action:
Bob I promise to quit drinking for the rest of the year if you agree to quit smoking for the year.
Jan Agreed.
c. On learning that his sister-in-law, Antillico, was having trouble making ends meet for her and her children,
D wrote to her: If you will come down and see me, I will let you have a place to raise your family.

6.

Do you reach the same or different results in problems 6 and 7? Explain why. John desperately wants to sell
his car so that he can pay some overdue bills. When a potential buyer strikes a hard bargain, John reluctantly
agrees to sell his car for $1,000, even though it has a market value of $3,000. Bargained-for exchange?

7.

Bob owns a car with a market value of $2,000. He announces his intention to give the car to his sister, Alicia,
on her birthday in November. Alicia, a first-year law student, insists on paying $1 for the car. Although the
idea sounds silly to Bob, he promises to transfer title to the car in November, and Alicia promises to pay Bob
$1 on delivery. Bargained-for exchange?

Kirksey v. Kirksey also raises questions of reliance, which might lead to an alternative form of recovery under
promissory estoppel, rather than under a contract supported by consideration. To help explore both issues of reciprocal inducement and reliance, I have devised a new problem set, a series of three hypothetical cases, set forth
below. (With a grant from the Institute for Law School Teaching, I have recorded this skit in video format. Contact me to obtain a copy (charles.calleros@asu.edu).)
Case #1 illustrates a pretty solid example of an unenforceable gratuitous promise, because Dan and Nancy
seem to be motivated solely by gratitude for Debbies past acts and because Debbies promised presence at the
bank is just a means to transfer the gift rather than a performance that induces Dan and Nancy to make their
promise. Case #2 supports a plausible argument for promissory estoppel. Finally, Case #3 invites students to distinguish Case #1 on the issue of reciprocal inducement and to develop an argument that Charles was genuinely
induced to give his promise by the prospect of meeting with his estranged brother.

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Case #1: Disappointed Expectations


Dan and Nancy and their two daughters open the door to greet Debbie, who is bearing a birthday cake for one of
the girls.
Debbie: A special cake for the birthday girl!
Dan and Nancy: Hi. Look what just arrived, kids!
Nancy: This looks great. And how is William?
Debbie: Still ill, but he is recovering. Hes excited about my plan to open the bakery.
Nancy: Did you get your loan from the bank?
Debbie: Unfortunately, no. All I need is $10,000 to get it started. Well get it somehow.
Dan: Well, we heard as much, and wed like to help. We just finished writing this get well card for William. But
we have a card for you as well, in gratitude for all you have done for us over the years.
The card reads: Debbie, good luck with your new bakery. To help you get started, please allow us to make a donation of $10,000. Your friends, {signed} Dan and Nancy.
Debbie: Really? Are you loaning me $10,000?
Nancy: Not a loan. This is a gift. If you are available this coming Monday, lets all meet at the bank at noon and
arrange the transfer of funds.
Debbie: Ill be there. Thank you so much. We will never forget this. I will make you proud with this bakery.
Later that day . . .
Nancy: {getting off the phone}: That was Doug. They buyer backed out of purchasing that cabin we wanted so
much. Its ours for the taking.
Dan: No fooling!! Thats great!!
Nancy: But well need all of the cash we have on hand.
Dan: Right . . . Ohh, shoot . . .
The next morning . . .
Debbie (on the phone): Hello, Dan. How are you? Oh, hi Nancy. Hey, weve got a conference call!
....
Bad news?
....
Oh no, you promised to help, and now Im counting on you. Ive been working so hard for this dream.
....
Debbie: Well, I dont want this to affect our friendship either, but I must hold you to your promise.
****
Case #2: Reliance
Same as above, except for the final phone call, which goes as follows:
Debbie: Hello, Dan. How are you? Oh, hi Nancy. Hey, weve got a conference call!
....
Bad news?
....
But, you guys, when you promised me the money, I acted immediately. I entered into a lease on Main St. for
the bakery, and I just purchased some expensive equipment on credit.
....
Ill need more than luck. Im afraid that I must hold you to your promise or I will be financially ruined.
****
Case #3 The Estranged Sibling
Charles (on the phone): Hi, John, this is your brother, Charles.
Charles cringes at the response from the other side.

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Yes, I know you are still angry with me about missing the wedding, and I know that you dont want to see me
or speak to me again, but you cant avoid me forever. I have apologized, and now I want to set things right.
....
Listen, I know that you need $10,000 to open a caf. I would like to give you $10,000 to get started. If you will
just agree to meet me for lunch next Monday at Tomasos Restaurant, we can go to the bank after lunch to
transfer the funds.
....
You agree? Great, Ill see you Monday.

Charles Calleros, Arizona State University College of Law

A Soap Opera and Lesson on Contract Damages


When I get to remedies, I have to battle the math phobias that many suffer. So I begin with a silly exercise that
shows the difference between expectation, reliance, and restitution damages. Expectation damages are intended
to place you where the contract would have put you had it been performed properly and so looks forward to an
imaginary time where the contract would be if it had been fully performed; reliance measures the cost of reliance
and so looks back to where the injured party was before the contract caused injury; and restitution requires the
breaching party to disgorge unjustly obtained benefits and so examines the breaching partys position at breach.
So, using gender-neutral names, I made up a little soap opera skit for students to act out. It is a nice icebreaker
for what many fear will be a long, dry four to six weeks on contract damages.
LOVE & LAW: THE BREAK-UP
SCRIPT ONE:
CHRIS: I met Dale two years ago. We had some good times, some bad times, and now it is over. I came to you
because I heard you were the best lawyer in town. I want you to make it right to get me what is fair. Dale
promised me a life together, and Dale broke that promise. Now Dale owes me and I want you to get it.
LAWYER: You cant always get what you want . . . but tell me exactly what you want and we can try.
CHRIS: Dale destroyed me. Took and took and then took some more. Now Dale has everything: my money, my
car, and my friends. I want it back. Over the last two years, I worked constantly to better our lives now Dale
has it all and I want it all back, or at least what its worth. Dale doesnt deserve it and it was mine before it was
Dales.
LAWYER: I think you want damages to compensate you for your injury. In contract law, there are generally three
kinds of damages: expectation, reliance, and restitution. It sounds like, in this case, you want: ____[Restitution].
SCRIPT TWO:
CHRIS: I met Dale two years ago. We had some good times, some bad times, and now it is over. I came to you
because I heard you were the best lawyer in town. I want you to make it right to get me what is fair. Dale
promised me a life together, and Dale broke that promise. Now Dale owes me and I want you to get it.
LAWYER: You cant always get what you want . . . but tell me exactly what you want and we can try.
CHRIS: Dale destroyed me. I gave up my job to move to Dales. I gave up my friends; I lost all my contacts in the
business world. I want to go back to that July day two years ago and pretend we never met. I want my life back
the way it was or at least what it was worth.
LAWYER: I think you want damages to compensate you for your injury. In contract law, there are generally three
kinds of damages: expectation, reliance, and restitution. It sounds like, in this case, you want: ____ [Reliance].

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SCRIPT THREE:
CHRIS: I met Dale two years ago. We had some good times, some bad times, and now it is over. I came to you
because I heard you were the best lawyer in town. I want you to make it right to get me what is fair. Dale
promised me a life together, and Dale broke that promise. Now Dale owes me and I want you to get it.
LAWYER: You cant always get what you want . . . but tell me exactly what you want and we can try.
CHRIS: Dale promised me the world. Dale promised to put me through school, and to start a business together.
Dale promised me a house, a car, and a wonderful life in the suburbs. I want that or at least what it is worth.
LAWYER: I think you want damages to compensate you for your injury. In contract law, there are generally three
kinds of damages: expectation, reliance, and restitution. It sounds like, in this case, you want: ______ [Expectation].

Hazel Glenn Beh, University of Hawaii William S. Richardson School of Law

Williams v. Walker-Thomas Exercise


In order to enable students to express their views about Walker-Thomas in a legally unconstrained way, I do a
class exercise that treats the question of unconscionability on remand as a question of fact for a jury (the students know that it is really a question of law). In addition to the case, I assign some descriptive material about
Walker-Thomass marketing methods (from pages 744745 of the Wisconsin casebook by Macaulary, Kidwell,
Whitford, and Galanter, Contracts: Law in Action its a summary of Greenberg, Easy Times, Hard Times: Complaint Handling in the Ghetto, from Laura Nader (ed.), No Access to Law: Alternatives to the American Judicial
System.) I also assign the official comment to U.C.C. 2-302.
We discuss the case briefly, and then I split the class into a number of juries (the size can vary but shouldnt be too big) and send them into separate rooms to deliberate for about 20 minutes on the unconscionability
issue. Each juror then votes separately on the outcome, and they all come back to class, the jury foreperson reports on each deliberation, and then we have some more discussion of the case in light of the various jury verdicts. Its a way of allowing everyone to talk and express his or her views in a short period of time. I set forth the
jury instructions below:
Class Exercise on Walker-Thomas
Ladies and gentlemen of the jury. You have heard the evidence in Williams v. Walker Thomas, including the expert testimony about the marketing practices of Walker-Thomas and the commercial setting. You will retire to your
jury room and deliberate whether the entire contract or the cross-collateral clause is unconscionable, or whether
the entire contract is valid and enforceable. In determining whether the contract or any part of it is unconscionable, the basic test is whether, in the light of the general commercial background and the commercial needs
of the particular trade or case, the contract or clause is so one-sided as to be unconscionable under the circumstances existing at the time of the contract. The principle of unconscionability is one of the prevention of oppression and unfair surprise, and not of disturbance of allocation of risks because of superior bargaining power.
Please retire to your jury room, elect a jury foreman to help coordinate your discussion, and deliberate as you
have been instructed. When you have completed your deliberations, each juror should complete the verdict form
below. All jurors must vote individually. In order to reach a verdict, at least two-thirds of the jurors must agree.
I, as a juror, find:
______ The entire consumer installment sales contract between Mrs. Williams and Walker-Thomas Furniture is
unconscionable. (Mrs. Williams may either return the most recently purchased goods which are not paid for or
may keep the goods and pay fair market value for them.)

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______ The contract as a whole is valid but the cross-collateral clause allowing seizure of all items previously
purchased by Mrs. Williams is unconscionable. (Mrs. Williams will have to pay her debt to Walker-Thomas based on
the contract price but no property may be seized as security)
_______ The entire consumer installment sales contract, including the cross-collateral clause, is valid and may
be enforced through repossesion of all goods purchased by Mrs. Williams from Walker-Thomas Furniture.

Alison Grey Anderson, University of California, Los Angeles School of Law

Contract Interpretation and Life Experiences


Students in my Contracts class sometimes find the holdings in interpretation cases artificial and counterintuitive. Sometimes students memorize (rather than understand) the holdings of cases and the categories of interpretation evidence set forth in statutes such as U.C.C. 2-208 and 1-205 with a growing sense of dissatisfaction. Accordingly, this area of contract law presents challenges and also opportunities to use new ways to teach
concepts to students. The method I describe here seeks to use life experiences, including student life in law school,
to elucidate contract principles and the policies or reasoning that informs the principles.
A usage of trade is a practice so common in a particular trade that it is assumed to be part of a contract between members of the trade. Section 1-205(2) of the U.C.C. defines a usage of trade as any practice or method
of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it
will be observed with respect to the transaction in question. The U.C.C. provisions and the cases indicate that
express terms and other types of evidence should be read together whenever possible but that, when these types
of evidence cannot be harmonized, the express terms of a contract control over other interpretation evidence,
including trade usage evidence.
These sources of law and the categories they create seem arbitrary and unreasonable to a significant number
of students. Students experience the rules of interpretation as something imposed on contracting parties by an
outside force: The Law. They view contracting as a complicated game, a meta-Monopoly, with arbitrary and random rules. In particular, many students say the rule that an express term controls over an inconsistent trade usage
runs counter to the reasoning of the cases we study. After teaching this topic for several years, I am convinced
that student dissatisfaction with the rules of interpretation results from a focus on the words of the rules rather
than their meaning or the expectations of the parties. Like the words of contracts, the words of the rules cannot
be understood in isolation from the context in which they operate. My goal is to link this concept and others to
the experience of students as a way of making contract concepts part of the real world rather than something artificial, mystical, or arcane.
The Farnsworth, Young, and Sanger textbook, Contracts Cases and Materials, uses Hurst v. W. J. Lake & Co., 16
P.2d 627 (Or. 1932), to explore the topic of the viability of usage of trade in interpreting contracts. In this case,
Mr. Hurst and the Lake Company entered a contract in which Hurst promised to sell 350 tons of horsemeat scraps
to Lake at the rate of $50 per ton for horsemeat scraps that contained a minimum 50% protein. Additionally,
the parties agreed that Lake would pay $45.00 per ton for meat scraps that failed to meet the minimum protein
content (a $5.00-per-ton discount for meat scraps with lower protein content). After the buyer paid $45.00 per
ton for 140 tons of meat scraps, the seller sued, seeking an additional $5.00 per ton on the portion delivered. The
seller agreed that the scraps contained 49.5% protein but argued that the parties were both members of the horsemeat trade and used the term minimum 50% protein as a term of the trade to include a reading of 49.5%. In
other words, he relied on a trade usage of rounding up the protein percentage reading.
The Oregon Supreme Court held that the seller was entitled to the trade usage he asserted and an additional
$5.00 per ton on the disputed portion of horsemeat scraps. The courts discussion included references to numerous usage of trade cases, including trade terminology from bricklaying, shingle sales, and other areas, demon-

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strating that within particular trades words have meanings that are different from their ordinary meanings. The
language of dictionaries is not the only language spoken in America. (Id. at 629.)
Often a significant segment of the class is dissatisfied with the rule of the Hurst case at the end of our coverage. The next topics for class discussion are the U.C.C. provisions on point, U.C.C. 1-205 and 2-208, which
indicate that express terms control over trade usage when the two types of evidence cannot be reconciled. Many
students are confident that the Code rule would reinstate the trial courts decision in the Hurst case, allowing the
buyer to exclude or withstand evidence contrary to the written term of minimum 50% protein. This belief is
based on the language of the rule: where terms cannot be read as consistent, express terms control . . . usage of
trade. Thus, applying the rule, it seems that in the Hurst case the express term of 50 percent protein must control over the trade usage of rounding up. This is not the case, however. Courts generally require stronger evidence
to displace a trade usage. Applying the rule of U.C.C. 1-205 to the words without considering the context and
meaning would inevitably destroy usage of trade as a category of evidence since, by its nature, a usage of trade
changes the ordinary meaning of a term in a contract. I note in class discussion that contracting parties use trade
terms without definition or explanation, a practice so common that courts assume it is part of the contract unless the parties explicitly displace the usage. Thus, trade usage is elevator music or wallpaper that goes unnoticed and assumed by the members of the trade that uses it.
Still sensing dissatisfaction, I use the top of the next class to announce as a housekeeping matter that, although the class is doing well, we are slightly behind schedule. As a result, I say, I checked the regulations of the
school and found that references to class time use the term hour without defining the academic hour as 50
minutes. Accordingly, I explain we will meet for 60-minute hours for a few weeks in order to catch up.
As soon as this announcement is out of my mouth, students are awake and eager to note the unfairness of my
interpretation. They argue that the only interpretation of hour in law schools is the 50-minute hour. The students make good trade usage arguments, relying on the custom established in the law school, other law schools,
universities, and higher education in general. Some students cite the 50-minute hour used by psychiatrists and
psychologists, leading me to ask how that usage relates to law school. These arguments come naturally to students, sometimes without a sense that the Hurst case or our recent coverage is at issue. After two or three minutes, someone usually makes the link, noting that the 50-minute hour is like 49.5% protein in horsemeat scraps.
At that point, class discussion turns to trade usage with a greater appreciation, realizing that members of the
trade dont talk about the usage because everyone assumes it is part of the contract unless the parties expressly
destroy that assumption. Express terms control when they are inconsistent with a trade usage, and they are generally inconsistent only when the contract mentions and rejects the usage of trade, displacing what the parties
would otherwise assume would control. Finally, I assure the class that we are on schedule and I would not trick
them into additional time in class, though I will use a trick to induce them to appreciate trade usage evidence.
Irma S. Russell, University of Memphis School of Law

Brief Gem
Unannounced Student Teaching
When I have a small class, I will without prior announcement have a student teach a class. I choose a case
that is fairly straightforward and simply walk in and take a seat in the classroom instead of going up front. Then
I ask one of the students to go forward and run the class. I do this after we have been together as a class for some
time so that everyone is fairly comfortable with each other. This really opens up the prof/student channel and
gives each of us a new appreciation for the role of the other.
Celia Taylor, University of Denver College of Law

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Feedback and Evaluation


Feedback Form
I include a Feedback Form in the class materials, which I invite each student to fill out and hand in, anonymously or otherwise, at the end of any week during the semester. This form is based on recommendations made
at a presentation at the Institute for Law School Teaching. My form typically includes questions such as:
1.
2.

Identify at least one important concept that you believe you learned well in this course during the week. What
teaching techniques worked well?
Identify at least one concept that we have studied, about which you are still confused to a degree that leaves
you frustrated. Can you recommend improvements in the assignment or teaching techniques that might have
resulted in better learning, or do we simply need to cover more material before the confusion can be dispelled?

Charles Calleros, Arizona State University College of Law

Preparing Students for Outlining and Exam Taking


Sometime after the halfway mark of the semester, I like to address student hysteria by giving them some direction on outlining and exam taking. I do this in an hour-long workshop with a series of four cases set in a nonlegal context, during which I invite students to analyze and interpret each case, to synthesize the cases, to draft
an outline, and to take an examination. Because the problem is set in a familiar nonlegal setting, the workshop
is nonthreatening and is sufficiently manageable that it allows the students to see the big picture. The written
version of the problem is discussed in detail in section III of Charles R. Calleros, Using Classroom Demonstrations in Familiar Nonlegal Contexts to Introduce New Students to Unfamiliar Concepts of Legal Method and Analysis, 7 Legal Writing 37, 4962 (2001). This problem is presented in a skit and recorded in a video, Rules for Monica, which I produced with a grant from the Institute for Law School Teaching. To obtain a copy of the video,
contact me (charles.calleros@asu.edu).
Charles Calleros, Arizona State University College of Law

Final Class Session Maintaining Perspective


After reviewing the course and discussing the exam, I spend the last 30 minutes of the final class showing the
video Legal Heroes, produced by Professor Lawrence Dubin, of University of Detroit Mercy School of Law. The
video features the inspiring stories of three attorneys who are proud of their work serving the public interest. (I
usually skip the introductory portion of the video and go straight to the attorneys stories). Students, who are
gripped by exam hysteria prior to my showing the video, tell me that the attorneys stories remind them that they
came to law school for loftier reasons than besting their fellow students on exams they want to become good
attorneys who contribute in some meaningful way to the law or to the community. They can then study hard for
exams, driven not solely by exam hysteria or hyperbolic competitiveness but by their pride in their work and
their desire to do their best.
Charles Calleros, Arizona State University College of Law

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Approach

155

Introduction and Three Approaches to Criminal Law


Steven Friedland
Comparative and International Concepts
Richard S. Frase
Teaching Criminal Law to Undergraduate Students
Craig Hemmens
Challenges in Teaching Criminal Law
Steven Friedland
The Challenging Student
Kate Bloch
Three Pillars of the Classroom Community: Demystification, Rapport, and Engagement
Kate Bloch

Material

155
156
156
158
158
159
160

Movies and Videos


Kevin McMunigal, David McCord, Steven Friedland
Teaching Prostitution Seriously
Beverly Balos

Exercises

160
161
161

Teaching Constitutional Limitations on Criminalization in One Fun Class


Ellen Suni
A Prelude to the Famous Case of Queen v. Dudley & Stephens
David McCord
Intellectual Treasure Hunts
Kate Bloch
A Plea Bargaining Simulation
Sidney L. Harring
Teaching Law, Skills, and Ethics through Negotiation
Jeffrey L. Kirchmeier
Teaching Rape
Ellen Suni
Using Teaching Assistants to Put Criminal Law in Context
Stacy Caplow

153

161
162
163
164
166
167
168

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A Three-Hour Tour . . .
Steven Friedland
Moral Geography
Steven Friedland

Brief Gems
The First Day of Class
Kevin McMunigal
The Elements of a Crime and Chocolate Chip Cookies
Jeffrey Ershler

Feedback and Evaluation


Final Exam on the First Day of Class and throughout the Course
David Dominguez
Practice Exams and Quizzes
Kevin McMunigal

171
171
172
172
172
172
172
173

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Approach
Introduction and Three Approaches to Criminal Law
Substantive criminal law is a traditional first-year, first-semester course. Many schools parse the procedural
and substantive components of criminal law to create a separate, free-standing course in criminal procedure, focusing on the Fourth, Fifth, and Sixth Amendments to the Constitution. Students often warmly receive the substantive criminal law subject matter, if only because it lies firmly within the realm of common experience, either
their own personal experience or within the popular culture. Because of its apparent familiarity, students often
consider criminal law to be easier to grasp and less obfuscatory than other first-year courses, especially when
placed side by side with courses such as Civil Procedure and Property Law. Yet, the criminal law subject matter
hides subtle complexity and nuanced analysis, giving it significance and depth. Among the rich philosophical underpinnings of the course are theories of punishment and issues of consistency, fairness, and discrimination,
along with a combination of statutory and common law interpretation.
The anatomy of a crime almost always includes a voluntary act, called the actus reus, accompanied by a concurrent mental state, called the mens rea. Some crimes, like homicide, also require a result, raising issues of causation. Even if these prerequisites are met, affirmative defenses, such as insanity, entrapment, duress, necessity,
self-defense, and defense of others, might excuse or justify the actors conduct. Of these criminal law building
blocks, the mental state of the actor and the affirmative defenses receive the majority of attention in a typical
substantive criminal law course. The actors mental state not only determines the degree of culpability and
heinousness of the conduct, but whether a minimum threshold of criminality has been reached at all. The defenses provide a similarly fertile ground for discussing whether society considers the actors conduct to be criminal or justified. While the act and the causation of injury may be relevant to the criminal law discourse, they
tend to take a back seat in the academic setting.
Criminal law courses often include several different pedagogical approaches. Three of the more popular ones
are described below.
Approach #1: Common Law Crimes and Defenses
Many substantive criminal law courses revolve around common law crimes and associated defenses. The primary focus of such courses is on the traditional common law crimes, such as burglary, larceny, arson, battery, assault, homicide, and robbery, with emphasis on the elements required to prove each crime. Of the common law
crimes, the various forms of homicide generally dominate the discussion. Distinctions between murder and
manslaughter are set forth in the cases and hypothetical fact patterns demonstrating criminal behavior.
The common law is often the law of choice for several reasons. First, it usually can provide a rudimentary form
of legal analysis, permitting first-year, first-semester law students to practice applying the rules to the facts and
be actively engaged in thinking like a lawyer. Second, the common law offers the building blocks for many of
the criminal codes adopted by the states, allowing students to transfer their knowledge from state to state after
graduation. Third, criminal law is a subject tested on the multistate bar exam, and the test utilizes the common
law.
Approach #2: Utilizing the Model Penal Code
Some professors teach criminal law at least in part as a code course, using the Model Penal Code or the state
criminal code as the central or important secondary mechanism of legal analysis. This code approach is utilized
for several different reasons. The professor might believe statutory interpretation is an important topic for entering law students, important enough to model in the first semester. Further, the professor might want the realism and relevance a local criminal code offers, particularly if used in conjunction with on-going high-profile
cases. Also, the professor might desire to compare and contrast the code with the common law, in and of itself

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an exercise in legal analysis, or to illustrate the evolution of the law. The code approach changes the classroom
substance and dynamic, shifting the analytical foundation from the development of case law to statutory interpretation. Such a shift can change the complexion of a course dramatically, although the locus remains on understanding the applicable rules and principles.
The Model Penal Code can be used in conjunction with the common law, especially to compare and contrast
the legal rules. The evolutionary nature of the Code offers several different assessments, from an historical progression to a utilitarian focus (e.g., Is the Code really better than that which preceded it?) to a question of continuity (e.g., What ought to be done to improve the Code in a new millennium?).
A code has the advantage of being an orderly and comprehensive instrument. On the other hand, it stands
without context, taking away the rich stories that form the core of the historical criminal law, which traces its
roots to old English cases. The statutory rules often need associated cases or hypotheticals to anchor students understandings as well as to promote relevancy and student interest.
Approach #3: Theories of Punishment
Criminal law courses offer a significant opportunity to introduce students to legal remedies in the context of
theories of punishment. This complex and interdisciplinary component of substantive criminal law offers students an entirely different perspective of the law compared to its doctrinal counterpart, which often involves the
parsing of the elements of common law crimes and defenses. Theories of punishment, constituting but one aspect of the moral geography underlying the criminal law, may arise from discussions about crimes generally, the
death penalty, current crimes in the news, criminal law television shows or films, and other avenues of entry. All
of these discussions can illustrate the import of values, cultures, and norms to the resulting legal rules and principles.
Steven Friedland, Nova Southeastern University Law Center

Comparative and International Concepts


For most students taking introductory criminal justice courses in American law schools, the world beyond
the United Statess borders either does not exist or is largely populated with alien, inquisitorial legal regimes. In
this essay, I will argue that law teachers (and textbook writers) must begin to incorporate comparative and international perspectives into introductory-level criminal law and criminal procedure courses. Despite the difficulties it entails, I will explain why it is so important to make this change. I will also suggest some of the broader
points and specific topics that could be covered and describe suitable teaching materials now in print or soon to
be published. [For the rest of this essay, see Main-Streaming Comparative Criminal Justice: How To Incorporate
Comparative and International Concepts and Materials Into Basic Criminal Law and Procedure Courses, 100 W. Va.
L. Rev. 773 (1998).]
Richard S. Frase, University of Minnesota Law School

Teaching Criminal Law to Undergraduate Students


Teaching law to undergraduate students is a sore subject for many in the law school community. There are
those who would prefer that undergraduate students spend their time acquiring a broad, well-rounded knowledge base and developing analytical and writing skills, and leave the learning of the law to law school. While there
is merit to this position, such is not the case in most undergraduate institutions. A number of disciplines, such
as business, political science, and criminal justice deal with law-related subjects and offer a variety of law classes.
I teach in a criminal justice department that offers required courses in criminal law, criminal procedure, corrections law, and evidence, as well elective courses on the death penalty, courts, and juvenile law. While some of

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my students intend to go on to law school, the vast majority do not. They either intend to work in a criminal
justice agency in some capacity or simply want to understand the criminal justice system. The law is obviously
an integral part of that system and so must be explained to them. Consequently, I seek to provide an introduction to the substantive law, as well as some exposure to the methods of legal reasoning.
I teach criminal law. While I have a law degree and have experienced the joys (and pains) of the Socratic
method, I believe it is ill-suited to undergraduate education. I prefer a combination of lecture and what I call informed discussion. At the undergraduate level, the goal is not to teach students how to think like a lawyer so
much as it is to teach students what the law is. Additionally, I have found that undergraduates need more structure than law students. Thus I try to provide some history and context, as well as some explanation for why the
law is the way it is.
Where in law school the students sometimes learn the law along the way while learning how to think like a
lawyer, at the undergraduate level the goal is more limited: explication and explanation of the key concepts. In
a criminal law course, this means providing an overview of the substantive law of crimes, from homicide to minor
offenses, rather than focusing on one crime as a means of teaching how to think about the law, a common approach in law school criminal law classes. The most efficient means of conveying a large amount of information
is the lecture format, the traditional mode of presentation at the undergraduate level. I do attempt to go beyond
the lecture and engage the students through the use of discussion and exercises intended to increase their critical thinking skills, such as case briefing and research paper writing.
While I use case briefs, I do not use a casebook. I find casebooks ill-suited to my primary goal, the conveying
of large amounts of information in a minimum amount of time. Instead I use a textbook which incorporates severely edited case excerpts (most are just two or three pages in length), and I supplement it with the state penal
code and actual case materials. The textbook (Joel Samahas Criminal Law, published by West/Wadsworth) provides some context and explanation, items often left out of casebooks. I expand upon these areas in my lectures.
Thus, when we discuss the crime of burglary, the students first read a brief overview of the crime and several
short case excerpts in the textbook. In class, I lecture on the development of the crime and the elements of the
offense, both at common law and at present. I also present some actual case material, such as that provided in
Paul Robinsons book, Criminal Law Case Studies, published by West.
Finally, we discuss the case excerpts. Having the students brief the case excerpts provides some limited practice at extracting the principles from a judicial opinion, while also serving to keep the student informed for the
class lecture/discussion to follow. This provides students with a general understanding of what burglary is today
(their primary goal), as well as some explanation for why the law is the way it is. Burglaries at night are generally treated as more serious than daytime intrusions; the history provides an explanation for this distinction. A
discussion of how the definition of burglary has expanded and contracted is explained as a response to changes
in society. The discussion of the cases provides the students with an opportunity to see how these developments
have been dealt with in the courts. Review of the state penal code provides the students with the knowledge of
the law in their particular jurisdiction. This is what I refer to as informed discussion.
I also require out-of-class assignments such as attending a trial and writing a summary of a law review article. The law review summary assignment gives the student some exposure to the arcane world of legal writing,
as well as the law library, from which they must obtain the article. The students are required to select and obtain
a copy of a criminal law-related law review article from the state law library. This forces them to find their way
(to and) around a law library and to read a more in-depth discussion of a particular criminal law issue than can
be provided in a textbook.
The visit to the courtroom provides a glimpse of the law in action a view not provided by textbooks and
lectures, and one from which I think all students could benefit. The court visit is consistently ranked by my students as among the most useful and informative parts of the course, surpassing even the lectures (!). I am ashamed
to admit I had never witnessed a trial in person until my third year, during an internship with the county prosecutor. I know I was not alone in my law school class in this deficiency, and I think it is a serious omission, not

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just for those seeking to become lawyers but also for those seeking to enter a criminal justice agency or simply
to become a better-informed citizen.
I firmly believe there is a place for the law in the undergraduate curriculum. I do not believe, however, that
the best approach to teaching the subject is the Socratic method and casebook approach typically found in firstyear law courses. Undergraduate students have different goals and needs, which are best served through a focus
on the basics and a lecture format. Hopefully my students will come away with some understanding of the criminal law and at least a faint idea of what awaits them in either the real world or law school.
Craig Hemmens, Boise State University Department of Criminal Justice Administration

Challenges in Teaching Criminal Law


Many professors look forward to teaching eager and impressionable first-year law students, who often approach the opportunity to read legal cases as a novel and thrilling exercise. These students often express a particular affinity toward criminal law, based on their familiarity with television shows, films, and books in the area.
This prior knowledge, while creating an overlay of relevancy for students, sometimes serves as a pedagogical obstacle as well. Students with preconceived notions about criminal law often must be disabused of many of their
preexisting popular-culture-based beliefs. To this effect, professors must help students relearn criminal law,
from its proper context to its analytical framework. Even with shows that are written and produced by attorneys,
television format often takes precedence over both reality and the technical requirements of the law.
Another challenge in teaching criminal law lies in the attempt to balance the competing sources of law, particularly the common law and statutes, including the Model Penal Code. For many professors, the first semester
of law school is intended to initiate students into thinking like lawyers, not so much to cover a specified quantity of legal doctrine. Yet, the casebook and the professors own experience in law school often make coverage an
immediate issue. A similar allocation-of-resources issue arises in the competition between statutory analysis and
common law interpretation.
Steven Friedland, Nova Southeastern University Law Center

The Challenging Student


Challenges arise in a variety of contexts and guises. Some challenges motivate me to be a better teacher. The
student who asks a complex question in genuine search of enhanced understanding stimulates my curiosity and
desire to analyze the issue. But occasionally, a student will challenge me repeatedly in ways that seem intended
to undermine my role or authority in the classroom. It happens rarely now that Ive been teaching for over a
decade. But through the years, and particularly early in my career, a student now and again would pose this type
of challenge.
Undoubtedly, there exist a number of ways to effectively address this type of challenge. I describe one that has
helped me reach students who challenge me. Although I may not understand the students motivation for the
challenge, either in class or through personal contact, I try to distill out something the student has said and validate it. For instance, if, despite my objections to the students tone or approach, the student clearly articulated
his/her argument, I might acknowledge the students ability to advocate for a position with clarity. Affirming the
students comment or underlying ability to understand some facet of the class or the role of an attorney connects
me to the student in a positive light. Sometimes, reaching the student requires more than one such contact. Still,
I have been surprised by the rewards that such contact has generated. In each case, the student seemed to lose
interest in challenging me. In one case, a student, one whom I had perceived as challenging me and whom I contacted in the manner Ive described, became an advocate for my teaching, later taking a seminar that I offered
and persuading a colleague to enroll in the course, too. I dont know if this approach would succeed with stu-

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dents whose challenges have already undermined the professors rapport with the class, with those who are too
hostile toward the professor, or perhaps in other circumstances, but for some challengers, acknowledging their
worth in some way clears a path for mutual respect.
Kate Bloch, University of California, Hastings College of the Law

Three Pillars of the Classroom Community:


Demystification, Rapport, and Engagement
On the first day of class, I seek to demystify the course, to begin the process of creating meaningful rapport,
and to engage students intellect, humor, and passion. For me, demystification, rapport, and engagement work
synergistically to shape a positive learning environment.
Demystification involves clarifying expectations, the students and mine. I cover a range of topics, from the logistics of the syllabus to dispelling possible student trepidation that, as the professor, I am a Kingsfield clone.
While familiarity and perceptions of the Professor Kingsfield character, from John Jay Osborn Jr.s The Paper
Chase, may vary, I find it helpful to distinguish my teaching style from a style that students may associate with
humiliation and intimidation. I do call on students randomly and without further warning throughout much of
the semester. I anticipate well-prepared students. But I want to convey right away that, by choosing this method,
I do not intend to intimidate or humiliate them (and would be quite likely to apologize if they were to bring any
such embarrassment to my attention).
Mutual respect is the heart of rapport. The classroom community belongs to us. I emphasize the importance
of robust discussion in which we disagree and advocate. First Amendment discourse, from opposing and discordant viewpoints, will prove a core value of our community. But at the same time, we are a community. The
words we choose, our tone of voice, our expressions matter. I speak of harmonizing robust discussion with respect, by recognizing that a fundamental role of the lawyer is to persuade. Whether its juries or judges or legislative committee members or partners in a firm, talented and successful lawyers persuade. Rapport can also be
about, for example, learning students names, effectively using humor, being accessible, acknowledging student
anxiety, and being candid sometimes about my own limitations.
The third pillar of our classroom community is engagement. We are going to think and work hard together. I
strive to cultivate students ability to think critically about the law and the criminal justice system. Were going
to tackle some of the most challenging issues in society. Starting on the very first day, I draw upon a variety of
educational methods to engage students. Because I will need a foundation of rapport and the margin of forgiveness that it often provides I select methods, particularly at the start of the course, that hold the promise
not only of learning, but of humor and affirmation, for students. During demystification, students list as many
television programs about criminal law as they can. The exercise is funny and informative. It can serve to reassure students that criminal law is indeed a subject with which they are already acquainted.
Similarly, I try to use humor by recalling the story of Goldilocks and the Three Bears and suggesting that
childrens stories, like this one, may have introduced them to basic criminal law concepts in early childhood. (To
do this, I rely on a cartoon by Michael Goodman from D. Robert Whites The Official Lawyers Handbook (p. 224).
It depicts three bears who seem to be consulting a lawyer about Goldilockss potentially criminal behavior. One
could instead (or in addition) simply briefly narrate the story.) I can then contrast our students familiarity with
the crimes for which she might be liable (theft? burglary? trespass?) with their perhaps much more limited understanding of the detailed requirements of each. (For example, must the intrusion take place at night to qualify as burglary in the jurisdiction where the three bears live? Should we consider a necessity defense under these
circumstances?) A concrete example, like Goldilocks, can reduce student apprehension about how inaccessible
the formal study of criminal law may prove, while still suggesting that it contains complexities that merit closer
study.

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In addition, on the first day, with class members as volunteers, we begin a role-playing exercise designed to introduce students to the life cycle of a criminal case and the participants in the criminal justice system. For other
topics in the course, I use traditional dialogues, legislative drafting exercises, a negotiation exercise, video clips,
skits, student and guest speaker presentations, written and small-group exercises, and even, on occasion, a game
format.
Of course, I dont anticipate achieving all three goals on the first day. Nonetheless, in a good year, on a good
first day, we begin together to build a classroom community that will spawn a dynamic and rewarding learning
environment for all of us.
Kate Bloch, University of California, Hastings College of the Law

Material
Movies and Videos
Why Video?
I have found movie clips to be a great teaching tool. I use them to illustrate basic ideas in the criminal law,
such as mens rea, actus reus, and provocation, by using materials outside the law to which the students can easily relate. The clips dont take much time about five minutes or less. They visually engage the students and provide a change of pace from straight classroom discussion. Some can also add a welcome bit of humor to the classroom.
More than any other course, criminal law is likely to have been the subject of a television show the night before class. And such shows often discuss cutting-edge issues, from ongoing criminal cases to new criminal laws.
Kevin McMunigal, Case Western Reserve University Law School
What Video?
Hollywood movie excerpts that make for good discussions:
The Apostle. Excerpt begins with Robert Duvall getting out of his car at a kids softball game and ends when
he drives away after having hit (and ultimately killed) his wifes lover by hitting him in the head with a baseball
bat. Use in conjunction with second-degree murder and heat-of-passion manslaughter.
Thelma and Louise. (1) Begins with Thelma exiting a bar, where a man with whom she has been dancing attempts to rape her. Louise arrives with a gun, rescues Thelma, and then shoots the man to death after Thelma is
out of danger. Use in conjunction with second-degree murder and heat-of-passion manslaughter and/or defense
of others. (2) Begins with Louise parking in a small town and Thelma getting out of the car to go into a store
(the two are on the run from the homicide in excerpt 1, above). Moments later, Thelma runs out of the store,
having robbed it. Louise did not know Thelma planned to rob the store, but she drives away at Thelmas urgent
insistence and immediately learns of the robbery. Use in conjunction with accomplice liability.
The Grifters. Begins with Anjelica Huston breaking into Jon Cusacks apartment to steal his stash of money
and ends with her hitting him with a briefcase while he is holding a glass of water. The glass shatters into his
neck, causing him to bleed to death. Use as a summation at the end of the homicide materials.
Raiders of the Lost Ark. A very brief segment where Harrison Ford is being menaced by the fancy sword-wielding adversary some distance away. Ford casually draws his pistol and shoots the adversary to death. Use to discuss the proportionality requirement of self-defense.

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Pulp Fiction. Excerpt begins with Bruce Willis, who is on the run from a crime lord, sneaking back into his
apartment to regain his favorite watch. Ends with Willis finding a shotgun on the counter of his kitchen, which
he uses to kill John Travolta, who is emerging from the bathroom. Travolta was lying in wait in the apartment to
kill Willis on behalf of the crime lord, but he laid his weapon aside to heed the call of nature. Use in conjunction with self-defense.
Midnight in the Garden of Good and Evil. There are two versions of an incident where Kevin Spacey kills his
young male lover, who is threatening him with a gun that has jammed. Use in conjunction with self-defense.
David McCord, Drake Law School
What Video II?
Two examples of useful videos include the following:
The Confession of Bernhard Goetz. Bernhard Goetz, the so-called subway vigilante, was tried and acquitted on charges of attempted murder for shooting four youths he claimed were about to rob and beat him
while traveling on a New York City subway train in 1988. A week after the incident, Goetz turned himself
in and confessed to the shootings at a police station in New England. The videotaped confession was shown
at trial and subsequently packaged for commercial sale.
A Lifeboat Survivor. This Public Broadcasting Service interview offers the remembrances of a modern
lifeboat survivor, who, in the middle of the twentieth century, subsisted on a raft for more than a month
with very little food or water. The survivor discusses what he felt during the ordeal, from the prospects of
rescue, to the management of the diminishing food supply, to the decision to engage in a form of cannibalism.
Steven Friedland, Nova Southeastern University Law Center

Teaching Prostitution Seriously


This article examines what students learn about prostitution in criminal law courses by reviewing the treatment of prostitution in three criminal law casebooks currently in use in law schools and the teachers manuals
that accompany them. Criminal law casebooks have undergone change as a result of feminist efforts to reform
the criminal justice system. Although feminist legal theory has influenced the treatment of rape and domestic violence in the casebooks, the stereotypical treatment of prostitution remains virtually unchanged. The purpose
of this article is to build on earlier feminist efforts and encourage criminal law teachers and casebook authors to
recognize the gendered implications of the treatment of prostitution, to take the law of prostitution seriously,
and to consider how prostitution implicates a broad range of criminal justice issues. [For the rest of the article,
see Teaching Prostitution Seriously, 4 Buff. Crim. L. Rev. 709 (2001).]
Beverly Balos, University of Minnesota Law School

Exercises
Teaching Constitutional Limitations on Criminalization in One Fun Class
Each semester in my basic criminal law class, I assign the material on constitutional limitations that covers the
principle of legality, statutory clarity, undue discretion, proportionality, and the rule of lenity from Dresslers Understanding Criminal Law (chapters 5 and 6). I give the students some problems to work through on their own

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and then link them to the decided cases so they can assess their own analysis (See the website at the following
address: www1.law.umkc.edu/suni/crimlaw/calendar/class_6B.htm). Instead of dealing directly with the cases or
with the problems theyve already done in class, I cover the material through a fun exercise that engages students
and makes the material meaningful (and something they will likely remember).
As students come into the class, I find a student wearing a particularly loud or ugly shirt. I then open class by
finding that student guilty of wearing obnoxious and distracting clothing and impose sentence for that class
violation: banned from class for three weeks (which are unexcused absences, thereby meaning loss of credit for
the class). But as a nice person, I give the student a break. I allow the student to select an attorney from the class
to argue why sentence should not be imposed.
The student-attorney usually begins with general fairness arguments (this occurs early in the semester) and I
challenge the student, asking if the student is suggesting I am unfair. Eventually, that student, or co-counsel chosen by the accused, begins to focus the arguments on the readings and the concepts contained therein. By the
end of class, we have addressed virtually all of the issues contained in the reading and explored how they apply.
The students seem to enjoy the exercise and get involved in the class discussion. I think they remember the concepts and are better able to apply them than if we had merely discussed the relevant cases.
The only thing I need to do to prepare for this class is to put (either on the blackboard or on the class website in five-point type) the rule about not wearing distracting or obnoxious clothing in class. This heads off the
first argument usually made (lack of notice) and focuses us on adequacy of notice instead. I do not tell the students in advance what the exercise will be and, much to my surprise, the students from the prior year do not give
it away. I think they want the new students to get the chance to appreciate the surprise exercise for themselves.
Ellen Suni, University of Missouri-Kansas City School of Law

A Prelude to the Famous Case of Queen v. Dudley & Stephens


This is a really fun and illuminating small-group exercise I devised for use as a prelude to the famous case
of Queen v. Dudley & Stephens.
Moral Theories Quick & Dirty
Altruism Whats good for people other than the actor? Often religiously based. E.g., Golden Rule
Pure egoism Whats good for the actor alone? E.g., Nietsche, Ayn Rand
Group egoism Whats good for a selected group of which actor is a part? E.g., families, fraternal organizations,
criminal gangs
Kantian German philosopher Immanuel Kant argued that an actor should never act on a principle she would be
unwilling for everyone to act on the categorical imperative
Social contract Actions that violate the contract are wrong. E.g., Hobbes, Rousseau
Act utilitarian What will result in the greatest balance of good over bad in this particular situation?
Rule utilitarian What will result in the greatest balance of good over bad in the long run of situations like this?
E.g., Bentham: The black-letter law of justifications is largely rule utilitarian.
Humeian Scottish philosopher David Hume believed that humans are essentially egoistic, but become responsive to the needs of those close to them and, eventually, even to the needs of strangers. Moral choices are so complex and contextual that no generally applicable rules can be formulated. Situation ethics
The Lifeboat: A Game to Illustrate Moral Theories
The time is the 1830s. A sailing vessel called The Beagle has just sunk. Four persons have managed to make it
to the only lifeboat. They are:

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Dudley a crew member, 32 years old, married, no children. Dudley was the last of the four to make it
aboard the lifeboat. He has a strength factor of 5.
Stephens a crew member, 48 years old, married with 7 minor children. A half-brother and best friend
of Dudley. He has a strength factor of 4.
Darwin ships scientist, 23 years old, unmarried, has notes for a book he will later write (if he survives)
called The Origin of the Species. This book (if he survives to write it) will become one of the most influential works in history. He has a strength factor of 3.
Parker a paying passenger, 17 years old, weaker than the other three and less able to survive the rigors
of a long time on the open sea in a small boat. She has a strength factor of 2.
It is absolutely clear that the lifeboat will not support the weight of all four persons, but would support the
weight of any three. In five minutes, if all four remain aboard, the boat will sink and all will perish almost instantly
in the icy water. If three remain aboard, the boat will not sink, and there is a reasonable chance of rescue.
Person A is Dudley; B is Stephens; C is Darwin; and D is Parker. You all have (1) a burning desire to live and (2) a
natural revulsion to killing. A person with a greater strength factor can throw a person with a lesser strength factor
out of the boat. Persons may form alliances to work together to throw someone out (or prevent someone from
being thrown out). Such alliances strength factor is determined by adding together the strength factors of the individuals in the alliance. If alliances have the same strength factor, a stalemate results in which nobody can be
thrown over.
You have five minutes to decide what will happen! If all four persons are still on the boat at the expiration of
time, all four will perish.

At the end of the five minutes, have the groups report to the whole class what happened in their lifeboats and
why. Have them attempt to match the outcomes with a moral theory or theories. (My experience is that most
groups turn to a utilitarian resolution by electing to throw someone out!)
David McCord, Drake Law School

Intellectual Treasure Hunts


Here is a teaching method that anticipates engaging students across a range of learning styles. Because the concept of treasure hunting is usually a familiar one, and often one that carries pleasant associations, its been easy
to launch the exercise. I offer here a brief overview of the approach a what, how, why, when and then a note
about its limitations.
In the Intellectual Treasure Hunt, class members, whom the professor has divided into small groups or teams,
hunt for the answers to a collection of written questions on a substantive topic in criminal law. Each team receives the same set of questions on a Treasure Hunt form. The hunt requires each team to respond on the form
to as many questions as it can within the allotted time frame. The team that collectively achieves the highest number of correct responses prevails. Participating on the winning team can be an adequate incentive and reward.
Alternatively, very modest prizes, at the discretion of the professor, serve well. (Small candy treats or highlighters
are consistent favorites with my students.)
The hunt contains both easy and challenging questions in a variety of short-answer, hypothetical, and true/false
formats. The most readily accessible reservoirs for treasure are the students memories and texts. In the basic version of the approach, students use their texts, notes, and other members of the group as the primary resources
for locating the intellectual treasure. This version works well in class. (A more advanced version might involve
students looking for answers in the library or online.) The amount of time the exercise consumes correlates closely
with the number and difficulty of the questions. When the allotted time for the hunt has expired, I have the

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groups switch response forms. We then reconvene and the groups grade each others work as we review the questions and answers as a full class.
For example, my hunt on theft includes questions that help students distinguish among traditional forms of
theft. It also includes questions that illustrate the influences on the development of theft law and engage students
with humor. For example, the general statutory dividing line in California between grand and petty theft is $400.
However, if you steal certain items, like avocados or artichokes, worth more than $100, thats grand theft. Including a true/false question on avocados or artichokes not only amuses students, but also sparks a discussion
about how law gets made the realities of the legislative process. Along the same lines, asking the classic question of whether you can steal items from the thief who stole those items seems funny but raises subtle legal points
about possession and ownership interests.
I focus the hypotheticals on situations that seem germane to the class members. For instance, I might explore
the concept of intent to deprive under the Model Penal Code sections involving theft by using a situation to
which I anticipate that students can relate. If the Criminal Law exam is scheduled for December 2, one question
might ask: Under the MPC, if I took your criminal law text and outline today without authorization, but with
the intent to return them on December 3, would I have committed theft?
Treasure Hunts are fun to create as the professor can be imaginative in designing questions that raise the
specifics and the themes that are important in his/her course. Moreover, because this exercise calls upon both the
students collaborative and competitive personae, students have participated with noticeable enthusiasm.
From a learning perspective, the hunt can serve a constellation of purposes. First, it motivates students to absorb and process the substantive material on the topic. Second, it encourages collaborative effort among participants on each team, an effort not dissimilar to one that might be expected with a group of associates and partners staffing a litigation team at a busy law firm. Depending on how you allocate time for the hunt, the approach
can also provide an interesting exercise in time management and resource allocation. Which teams will divide
the work? Which teams will work cohesively as a group? Which teams will divide the work but then review as a
group? Which method will produce the highest number of correct responses? It can be quite valuable to discuss
this aspect of the exercise. In addition, the exercise challenges students resource and problem-solving abilities. It
also requires some student or students in each group to write, facilitating learning for students who process information most effectively through writing. Students find the experience particularly rewarding if, at the time
you review the answers with the class, you provide each student with a completed written version that includes
the correct responses. This furnishes the rudiments of an outline or study guide on the topic.
Although this exercise can be used anytime during the course, Ive found it most productive in the latter portion of the course. The method can reinvigorate students if energy levels seem to be waning. Moreover, it can
mitigate outline and exam-preparation anxiety by providing a written product to aid study. I also recommend
including some account of the purposes of the exercise on the hunt form itself. Having students understand why
youve chosen this teaching methodology can further the learning goals of the exercise.
The approach works most effectively as an introduction to a topic or to provide students with a basic grounding in the material. With this limitation in mind, I would suggest relying on other teaching methodologies for
deeper or more advanced study of a topic. (Many thanks to my colleagues in law teaching whove proposed various game formats and inspired this rendition.)
Kate Bloch, University of California, Hastings College of the Law

A Plea Bargaining Simulation


Criminal Law is a deceptively complex course, with most of the real issues buried beneath a maze of rules. Few
courses are as rule driven as criminal law. The course covers hundreds of common law rules. Superimposed on
these old rules, are Model Penal Code rules or other new statutory rules all designed to address what some

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of the leading scholars in the field felt were shortcomings of the common law or new types of crimes. The course
requires applying these rules to bad behavior in a logical and somewhat mechanistic way, applying the elements of the rule to each criminal offense. A particular killing may, at first, look like murder, but we find out
that it really isnt because a statutory element is missing. A sexual assault may look like rape, but the students
discover that it really isnt again, because some element is missing.
But the reality is that, in an era when 95% of all crimes are plea bargained, the statutes operate as normative
tools, designed to frame the negotiations over a simple question: How much time does the defendant deserve?
Criminal law is about punishment, and punishment is about how much time, if any, does the defendant, or perp,
do? I find students often very complacent about the punishment culture that characterizes modern American society: the prisons are full, at levels far beyond anything those of us who have been teaching for many years ever
dreamed of. The routine result of plea bargaining is that the client goes to prison.
Toward the end of my course, usually about the twelfth week, I give out a very simple, one-page, plea bargaining simulation. Students in the class are randomly placed in two roles, prosecutor or defense lawyer, and
given a simple case that supposedly came across their respective desks on Monday morning and I try to give
it out on Monday morning. Because local practice is that cases like this are always plea bargained, they are given
a week to bargain it out. They are ordered to do this in the hallways of the law school, between classes, or during the lunch break, to simulate the time pressures of criminal lawyers, spending their days running from courtroom to courtroom.
From year to year I have experimented with a small number of fact patterns that all have some common elements of generic criminal offenses: the whole idea here is that the offense be ordinary. The offender is on probation for a felony property offense, last time a section of the New York Penal Code that prohibits selling bootleg compact discs. For that offense, he was fined $10,000, given a two-year suspended sentence, put on probation
for two years, and ordered to pay $25,000 restitution to the record company a Class E felony in New York, a
moderately serious property crime in terms of dollar amounts, but non-violent and unlikely to get a first offender
a prison term.
However, as a condition of his probation, the defendant is ordered to stay out of bars. As his probation term
draws to a close (without a blemish on his record), the defendant, somewhat defiantly, holds a getting off probation party at his local bar one day before his probation term ends. His probation officer gets tipped off by
a friend and appears at the party. The officer, perhaps somewhat unprofessionally, calls the defendant a stupid moron, who is going to jail where he belongs, and grabs him by the collar. The defendant, reacting to both
the insult and the physical touching, punches the probation officer in the nose. The officer falls on the barroom
floor but is otherwise not injured beyond a bruised and bloody nose. The defendant is then charged with another Class E felony, assaulting an officer. While it might be easier to simply revoke the defendants probation
and send him to prison for two years, the probation officer (backed by his union) insists that he be prosecuted
for the felony assault, to send a message to probationers that they cannot punch their probation officers, a clear
policy objective of the statute.
The students are armed only with the relevant statutes (they are assigned the New York Penal Code and use it
every day in class) and a simple explanation of New York States basic sentencing law (which is also in the Penal
Code). Essentially, the penalty for a Class E felony is anything up to four years in prison, giving the students wide
latitude in their plea bargaining efforts. Prosecutors, for example, can begin by insisting that the defendant first
serve his two-year suspended sentence and then serve a consecutive four-year sentence, an extreme and unlikely
possibility in the real world. Defense lawyers, arguing that his probation term has been constructively served
(an equitable but not a legal argument), most often begin by suggesting an additional term of probation. Indeed,
the same petty assault that is a Class E felony if committed against a peace officer is only a Class A misdemeanor
if committed against anyone else, an obvious meeting point. Defense lawyers try the language of self-defense
or provocation, again equitable but not legal arguments on these facts.

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This simple problem keeps the students going all week. There is some statutory interpretation involved, but
the statutes really only define the boundaries of the exercise. The substance of the exercise is mostly a question
of values: what is this crime worth? It is pitched generally at the low end of the felony scale, with an easy route
into the misdemeanor scale (putting the defendant in jail for up to one year), approximating a range where many
crimes happen. The defendants past record is surely an issue, but exactly how to deal with that is quite complicated. The social meaning of both property crime and violent crime emerges. On one hand, it is just a crime
against rich record companies; on the other hand, the defendant made at least $25,000 at it. While the offense
is a violent crime against a peace officer (a parole officer is so defined in the Penal Code), it also has elements of
an ordinary bar fight. A whole range of normative issues in criminal law is involved in the negotiations.
Students become very involved in their roles. They engage in some very creative exercises in statutory interpretation and pay close attention to the language of the Penal Code in ways that they had not done before. Some
great arguments about just desserts about what the perpetrator deserves and about logic and common
sense emerge. But students also find themselves powerful in this context, actually holding the defendants fate in
their hands. No court is imposing a sentence here: while this may happen later, now it is in the immediate hands
of law students. I generally tell them here that my first plea bargain was negotiated two or three months out of
law school with an assistant district attorney who had been in my criminal law class, with the same level of inexperience that I had.
On another level, many of them wonder whether what they are doing is right. They question the way the
process works. Someone always announces that it feels like a market and that it is easy to lose sight of the defendants humanity as they bargain. Does this defendant need to go to jail? Does he deserve it? A few pairings get so intensely involved with their own positions that they cannot reach a plea agreement. In my role as
boss, I then order them to settle the case: Our office does not take junk cases like this to trial. We are busy
with more important cases. Give it up. In reality, this case is highly unlikely ever to be tried: it is too small, and
both sides have risks in facing a judge or jury.
The exercise forces the students to look at the letter of the criminal law and do careful statutory interpretation. But nothing in the law really solves their lawyering problem for them. They have to use that law, but, in connection with their own values and professional goals, to try to secure an outcome that is either just or that they
can live with. It puts them, deeply and thoughtfully, into a lawyers role with what they have learned about criminal law, and it does it very efficiently, without much need for supervision or the need to use much classroom
time, although while the exercise is going on it warrants a few minutes of discussion every day and, at the end, I
ask what deals were struck. Each student submits a short memo, memorializing the terms of the bargain and
their underlying reasoning which is also proper office practice. I want the students to use criminal law on their
own terms, in their own space, without any dependence on the professor. That, after all, is how lawyers actually do plea bargaining.
Sidney L. Harring, City University of New York School of Law

Teaching Law, Skills, and Ethics through Negotiation


I generally teach the criminal law course for first-year students using the Socratic method, but occasionally I
use class exercises as a change of pace. One class exercise that has been useful is a negotiation exercise. The exercise is not difficult to put together, and it can be completed in a single one-hour class period. I first used the exercise in a skills course to teach negotiation skills, but I discovered that the exercise would make an excellent review exercise for the doctrinal criminal law course. The negotiations require students to use their statutory
interpretation skills and their knowledge of criminal law defenses. Additionally, students use policy arguments,
such as the principles of punishment, in discussing the appropriate crime and sentence.

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The Set Up. During a class near the end of the semester, I divide the students into groups of two defense attorneys working together and two prosecuting attorneys working together. The exercise works best when each
student works with another student on the same side so that each student can practice the skill of working with
another attorney. I give all of the students the basic facts of the case, a list of crimes that the defendant has been
charged with, and the sentencing ranges for each charge. Each student has a copy of the New York Penal Law to
look up the relevant statutes.
All of the prosecutors leave the room for five to ten minutes while I hand out additional information to the
defense attorneys and give them a chance to briefly brainstorm as a group. During this time I make sure that they
are aware of the main legal arguments. Then, I have the defense attorneys leave the room, and I repeat the process
with the prosecutors.
The additional information given out during the meetings is unique to each group, and it is designed to force
the attorneys to settle the case. Typically, both sides are told that their supervisor demands that they reach an
agreement. The defense attorneys are told that there is additional damaging information about their client that
will come out if the case goes to trial. Similarly, the prosecutors are given information about problems with their
case, such as the fact that the victim does not want the case to go to trial.
The Negotiations. After all of the students return to the room, they meet briefly with their case co-counsel to
discuss strategies, and then each defense attorney team begins negotiating with its assigned prosecutor team. I
put a time limit of around 20 to 25 minutes on the negotiations and explain that this meeting will be the only
time they will get to meet before the case goes to trial (noting that the client would have to agree to any plea
agreement).
During the negotiations, I walk around the class among the groups and listen to the arguments the students
are making. I allow the students to take a break from the negotiations if they want to talk to their co-counsel
alone, but they have to keep an eye on the clock. I announce the time as the final time ticks away and the students frantically work on reaching an agreement.
Class Discussion. After the time is up, we use the final portion of the class to talk about the negotiations. I let
each group announce whether they reached a plea agreement, what that agreement was, and any problems they
encountered. As an added bonus, students usually raise ethical concerns, such as a discussion about the role of
the prosecutor and the defense attorney. Often I use a somewhat sympathetic defendant, which leads to the discussion of whether it is the prosecutors role to seek the longest sentence possible or to achieve justice.
Conclusion. I have found this exercise to be rewarding for the students, and I have often heard them continuing discussions among themselves about the issues long after class is over. It serves as a fun review of criminal
law doctrine while also teaching new skills and raising professional responsibility issues.
Jeffrey L. Kirchmeier, City University of New York School of Law

Teaching Rape
Teaching rape can be difficult. I have found that the following approach works to engage students in the study
of rape, facilitates class participation in discussions about the subject matter, and encourages students to address
the legal and policy issues in a significant way.
Initially, the students are assigned to read the chapter on rape in Dresslers Understanding Criminal Law, which
is the primary text for the course. I also give them mirror-image victim and defendant statements I have written that detail each partys version of the facts. While they generally agree on most of what occurred, not surprisingly, their takes on whether this constituted rape or was consensual sex are completely different. They also
receive a packet (online) containing the statements and Missouri statutes and case law and are asked to address
whether prosecution is appropriate and, if so, for which offenses. This leads to discussion not only of the rape
statutes and their applicability, but of many of the policy issues involved in rape. After finishing this analysis, I

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assign the same scenario under Kansas law, which takes a somewhat different approach. We then discuss the problem under Kansas law, and the students are exposed to competing views. By this time, many students are frustrated by how the rape statutes resolve the issues involved. At that point, I require students to form legislative
teams to propose legislation for our class jurisdiction. The statutes they propose must address the basic issues in
rape, including state of mind. The students are permitted to draft their statutes using common law or Model
Penal Code default rules of construction, and this exercise additionally serves as a review of those rules. Teams
are required to submit their proposed bills in advance, and the class then serves as a legislative drafting session,
ultimately producing a rape statute that becomes the law in our class jurisdiction.
I have found this approach to work effectively. The students appear willing to discuss the issues involved in
the prosecution of the defendant because they can discuss the issues as lawyers, which many find more comfortable. When they get to their personal views, they do so in the capacity of legislators, which appears to make
this sensitive topic somewhat easier to talk about. Additionally, because the statute that they adopt in class will
be the rape statute that I use on the final exam, they are particularly motivated to adopt a statute that works. Virtually all of the issues come out in the discussion, and the difficulty of drafting statutes that are clear yet cover
the full range of issues effectively is brought home by this exercise. While this approach may take a little more
time than traditional methods of teaching rape, I find that it increases student interest and allows us to cover difficult issues with considerable student engagement.
For more information, see www1.law.umkc.edu/suni/crimlaw/calendar/class_5_2002.htm or email me
(sunie@umkc.edu) and I will send you the material. You can use the Missouri and Kansas statutory and case materials, adapt these materials to your own mock jurisdiction, or develop similar materials for your own state or
region.
Ellen Suni, University of Missouri-Kansas City School of Law

Using Teaching Assistants to Put Criminal Law in Context


For many first-year students, criminal law seems easy and accessible. It is, after all, a subject of headlines and
the popular media, which introduce students (sometimes inaccurately) to fundamental principles of substantive
criminal law. Many core concepts such as blame, retribution, deterrence, punishment, mitigation, and justification are familiar in one way or another to new law students. Also, I often find that more than half the students
in every one of my classes has had some exposure to the criminal justice system through work experience or college internships or as jurors, crime victims, and even as defendants. As a result, the themes, the underlying philosophy, and the narratives of criminal law do not feel as alien or as threatening as those of other courses. Even
for students uninterested in careers in this area, the class is usually interesting, lively, and enjoyable.
Of course, it is never that easy. Despite a basic comfort level, students often flounder trying to extract legal
principles from cases or to analyze doctrine through a lens of moral philosophy as so much of the subject demands. In criminal law it actually may be even harder because students feel that their prior knowledge is being
challenged and unsettled in this course, whereas they come to most other first-year classes with no preconceptions. Also, like most first-year courses, criminal law deals in abstract principles, although many students may
react to these principles with very concrete opinions. Most criminal law courses teach the general part of criminal law elements of culpability, legality, group and accessorial liability, anticipatory offenses, and defenses
and only incidentally teach specific crimes. Most texts draw on cases from all over the country and in England
to illustrate general principles. Courses rely heavily on the Model Penal Code as a contrast to common law teaching approaches rather than on state-specific law. Probably, most teachers augment their courses with examples
from their own jurisdictions, but the basic methodology avoids a local law emphasis. Finally, like most law school
topics, criminal law is taught largely through appellate case study.

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As a clinician, I have long felt a responsibility to integrate context, skills, and values into this course, particularly in light of the very real experiences of so many students, as well as the emotional content of the subject. As
anyone teaching criminal law could probably report, there are always students who identify, often painfully, with
the facts of cases or with hypotheticals. I have had many rape victims in my classes, one woman whose husband
was murdered, and sundry other crime victims. Often their stories closely resemble the facts of cases in the text.
During the many years I have taught this subject, I have experimented with techniques to allow students in larger
classes to engage in role assumption exercises to foster lawyering judgment, to develop empathy, and to understand that the law, especially criminal law, is about people, their actions, and the consequences of those actions.
(See Stacy Caplow, Autopsy of a Murder: Using Simulation to Teach First Year Criminal Law, 19 U. N.M. L. Rev.
138 (1989).) Too often students forget that there are real people in the case. They cannot picture them or understand their lives independent of the few lines of facts given in a decision. Finally, there is inevitably some confusion when the students learn about approaches by studying cases from many jurisdictions rather than examining the more coherent fabric of a single statute.
During the fall 2001 semester, I tried an experiment. Recruiting four upper-class students with some work
background in criminal law as teaching assistants (TAs), I subdivided my class into four firms and assigned
three different problems over the course of the semester. Each group had no more than 10 students. Each problem called for the students to analyze the law from a different perspective, to perform and/or make decisions in
role, and to report their results to me in a variety of formats. For each problem, the students met twice after I
had worked with the TAs for several weeks to develop the problems and teaching instructions. After each of their
sessions, I met with the four TAs to debrief. Not only did I want feedback about whether the problem seemed to
work, I wanted to hear about the reactions and performance of the students, since I counted the TA sessions as
10% of their final grade.
The problems all were very contemporary ripped from the headlines and chosen to be both controversial and realistic, leading to enthusiastic discussions. They were all situated in New York, requiring the students to rely on the New York Penal Law and New York cases to analyze the issues.
Assignment 1
In the first assignment, distributed in early October, my intention was to synthesize the materials on mens rea
and apply them to role-specific decision making. The problem drew on a recent highly publicized event at an affluent suburban high school. Several college-bound students had created a website that listed the names, phone
numbers, and alleged sexual exploits of many of their female classmates. Stories about this and other instances
of Internet graffiti had been reported, so there were several short articles to assign. (The materials assigned for
this session were: Winnie Hu, Youths Charged After Sexual Details Go Online, NY Times, June 5, 2001, at B5;
Winnie Hu, Now, High Schools Sex Gossip is Scrawled on Web Site Walls, NY Times, June 6, 2001, at B1; Amy
Benfer, Kids Are Getting Arrested for Raunchy Online Bullying. Its Definitely Offensive, but Is It Against the
Law?, July 3, 2001, http://www.salon.com/mwt/feature/2001/07/03/cyber_bullies/index.html.) The students were
broken into two groups of prosecutors and two of defense attorneys. Over the next two meetings, the prosecutors had to decide what, if any, charges could be brought under the New York Penal Law. To do this, for the first
TA session, they prepared questions for the investigating police officer (played by a well-rehearsed TA). For the
second meeting, they were instructed to write up their recommendation to their bureau chief justifying their conclusions using the factual and legal resources available. During their first TA session, the defense attorneys met
with their client, one of the students under investigation. They prepared questions for an interview with him (another role play for the TA) during the first meeting. For the second, they were assigned to predict what charges
the DA would be likely to file, to analyze the legal merits of these possibilities, and to strategize about how to attempt to persuade the prosecutor to decline prosecution, including arguments of legal insufficiency and equity.
At the end of the two weeks, the students had reported their analyses to me in a one-page memo. Unlike later assignments in which I required a more substantial assignment and gave feedback, the purpose of this initial exer-

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cise was to provide a serious, yet somewhat diverting introduction to the TA group, to acquaint them with using
interviewing to gather facts, to allow them to analyze the facts in light of legal principles we had discussed in
class, and to come to a decision.
Assignment 2
The second assignment was coordinated with our study of homicide at the mid-point of the semester. Over
the previous summer, there were news articles about several fire-fighting-related deaths raising questions central
to the study of causation in felony murder. (Murder Charge Filed in Deaths of Two Pilots Fighting a Fire, NY
Times, Aug. 29, 2001; Fire Now Murder Case, ABC News.com, Aug. 28, 2000; Fatal Wildfire Linked to Drug
Lab, ABC News.com, Aug. 30, 2000; Heart Attack Kills New Firefighter During a Blaze on Staten Island, NY
Times, Aug. 29, 2001, at B1.) Although some of the actual reported events occurred in other states, I situated the
second problem in New York, asking the students to apply our law to the facts and giving them two New York
cases about causation. (People v. Arzon, 92 Misc. 2d 739 (N.Y. Co. Crim Ct. 1978) and People v. Hernandez, 82
N.Y.2d 309 (1993).) At the TA session, the students were guided through a discussion about the possible homicide charges and what legal issues might arise. After the students analyzed the possible charges, the exercise then
required them to transform that analysis into a negotiation. Each student from a prosecution group was paired
with a student from a defense group. They were asked to discuss (a real plea bargaining session was beyond their
preparation at this point) what charges seemed appropriate and to try to reach some agreement about what, if
any, charges would be brought. They were instructed to raise and defend their position with their adversary and
to arrive at logically consistent legal positions on both cases. They had to submit a summary of this discussion
to me, including the decisions, their reasoning, and the highlights of the arguments made by both sides.
Assignment 3
Their last assignment was distributed to the students almost at the end of the semester after we had studied
defenses. The problem required the students to consider the extension of the BWS defense to a situation involving duress. They were told that the defendant wants to raise this defense to a burglary charge but that the judge
is not convinced that New York law would extend BWS to duress, and that this is a case of first impression. Since
this issue has met with mixed results in other jurisdictions the students were given a few cases in addition to a
copy of the indictment and the proposed testimony of an expert psychologist. (People v. Romero, 26 Cal. App. 4th
315 (1992)(allowing appointment of an expert and recognizing relevance of BWS to duress); United States v.
Willis, 38 F.3d 170 (5th Cir. 1994)(denying the requested jury charge); New Hampshire v. Daoud, 141 N.H. 142
(1996)(permitting a common law duress defense).) Before the students met with their TA group, they watched
a videotape of the direct examination of the defendant at her trial. (A former student played the defendant and
my students Legal Writing instructor was the judge. Needless to say, the students got a kick out of seeing the testimony in this format.) In the TA session, the discussion first focused on possible questions for cross-examination since it seemed skewed to present only the defendants testimony. Then, they examined the New York statute
and the other materials provided. Finally, they had to decide whether the judge should instruct the jury on the
BWS in a claim of duress and draft a jury charge. Most then drafted a jury charge on the defense, although they
were given the option of writing a memo explaining why the defense would not apply as a matter of law. This
written assignment, undertaken after almost an entire semester of studying cases in which the adequacy or accuracy of jury instructions was the issue on appeal, gave the students the opportunity to see how difficult this
task can be. This was the only formally graded TA assignment that, after an entire semester of course study as
well as training in legal writing, seemed appropriate.
Conclusion
My TA endeavor was expressly different from what I think of as the typical model in which a professor utilizes teaching assistants to supplement the traditional, large, first-year class. In this model TAs are resources to

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clarify materials introduced in the large class and to create a more individualized learning environment in which
students can ask questions more safely. In a sense, this model is a structured study group with some leadership
provided by the professor. Teaching assistants also have become indispensable ingredients of pedagogical experiments that involve simulations and role plays as part of more ambitious, resource-intensive projects. Whatever
the version, the conscientious teacher will spend regular time with the TAs to both insure that they are accurately
conveying legal principles and to find out what might be confusing the students. Teachers also might involve the
TA in developing the problems or role plays, in creating the class lesson plan, and in evaluating the student performances.
My goal was to recreate a small law-firm atmosphere in which students could consider legal issues in role. The
TA sessions were very structured and were not intended as a substitute for regular class coverage. Instead, the
problems were timed to allow for a synthesis of materials already covered in class in a lawyering context, using
different lawyer tasks each time. Each required legal analysis and some performance.
This model has many benefits and several limitations. First, it was obvious to all of the students that thinking
about a legal problem in a lawyering context offered a rich and even diverting alternative to traditional classes.
This should come as no surprise. In their reflective journals another course requirement many, but certainly
not all, students expressed enthusiasm for the enterprise, appreciating the change of format and the chance to
brainstorm in a small group. Of course, there was grumbling about the extra time commitment (six hours of TA
sessions in total), and not all of the TAs were equally well regarded, yet attendance was almost perfect at each session. Also, since I provided written comments on some of their assignments, they did not simply engage in an
exercise with no feedback, and they had a clear sense that their performance in the course depended on many
more components than just the final exam. This made them much more relaxed and confident about what they
were learning in this class.
Stacy Caplow, Brooklyn Law School

A Three-Hour Tour . . .
Since what constitutes a crime is often given to the students from case law or statutes, it is often useful to step
back and ask the students to play the role of legislators in formulating what is criminal, particularly who has what
burdens of proof. One exercise that illustrates the topic of crime formulation is Desert Island. The class is told
that it goes as a group on a three-hour pleasure tour of the nearby ocean islands. (This problem works best if the
school is located near a large body of water.) The weather starts getting rough and . . . there is a shipwreck on a
deserted South Pacific island. Small groups of students three or four at the most are charged with the responsibility of creating a criminal code. The small groups are asked to create a crime labeled harassment. The
survivors are asked to determine what are the elements of this offense and who has the burdens of proving these
elements.
Steven Friedland, Nova Southeastern University Law Center

Moral Geography
A useful way to illustrate the moral underpinnings of the criminal law is to ask students to rank the seriousness from most heinous to least heinous of various acts. These acts can include adultery, perjury, driving
under the influence (without injury), possession of cocaine, pollution of a river, and burglary. The class can be
divided into small groups of three or four students and asked to reach a consensus if possible. The ensuing discussion illustrates the wide range of perspectives. An interesting add-on to the discussion is to ask the students
to decide if caning hitting the perpetrator with a stick should be offered as a substitute for prison. If the

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student approves of caning, the follow-up questions can include inquiries into how many lashes ought to occur
for the particular acts discussed and who should administer the caning. Further, the students can be asked whether
the caning should occur in public even on television. The resulting discussions are usually lively and informative on the relevance and significance of morality to the ultimate determination of crime and punishment.
Steven Friedland, Nova Southeastern University Law Center

Brief Gems
The First Day of Class
For many years I covered the Dudley and Stephens case on the first day of class to introduce students to the
purposes of punishment. I now use Kansas v. Hendricks, 521 U.S. 346 (1997)(upholding one states involuntary
civil commitment of persons who have committed sex crimes), and the Kansas Sexually Violent Predator Act to
focus on the meaning of punishment. I find it a useful way to get students thinking about the differences between
the civil and criminal processes and their sanctions. I also use it to stimulate thinking about the purposes of punishment, which I cover in the next class.
Kevin McMunigal, Case Western Reserve University Law School

The Elements of a Crime and Chocolate Chip Cookies


In criminal law, it is especially important to ensure that students have a firm grasp of the elements of an offense. One of the ways to approach this goal is to define the term element. To learn what elements are, an analogy works as well as a formal definition. Students may imagine a bowl on a table in the kitchen. This bowl will
be utilized to prepare chocolate chip cookies. The student must ask himself, What are the ingredients or elements essential for making chocolate chip cookies? The student should list the ingredients or elements as butter, flour, milk, eggs, sugar, and, most importantly, chocolate chips. These items are essential to whipping up
chocolate chip cookies. Without any one of these elements, the final result does not qualify as such cookies. For
example, there would not be chocolate chip cookies without flour. Further, there certainly would be no chocolate chip cookies without the chocolate chips.
Jeffrey Ershler, Lynn University

Feedback and Evaluation


Final Exam on the First Day of Class and throughout the Course
I grab my law students attention on the opening day of Criminal Law by distributing the first part of the final
examination and informing them that they are about to embark on a semester-long project in professional skill
development and academic statutory construction. I explain that the exam has a twofold purpose. First, it is designed to impress on them the importance of essential lawyering skills, such as active listening, interviewing,
counseling, facilitation, brainstorming, mediation, negotiation, public deliberation, and community advocacy. To
satisfy this objective, I assign the 125 first-year students to legislative committees of no more than nine each, supplying them with materials and questions that require them to compare their respective critique of a current
penal code treating such controversial subjects as stalking or spouse abuse. Their shared task is to develop a model

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penal code section that represents their best understanding of criminal law and each others critique of the current statute.
Obviously, at the start of the course the students have little to offer in terms of statutory construction. They
do not yet comprehend what elements constitute a criminal act or a guilty state of mind. Likewise, they have yet
to explore the purposes of punishment or the overarching goals of criminal justice. But the students more than
make up for their lack of a sophisticated grasp of criminal law by having something equally important to offer
one another in a different point of departure. For that reason, Final Exam Part 1 requires students to take stock
of the differences in their backgrounds: ages; where raised and with what degree of affluence; how large a family; where they went to college; marital status; their children (if any); how close they have come to witnessing domestic violence. Students often report that their first impressions of each other were wrong, in part, if not in their
entirety. As the students communication and conflict management skills take shape, misconceptions are exposed,
allowances made, and credit given. Each student benefits from a range of culturally informed definitions of such
terms as spouse, negligent abuse, pattern and practice of violence, mistake, omission, and the duty to report.
Secondly, the exam tests academic grasp of criminal law doctrine and materials throughout the semester. Instead of briefing assigned course readings only for a particular class discussion, students plumb the cases and
penal code sections in earnest for their applicability to their legislative committees working draft of a model
spouse abuse statute. The weekly meetings of the legislative committees stretch students outside typical study
group discussions and provide them with a vehicle for continual review of the substantive materials (e.g., forms
and purposes of punishment; the elements of a prohibited act and guilty mind; causation; requisite harm; attempt; defenses; the Model Penal Code). To monitor how well students are achieving this end, I require that committees discuss questions that I have posed on the course website and that they rotate as spokespersons for their
committee at the following class. At the next class I call upon committees to report their response to my website
questions and thereby demonstrate to me the integration of black-letter rules and public policies underlying
criminal law into the construction of their spouse abuse statute.
During the last few weeks of the semester, the legislative committees submit not only a model statute but also
a commentary justifying its design. By transferring selected portions of the statute and commentaries onto the
course website, I allow the whole class to appreciate the long hours spent by other committees making hard
choices. Each team then defends its statute in class and is questioned concerning difficult negotiation and tough
compromises. Finally, to help students appreciate the value of multicultural legal education to the general public, I challenge the students to send out relevant portions of their model statute and commentary to interested
parties such as police associations, womens shelters, legislative assistants, public defenders, and prosecutors.
Where it is useful, the teams follow up with visits to explain, for example, how a womens shelter might propose
new wording or new definitions for a revised statute.
David Dominguez, Brigham Young University, J. Reuben Clark Law School

Practice Exams and Quizzes


This semester I have been handing out old exam questions at the end of each major topic. These encourage
the students to review and synthesize the material on that topic. Anyone willing can write out an answer and
hand it in. I cant read all of them, but I can read a handful. Then I pick one or two and offer to stay after class
the next week for 15 or 20 minutes to go over them without revealing whose answers they are. I have my secretary put the answers (with the students names removed) on PowerPoint slides, and I go over them line by line
to show how I would evaluate the answer. This is one way of providing assessment and feedback during the semester.
I use weekly quizzes to give feedback on basic concepts, principles, and vocabulary. Things that students regularly stumble on are good for quizzes such as the different Model Penal Code mental states. Missing some-

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thing on a quiz creates for the student a teachable moment, a chance to correct a mistake prior to the final exam.
The quizzes also help to identify students in the class who are having serious difficulty with the course.
Kevin McMunigal, Case Western Reserve University Law School

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Criminal Procedure
Introduction
Steven Friedland

177

Approach

177

Popular Emphases of Criminal Procedure Courses


Steven Friedland

177

Material

178

Fusing Crime Stories and Class


Catherine Arcabascio
Using Non-Fiction Table Setters to Enrich the Course
Michael Perlin
Adding a Comparative Perspective to American Criminal Procedure Classes: Germany
Albert W. Alschuler
Creating a Set of Materials on a CD
Johnny C. Burris

Exercises

178
178
179
180
180

The Mock Arrest


Pamela Bucy
Student Prosecutors and Defense Counsel
Melissa Tatum
Motions to Suppress Evidence
Christine Hutton
Serving a Search Warrant
Pamela Bucy
Using Narratives to Teach Stop and Frisk
Ellen Suni

180
180
181
181
181

Brief Gems

182

A Noteless Approach
Christine Hutton
Explaining the Big Picture of Crim Pro
Catherine Arcabascio

182
182

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Teaching Cases with Practical Impact


Pamela Bucy
Motivating Students to Read Statutes Effectively
Melissa Tatum
Centering on the Facts
Christopher Slobogin

182
183
185

Feedback and Evaluation

185

Using Multiple-Choice Questions to Teach Application of the Law


Ellen Suni

185

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Introduction
Criminal procedure is an exciting and popular pillar of the upper-level law school curriculum. It is exciting
for many students who are interested in pursuing the practice of criminal law or simply learning more about the
subject from an academic perspective. It is popular because of the close nexus between the subject matter and
the common experience of the students, as well as the drama and import of the cases.
Criminal procedure usually is offered as a sui generis course, separated from the basic substantive criminal law
course. Most criminal procedure courses are packaged as specialized courses in constitutional criminal procedure. Its constitutional origins lie in several amendments, primarily the Fourth, Fifth, and Sixth Amendments to
the Constitution. Against this backdrop, the course usually focuses on the Fourth Amendments prohibition
against unreasonable search and seizure, the Fifth Amendments privilege against self-incrimination, and the Sixth
Amendments right to counsel.
In some schools, two criminal procedure courses are offered a basic constitutionally oriented course and an
advanced course that focuses on the Federal Rules of Criminal Procedure and statutes, covering such topics as
jurisdiction, discovery, bail, and speedy trial. The advanced course, rather than serve as a continuation of the
basic courses discussion of constitutional police powers and limitations, more closely parallels a course on civil
procedure.
Steven Friedland, Nova Southeastern University Law Center

Approach
Popular Emphases of Criminal Procedure Courses
More than most areas of substantive law, criminal procedure courses offer fertile ground for a wide variety of
academic emphases. The availability of many approaches results from the subjects strong ties to popular culture,
its affinity to interdisciplinary study, and the easy access to the moral geography underlying the law, in part due
to the often-emotional nature of interactions between the police and the general population. Several of the more
popular emphases are described below.
Emphasis #1: Historical Chronology
Some professors teach criminal procedure using an imaginary, historical timeline as the course backbone, tracing the development of different strands of doctrine from their origins. This approach presents the opportunity
to compare and contrast changes in politics, society, and culture over time with the development of the law and
its rationales. The use of history lends itself to a deeper understanding of the doctrinal underpinnings of criminal procedure.
Emphasis #2: The Supreme Court Justices and Their Opinions
Criminal procedure readily transforms teachers and students into court-watchers, since the justices of the
Supreme Court and their respective jurisprudence dominate the subject. The doctrinal development often parallels the approaches of particular justices and offers useful insights. Thus, the course becomes in part a cult of
personality, bringing to life the individual Supreme Court justices as arbiters of the amendments, a status greater
than that of stewards of the specific cases.
Emphasis #3: Contextual Analysis
Criminal procedure, with its links to popular culture, history, and politics, is easy to reference in terms of context. In fact, it is often difficult to isolate the legal doctrine from connections to other academic disciplines, to

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film and television, or to the students own personal experiences. Especially with this subject matter, students appear to draw on their own reality, whether it derives from television shows, such as The Practice, Law and Order,
and Homicide, or from situations they may have observed or participated in firsthand. Consequently, students
readily understand that facts matter to the outcome of cases and that context, as well, is extremely important.
The accessibility of context has the dual effect of promoting student interest, all the while enhancing the students skill in critically appraising the legal significance of facts.
Steven Friedland, Nova Southeastern University Law Center

Material
Fusing Crime Stories and Class
There are many different avenues that can be used in Criminal Procedure to enrich the classroom experience.
For example, the media is infatuated with crime stories. Each and every day students can find pertinent examples in the newspapers they bring into class. These articles can be used to ask the students to spot and analyze
legal issues based upon the facts reported.
Catherine Arcabascio, Nova Southeastern University Law Center

Using Non-Fiction Table Setters to Enrich the Course


Over the years, I have found that my teaching works better if I begin the course with a table setter. This is
generally a non-fiction, journalistically written book that discusses a significant number of the substantive issues to be covered in the course, contextualizes those issues in a compelling individual case, and raises the full
range of lawyering and ethical issues that students need to recognize, weigh, and evaluate. Ive done this in Mental Health Law since 1985 (using Susan Sheehans Is There No Place on Earth For Me? (1983)) and in Civil Procedure since 1990 (using Gerald Sterns The Buffalo Creek Disaster (1977)), and its worked wonderfully in both
instances.
When I was first assigned to teach Criminal Procedure: Adjudication (the bail to jail course), I searched systemically for a table setter. I read, enjoyed, and learned from (but ultimately discarded) books about Sam Shepard, Jeffrey MacDonald, and Bernhard Goetz. I rejected these for a combination of reasons but primarily because
they dealt with familiar cases about which the students might have had some pre-existing knowledge or bias. By
way of example, most of my students are from the New York metropolitan area. Even today many years after
the subway shootings its pretty hard to find a New Yorker without a firm view as to what the right verdict
in the Goetz case should have been. Also, the focus points of these books were either primarily on the police investigation or on the drama and tension of the trial verdict, and not on the heart of the criminal procedure course
I was to be teaching.
Im a regular lurker (and occasional participant) on the CRIMPROF listserv and thus presented my dilemma
to the members. I received many recommendations, including a book with which I was then totally unfamiliar:
No Heroes, No Villains (hereafter, NHNV) (1978) by Steven Phillips. As soon as I read NHNV, I knew this was
the book for me to use. I havent regretted that decision. (For those interested, I previously discussed this choice
fleetingly in Michael L. Perlin, Stepping Outside the Box: Viewing Your Client in a Whole New Light, 37 Cal. West.
L. Rev. 65, 6768 n. 15 (2000)).
NHNV involves a fact pattern that law professors couldnt script. In a Bronx subway station, John Skagen, an
off-duty white transit policeman, orders James Richardson, an African-American, to back up against a wall. Shots
are exchanged, and Skagen runs out of the subway station where he is fatally shot by another policeman (who

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was unaware of Skagens identity). Richardson is charged with murder (based on a felony-murder theory),
manslaughter, and several other charges. He is represented by William Kunstler, and Phillips, the author, is the
assistant district attorney assigned to the case.
The book considers every aspect of the case from apprehension, arrest, taking of statements, bail, the grand
jury, counsel, pre-trial publicity, discovery, plea bargaining, sentencing, and more. (There is also material here
that would be excellent for both the substantive Criminal Law class especially on the use of the felony-murder
doctrine and for the other Criminal Procedure class, the one known at New York Law School as Criminal Procedure-Investigation that focuses primarily on Mapp and Miranda issues). I have the students read the
entire book before the first class (they find that it moves quickly), and then I assign students to re-read specific
chapters in conjunction with the casebook assignments. I use Frank Miller et al, Prosecution and Adjudication
(5th ed. 2000). NHNV becomes the centerpiece of the course and is the benchmark against which all doctrinal
materials are measured. Although the case is certainly atypical, the issues raised in Phillipss book (which is wonderfully written and devoid of the narcissistic and egocentric posturing that is too often the hallmark of how-Iwon-the-big-case books written regularly by prosecutors and defense attorneys) are precisely the hard issues that
any coherent course in criminal procedure adjudication must confront.
Student response has been extraordinarily positive. When Ive run into students a year or two after theyve
taken the course, they frequently mention NHNV as the book that led them to think seriously about many of the
doctrinal issues in the course. And, as a bonus, when I taught this course in the fall of 1999 to evening students,
the class roster included several students who had been NYC transit policemen in the early 1970s (the time of
the crime), one of whom who didnt identify himself in this context until the last day of class had actually
worked on patrol with the decedent. Res ipsa . . .
Michael Perlin, New York Law School

Adding a Comparative Perspective to American


Criminal Procedure Classes: Germany
Twenty-five years ago, John Langbein published a set of teaching materials titled Comparative Criminal Procedure: Germany. This book was brief and very readable. Much of it consisted of a popular writers description
of an intriguing German homicide trial. Langbeins book has been out of print for several years. Before it disappeared from the bookstores, its author volunteered to prepare an updated edition, but the West Publishing Company declined his offer. The company reported that it had not sold enough copies of the first edition to justify a
second. The publisher allows law teachers to duplicate Langbeins materials for their classes, and I still do.
I teach these materials in the final two or three classes of a course on the adjudicative phase of American criminal procedure. These classes are easy and fun. They permit a second look at issues considered throughout the
course. I begin with an opinion poll on the most obvious question, asking students to suppose they have been
transported to an international community on a space station orbiting the earth. I tell them that the community
is to vote on which criminal justice system to adopt, the German or the American. Those, I report, are the only
choices. No blending of the two systems is permitted, and England, Libya, and Iraq failed to make the run-offs.
(The division of the class has often been close, but the American system has never prevailed.) After I have divided the class into two camps and learned where to look for divergent opinions, students consider the two systems from the perspective of each of the nonprofessionals with a role in criminal cases. They begin with the question of which system treats the victims of, and the witnesses to, the crime more appropriately. Next, they consider
the system in which they would rather be a juror or a lay judge. Finally, they discuss which system they would
prefer as a defendant. Under each of these headings, the discussion moves from the lay actors perspective to
larger issues, and the course ends with an examination of the most important difference between American and
Continental procedure. Stated non-polemically, it is what degree of adversary-ness is appropriate and how much

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independent responsibility for truth finding judges should have. Under this last heading, the class considers how
Langbeins homicide case would be resolved in the United States.
In teaching from duplicated copies of an out-of-print book, I feel like a graybeard who refuses to update or
abandon his ancient lecture notes. I do ask students to include in their course evaluations a line or two about
whether I should continue to assign the book, and the great majority of responses have been enthusiastic.
Albert W. Alschuler, University of Chicago Law School

Creating a Set of Materials on a CD


Many law teachers have difficulty selecting a satisfactory casebook, in part because, unless the course instructor is one of the authors, the book selected at best only partially reflects the spin the teacher wants the course
to have. At various gatherings, complaints of law teachers abound about the lack of a casebook that properly fits
the instructors desired course structure or emphasis. Some of us take the time to create new conventional published casebooks. When each of these books appears, a few of us are perhaps satisfied, but the complainer crowd
never seems to significantly thin out.
I freely admit I once was a part of the complainer crowd. I am now no longer a member because, with the aid
of modern technology, it is relatively easy to create your own materials. I reproduce my course materials on a
CD, which is cheap and easy to do.
The CD has allowed me to better achieve my course objectives. When I created the course materials, I was able
to edit the leading cases in a manner that served my pedagogical style and, in some areas, have the students read
a sequence of cases to illustrate how the Supreme Court develops the law. I want my students to read the full argument in support of positions adopted by the majority opinion or a dissenting or concurring opinion. I believe
the editing of many casebooks leaves much of argument nuance out of far too many cases. It is also easy to include optional material. If students are interested in exploring some areas in greater detail, then it is readily available on the CD. I also provide links to interesting websites.
As for the CD, if the students want a printed copy, they can print their own or take advantage of a special discount rate I have arranged with a local print shop for printing copies of the materials. Over the last few years,
there was a significant drop in the number of students interested in printed copies, which I attribute to more of
them reading their assignments, taking notes, and writing case briefs on their computers.
Johnny C. Burris, Nova Southeastern University Law Center

Exercises
The Mock Arrest
On the first day of class, I give an overview of the material we will cover and then ask volunteers to come to
the front of the class for a role play. I pretend to stop their car and go from there to arrest, stopping along the
way to ask the class What do you think I (as a police officer) can do now? The students are generally clueless
about what the police can do, so it is an enlightening exercise.
Pamela Bucy, University of Alabama School of Law

Student Prosecutors and Defense Counsel


I use Constitutional Criminal Procedure by Taslitz and Paris, which has a problem method approach to the materials. I found that my students learn better with this approach; they seem to have a better grasp of the rules and

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policies and how they work together. During each class period, I briefly review the relevant set of rules and policies for the days problems, but most of the time is spent on the problems themselves. I usually assign two students to play the prosecutor and two to play defense counsel (these assignments are made on the spot in class
students do not know in advance what they will be assigned to argue, although I do tell in advance which problems we will cover each day). The students must play their part by coming up with arguments for their side and
arguments to rebut their opponents. As part of their arguments, students must rely on both the existing rules
and the policies and rationales behind those rules.
Melissa Tatum, University of Tulsa College of Law

Motions to Suppress Evidence


All students are given the opportunity to participate in a hearing on a Motion to Suppress. Two defense counsel, two prosecutors, and one witness are assigned to each problem. One counsel questions the witness and the
other argues. The exercise lasts 20 to 30 minutes and is done during class time in the law school courtroom. I
meet with the students in advance to help them prepare their questions and arguments, but they prepare the final
product on their own. They do the exercise in front of their classmates so there is an incentive to perform reasonably well. I serve as judge. Students who participate in the hearings are required to attend and submit an Order
deciding the case.
Christine Hutton, University of South Dakota School of Law

Serving a Search Warrant


I do a mock service of a search warrant on an office (for their computers, etc.) where the office workers
(students) make various incriminating remarks during the search. This exercise raises Fourth and Fifth Amendment issues in fun way.
Pamela Bucy, University of Alabama School of Law

Using Narratives to Teach Stop and Frisk


As I have taught Criminal Procedure through the years (and stop and frisk in particular), Ive realized that
students often have their own perspectives based on pre-existing beliefs about privacy, liberty, security, and the
police. I also realized that many of these perspectives are shaped by personal experiences with the police and that
the class as a whole could benefit from sharing their own experiences and hearing about the experiences of other
students. This led me to incorporate student narratives into my teaching when we reached this section of the material.
Each semester, I begin with an overview of stop and frisk, introducing the concepts of encounter, stop, and arrest. I then suggest that it might be instructive to hear about each others experiences in this area. I begin with
my own brief story of being searched at the airport (not really a stop story but one based on selection criteria
similar to those used to determine reasonable suspicion). I then open it up to the students, who generally share
very interesting, and often poignant, stories. After all the students who choose to share stories have finished, we
look at the stories to determine why the individual involved was stopped or searched. Almost invariably there are
aspects of difference: the person was young, long haired, a minority, or just out of place. We discuss the appropriateness of using these types of factors and how much discretion it gives to the police. We then get into more
legal analysis, but the stories serve as a basis for many of the hypos and continuing analysis as we complete our
study of the material.

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I have found this to be a very effective method of teaching. While it takes some additional time, I believe it
causes the students to be more engaged with the material. Additionally, and especially when I have a large group
of minority students who are willing to share, the class is exposed to realities of which they would often be unaware. They also have an opportunity to see the need to approach the course material from other than a white,
middle-class perspective and from the viewpoint of an innocent individual who is impacted by police conduct,
not just from the standpoint of the guilty. Since these are themes I try to address throughout the course, this exercise is particularly meaningful to me. In addition, it empowers students who frequently feel disempowered and
validates the experiences of those students. Overall, I find the exercise worth the time and use it every semester
I teach the course.
Ellen Suni, University of Missouri-Kansas City School of Law

Brief Gems
A Noteless Approach
I do not use notes or the casebook during class, although I take them with me. This enables me to keep eye
contact with the students and engage more fully in a discussion of the problem at hand. I can listen and see their
reactions better when I am looking at them and not at my notes. If I need to refer to specifics in the book, I can
quickly refer to my copy or use a students if I happen to be walking around the room.
Christine Hutton, University of South Dakota School of Law

Explaining the Big Picture of Crim Pro


Students who take Criminal Procedure often have no idea that it is actually a constitutional law class. I believe
this may stem from their first-year experience with Civil Procedure, which is a rules-based class. Many of them
expect to learn the rules of criminal procedure, a subject usually covered in either a two-semester course or an
advanced criminal procedure course. Other students simply are not familiar with the criminal justice system. For
these reasons, I like to spend the better part of the first class introducing them to the big picture. This includes
a description of the investigatory stage as well as the adjudicatory stage of the criminal process. It helps them put
the pieces of the puzzle together.
If time permits, I also have the students listen to a portion of a Supreme Court oral argument on one of the
cases we will cover in class. These arguments are easily accessible on the Internet.
Catherine Arcabascio, Nova Southeastern University Law Center

Teaching Cases with Practical Impact


These cases have the most practical impact in Criminal Procedure:
Terry v. Ohio, 392 U.S. 1 (1968)
New York v. Belton, 453 U.S. 454 (1981)
Rakas v. Illinois, 439 U.S. 128 (1978)
Miranda v. Arizona, 384 U.S. 436 (1966)
Brewer v. Williams, 430 U.S. 387 (1977)
Pamela Bucy, University of Alabama School of Law

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Motivating Students to Read Statutes Effectively


One common factor running through the rule- or statutory-based courses Ive taught is the problem of motivating students to read the statutes in an effective manner (sometimes, of course, just getting them to read the
darned things can be a problem!). After a year or two of struggling with the topic, I finally hit on an approach
that seems to work, so I thought Id share it.
I teach Criminal Procedure: Adjudication on a regular basis, and this course relies heavily on rules and statutory material. The Criminal Procedure: Adjudication course is based on the Federal Rules of Criminal Procedure
and also takes a close look at the Bail Reform Act and the Speedy Trial Act. I prepare two different problem sets
and administer them as a small-group exercise. I find that the exercises tend to take most of the 75-minute class
period.
At the beginning of the class period, I pass out the problem set. I explain to the students what were doing and
the procedures for the exercises. The students are to break into small groups of three or four students. They are
then to assign one person to act as secretary to record the groups answers onto one sheet. The secretary should
put the names of all the group members on this master sheet. They are then to use the relevant rule/statute to
answer the questions. At the end of the class period, the secretary is to turn the master sheet in to me. The group
with the most correct answers gets immunity from being called upon for one week. Once the students start working in groups, I distribute an extra copy of the problem set to each group, so that each member has a copy for
herself and the group has an extra one to serve as the master copy.
If time permits, I go over the answers at the end of the hour. If there is not enough time, I start the next class
period by conveying the answers. By working together and figuring out answers to the questions, the students
are forced to wrestle with the language and format of the rules/statutes. As I eavesdrop on the discussion in the
various groups, I usually hear excellent examples of brainstorming and of arguments about how the various
clauses fit together. The students repeatedly tell me that the problem sets helped them understand how to read
a statute and understand it. Of course, a professor could also assign these as a take-home problem for either group
or individual work.
Bail Reform Act Questions
1.

BATF agents arrested Paula Sampson in Tulsa for selling firearms without a federal firearms dealers license.
The pretrial services report revealed that Paula had previously been convicted of the felony of assaulting a
federal agent, although she has completely served her sentence for that crime. The report also disclosed that
Paula has no significant assets except for her car and that she was born and raised in Tulsa. No other information was available.
a.

Can the AUSA move for detention? Why or why not?


I always get some students who automatically say yes, arguing that the AUSA can always make a motion. I
use this as an ethics training moment to make only motions with reasonable support in law, as well as a practical training moment to not anger the judge with stupid and frivolous motions. Under the statute, 3142(f)(1)
and (2) describe when the AUSA can move. The facts probably dont satisfy f(1)(a) and it doesnt fit the rest of
f(1). No facts for f(2)(B) and probably not enough for serious risk of flight under f(2)(B).

b.

Can the court sua sponte move for detention? Why or why not?
Section 3142(f)(2) describes when court can move. It probably cant for the same reasons discussed above.

c.

Should Paula be given pre-trial release? If so, how does the court decide what conditions to impose?
Probably release set least restrictive conditions that will reasonably assure appearance as required and ensure safety of other persons/community. Section 3142(b) or (c) likely appropriate use factors set out in
3142(g) to determine more exactly.

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FBI agents arrest Ken Dahl in Stillwater for robbing a federally insured bank. During its background check, the
Pretrial Services Agency discovered that, two days earlier, the state of Oklahoma had paroled him. He had
been convicted of tax fraud. The primary witness at his trial had been his secretary, who turned states evidence after Dahl broke off their affair. Before and during trial, Dahl had made threats against her. She lives in
Stillwater. Dahl had been paroled from a private prison in Texas.
a.

Can Dahl be held in temporary detention? Why or why not?

Yes 3142(d)(1)(A)(iii) AND 3142(d)(2) may pose danger to secretary


b.

Can the government move for pretrial detention? Why or why not?
Yes 3142(f)(1)(A) probably crime of violence
3142(f)(2)(B) probably not work because she isnt prospective witness; although perhaps could use to argue
propensity, but possibly unique facts

c.

Can the court sua sponte move for pretrial detention? Why or why not?
Probably not, but maybe under (f)(2)(B) would need more facts to flight and to danger to prospective witnesses
(although prior threats to secretary might show propensity)

d.

Assume the court holds a detention hearing. Is there a presumption of detention in this case?
See 3142(e) 3 possible circumstances for presumption; doesnt meet first two. If used a gun during the robbery, then would meet third.

e.

What must the court find if it wants to order pretrial detention? By what standard of proof?
3142(e) no condition or combination of conditions will reasonably assure appearance and ensure safety of
community. As to safety issue, any findings must be supported by clear and convincing evidence. See 3142(f).

3.

Use the facts from problem 1. Paula did not appear for trial. Six months later, she was arrested trying to cross
the border into Mexico. During the arrest, she assaulted a customs officer. She is returned to Oklahoma.
a.

What sanctions can be imposed on Paula?


3146 failure to appear penalties are fine and/or increased sentence
3147 penalty for offense committed while on release increased sentence
3148 sanctions for viol. release condition revocation of release, order of detention, contempt of court

b.

The Government wants to revoke Paulas pretrial release. Can they do so?
Under 3148(b) can initiate revocation proceeding (court must revoke)

c.

What must the government prove to succeed on the revocation motion?


3148(b)(1) AND 3142(b)(2)
(b)(1)(A) PC to believe committed crime while on release OR (B) clear and convincing evidence viol. other condition (both satisfied) AND (b)(2)(A) no combination of conditions stuff OR (B) unlikely to abide by condition

d.

At this point in the case, what is the relevant presumption? Is it still for pre-trial release, or has that
changed?
See text after 3148(b)(2) B is probable cause to believe committed felony (flight and/or assault on federal officer) then rebuttable presumption is for detention

4.

Assume the jury convicted Paula of the firearms violation. The judge sentenced her to the maximum term of
five years imprisonment. The judge now needs to determine what sentence to impose for the failure to appear.
a.

What is the minimum possible sentence?


3146(a)(2) shall be punished
3146(b)(1)(A)(ii) a fine

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b.

185

What is the maximum possible sentence?


3146(b)(1)(A)(ii) fine AND no more than additional 5 yrs to be served consecutive (3146 (b)(2))

5.

Paula next stood trial for and was convicted of assaulting the customs officer. Assaulting a federal agent is a
felony. Paula is sentenced to 3 years imprisonment for the assault itself.
a.

What is the minimum amount by which Paulas sentence can be increased?


Sec. 3147 says shall be sentenced. Subsection (1) is for felonies, and has no explicit minimum, but has maximum. Since she shall be punished, could argue minimum is one day.

b.

What is the maximum amount?


Again, sec. 3147 says shall be sentenced. Subsection (1) is for felonies, and has10 year max. The sentence after
sub (2) says that the term of imprisonment shall be consecutive.

Melissa Tatum, University of Tulsa College of Law

Centering on the Facts


Facts are extremely important in litigating cases relevant to the police practices component of criminal procedure. Subtle differences in what the police or the defendant did can make a significant difference in outcome.
For this reason, my course is very heavily fact based. After going over the basic law in an area, I teach the relevant Supreme Courts cases as problems (giving the students the facts and the holding, but without the reasoning). I also have them pair off and engage in a negotiation, with secret instructions containing different versions
of the facts for the prosecution and defense; this exercise forces students to deal with the factual ambiguity inherent in pretrial plea negotiation, the process through which most criminal cases are resolved. Finally, I make
the students write a memo based on a case file, which teaches them that in the real world the facts are not neatly
summarized (as they are in appellate opinions) but hidden in witness statements, court transcripts, and documents. This attention to facts has a nice side benefit. Students often feel overwhelmed by the number of important cases in criminal procedure. One remedy for this problem is to spend a lot of time on the facts; students
find it easier to remember that case where the dog sniffed the trunk in the train station than a name like Chadwick.
Christopher Slobogin, University of Florida College of Law

Feedback and Evaluation


Using Multiple-Choice Questions to Teach Application of the Law
My colleague, Barbara Glesner Fines, introduced me to a version of this technique, which she uses in Professional Responsibility. She starts some of her classes by giving students a quiz and then going over it in class. I recently discovered that the material in Criminal Procedure is very well suited to teaching with multiple-choice
questions.
Instead of administering quizzes during class, I now assign multiple-choice questions usually three questions, based on one or two fact situations on my class website. We then go over the questions in class, looking
at both the correct and incorrect answers.
Sometimes, I begin by asking the students how many picked a, b, c, or d. This helps to show the students they
were not the only ones to have selected that choice and it makes them feel less uncomfortable with being wrong.
At other times I just call on a student to give and then justify an answer. By going through the questions we cover
a lot of the material, and the students pick up nuances they might previously have missed. In addition, volun-

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teer student participation in the discussion is greater than usual and the students I call on tend to be more prepared.
I used this technique occasionally throughout the semester, especially with material (like search incident to arrest, entry to arrest, protective sweep) that is related and has fairly clear justifications and scope. I use it as well
in the interrogation section where I know the students are often confused.
The feedback from students about this technique has been very positive, and although I have not yet had an
opportunity to see its effect on exam performance I fully expect the students to be more discriminating when
reading the facts in my essay question and to have a better understanding of their relevance. I also expect they
will be more prepared for the multistate multiple-choice bar exam questions in criminal procedure.
Ellen Suni, University of Missouri-Kansas City School of Law

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chapter 8

Evidence
Introduction
Steven Friedland

189

Approach

189

Three Approaches
Steven Friedland
Evidence Has Something for Every Student
Lynn McLain
Hypotheticals and Hearsay
Welsh White
Evidence and Trial Advocacy Courses, Side By Side
Robert P. Burns
Performance and Application in Small Groups
Linda E. Carter
The Need to Integrate Legisprudence into the Evidence Course
Ed Imwinkelried
Challenges in Teaching Evidence
Steven Friedland, Jack Sahl, Andrew Taslitz
Additional Perspectives
Steven Friedland

Material

189
190
191
192
193
194
196
197
198

Five Helpful Evidence Cases


Andrew Taslitz, Jack Sahl
Teaching Race Issues in the Required Evidence Course
Isabelle R. Gunning
Classic Cases, Newspapers, and Trial Transcripts
Lynn McLain
Movies
Paul Bergman
Music and Movies, Not Notes
Christine Hutton
My Cousin Vinny, Revisited
Steven Friedland
Hearsay Analysis and Problem
Lynn McLain

187

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198
199
200
200
201
201

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Comparing Federal and State Rules of Evidence Using Side-By-Side Charts


John Barkai

202

Exercises

203

First-Day Exercises
Andrew Taslitz, Jack Sahl
Teaching Evidence from a Practical Perspective Using Small-Group Advocacy Exercises
John Barkai
Teaching Hearsay through Structured Courtroom Observation
Beryl Blaustone

Brief Gems
Storytelling in the Classroom
Beryl Blaustone
Mock Trial
Steven Friedland
Courtroom Observation
Christine Hutton
Mock Witness Examination
Jack Sahl
Laying the Foundation
Christine Hutton
Teaching Evidence through the Drafting of Jury Instructions
Beryl Blaustone
Teaching Hearsay through Role Play
Louis Haffner

Feedback and Evaluation


Multiple-Choice Feedback
Paul Bergman
Practice Exam, Midterm, Closed-Book Final
Lynn McLain
Testing Federal and State Rules of Evidence
John Barkai
Performance Tests
William Slomanson
Cartoons, Captions, and Mnemonics on the Exam
John Barkai
Midterm Student Evaluations
Paul Bergman

203
203
204
205
205
205
206
206
206
206
207
207
207
208
208
208
209
209

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Introduction
For many professors tasked with teaching a basic evidence course, the experience is both satisfying and daunting. Part of the satisfaction lies in the ready enthusiasm many students have for the subject matter. Through the
popular culture of television and film, students have a vague familiarity with objections, the context of the courtroom, and a sprinkling of evidence vocabulary, such as hearsay. Satisfaction also comes from facilitating the careers of students intending to become litigators and trial lawyers. On a more general plane, gratification may result from helping students overcome fears of public speaking and the courtroom. On the other hand, the challenge
of creating a cohesive and understandable big picture of the law from the myriad of evidence rules is daunting
indeed. This challenge is augmented by the limited time within which to cover each of the major areas of the
course.
In many schools, students are required to take Evidence. Even in those schools where it is an elective course,
Evidence is almost universally considered to be important, even for those students wishing to avoid a trial or litigation practice.
Most evidence professors build their courses around the Federal Rules of Evidence, rather than the pertinent
state evidence code. One reason for this orientation is temporal there often is not enough time to cover both
sets of rules. A second justification is that many students may practice law outside the state and never use the
local states evidence code. A third reason is that many state evidence codes are derived from and closely resemble the Federal Rules of Evidence, creating a measure of redundancy if both codes are covered. In addition, some
professors prefer the accessibility of the Advisory Committee Notes of the Federal Rules for an easy source of
statutory interpretation. Finally, professors might be cognizant of the fact that the Multistate Bar Exam has a section of questions based on the Federal Rules of Evidence.
The reliance on the Federal Rules of Evidence offers a certain level of consistency in evidence courses from
professor to professor and from school to school. Yet, significant variations in doctrinal emphasis and teaching
methodology exist, creating widely disparate classes.
Steven Friedland, Nova Southeastern University Law Center

Approach
Three Approaches
Case Law
The traditional evidence course utilizes a casebook revolving around appellate case reports, similar to the case
orientation of other basic law school courses. Alternative learning methods, such as problem solving, role plays,
and transcript analysis, are included in traditional materials, but usually in a supplemental role. The casebooks
tend to include a stable group of disparate cases, illustrating how the rules are applied to particular fact patterns.
A representative sampling of significant cases includes: Knapp v. State, 168 Ind. 153, 79 N.E. 1076 (1907)(involving the relevance of witness testimony rebutting the testimony of a prior witness); People v. Collins, 68 Cal. 2d
319, 66 Cal. Rptr. 497, 438 P. 2d 33 (1968)(concluding that the admissibility of an expert on the mathematical
probability of a second person committing the alleged crime was unfairly prejudicial); Frye v. United States, 293
F.1013(D.C. Cir. 1923)(describing the standard for admitting expert witnesses in the precursor to the lie detector test); People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930)(determining whether propensity evidence of
murderous intent was admissible in a homicide action); Michelson v. United States, 335 U.S. 469 (1948)(on the
use of prior specific acts of an accused to impeach a defense character witness); the Brides in the Bath case, Rex
v. Smith, 11 Cr.App. R. 229, 84 L.J.K.B. 2153 (1915)(regarding the use of other act evidence); Wright v. Doe D.

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Tatham, House of Lords & AD. & E. 313 (1837)(on the admissibility of an implied hearsay assertion); and Dallas
County v. Commercial Union Assur. Co., F.2d 388 (5th Cir. 1961)(on whether evidence complied with the requirements of the catchall hearsay exception).
The Problem Method
There has been a decided trend in recent years toward including a greater proportion of problem-solving materials in evidence books and classes. This trend may be attributed to many factors, including the MacCrate Report (which embraced a greater breadth of skills training for law students), an expanding student interest in contextual learning, and the belief that application of the rules within a problem setting facilitates the learning
process.
The use of a problem orientation implies a greater role for problems than as a supplement to a lecture or
case law methodology. Instead, a problem orientation indicates the course has a predominant emphasis on hypothetical fact patterns, from which students are asked to discern and apply the pertinent rules of evidence to
determine questions of admissibility. With problems, students must read critically and spot the relevant legal issues prior to commencing legal analysis. For example, while Michelson v. United States, 335 U.S. 469 (1948), remains the seminal illustration of impeaching a character witness of an accused with questions about the accuseds
prior specific acts, including arrests, problems with analogous facts can serve as the primary tool for teaching
students about the same evidentiary point. In problem-oriented courses, professors reverse the hierarchy of cases
and problems, using cases such as Michelson, if at all, as explanatory and contextual devices.
Law Practice Applications
Another trend in recent years has been to teach evidence using law practice applications, including trial transcripts, witness examination role plays, and mock hearings. This approach promotes learning in a context-specific manner, especially when utilizing the courtroom setting, where most evidentiary issues arise. This methodology fuses evidence and trial advocacy, recognizing that students might learn the rules better if the artificial
bifurcation of the two subjects is abandoned for a monistic perspective that more closely parallels actual courtroom practice.
A practice orientation is intended to foster a deeper understanding of individual rules, how the evidentiary
rules relate to each other, and to promote lawyering skills. The trial context raises questions of ethics, negotiation, etiquette, and advocacy often lacking in a narrower case analysis. Further, a practice approach emphasizes
learning as a performance activity, demonstrating to students it is not simply what they hear that matters, but
how they use what they hear that counts. Lastly, a practice orientation models for students the skills important
to trial attorneys, providing a credible thread between law school and practice.
On the other hand, a practice orientation has several drawbacks. Practice applications consume class time,
chipping away at the attention directed to the rules of evidence. Further, trial applications overlap with another
part of the curriculum, trial advocacy, which may create uncertainty in the curricular divisions. In addition, utilizing the trial context arguably dilutes the focus on legal analysis and the skill of thinking like a lawyer. Finally,
combining the rules and their practice application could be confusing to students, who need to learn the mechanics of the rules first.
Steven Friedland, Nova Southeastern University Law Center

Evidence Has Something for Every Student


If there is one fantasy most law students have had, it is the fantasy of so skillfully conducting cross-examination that the opponents witness is exposed as a liar and the opponents case is cracked wide open. That most of
these fantasies come true only in our minds, during our morning shower the day after trial, is of no import. The

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fact that our students have these daydreams makes it incredibly easy for us to get them excited about learning
the law of evidence and for them to have fun while doing so.
Our first job is to convince our students that they want to know the rules of evidence. Obviously, this knowledge is critical for students who hope to become litigators. Even if they have the law and the facts on their side,
and ride in heroically like Tom Cruise in Mission Impossible, their clients will lose if they cant prove their case
with admissible evidence.
In order to become effective advocates, students need to learn not only the substance of the rules but also the
policy decisions behind them, so that they can argue persuasively in court for the interpretation they are seeking. Many rulings are made in the trial judges discretion, so it is critical to be as persuasive as possible to the trial
court. Of course, students also need to understand, backwards and forwards, how to make the record at trial, so
as to preserve the record for appeal.
What about students who would prefer never to set foot in a courtroom? Non-litigators need to protect their
clients from potential litigation, through proper preservation of both admissible evidence and applicable privileges. Legislators and legal reformers can change substantive results and implement critical public policies by
changing the rules of evidence. Even couch potatoes will find satisfaction in out-objecting or meeting incorrect objections raised on their favorite television legal dramas.
In order to be scholars and law reformers, students need to question why we have rules of evidence and examine each rule in terms of those goals. If our students disagree with the policy determinations codified in a particular rule, they then can be empowered to seek change through case law, judicial or administrative rule making, or legislative action.
Lynn McLain, University of Baltimore School of Law

Hypotheticals and Hearsay


In teaching evidence, my goal is to provide students with a working knowledge of those rules of evidence that
are most important to practicing attorneys. In order to do this, I focus on the Federal Rules of Evidence. Although
the course covers all of the topics generally included in an introductory evidence course, my primary emphasis
is on the hearsay rule. By the end of the course, I am hopeful that the students will be able to deal with a range
of evidentiary issues and will be especially adept at identifying and dealing with issues relating to the hearsay rule
and its exceptions.
My primary pedagogical technique is the use of hypotheticals. In many situations, I will start with a case from
the Waltz and Park text and then ask the students hypotheticals that are designed to illustrate particular aspects
of the applicable federal rule. In dealing with the question of what is hearsay, for example, I ask the students
about numerous hypotheticals that are designed to probe the basic question of when an out-of-court statement
is being offered to prove the truth of the matter asserted. Most of the hypotheticals I use are familiar. One of
them involves a slip-and-fall case in which the question is whether the plaintiff received warning that ketchup
was on the floor (before she slipped and fell as a result of stepping it). A witness will testify he heard a clerk in
the store say, Lady, watch out for that ketchup. I point out that in this case, since the words spoken by the clerk
are significant to the legal issue in the case, the words are not being admitted to prove the truth of the matter asserted and, therefore, the clerks out-of-court statement is not hearsay.
In dealing with issues relating to the hearsay rule and its exceptions, I also emphasize that the students will be
in a better position to apply the federal rules intelligently if they have a good understanding of the big picture
i.e., why courts exclude some out-of-court statements and not others. In order to give students a better understanding of the big picture, I explain that the primary rationale for the hearsay rule is that out-of-court statements are generally viewed as unreliable because the witness who made the statement cannot be cross-examined.
Starting with this premise, I often ask whether the particular statement we are dealing with really needs to be

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subjected to cross-examination. If there is no need at all to cross-examine the person who made the out-of-court
statement (e.g., as in the slip-and-fall case hypothetical discussed above), the statement should not be viewed as
hearsay. If there is some reason why we are less concerned about the credibility of the person who made the statement (e.g., because he made the statement spontaneously or because he made it under circumstances where he
believed the statement would be against his interest), there is less need to cross-examine that person and thus
more reason to admit the statement. Through examining these kinds of questions, I try to give the students a viable structure for determining whether out-of-court statements should be excluded by the hearsay rule, while
pointing out that there are situations that dont fit neatly into this structure.
Welsh White, University of Pittsburgh School of Law

Evidence and Trial Advocacy Courses, Side By Side


The law of evidence provides the grammar rules of the peculiar language spoken at trial. Those grammar rules
can best be understood and evaluated by one who is simultaneously learning to speak the language itself. (Should
one choose to study all the grammar rules of German without learning to speak or write the language?) Thus the
best introduction to the law of evidence occurs in a program in which the evidence course is carefully coordinated with a parallel course in trial advocacy. The topics traditionally considered in the two courses are closely
intertwined and lend themselves to this coordinated treatment: relevancy with theory of the case, authenticity
and the best evidence rule with the presentation of exhibits, the evidentiary rules surrounding impeachment with
the advocacy methods of effective impeachment, the law of witness examination with direct and cross, and so
on. The imminence of performance focuses the student mind on the evidentiary material. The performance itself, including the experience of making and responding to objections, provides naturally the inestimable benefits of truly active learning. From a purely pedagogical point of view, the trial is an unqualified gift to evidence
professors.
Knowing evidence law is often knowing how to do something. For example, a student understands the law of
witness examination when he or she can actually structure and present a direct examination without violating
the rules. In fact, the rules have no real coherence until one understands the form of examination that they are
designed to require. Further, the rules can be evaluated only when they are understood in the context within
which they function. Fair academic criticism presupposes contextual knowledge. For example, the flexibility of
the law of evidence, the extent to which attorney choices can affect admissibility, and the vast range of discretion
given to trial judges are apparent when evidentiary issues are presented in dense and relatively complex factual
patterns. The appropriate factual context for understanding evidence law is not the brief recital of conclusory
facts usually found in an appellate case, but rather a case file that bears some resemblance to the file a trial lawyer
may assemble, replete with reports of contradictory perceptions and an almost infinite number of potentially
conflicting inferences. Contextual knowledge of the law of evidence illuminates the philosophical and ideological commitments implicit in that law.
The trial itself is much richer than a purely doctrinal study of the law of evidence might suggest. I make this
argument at length in my book, A Theory of the Trial (Princeton, 1999). There is much more going on in a trial
than factual inference followed by legal categorization, a view that isolated study of evidence law may all too easily suggest. Coordinated courses in evidence and trial advocacy are an antidote to a kind of conceptualism that
distorts the students understanding both of the trial and of the law of evidence. It allows for a richer understanding of the central place of the jury trial within our constitutional order.
This kind of teaching requires cooperation with at least one other teacher, unless the evidence teacher is also
the trial advocacy teacher, which occurs at some schools. It is a bit like team teaching a unified subject, through
different perspectives presented at different times. This cooperation does require moderating the I-am-the-captain-of-my-ship attitude that we often bring to our courses. But that is to the good. Clinical professors, lawyer-

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ing skills professors, and adjunct faculty are often eager for the kind of cooperative teaching that coordinated
courses allow. And the learning runs in both directions for the faculty, too.
We have taught coordinated courses in evidence and trial advocacy at Northwestern for over 12 years. About
half the class signs up for the program, and it is successful by any number of measures. We use our own Problems and Materials in Evidence and Trial Advocacy (3rd ed.), published by the National Institute for Trial Advocacy. It comes with a very user-friendly teachers manual that makes the organizational work easy. Other materials are, I am sure, available as well. We understand this course to be a basic class. A rich curriculum could
supplement it with classes or seminars in scientific evidence, specific topics in evidence doctrine, and the philosophy of knowledge.
Robert P. Burns, Northwestern University School of Law

Performance and Application in Small Groups


I had three starting premises in teaching a course in evidence law: 1) Evidence is best learned through application; 2) students learn better in small classes; and 3) students prepare more when they have a vested interest
in the class, such as when performance is expected of everyone. My Evidence course was a year-long, five-unit
course; each semester was 2.5 units. I limited the enrollment to 48 students. We met as a large group for one and
a half hours a week. We then met in four small groups of 12 students in each group for one hour a week. In each
small group, I divided the students into two-person teams (6 teams per small group).
The large-group class discussed the cases and rules in a traditional method. I used the Prater, Arguello, et al.,
book, Evidence: The Objection Method.
In the small-group classes, I used a combination of the Seattle University workbook exercises, problems from
the Prater book, and problems that I designed. I tried to use as much as I could of the Seattle University exercises. The workbook is based on an age discrimination case. I assigned my two-person teams to be either plaintiff or defense attorneys for the entire year. My goal was to get the students invested in their side of the case. They
then argued evidentiary issues in a variety of formats: opening statements, closing arguments, motions in limine, questioning witnesses, and objecting to testimony. I tried to have every team performing in each class in
order to maximize the vested interest of each student in studying and preparing. I generally played the judge or
the witness in order to control the proceedings. As the year progressed, I tried to give the students greater control over the process. If a student missed a small-group class, he or she had to write out the exercise for that week
and turn it in. I also had other written assignments to be sure that the students were able to put down in writing what they were articulating orally in class.
My observations about this experiment:
Most of the students were highly prepared for the one-hour classes. They met with their partners before
the class, they wrote out the arguments or questions for the witnesses, and they performed well.
As a teacher, I was able to pick up on what was misunderstood and who was failing to comprehend the material fairly easily in the small groups. I came to know the students quite well, called them by their first
names, and could give individual feedback to them.
The students felt that they were learning evidence better than their counterparts in our typical large 100person classes. They enjoyed the small-group sessions. In fact, even though I told them I was not teaching
trial advocacy and they did not have to be highly skilled orators or examiners, the students tended to try to
perfect their skills and style in presenting closing arguments and other exercises. (I now want to try to combine an evidence and trial advocacy course at some point in the future.)
The students used the cases and the rules better than I had seen with my usual large Evidence classes. Their
questions were also better as they had to focus weekly on how the evidence rules worked in context. They
also tended to be more comprehensive in their approach to the problems. Even though a particular prob-

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lem might have been designed to teach hearsay, for example, the students would be quick to raise character or another issue that we had already covered.
I am not sure whether the students mastered evidence better in this format. Although my intuition is they
did, I did not have a scientific measure. They performed slightly better on a set of multiple-choice questions than the students in a large class taught by one of my colleagues. Anecdotally, some of my students
who are now in trial advocacy tell me that they feel that they have a strong foundation in the rules and know
them better than others in their class. Although there are probably ways to measure and compare output
from this format, I did not control for the self-selection of the students entering the course, which would
complicate any analysis. I did have a range of students, however, from those on law review to those on academic probation.
Linda E. Carter, University of the Pacific, McGeorge School of Law

The Need to Integrate Legisprudence into the Evidence Course


This is the Age of Statutes. Statutes have become the dominant source of law in federal practice and many
states. The generalization certainly holds true in evidence. Not only are the Federal Rules of Evidence in effect in
federal court, 41 states have adopted evidence codes patterned more or less directly after the Federal Rules. For
its part, California has a lengthier evidence code that it adopted even before the promulgation of the Federal
Rules. In short, to a significant extent evidence law has been codified.
Since this is the Age of Statutes, today legal educators have a special responsibility to expose their students to
issues of legisprudence. A half-century ago the quality of an Americans representation of a client depended
largely on the quality of the lawyers skill in case analysis. Modernly, the caliber of the representation often depends on the lawyers skill in statutory construction. The point of this short article is that the evidence course is
a wonderful vehicle for exposing law students to these statutory issues.
First, the unique structure of the Federal Rules gives the teacher an opportunity to contrast the development
of law by decisional and statutory process. In the case of some articles of the Federal Rules, the doctrinal codification operates in a relatively self-contained fashion. Federal Rule of Evidence 402 reads: All relevant evidence
is admissible, except as otherwise provided by the Constitution of the United States, by these rules, or by other
rules prescribed by the Supreme Court pursuant to statutory authority. The rule makes no mention of case or
decisional law. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court held that the enactment of the Federal Rules impliedly overturned the traditional general acceptance test for the admission of
purportedly scientific testimony. In the course of his opinion, Justice Blackmun approvingly quoted a passage
from a 1978 law review article by the late Professor Edward Cleary, the reporter for the original Advisory Committee. In that passage, Cleary asserted that, [i]n principle, under the Federal Rules of Evidence no common law
of evidence remains. Article VII of the Rules governs the introduction of expert opinion testimony. Since Article VII made no mention of the general acceptance test, Rule 402 abolished that test. Rule 402 sweeps away uncodified exclusionary rules.
In other cases, the rules create open windows to the common law. Under Rule 301, federal judges appear to
have the same power to fashion presumptions that they enjoyed at common law. Likewise, under Rule 501, judges
use common-law methodology to determine whether to recognize a novel privilege.
Thus, a study of the peculiar structure of the Federal Rules leads directly to the fundamental question: What
sorts of doctrinal areas lend themselves to codification, and which are best left to common-law evolution?
Second, the Federal Rules enable the teacher to contrast the schools of statutory construction. There is a lively,
ongoing debate between the proponents of the older, legal process approach and the advocates of the competing
textualist school. In his classic article, Professor Cleary voiced the legal process approach. He wrote that in the
event of a collision[] . . . between [extrinsic] legislative history and the seemingly unmistakable meaning of [the

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text of] a Rule, the legislative history material trumps the apparent plain meaning. However, in the period since
the release of Professor Clearys article, most members of the current Supreme Court have shifted to a moderate
version of the textualist approach. They emphasize that only statutory text has the force of law, and they are skeptical of extrinsic material. In effect they have erected a strong rebuttable presumption that a judge should follow
the evident plain meaning of statutory language. That shift has generated a rich literature, including major contributions by Judge Edward Becker and evidence professors Jonakait, Orenstein, Scallen, Taslitz, and Weissenberger. The evidence course is a superb vehicle for immersing the student in the controversy between the legal
process and textualist approaches to statutory interpretation.
Third, the evidence teacher can give the students valuable experience in applying the maxims of interpretation. The shift to texualism places renewed stress on the maxims, since many of them rest on interpretive clues
drawn from statutory text and context. Consider, for example, the canon that, if one interpretation of a statute
raises serious doubts about its constitutionality but another interpretation moots those doubts, the second interpretation is preferable. Rule 804(b)(3) is illustrative. The rule includes the following sentence: A statement
tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement. There is no comparable provision requiring corroboration for declarations offered by the prosecution against the defendant. Some have suggested that the differential treatment of prosecution and defense evidence renders the last sentence unconstitutional. To moot that constitutional issue, several federal circuits have read into the statute a requirement that
prosecution evidence must also be corroborated. Although the courts concern for the defendants rights is commendable, that reading of the rule is difficult to justify. It is strained to argue that Rule 804(b)(3) contains any
language that can reasonably bear this interpretation. The analysis of Rule 804(b)(3) can be a springboard for
discussing the sensible limits of this maxim and the separation-of-power concerns implicit in statutory construction doctrines.
Fourth, in teaching the rules, the professor can force the students to grapple with the question of how much
particular items of extrinsic legislative history material count. On its face, Rule 803(1) does not even faintly suggest that the person testifying to a present sense impression declaration must have witnessed the event described
in the declaration. Yet, the Advisory Committee Note fairly clearly endorses Thayers and Morgans limited conception of the exception, requiring that the person be a percipient witness to the event. On the basis of the Note,
should the court graft that requirement onto the statutory text?
The evidence course is an especially good context in which to study this question, since so much care was taken
in the drafting of the rules. The process of drafting, evaluating, and enacting the rules spanned years; the rules
were considered by the Advisory Committee, the Court, the House, the Senate, and a conference committee. Given
that background, the drafters choices in text arguably carry great weight. In contrast, other pieces of legislation
are written hurriedly; bills are sometimes pieced together at the last minute with handwritten entries and deletions. When the court must interpret that type of legislation, it makes much less sense to ascribe great importance to the precise words included in text. The evidence teacher can help the students appreciate the need to assess legislative history material with political realism.
At many law schools, the evidence course has already been reduced to three or four units. When the course is
that short, the teacher faces the temptation to devote almost all class time to reviewing evidentiary doctrines. As
strong as that temptation is, it should be resisted. Some evidentiary doctrines will become obsolete even before
the students graduate. In the Age of Statutes, the student needs much more exposure to legisprudence, and the
evidence course is an ideal setting in which to provide that exposure.
Ed Imwinkelried, University of California, Davis School of Law

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Challenges in Teaching Evidence


Evidence teachers face a variety of challenges. The large number of rules within the Federal Rules of Evidence
creates coverage issues, even in a four-credit course. For the veteran and new evidence teacher alike, the issue of
rule-rationing often arises. A teacher simply cannot cover all of the rules or at least not cover them well. The
rationing issue extends to the larger questions of which rules to cover and how extensive the coverage will be.
This dilemma arises even for teachers wishing to cover only the core evidence rules, since the quality of coverage often interferes with time constraints. This dilemma is exacerbated for those professors using alternative learning methodologies. If professors use the problem method or a practice orientation, the amount of time required
for a particular area probably will increase, sometimes substantially. Likewise, the amount of time a professor has
to spend on analyzing the rules likely will decrease.
The initial coverage decision usually involves hearsay. The amount of time allotted to covering hearsay often
dictates how much time remains to cover the rules in such weighty areas as expert witnesses, character evidence,
and privileges, among others. Areas of evidence law such as the allocation and types of burdens of proof, presumptions, and judicial notice often are the first to receive diminished attention, if not the cutting-room knife
altogether.
Coverage issues also apply to the choice of emphasis within a subject area. A professor must negotiate between
competing instructional demands, such as statutory interpretation of the rules (as articulately advocated, supra,
in Professor Imwinkelrieds piece, The Need to Incorporate Legisprudence into the Evidence Course), considerations of the significance of the Advisory Committee Notes and other legislative history, such as congressional
committees, and case analysis. Professors usually work out their choices through the goals set for the class.
With an extensive amount of material to cover in a basic evidence course, articulating specific and realizable
goals often proves elusive. While one goal might be to teach the entire Federal Rules of Evidence or to have students attain a certain level of competency in objections, these usually are not credible goals for the first-time evidence student. Instead, a professor might recognize there are some rules that are more important than others
and some themes worthy of emphasis. Many professors emphasize relevance, especially character evidence, witnesses, hearsay, and privileges in their courses, and many offer a parallel analysis of the themes underlying the
rules, such as reliability (e.g., hearsay, character evidence), consistency (e.g., judicial notice, presumptions), efficiency (e.g., relevance, unfair prejudice), and an even playing field between the parties (e.g., rebuttal character
evidence, subsequent remedial measures, and other areas). Some rules, such as some of the hearsay exceptions
and the rules pertaining to jurors, judges, and court reporter testimony, are significantly deemphasized or omitted altogether.
For many law students, an evidence course is problematic not so much for the difficulty inhering in any isolated rule, although hearsay poses obstacles to even the top students, but because it is difficult to understand the
big picture, namely how those rules fit together. This cognitive dissonance, created by too many disparate threads,
must be overcome by the tendency to treat each individual rule discretely, as the subject of a separate section and
not as part of a unified whole.
Steven Friedland, Nova Southeastern University Law Center
Challenges in teaching evidence include helping students: (1) understand that sometimes there are no absolute
answers (e.g., sometimes judges may decide the same evidentiary issue differently based on their own experiences
and the presentations by the advocates); (2) focus on the policy rationale(s) underlying a rule when arguing for
the admissibility or inadmissibility of evidence; (3) not feel overwhelmed by the volume of material and the technicalities of some rules; (4) read the Advisory Committee Notes carefully; and (5) see the FRE as an integrated
body of rules. I use a problem method approach to teaching evidence, relying on a great deal of role-playing and
simulations. This pedagogical approach requires that I clearly set goals for each class and stick to the timetable

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in the syllabus given the amount of material to cover in a 3-credit course. I am forced to make difficult choices
about emphasizing certain topics (e.g., hearsay) at the expense of others (e.g., privileges).
Jack Sahl, University of Akron Law School
The course is a challenging one to teach for several reasons. First, precedent is of less value than in other
courses, the logical application of rules to specific circumstances being even more important than is usually the
case. Second, students must rely primarily on interpreting and applying a statute without case law guidance, eliminating the illusion of certainty that case law can create. Third, the course is more about credibility, fact-finding,
and common sense than about synthesizing apparently disparate cases or abstracting a rule of law from a case.
Even when cases are used in teaching, they are primarily used somewhat like problems: to illustrate the application of the law. These three challenges boil down to one overarching theme: evidence is primarily learned by
doing rather than by observing. It is more like a geometry class or learning to ride a bicycle than studying social
sciences or the humanities. In geometry, you can memorize every theorem, but the ability to handle new problems turns as much on the feel that comes from practice as it does on the understanding of information. Similarly, a teacher can tell you how to ride a bike, but you learn to do so only by repeatedly riding it until one day
the bike moves ahead rather than falls down. Evidence students lack confidence and fear getting up when they
repeatedly fall. And because the course is about feel as much as understanding, students who do not diligently
do problems thoroughly each night will, even more than is true of most other courses, fall woefully behind. Capturing their interest, building their confidence, making the subject fun, building skills of self-criticism, encouraging group exchange of ideas, and accepting error constructively must all be achieved to teach the students effectively.
I find that covering the sheer volume of material and repeatedly drilling students on rule application make
using case law inefficient, confusing, and unlikely to achieve the goals that I have for the course. I therefore spend
most of my class time analyzing problems, doing brief role plays, occasionally showing brief film clips, or analyzing rule language.
Overall, I find that distributing organizing charts showing the interconnections among related rules and issue
checklists that help walk students through the process of handling a particular area (e.g., character evidence or
hearsay) are helpful in giving students a way to spot issues and methodically analyze them. Varying teaching
methods helps to prevent student boredom, but all methods must require active learning, as is true of problems,
role plays, written exercises, and film critiques. Explaining the policies behind each of the rules is also key for understanding and applying them. But traditional case analysis, especially if devoid of constant application to problems, does not, in my view, do the job.
Andrew Taslitz, Howard University School of Law

Additional Perspectives
Additional perspectives on approaching a course in evidence law can be found in many law review articles.
One example is Evidence Teaching Wisdom: A Survey, 26 Seattle U. L. Rev. 569 (2003).
Steven Friedland, Nova Southeastern University Law Center

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Five Helpful Evidence Cases
I use cases only to model the process of interpreting the rules, including one class each for the sole purpose
of reviewing statutory interpretation skills. These two classes respectively focus on Tome v. United States, 513 U.S.
150 (1995), and Williamson v. United States, 512 U.S. 594 (1994). I work the students through analyses summarized (for those interested in more detail about the sort of interpretive analysis demonstrated by these cases) at
Andrew E. Taslitz, Dauberts Guide to the Federal Rules of Evidence: A Not-So-Plain-Meaning Jurisprudence, 32
Harv. J. Leg. 3 (1995), and Andrew E. Taslitz, Interpretive Method and the Federal Rules of Evidence: A Call for a
Politically Realistic Hermeneutics, 32 Harv. J. Leg. 331 (1995). I sometimes have students do a short pre-class written analysis of interpretive method in the two assigned cases (counting it toward class participation) as a way of
forcing them to focus on what they wrongly see as a dull subject: interpretive methodology. Discussing constitutional issues, such as the Confrontation Clause, also requires turning to case law, and we discuss Idaho v. Wright,
497 U.S. 805 (1990), and Lilly v. Virginia, 527 U.S. 116 (1999), in some depth. Additionally, I find UpJohn Co. v.
United States, 449 U.S. 383 (1981), very helpful in teaching the attorney-client privilege.
Andrew Taslitz, Howard University School of Law
Rock v. Arkansas, 483 U.S. 44 (1987) underscores the constitutional overlay of the Federal Rules of Evidence
Ohler v. U.S., 120 S. Ct. 1851 (2000) discusses the trade-offs that litigants must make sometimes in the adversarial system
United States v. Begay, 937 F.2d 515 (10th Cir. 1991) discusses the application of FRE 412 (Rape Shield). I
worked on Begay as a law clerk to the Chief Judge of the Tenth Circuit and Begay is cited in the Advisory Notes.
It is one of the few cases to find the exclusion of evidence unconstitutional.
Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993) establishes standards for the admissibility of
expert testimony
Maryland v. Craig, 497 U.S. 839 (1990) discusses the interface between the hearsay rule and the Sixth Amendment right to confront witnesses
Jack Sahl, University of Akron Law School

Teaching Race Issues in the Required Evidence Course


When the Simpson case was pending in the fall of 1995, I was using, as I always have, the Waltz and Park evidence text. To teach bias, I already had covered the Federal Rules of Evidence prohibitions on the use of character to show propensity versus the legitimate uses of character, Rule 404. For the bias lesson, the students read an
excerpted version of the leading Supreme Court case on the issue, United States v. Abel. In addition, I assigned
the California case that Judge Lance Ito, the presiding judge of the Simpson criminal trial, relied upon in his ruling on the Fuhrman impeachment/bias tapes and testimony, In re Anthony P.
As usual, I called upon a student to relate the facts and issues involved in the Abel case. In Abel, the government wanted to undermine a witness, Mills, whom the defendant, Abel, had put on the stand during his bank
robbery trial. The prosecution intended to impeach the defendants witness by examining another witness, Ehle,
who would say that he, Mills, and Abel were all members of the Aryan Brotherhood, a perjurious gang that require[s] its members to . . . lie, cheat, steal, [and] kill to protect each other. The issue was how the government
could use extrinsic evidence under Rules 608 and 609 if gang membership was used to show character, i.e., the

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propensity to lie. The Supreme Court in Abel held that bias is different from character and can be shown with
extrinsic evidence.
Once the holding of the case was sufficiently stated, I wrote two propositions on the board to clarify the distinction. Ehles testimony can be used to show two propositions: (1) Millss bias toward Abel as a fellow gang
member meant that he had a motive to lie for him or in some way to help him out and (2) Mills and Abel, as
members of a perjurious organization, had a propensity to lie. The second proposition clearly involves character, for which the use of extrinsic evidence is impermissible. But the first involves bias, which may be shown
through the use of extrinsic evidence. My students seemed to understand and were untroubled by Abel, just as
students have reacted in the past.
Once the class was finished discussing Abel, we moved on to a discussion of the facts and issues involved in In
re Anthony P. Anthony P was an African American teenaged boy accused of molesting a white teenaged girl, Deborah M, a classmate of his. Deborah M claimed that Anthony P asked her for a date and that, when she refused,
he grabbed her in her private parts and chased her down the school hallway. Anthony P claimed that he had
merely remarked to her that she was pretty and went about his business. It was essentially a swearing contest. Defense counsel asked Deborah whether she had a prejudice against [b]lack people, to which she responded in
the negative. When the defense asked a second question about whether she would be offended if a black person
asked her on a date, the government objected, and the trial court sustained the objection. The California Court
of Appeal reversed, underscoring the fundamental nature of the defendants right of cross-examination.
The court of appeal then noted that the California Evidence Code allows a trial judge to conduct a wide-ranging inquiry as to any factor which could reasonably lead the witness to present less than reliable testimony. In
particular, the court stated that allowing the fact finder to consider . . . any matter that has any tendency in reason to prove or disprove the truthfulness of [a witnesss] testimony . . . includ[es] . . . [t]he existence or nonexistence of a bias. . . . The court noted that proof of a witness[s] bias or prejudice against the specific individual
who is a party to the litigation is clearly admissible. The question presented, however, was whether bias or prejudice against the racial group of which the party happens to be a member rather than the party himself is also
clearly admissible.
Isabelle R. Gunning, Southwestern University School of Law

Classic Cases, Newspapers, and Trial Transcripts


Given that over 99% of evidentiary issues are resolved finally at the trial court level, I have developed teaching materials focused primarily on the admission and exclusion of evidence at trial, with a few classic or otherwise wonderful appellate cases thrown in. To give the course some immediacy, I incorporate relevant newspaper
articles about issues in current trials and about problems facing the courts, such as how best to deal with intimidated and turn-coat witnesses.
My course begins with an overview of why we have a trial system, the goals of evidence rules, the steps in a
trial, and the respective roles of judge, jury, and lawyer.
For the second class, the students read the entire trial transcript from pretrial motions and voir dire through
the returning of the verdict and polling of the jury of a local domestic murder, so that they can put evidence
in context. We begin class with their deliberating as a jury of the whole; they learn how jurors use evidence and
how others see the same evidence differently than they did. We then turn to a brief critique of the lawyers performances, their opening statements, direct and cross-examinations, and closing arguments.
Next we cover objections to the form of questions and the scope of cross and re-direct, so that the students
are empowered both to object and to meet unwarranted objections on these grounds. The fourth class is devoted
to preservation of the record. The fifth class addresses problems on relevance and the distinction between admissibility and sufficiency of evidence.

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At the end of the sixth class, which covers problems in the firsthand knowledge requirement and the lay opinion rule, we do an in-class exercise with a partial trial transcript I have written. Students act as the witness, the
plaintiff s counsel, the defense counsel, the defendant, the trial judge, the intermediate appellate court, and the
appellate court clerk. Half the class backs up the plaintiff s counsel and half the defense. Unscripted objections
are made, met, and ruled on. Interlocutory appeals may be taken. This exercise can be somewhat chaotic, but it
is a lot of fun and exponentially increases the students incentive to learn the rules (that they thought they knew
and understood before they had to apply them in a live-trial context). We come back to this exercise later in the
semester, when they have learned more law (so that, hopefully, they will see their progress!).
The classic cases, such as Wright v. Tatham, Shepard, and Hillmon are part of the basic vocabulary of a lawyer
versed in evidence law. The other cases I choose in an effort both to reinforce principles of preservation of the
record and to introduce unresolved questions of interpretation, which are debatable under rules of statutory construction and under considerations of public policy.
Lynn McLain, University of Baltimore School of Law

Movies
I use uses film clips, including the following:
From My Cousin Vinny, Marisa Tomeis testimony as an expert witness. I used it for (a) order of examination
(she testifies to her opinion first and then explains the reasons) and (b) major/minor premises. Its an enjoyable way for students to differentiate between a premise like 64 Buick Skylarks had solid rear axles and one
like the tire mark left by the escaping vehicle is flat and even. (I never would have thought of this before our
book, Evidence Law and Practice by Friedland, Bergman, and Taslitz (Lexis 2000), because I didnt think in
terms of major/minor premises.)
From Anatomy of a Murder, the direct exam of the defense psychiatrist who testifies that D was temporarily insane and later says that D suffered from dissociative reaction, also known as irresistible impulse. Good
example of what 704(b) is likely to exclude and permit, and the examination illustrates a couple of useful
trial techniques as well.
For more information about film and the law, see my book, Reel Justice.
Paul Bergman, University of California, Los Angeles School of Law

Music and Movies, Not Notes


I do not use notes or the casebook during class, although I have them with me. This enables me to keep eye
contact with the students and engage more fully in a discussion of the problem at hand. I can listen and see their
reactions better when I am looking at them and not at my notes. If I need to refer to the text of a rule or specifics
in the book, I can quickly refer to my copy or use a students if I happen to be walking around the room.
To add a little spice to some classes, I use music and a movie. I play Marvin Gayes Heard It Through the
Grapevine to introduce hearsay. At this stage of my career, I realize many students are not familiar with the music
of my youth, so I have supplemented Grapevine with a rap song called Bigmouth. I show a couple of short
clips from My Cousin Vinny to illustrate impeachment of a witness and laying the foundation for expert testimony.
Christine Hutton, University of South Dakota School of Law

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My Cousin Vinny, Revisited


Excerpts from My Cousin Vinny can be used to illustrate several permissible forms of impeachment. In two
humorous scenes, the defense counsel (Joe Pesci), who was trying his very first murder case, cross-examined two
earnest but inaccurate prosecution witnesses. One witness, a senior citizen, claims to have observed the alleged
perpetrators from a distance at the store where the murder occurred. The witness was wearing thick glasses, both
at the time of the incident and while testifying. Pesci unreeled a tape measure in the courtroom, and, with the
measure in hand, strutted to the back of the courtroom, a shorter distance than that of the alleged sighting. From
the back of the courtroom, Pesci asked the witness how many fingers he was holding up. After the judge interjected with the correct answer, Pesci tried again, this time successfully, when the witness answered incorrectly.
This dangerous ploy what if the witness had guessed correctly? provides an illustration of testimonial capacity impeachment.
A second prosecution witness was contradicted on cross-examination when Pesci focused on the breakfast the
witness was making, including authentic southern grits. Pescis questioning revealed that the length of time it
takes to make real grits contradicts the witnesss claim about having the time necessary to observe the alleged
perpetrators of the crime.
Steven Friedland, Nova Southeastern University Law Center

Hearsay Analysis and Problem


This quick problem is designed for use early in the coverage of the hearsay rule to ensure that students understand fundamental concepts, including the definition of out-of-court statement by a person, what constitutes the matter asserted by the declarant, and under what circumstances an out-of-court statement is offered
to prove that truth of the matter asserted. I use this problem before introducing nonhearsay and Wright v. Tatham
and implied assertions.
When is an Out-of-court Statement Offered for the Truth of the Matter Asserted?
A. Short Version
Evidence is offered for the truth of the matter asserted if, in order to help to prove what it is offered to prove,
the fact-finder would have to rely on the declarant as having been correct and accurate. It is not hearsay if the
evidence tends to prove what it is offered to prove, even if the declarant was inaccurate or mistaken. The crucial question to ask: Is the out-of-court statement offered to prove [insert what the declarant asserted]?
B.

Problem.

Is any of the following evidence hearsay?

Jeb has sued Brian for stealing and selling Jebs dog, Shadow. At trial, Jeb testifies that:
(a)
(b)
(c)
(d)
(e)

he was walking by with his friend Perkins and saw Shadow in Brians yard and
Shadow wagged his tail at Jeb.
Jeb turned to his friend Perkins and said, Thats my dog!
Jeb called the police and reported that Brian had stolen his dog.
When the officer at the station asked Jeb if he was sure, Jeb nodded his head up and down.

I expect the following quick and confident responses from the students, buoying them before they embark
upon stormier hearsay waters:
The utterance is not hearsay because no out-of-court statement is being proved.
Although Shadow may be saying, Thats my boy, there is no out-of-court statement by a person. Under
801(b), a declarant is a person who makes a statement. Certainly there are narration problems here. But

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we can discuss why animals are not treated as declarants: (1) try cross-examining them! and (2) theyre less
likely to lie than humans are!
An out-of-court statement (by Jeb) is being proved. What is it offered to prove? Jeb is the plaintiff and he
is testifying in his suit against Brian. He must be offering it at trial to prove that Jebs dog was in Brians
yard, which is the TOMA by Jeb when he made the earlier OCS. Therefore, it is hearsay.
Sometimes students dont see the OCS unless it is in quotation marks. This example gives them an easy
opportunity to identify the OCS and put it in quotation marks: Jeb said, Brian stole my dog. Because it is
offered for the TOMA, its hearsay.
This example lets the students apply their understanding of non-verbal assertive conduct under 801(a).
They can see that Jeb is making an OCS and that by nodding his head he is saying, Yes, Im sure; Brian
stole my dog. Because it is offered for TOMA, its hearsay.
Lynn McLain, University of Baltimore School of Law

Comparing Federal and State Rules of Evidence Using Side-By-Side Charts


I teach at a state law school (Hawaii). Approximately 80% of our graduates practice in the state. I therefore
give significant treatment to both the Hawaii Rules of Evidence (HRE) as well as the Federal Rules of Evidence
(FRE). Most of the rules are the same in both systems. However, there are some significant differences. One of
the best ways to compare the significant FRE and HRE differences is to place one rule right next to the other rule.
I have made up approximately 15 of what I call side-by-side charts and placed them in a special handout for my
students. I compare the rules sentence by sentence and underline or bold the words that are different in each rule.
I use them as overheads in class as well as provide them to the students in a handout. Students say this is really
helpful to them. I have included one such overhead here.
RULE 407. SUBSEQUENT REMEDIAL MEASURES
HAWAII

FEDERAL

When, after an event, measures are taken which,


if taken previously, would have made the event
less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence
or culpable conduct in connection with the event.

When, after an injury or harm allegedly caused


by an event, measures are taken that, if taken
previously, would have made the injury or harm
less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect
in a products design, or a need for a warning or
instruction. [amended in 1997]

This rule does not require the exclusion of


evidence of subsequent measures when offered
for another purpose, such as proving dangerous
defect in products liability cases, ownership,
control, or feasibility of precautionary measures,
if controverted, or impeachment.

This rule does not require the exclusion of


evidence of subsequent measures when offered
for another purpose, such as proving ownership,
control, or feasibility of precautionary measures,
if controverted, or impeachment.

John Barkai, University of Hawaii William S. Richardson School of Law

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Exercises
First-Day Exercises
On the first day of my evidence course, I have students read the short story, A Jury of Her Peers. The story is
of a farmer who is found strangled to death in his sleep. His wife claims that an unknown assailant did the dastardly deed while the husband and wife slept. The wife claims that the struggle did not awaken her, so she did
not see who the killer was. A sheriff and his small posse arrive to investigate, the men bringing along two of their
wives. The wives are left in the kitchen to talk but, while there, solve the crime by focusing on a series of clues
that the men either ignore or do not even search for, notably evidence of chores half done, an old stove, a dreary
home, and a choked, dead bird. Based on this evidence and the womens own knowledge of the respective characters of the husband and wife and of the nature of womanhood, they conclude the following: the husband had
in effect killed the wife already or at least her spirit by denying her the simple joys that wives expect, his ultimate act of violence being the choking of the one thing that brought life into the wifes home: the now-dead
bird. So she choked the life out of his body, just as he had literally done to the bird and metaphorically done to
the wife. The women see the killing as justified, therefore hiding the evidence from the men. The story offers a
wonderful overview of the issues in the course, from relevance, to character, to authentication, to expert evidence,
to hearsay, to impeachment. It also raises the importance of juries and of an understanding of how they reason.
Andrew Taslitz, Howard University School of Law
I provide a broad overview of the course by reviewing in class each article of the FRE as contained in the Supplements table of contents. I assure students that they can master the subject material with hard work and that
we will have some fun in the class. Most of the class is spent reviewing portions of Making the Record, by Jon
Waltz and John Kaplan, which I assign for the first class. For example, during the class I outline the adversary
process and note the importance of the court reporter. I do several simulations, including one always the last
one in which I ask the back row (between six and nine students) to leave the room. Then I pretend to choke
on some candy in the classroom, after which I invite the students to return and to act as the jury while several
students represent me as the plaintiff and several students represent the defendant candy manufacturer. The defense student-attorneys then do a direct examination of me, and the plaintiff student-attorneys cross-examine
me. The simulation facilitates our discussion of leading vs. non-leading questions, raising objections, etc. The
rest of the class may object to the questions asked of me. This simulation suggests how important and difficult
it is to paint a picture for the jury.
Jack Sahl, University of Akron Law School

Teaching Evidence from a Practical Perspective


Using Small-Group Advocacy Exercises
I think one of the most difficult things about teaching evidence is that students do not really understand how
evidence issues are played out in a courtroom, particularly direct and cross-examination. They need some trial
practice principles to apply concepts from the evidence course. A second major problem with typical evidence
courses is that many students leave the course feeling that their trial experiences as lawyers do not really relate to
their evidence courses.
For the above reasons, each semester I do two small-group advocacy exercises. The students are assigned to be
in groups of approximately 10 students. A few weeks after the evidence course starts, on one day at the regular
time for the large evidence class, the small groups each meet with a lawyer (or lawyers) whom I invite to the

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school to lead a small group in what is essentially a trial practice class taught by the National Institute of Trial
Advocacy (NITA) method. Each student does some direct examination, cross-examination, or both on a simple
pre-assigned problem. I use a problem similar to the NITA problem called NITA Liquor Control Commission v.
Jones. Usually I will have between six and eight groups (depending on the size of the class) meeting simultaneously. I continually visit all the small-group sessions as an observer and sometimes make some comments.
Approximately one month later, after the course has covered many other topics, I again do small-group sessions. Based upon the same fact situation, I have created about 10 sub-problems in which students are required
to actually do many of the evidentiary tasks that we have studied in the course. For example, they have to introduce a diagram of the scene, a diagram contained in the police report, a physical item seized by the police, an
item similar to an item seized at the scene; refresh the witnesses memory with a police report; introduce hearsay
evidence by introducing past recollection recorded; introduce a business record; impeach by a prior written statement; impeach by a prior oral statement; and impeach by an omission. My students say these two classes really
help them understand evidence and are the best two classes of the semester. And, as you might notice, I do not
actually teach these two classes, but I do write extensive teaching notes for my guest judges and critiquers. I try
to use a majority of the same guests each year.
John Barkai, University of Hawaii Wm. Richardson School of Law

Teaching Hearsay through Structured Courtroom Observation


I use a structured writing assignment in my Federal Evidence course that requires courtroom observation in
the learning of hearsay analysis. Students are given this assignment after coverage of basic hearsay doctrine and
during our coverage of the exemptions and exceptions. The assignment helps students to distinguish present
statements occurring in in-court testimony from out-of-court statements.
The student must locate and attend a fact-finding proceeding in either state or federal court. The student must
observe the proceeding, listen for the elicitation of out-of-court statements, and then analyze the appropriateness of the statements admission or exclusion. The written assignment requires the student to prepare precise
answers to specific questions regarding the handling of the out-of-court statement. I provide the students with
a memo of instructions and a form containing the five specific questions to be answered for the treatment of two
out-of-court statements. As part of this assignment, students must articulate the probable proponents theory of
the case and how this out-of-court statement is probative of specific elements of the theory. They are also required to apply the Federal Rules of Evidence to the admissibility of each out-of-court statement. Finally, the student is also required to reflect upon the effect of the Federal Rules of Evidence and the adversarial method of
proof on the students definition of justice, fairness, and truth.
In this active-learning process, the student takes control of the doctrine and begins or continues to demystify
the relationship of evidence doctrine to actual adversarial advocacy. This assignment shows the student how controlling doctrine is applied to facts in litigation by both the advocates and the judge. Students also gain some
sense of the preparation needed for competent adversarial presentation of evidence. Students also gain an appreciation of the prevalent use of out-of-court statements as potential proof of hearsay and non-hearsay propositions.
Beryl Blaustone, City University of New York School of Law

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Brief Gems
Storytelling in the Classroom
Storytelling is a useful pedagogical tool in the law school classroom. I use short stories as a review device for
the basic rationales encompassed within the Federal Rules of Evidence. My storytelling is intended as a reviewand-recall device in anticipation of detailed testing on the evidential concepts through multiple-choice questioning during the semester. The short story reviews the rational connections within and the overall structure of
the particular Rules under review. One example of my storytelling is my use of review narratives based on the
life of John Henry Wigmore as a mechanism to demystify the process of legal thought in general and evidence
doctrine in particular. I explain in detail how to construct review narratives/storytelling and include four short
stories based on Wigmores life in my article, Teaching Evidence: Storytelling in the Classroom, 41 Am. U.L. Rev.
453 (1992).
Beryl Blaustone, City University of New York School of Law

Mock Trial
The entire class can be divided into teams of three or four students and asked to try a mock case before real
judges or practicing attorneys at the end of the semester. This exercise offers students several opportunities to
synthesize the course material and develop a big picture of the Federal Rules of Evidence; to study and review
the course material; to appreciate that the students learned something about evidence during the course; to experience a different set of lawyering skills; and to try a complete case, a significant accomplishment and positive
law school experience. I use an evening during the last week of classes to hold the trials. Each team of students
is asked to supply witnesses and jurors.
I regularly use a mock trial problem, styled United States v. Rick ORuben, a straightforward convenience store
robbery prosecution. Each team is asked to do very brief opening statements and closing arguments and somewhat longer direct and cross-examinations of the witnesses. (The students receive only brief explanations of openings and closings, whereas the students practice direct and cross-examinations during the course in the context
of learning the Federal Rules of Evidence.) Each side is expected to call two assigned witnesses (usually the eyewitness and the investigating officer for the prosecution and the defendant and defendants wife for the defense).
The facts are clear and easily grasped. A convenience store, Magruders, was robbed on a Wednesday evening
at 8 p.m. The primary prosecution evidence derives from the testimony of the store clerk, Sally, the only eyewitness, but also includes the robbery note (with smudged and unknown handwriting on it), a gun found at the
scene (with the defendants fingerprint on it), and a paper scrap with part of the license plate number of the getaway car written on it by the store clerk. The number written down by Sally on the piece of scrap paper almost,
but not quite, matches the license plate number of the defendants car. Sally identified the defendant as the robber in a later photo array.
There are several problems with the prosecutions evidence. Sallys eyewitness identification was not entirely
accurate and included variations in the length of time of the robbery, what the robber looked like, and what the
sequence of events was. Several fingerprints were found on the gun, with only one identified as the defendants
print. (The defendant admits that it is his gun, but that it was stolen prior to the robbery.) The handwriting on
the note could not be positively identified as the defendants.
The defendant, Rick, is married, with two young children. Rick was an auto mechanic for many years but was
laid off several months prior to the robbery. He just recently resumed working as a mechanic in another garage.
On the Wednesday night in question, the defendant claimed he was playing tennis in his weekly game with his
friend, Tim, who, at the time of trial, was in the Navy on a ship in the Indian Ocean. The defendant previously

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had shopped at the convenience store, which was located near his house, for soda and things like that. Rick concedes he at one time owned a gun for protection purposes only, but that it was stolen a month earlier out of his
car. The defendant was convicted of felony heroin possession five years before the robbery and convicted of the
attempted robbery of a convenience store 10 years before the incident.
These basic facts can be embellished, modified, and changed for the purposes of the exercise. It is useful to include both helpful and hurtful evidence for each side, so that strategy is relevant to the way the case is tried.
The students find the mock trial requirement to be an onerous obligation as they begin trial preparation and
the best part of the course by the conclusion of the trial. Most students state that the trial facilitates the learning
process and provides them with a positive experience.
Steven Friedland, Nova Southeastern University Law Center

Courtroom Observation
Students are required to attend a session in court where they hear a witness being questioned. They must stay
at least a couple of hours. They may fulfill this requirement in either state or federal court. They submit a memo
at the end of the semester describing what they have observed and giving their assessment of the evidentiary issues raised.
Christine Hutton, University of South Dakota School of Law

Mock Witness Examination


I ask a student to serve as a judge for each class session. I hand him or her the golden gavel and then appoint
the two students next to the judge to serve as judicial clerks. They help the judge rule on evidentiary questions
that arise in every class. Students are occasionally asked to offer evidence (e.g., expert testimony, photos), and the
rest of the class is responsible for raising objections.
Jack Sahl, University of Akron Law School

Laying the Foundation


During class, students will lay the foundation for various types of evidence with scripted material. This is not
to transform the class into a trial practice course but to give them an opportunity to speak or hear what needs
to be said in court to use the testimony in question. This seems to reduce their anxiety about how to figure out
what to say and how to say it once they appear in court.
Christine Hutton, University of South Dakota School of Law

Teaching Evidence through the Drafting of Jury Instructions


In class discussion, I regularly ask students to draft language for jury instructions as part of the review for each
substantive section of the Rules coverage. After studying the assigned rule, cases, and my problems, students must
offer appropriate language for a jury instruction. This often leads to the clarification of doctrine as well as theoretical and sociological discussion of jury competence. Students actively compare the benefits of bench versus
jury trials.
Beryl Blaustone, City University of New York School of Law

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Teaching Hearsay through Role Play


The following is a script for a mock trial exercise that I use in my Evidence class to illustrate some principles
in hearsay. I choose one student to play the lawyer and I take the role of the bloodhound. Of course, the basic
rule is that evidence of the results of machine read-outs (radar) and bloodhounds is not prohibited by the rule
against the admission of hearsay evidence. But this exercise illustrates that when a dog handler testifies about
what the bloodhound did, it really is hearsay and the out-of-court declarant is the dog. By putting the dog on
the witness stand, I illustrate the fundamental reason for the hearsay prohibition you really cant question that
out-of-court declarant even when the answer is critical and injustice may result.
CROSS-EXAMINATION BY DEFENSE COUNSEL
Q. Do you prefer to be called Colonel or Bloodstone?
A. Bloodstone.
Q. Mr. Bloodstone, when you were in this court earlier today did you hear your master, State Trooper Suffolk,
testify that you apparently followed a scent from the scene of the robbery to a nearby bar?
A. Yes, I heard that.
Q. Did you further hear him testify that both of you entered the bar and there were at least two dozen people inside?
A. Yes, I heard that.
Q. Is it true that upon entering the bar you sniffed around and eventually went up to my client who was sitting peaceably at a table drinking an Anchor Steam beer?
A. Yes, but it was a Budweiser.
Q. Is it true that you initially spent a few moments sniffing his shoes or feet?
A. Yes, that is true.
Q. Is it true that you then raised yourself up and rested your two front paws on him signaling to your master
that this was the source of the scent that you first noticed at the scene of the robbery?
A. Yes, this is true.
Q. The scene of the robbery was outdoors, near a bank teller machine, isnt that correct?
A. Yes, that is correct.
Q. Now, Mr. Bloodstone, I want you to consider this next question carefully. Isnt it possible that the source of
the odor that you traced to my client could have come from the bottom of his shoes when he innocently
stepped on the path of the true perpetrator rather than directly from my clients body?
A. Woof! Woof!

Louis Haffner, Empire Law School

Feedback and Evaluation


Multiple-Choice Feedback
At the end of each week of classes, I distribute two or three multiple-choice questions for students to work on
out of class. The questions focus on main points that we covered during the preceding week. I usually include
the correct answers at the bottom of the page, and students who want further clarification can ask questions in
a future class or via the course web page. I dont track or grade the students responses; I intend the questions
only as feedback devices. Since I primarily use a multiple-choice format for the final examination, the weekly
questions also satisfy students desire for final exam practice.
Paul Bergman, UCLA School of Law

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Practice Exam, Midterm, Closed-Book Final


The two most challenging areas of evidence law for students to master are hearsay and character evidence.
Woe to the student who leaves all of this to the week before finals. For this reason, I give a hearsay midterm
(hearsay, nonhearsay, and hearsay exceptions) a little more than halfway through the term. This midterm is shortanswer and essay and counts 30% of the final grade.
The final examination is cumulative. It is 60% multiple-choice (the Multistate Bar Exam uses this format and
tests evidence heavily) and 40% civil and criminal transcripts, with questions (this is what the practice of evidence law is all about). I provide a non-graded practice multiple-choice exam (and answers) for review, as well
as a sample transcript with questions that I go over during the final class.
All my evidence exams are closed book: no rules, no nothing. The bar exam is similarly closed book on evidence, so theyd better learn it now, when theyre immersed in it. But this is one area where the bar exam is not
artificial: litigators need to know the substance of the evidence rules by heart, or the opportunity to timely make
or respond to an objection will pass them by and they will have failed to preserve the record.
Lynn McLain, University of Baltimore School of Law

Testing Federal and State Rules of Evidence


As noted above, I teach at a state law school (Hawaii) where approximately 80% of the graduates practice in
the state. I therefore give significant treatment to both the Hawaii Rules of Evidence (HRE) as well as the Federal Rules of Evidence (FRE). Our graduates will generally use the HRE in practice, although the bar exam uses
the multistate format and therefore tests only on the FRE.
My evidence final exam is in three one-hour parts: 1) 20 multiple-choice questions testing only the FREs unless otherwise indicated, 2) essay questions that might test both the FRE and HRE, and 3) 90 true/false/differs
questions. The unique part here is the different types of questions, especially what I call differs questions. I have
between six and ten questions each year in which the answer differs depending upon whether you apply the FRE
or the HRE. The directions from my exam explain this concept.
Let me further explain Differs answers. For purposes of this exam, D means that the answer differs depending on whether you are using the Hawaii or Federal Rules of Evidence. Under one set of rules the answer would be
true; under the other set the answer would be false. Let me show you an example of a Differs correct answer.
Qx. T F D. A statement under belief of impending death (dying declaration) is admissible in any criminal case.
The correct answer to the above question is Differs because in criminal cases, Hawaii allows dying declarations
in any criminal case but FRE limits them to homicide cases.

John Barkai, University of Hawaii Wm. Richardson School of Law

Performance Tests
An increasing number of states are using a performance test (PT) on their bar examinations now 28. (The
Multistate Performance Test web page is at http://www.ncbex.org/tests/mpt.htm.) An increasing number of law
firms are using a mini-PT to make hiring decisions. Thats because of the correlation between the PT and what
lawyers do for a living. (See story on Multistate Performance Test, National Law Journal, March 1, 2000.) An increasing number of law schools should be using PTs to help fulfill their educational objectives which are not
limited to teaching one to think like a lawyer, but also to do like a lawyer.
William Slomanson, Thomas Jefferson School of Law

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209

Cartoons, Captions, and Mnemonics on the Exam


For many years I have used an uncaptioned cartoon on my final exam with the following instruction on the
exam:
Write a caption for the cartoon below based on the class. All captions written in English will receive full
credit.
Usually the students are allowed about three minutes of exam time to write their caption. Sometimes I give
the students the cartoon in advance. I end up with a large number of bad captions and a few very good ones. I
do give everyone credit even if they seem to have skipped the cartoon but almost everyone answers it. I post
the captions on the exam board and on my office door. Many people comment on the captions. I send the cartoon and captions to any guest speakers or advocacy instructors I have had in my class during the semester. I use
some cartoons and captions in later semesters. Based upon this idea, I have been running a cartoon captioning
contest in the ABA Dispute Resolution magazine for several years.
I use some mnemonics in evidence class to help students remember the evidence concepts better. Some commercial outlines also use mnemonics. A couple of times I have used a mnemonic question on my exam. It goes
like this:
Part 4. MNEMONICS & STUDY AID (2 percent; 3 minutes)
In class I have presented a number of mnemonics, images, and one-liners to help you remember evidence points.
Examples are:
CRUD, SPAM, HARROWing, The defendant wears a halo,curry bar, Bias is never collateral, etc.
Please give me a mnemonic, image, sketch, one-liners, etc. that I can pass on to future students. Your answer
should be very brief and just long enough so that I can understand your point. Answers will be judged on the
basis of originality and usability.
Note: Mnemonic is defined as a device or code intended to assist memory.

John Barkai, University of Hawaii Wm. Richardson School of Law

Midterm Student Evaluations


I ask for feedback from my students with the following midterm course evaluation:
With the semester about half over, Id appreciate your anonymous responses to the questions below.
Your Name:
Are you enjoying the course? ____________________________ Yes _ No (If you answer no, proceed to the end of
the evaluation form and then throw it away.)
For the most part, Ive relied on the text to provide basic explanations of the rules and devoted class time to problems. Would you prefer that I spend more time on introductory rule summaries?
Go to the problems_______

More introductions_______

Weve spent little class time on the cases in the various libraries at the end of many of the chapters. Would you
prefer that more class time be spent discussing cases?
Lets discuss cases________

Lets not_________

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Your Social Security Number:


With respect to the (mostly) weekly multiple choice review problems:
Do you find them helpful? ____ Yes ____ No
Should I continue to provide answers along with the questions? __ Yes __ No
Have you looked at the problem analyses on the course pages? ___ Yes ___ No
Your favorite currency: (Attach sample to back of evaluation form as Exhibit A)
Should I continue to pre-assign students to specific problems?

Paul Bergman, University of California, Los Angeles School of Law

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Family Law
Approach

213

Why I Use Problems in Teaching Family Law


J. Eric Smithburn
Incorporating Experiential Components in Family Law Courses
Barbara Glesner Fines and Mary Kay Kisthardt
Problems, Cases, and Topics
Francis Catania
An Interactive, Traditional Approach to Family Law
Charles P. Kindregan, Jr.

Material

213
214
214
215
216

Family Law Verses


Robert E. Rains
Current Event Handouts
Charles P. Kindregan, Jr.

216
218

Exercises

218

Interviewing about Families A First-Day Exercise


Barbara Glesner Fines and Mary Kay Kisthardt
Bringing Theater Techniques to the Classroom
Susan B. Apel
Understanding Family Law in Context: The Court Observation Assignment
Jane C. Murphy
Exploring Scholarly Perspectives: The Expert Panel Role Play
Barbara Glesner Fines and Mary Kay Kisthardt
A Skills Workout
Sheila Simon

218
219
220
222
222

Brief Gem

224

Abortion Issue
Judith D. Fischer

224

Feedback and Evaluation

224

Class Participation, Simulation Exercises, and Take-Home Final


Francis Catania

224

211

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Negotiating and Drafting a Marital Dissolution Agreement


Barbara Stark

225

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Approach
Why I Use Problems in Teaching Family Law
My family law course represents a marriage between an analysis of cases and statutes and problems. I began
teaching family law using a traditional casebook. I found problems to be a useful adjunct with which to develop
cutting-edge scenarios and to stimulate students to think about what the law is and what the law ought to be.
The use of problems puts the student in the position of a practicing attorney, working with the applicable statutory and case law to best represent a client. Problems present an excellent opportunity to have students advocate
against each other in the classroom and to gain a sense of what lawyering is all about. Ive settled upon a pedagogy that utilizes cases, statutes, and problems because it most nearly approximates the work of the family lawyer.
The problems in my book, Family Law: Problems and Documents (Aspen 1997), are adaptable to various teaching methods they serve as the focal point for class discussion, along with a case or statute, or they may be used
for a classroom simulation, in which the students may prepare written memoranda and argue the case to the
judge (who is played by the professor or a student).
The use of problems requires students to look at family law from the trial perspective. This is important since
a large number of family law issues are subject to the trial courts discretion, reviewable by the abuse of discretion standard. Since there is substantial appellate deference to the trial judges ruling, the client needs to understand that appeal is often not a viable option. Problems then require students to present creative arguments of
law and policy for a trial court that is not often governed by a rule of law but is free to choose from several legal
options. With the focus on representing the client in a trial situation, problems also stimulate students to analyze client expectations and the often difficult reconciliation between those expectations and the students own
sense of morality.
A Sample Simulation
This problem is a law office simulation involving Ken and Stella, who are to be married in 30 days and have
an appointment to speak with Kens attorney about a prenuptial contract. The professor may assign roles for this
problem in advance of the class simulation or instruct all students to be prepared to perform the assigned roles
on the day of the class simulation. In order to ensure preparation for the class by all of the students, I usually assign the roles at the beginning of the simulation class. The three roles for this problem are the attorney (who has
represented Ken in the past), Ken, and Stella. The classroom is arranged to look like a law office, with a table in
the middle of the room, so that the student observers feel involved in the process. The students in the class are
instructed to evaluate the student-lawyers performance based upon what the students have learned from my previous lecture on the law of antenuptial bargaining and contracts. The students are also expected to ask questions
of all three participants at the end of the simulation, which can last from 30 to 50 minutes. At the beginning of
the class, Ken and Stella are each given confidential instructions, which include questions they will ask the attorney during the conference. These questions raise issues in the law of prenuptial contracts and also issues of
ethics, professional responsibility, and public policy. There is also information that will not be revealed by Ken
or Stella unless the lawyer makes the proper request (raising important issues on non-disclosure and validity of
prenuptial agreements). The simulation continues uninterrupted in order to preserve an air of realism. The parties often discover in the conference that their expectations and personal desires are not the same. The students
are instructed to stay in their roles, which often produces some difficult practical problems with which the lawyer
must cope. This gives the students some sense of the practical difficulties of lawyering. After the simulation, I ask
the student-lawyer to give an overview of his or her expectations and strategy, given the information contained
in the problem and obtained from the casebook and class lectures. Also, the students playing the roles of Ken and
Stella describe their expectation and their perception of the lawyer and his or her role, and they share their personal feelings about involvement in prenuptial bargaining. This is followed by questions of the participants from

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the rest of the class and my critique and commentary as a wrap-up. The students enjoy simulations of this kind
very much. Most of the time, the rest of the class applauds the performances of the participants.
J. Eric Smithburn, Notre Dame Law School

Incorporating Experiential Components in Family Law Courses


Experiential components can be introduced in any family law course by simply taking a field trip to the local
court, shelter, or agency. However, in both our upper-level family law seminars (Children and the Law and Family Violence), we incorporate these experiences more fully into the curriculum. In both courses, students are expected to observe the legal system in action by volunteering time in family court or other appropriate settings.
The requirements for the experiential component vary according to the students choice of final project. While
all students are required to integrate some observation time into their course work, some may opt to make that
a larger part of the research and presentation of their final projects, while others might prefer to spend more time
on traditional research and writing in producing a final written project.
Including experiential components for your class requires some up-front networking with local professionals.
We simply ask professionals if they would be open to mentoring a student in the class; we outline the expectations we have (which are kept minimal a willingness to have an observer and an openness to questions) for
the mentors; and we provide a list to the students. Some of the mentors are invited to speak to the class about
the work they do. Students are welcome to go beyond the list as well, and each year the pool of available experiences expands as students take advantage of their diverse geography or prior professional associations to create
their own opportunities. Students are expected to report their activities and observations. They are not required
to actually volunteer their assistance but only to observe, though many students are eager to become more actively involved. Observations are incorporated into an end-of-term presentation to the class on some issue raised
by their experiences.
While this type of homework can be a bit intimidating for both faculty and students alike in the beginning,
we have found that integrating experiential components into our family law curriculum has brought significant
benefits to learning and teaching. Students understand legal doctrines they are learning more deeply, with greater
appreciation of both the practical application of those doctrines and their deeper political and philosophical subtleties. Students begin to view the course material as real rather than academic, with class discussions reflecting
increased curiosity and enthusiasm for the subject. The class becomes a community of learners, as students recognize that they have insights and experience to contribute and as they are exposed to views of professionals
other than their professor. Students learn skills of observation, reflection, and professional networking often unavailable outside of clinical programs. Finally, the students experience some of the emotional aspects of this area
of law, which cannot be authentically replicated in the classroom.
Barbara Glesner Fines and Mary Kay Kisthardt, University of Missouri-Kansas City School of Law

Problems, Cases, and Topics


I use a combination of case method and problem method. The reported cases in family law can be misleading as to what is happening in the resolution of disputes in custody, divorce, or child support cases. Because the
statutes give little guidance to judges, the cases are quite fact-specific, and appellate courts generally are highly
deferential to trial courts in these cases, a tiny percentage of the cases are appealed. For that matter, the overwhelming majority of these cases are settled before coming to trial. I have had good success using problems that
I have designed to get at important aspects of the case law while communicating that there are social norms and
biases that figure prominently in these cases (examples available upon request).

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One area of the course in which I do use case method is that of constitutional rights. Family law is predominantly state law and I am not interested in teaching the law of a particular state (we are in one of Americas many
tri-state areas). Thus, the aspects of family law upon which the Supreme Court of the United States has ruled
(the right to marry, certain parental rights issues, certain jurisdictional issues going all the way back to Pennoyer
v. Neff and privacy rights cases) make up a prominent part of the course as I teach it. I have found that this ties
the course in to civil procedure and constitutional law courses that the students have taken or are taking, which is
reassuring to students who are mystified by the odd relationship between reported cases and the law as practiced
(as mentioned above). It also seems to be reassuring to students to see some national uniformity.
I have limited the course as I teach it to marriage and divorce (and issues ancillary to divorce). Obviously one
could, and perhaps should, teach much more under the heading of family law, and perhaps this course would
more accurately be titled something like Law of Marriage and Divorce. In a three-credit course, however, I have
found that the quality of what is taught and learned goes up in inverse proportion to the amount of coverage attempted. I settled upon marriage and divorce because it covers much of what is tested on the bar examinations
relevant to our student population and much of what is undertaken as the bread-and-butter of the small-firm
practices into which many of our students emerge.
The last time I taught family law, I approached the following topics in the following order:

Regulation of marriage (63 pages of text; 4 classes)


Legal significance of marriage (89 pages; 4 classes)
Marital status/contract (40 pages; 2 classes)
Divorce/divorce substitutes (49 pages; 2 classes)
Child custody (102 pages; 4 classes)
Property division (70 pages; 4 classes)
Spousal support (45 pages; 2 classes)
Child support (66 pages; 2 classes)
Modification (45 pages; 2 classes)
Final exercise (2 classes)
Francis Catania, Widener University School of Law (Delaware)

An Interactive, Traditional Approach to Family Law


I have been teaching Family Law for 34 years. Over the years I also taught a wide variety of other courses, including Torts, Equitable Remedies, Professional Responsibility, and Wills and Trusts. I have found that my prior
teaching experience with other courses has been invaluable in helping students to understand that a good lawyer
must integrate knowledge from various areas of law to be effective. In every class I will refer to some doctrine
that the student presumably learned in some other course, such as Torts, Property, Civil Procedure, Tax, or Probate Law. The good teacher will constantly challenge the student to think outside the box, by which I mean the
box created by the catalogue course description and the specific legal focus of the material in the casebook.
Class Procedure:
At the start of each class I do two things. First, I spend two to three minutes with a very brief summary of the
principal issues discussed in the prior class. While this summary is somewhat superficial I do it to help focus the
minds of the students and to lead in to the issues to be discussed this day. As a young teacher I came to understand that it takes a few minutes for students to focus from the prior class, from last nights party or basketball
game, or from their pre-class phone call or email to their significant others, and the little review of previously discussed issues can achieve this refocus. The second thing I do in each class is to give the students a handout about
some current family law topic. (See the Material section of this chapter for a description of these handouts.)

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Methodology:
I believe the case method is still the best method of teaching and learning law. But since most of my students are
in the last year of law school I do not waste a lot of time asking them to recite the facts. I summarize the relevant
facts and then walk around the room asking various students about the issues raised by the case. This enables me
to have a discussion about various issues in a single case with three or four different students. It also makes it very
likely that a particular student will be called on a number of times during the course. I try to keep the discussion
moving at a good clip and find that humor helps relieve the tension that fear of being asked a question might otherwise create. Many senior students are reluctant to speak in class, and I find that you really have to work hard to
break through that reluctance. Of course, this method demands that the students have read the cases before class. I
find that if the teacher keeps firing questions at them most students will do a decent job of class preparation, although the day (full-time) students are a little better at this than the evening (part-time) students.
Assignments:
I believe that good teaching requires that the students be given specific reading assignments in the casebook.
I give out a detailed written list of assignments at the start of the semester (and post it on the law schools Web
page on Blackboard or on TWEN) and follow it in exact sequence. Only when there is a real landmark decision
or other development will I add something to the assignments during the semester. New assignments or articles
posted by the teacher, as well as past examinations, can be quickly accessed by students using the schools highspeed computer network. (Every seat in Suffolks new law school building is wired to the computer network.)
Student Contact:
The assignment materials list my office number and phone, my office hours, my email number, my fax number, and (in my seminar) my home phone number. I encourage the students to contact me about anything connected to the course. Email is clearly the preferred method of contact in the current generation of law students,
but I do encourage drop-in office visits. Email is a quick and sensible method of communication between student and teacher. I check my email frequently both at school and home and respond quickly to student inquiries
(except I will not answer questions requiring detailed analysis, requiring the students to come to my office for
discussion).
I am always amazed that some faculty dislike student contact. (Why did they become teachers?) Most students
appreciate the opportunity for frequent out-of-class contact. When I meet alumni they frequently thank me for
being so accessible during their student days, and I remain in contact with many of them years after they graduate. I think contact and interaction with students are an important aspect of successful teaching.
Charles P. Kindregan, Jr., Suffolk University Law School

Material
Family Law Verses
I occasionally impose on my family law students by having them read my verses or other froth in that area of
the law. I think students are far more likely to remember a case or a principle of law if they get it in a short, arguably humorous, fashion, rather than the good old Socratic method. Here is a list of various light pieces on
family law that I have published in recent years:
Dealing Out Justice, ABA Family Advocate (vol. 17, no. 4 (Spring 1995))
As Love Slips By, PA Family Lawyer (vol. 19, no. 4 (Dec. 1997))
A Scramble for the Eggs, Hastings Law Journal (vol. 50, no. 1 (Nov. 1998))

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Merry Musings on Matter of McIntyre, PA Family Lawyer (vol. 20, no. 4 (Dec. 1998))
No Good Deed Goes Unpunished, PA Family Lawyer (vol. 22, no. 1 (April 2000))
The Lawyer Who Saved Christmas, PA Family Lawyer (vol. 22, nos. 3, 4 (Dec. 2000))
When You Wish To Be An R, The Green Bag, 2nd Series (vol. 4, no. 3 (Spring 2001))
A Miracle Through the Mail, PA Family Lawyer (vol. 23, no. 4 (Dec. 2001))
Gerber v. Hickman, A Sperm Aside, PA Family Lawyer (vol. 24, no. 2 (July 2002))
Courting Canine Custody, A Domestic Doggerel, PA Family Lawyer (vol. 24, no. 4 (2002))
Nick-name, The Judicial Notice, student journal of The Dickinson School of Law of the Pennsylvania State
University (reproduced below by permission) (January 2003, p. 3)
Nick-name
Some days getting justice seems just like a cinch,
Some days you conclude that the judge is a grinch.
You show up in court (dressed nice as can be)
And proffer your motion upon bended knee.
You glance way up high and try to discern
If today is the day youll receive a good turn.
But you seldom can tell by the glint in his eye
If the judge is inclining to grant or deny.
David Lynn Porter, I do not know why,
Decided that hed give a new name a try.
Although you might reckon that Davids okay,
David just didnt quite see things that way.
He filed a petition (typed nice as can be)
Applying to alter his name legally.
He wasnt attempting to circumvent debt;
He only desired a new soubriquet.
David duly showed up on the date of his hearing,
With nary a negative witness appearing.
But after his reasons had been testified,
The county court issued a Motion Denied.
But David was not one to lightly take no;
To the states highest court he determined to go.
Those most august jurists reviewed the whole file
And concluded his motion was not based on guile.
They granted the writ and did squarely proclaim:
David Lynn Porter, you get your new name.
* * *
Let hosannas ring forth throughout this Great Land!
With joy everlasting, may sorrow be banned!
The man who was David is jolly because
For now and forever, he is . . . Santa Claus.*

* In the Matter of David Lynn Porter, 31 P.3d 51 (Utah 2001).

Robert E. Rains, The Dickinson School of Law, Penn State

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Current Event Handouts


In each class I give students a handout about some current family law topic. It may be a newspaper clipping
about a celebrity divorce, or a summary of a controversial court decision about sperm banking or support for a
posthumously conceived child, or an article in a law journal about civil unions, full faith and credit, and the Defense of Marriage Act. These handouts are always about a current controversy and usually have some relationship to topics that are under consideration that day or will be considered in an up-coming class. Sometimes I
comment briefly on the handout then or at a later time, but sometimes I just leave it to the student to figure out
why I thought it important enough to have distributed it. Student evaluations tell me students appreciate this effort to make the course relevant, although a few have complained about mass of reading material. Of course
there is always the student who wants to know will this will be on the exam?
Charles P. Kindregan, Jr., Suffolk University Law School

Exercises
Interviewing about Families A First-Day Exercise
In the first Family Law class, we use an interviewing exercise in which students interview one another about
family. The exercise is designed to meet several goals:
Students in Family Law find it difficult to recognize the extent to which their own distinct experiences of
family influence their analysis of legal and policy choices in this course. By comparing their own family
experience with a peers, they begin to conceive the broad range of experiences present in the class. With
guidance, they can recognize how understanding their observational standpoint will influence their analysis.
Interviewing and counseling skills are critically important, especially so for family law attorneys. This exercise allows students to assess their own interviewing skills.
One of the most difficult aspects of interviewing in family law settings is the intimate nature of the information being sought. Students see how uncomfortable questions about family can be and can gain some
empathy for their clients reluctance.
The mechanics of the exercise are fairly simple. First, briefly introduce the exercise. We often simply explain that
interviewing and counseling are important skills and tell students we are going to begin with a practice exercise.
Students choose a partner, preferably someone they do not know, and take turns interviewing one another about
their family. Some prompts we suggest students may want to use include:
Tell me one significant thing about your family.
What has most influenced your image of family.
Based on your experience, what is the most significant issue in family law today?
We generally give the students at least 10 minutes to finish the exercise, though depending on the level and
intensity of discussion you may want to give more time. It is very important to leave sufficient time for closure, however.
We first lead the class in a discussion of the process of interviewing, asking How did you feel as you were
being interviewed? Was it uncomfortable to have someone asking you personal questions? Dont you imagine
your clients will be very uncomfortable? We elicit suggestions for facilitators for communication and cover some
basic principles of active listening.

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We then turn to the subtext of the exercise. We do not ask students to reveal their interviews to the class, but
we may comment on the general discussion we heard as we moved around the room during the exercise (e.g.,
Many of you spoke of your childhood experience of family . . . or I heard the word dysfunctional several
times . . .). We then ask students to think about how their and their classmates experiences of family would affect their views of course topics.
We generally end the class by telling something about ourselves and our own families. This introduction lets
students know what our own biases may be and also establishes an initial positive rapport with the students. For
example, we may speak of our family of origin, our marital family or families, and/or our extended or created
families and give examples of how those experiences shape our views on certain subjects. We end with a brief exhortation that the range of experience and views in the class is diverse and personal and that we expect students
to respect each others opinions and remain self-reflective.
Barbara Glesner Fines and Mary Kay Kisthardt, University of Missouri-Kansas City School of Law

Bringing Theater Techniques to the Classroom


I have been using theater techniques in the classroom for over 10 years. The genesis of this idea came not from
my role as a teacher but, rather, as an adult student struggling to learn French for the first time in a class at Dartmouth College taught by Professor John Rassias. I noticed how much time students in that class spent engaging
the material with their bodies as well as with their words. The experience transformed my law teaching.
The exercise that I have chosen to present is one that I have used for several years in my Family Law class. I
have used it on the first day of class to introduce the concept of family. The technique involves the use of in-class,
student-generated skits.
Step #1:

Step #2:

Step #3:

Step #4:

Step #5:

Assign readings in advance of the class on the subject of the skits. Many family law casebooks contain some introductory material from other disciplines discussing the definitions and functions of
family.
Give your students a task to complete before the class. The task in this case is a mini-free write to
complete the following sentence: A family . . . Students are instructed to finish the sentence with a
definition or description of a family.
Once in class, assign students to small groups of from 4 to 6. Instruct them that they are to do the
following things in this order:
a) Each student will read his or her completed A family . . . sentence to the rest of the group.
b) The group will choose one of the sentences or, if they prefer, they can combine or otherwise
alter one of the sentences.
c) The group will put together a skit of no more than one minute.
I then demonstrate a skit to the group. I cajole two students into joining me at the front of the room
and give them their lines, e.g., I live at 123 Main Street. I perform the skit with them, each one saying the line, and then ask the rest of the students what we were trying to convey. (A family resides
at the same address.)
Have students perform the skits, each group taking its turn. The remainder of the class will attempt
to guess what the actors are trying to convey. As each group finishes and after a few guesses from the
audience, have one student from the group write the groups sentence on the board.
When all of the groups have finished, you will have a list of descriptive sentences about the concept
of family. These provide a rich basis for a larger class discussion. General questions that I may pose
to the students include asking them to review the list to determine if there are any themes or patterns. For example, students often describe families in functional terms, i.e, what families do (sup-

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port each other in bad times) rather than concentrate on legal constructions of families (Families
consist of parents and their children.). Other questions might include:
Does the list represent a complete picture, or have we left anything out?
If some aspect of family appears to be missing, why might that be? For example, in most years
students tend to describe families in positive terms rather than negative ones. That may engender a discussion in two directions: 1) what are the missing negative descriptions and 2) why were
they not on our original list?
Are all of the statements on the board true? (My example of families living at the same address
is often found wanting in this regard.)
Would our list look different if we had done this exercise 20 years ago? If we were in another
country? If we were a more culturally diverse group?
Final step: I ask one of the students to copy the sentences on the board and ask if s/he will be responsible for
providing copies to all of us by the next class. I ask students to keep the lists in their course materials for referral during the semester.
What is the value of this exercise? First, students generally find the exercise to be fun, which helps to balance
much of the rest of traditional legal education. Second, this exercise incorporates many different pedagogies:
learning from printed texts (reading); a free-write, albeit a short one; small-group discussion; small-group interaction skills; large-group discussion; analysis of the final work product; and a memorializing of the work product for future use in the course. Thus, the exercise teaches to the whole class in providing not one, but many,
teaching techniques. In addition, the skits provide a sort of shared culture for the class, much as (dare I say it?)
television might. So in addition to references that I or students might make to popular culture (This is like the
episode of The Practice last week . . . or, in my time-warped mode, This is like Leave It to Beaver . . .) students
can refer to our shared culture of the skits. (Remember when the group in the back of the room did the skit
about men feeling alienated from families? Maybe that has something to do with this default in the payment of
child support that we read about for today.) Finally, I am convinced that this exercise is long-remembered and
effective because it incorporates actual physical activity with mental activity, use of words, and visual images, all
of which involve more of the students whole persons.
Susan B. Apel, Vermont Law School

Understanding Family Law in Context: The Court Observation Assignment


For the last several years, I have included a court observation assignment in my three-credit, one-semester
Family Law course. The class is a large (about 80 students) survey course that I teach through a mixture of problems, simulations, and Socratic discussion. I added this court observation assignment for a variety of reasons.
First, the assignment provides a context for the legal doctrines we discuss in class. This deepens the students understanding of both doctrine and the procedures and institutions in which they are applied. In addition, the experience of the observation often encourages broader participation in class. Students who may not be motivated
by a reading assignment to volunteer in class are often much more engaged in a topic after they have observed
its application in an actual case. These discussions often cross doctrinal boundaries to include discussions of evidence, civil procedure, and professional responsibility. A final goal of the assignment is to expose students to
both the need for pro bono representation and the injustices that occur in a system where the poor and middle
class often go without legal representation.
Before assigning students to observe court proceedings, it is important to lay the groundwork with the local
courts. With some notice, judges are very receptive to speaking with students after court sessions to discuss the
law, the role of the attorney, and other issues raised by the hearing.
I have students complete the assignment by mid-semester so that I can grade them on a staggered basis and

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can integrate student reports on their observations into class from time to time to enrich and enliven the discussion. Below is the information I give students about the court observation assignment.
I.

Goals of Assignment
A. To enhance your understanding of the substantive and procedural laws governing the resolution of domestic disputes.
B.

II.

To develop a critical perspective about the operation of courts, including highlighting the differences between law in the books and the law in operation.

Assignment
A. Court Observation
You are responsible for observing proceedings in a court hearing a domestic relations matter for a 23
hour session. Because I have made prior arrangements for these observations in both the Baltimore City
and Baltimore County Circuit Courts, either of these courts would be good choices. Information concerning scheduling, location, etc. for those courts and others is included in this memo. You may, however, observe proceedings in any court hearing these matters in Maryland or the District of Columbia. Whatever
court you choose, dress for court; introduce yourself to the judge or master, if possible; and, of course,
treat all court personnel with courtesy and respect.
B.

Written Narrative
After your observation, prepare a 13 page, typed, double-spaced description and analysis of what you
observed. The narrative should include:
1. Date and time of your observation and name of court and judge or master you observed. While many
of you have observed or assisted in court proceedings in other contexts, this assignment requires
court observation during this semester.
2. Type of hearing(s) observed: divorce, child support, custody, contempt, etc. (pendente lite vs. merits);
domestic violence (ex parte vs. protective order); or parenting class.
3. Describe the content of the parenting class (topics covered and method of presentation) or hearing(s)
(the evidence presented at the hearing; whether the parties were represented or appeared pro se).
4. Comment on the performance of the judge and attorneys (if any) or presenters and describe the
judges decision(s) or parties agreement.

C. Deadlines
1. Although I have designated two class sessions as courtroom observation days, you may schedule your
observation and prepare your written assignment any time between now and [due date]. Do not wait
until the last week to schedule your courtroom observation it may take more than one trip to court
to obtain the information required for your written narrative. I have also advised the Baltimore City
and County courts that students will be in the courthouse on a staggered basis over the course of the
semester.
2. Your written narrative is due by the beginning of class on [mid-semester point], but I encourage
you to turn it in as early in the semester as possible.
III. Options for Court Observation
[In this section, I give students detailed information about the particular local courts and judges hearing family
law matters. I recommend that students call judges chambers before observing and include phone numbers, addresses, etc. I also allow students to complete this assignment by observing appellate arguments in family law
cases. Given the direction in which family law is moving, I have recently experimented with permitting some students to fulfill this requirement by observing court-ordered mediation or parenting classes where permission of
participants has been given.]

Jane C. Murphy, University of Baltimore School of Law

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Exploring Scholarly Perspectives: The Expert Panel Role Play


In many upper-level classes, students are expected to study a variety of scholarly or expert perspectives on the
law. While some students are happy to read excerpts from scholarly treatises or law review articles as an alternative to more case briefing, they often do not engage with the materials as carefully as we might like. Discussion
of the material in class can be stultifying if it consists simply of a march through the articles punctuated by the
obligatory and what does X say about that? Heres another approach.
1. Assign all the readings to all the students.
2. When they come to class, break them into small groups of from 3 to 5 and assign them an article. Tell
the group they are to review their assigned article together and that one of them, chosen by a random
method, will be asked to represent their group in presenting the article in the role of the author.
3. If you have background information about the author (pictures, short biographies, amusing or scandalous stories) share that information with the group to help them get in role.
4. Give the group 5 or 10 minutes to review their reading and prepare one another to perform.
5. Place chairs in the front of the room, as in a scholarly panel presentation, with name boards of the characters in front of each chair.
6. Have each student present their position briefly (2 to 3 minutes) then allow time for audience questions and for the panelists to question and respond to one another.
7. The professor acts as the moderator and can respond or ask questions of the panelists in order to ensure adequate coverage of the material.
We have found that this exercise works well in engaging the students in theoretical material. The students
propensity to overact does not diminish the learning experience as it sometimes can when they are asked to assume the roles of lawyers and clients. The students in the audience are generally willing to participate as they also
have identified with the author of the article assigned to their small group.
The importance of reading all the assigned reading should be stressed when the reading assignment is made.
We also have found it helpful to reinforce the idea that anyone in the group is subject to being selected for the
role play. This encourages the students to become more actively involved in the small-group discussion. Even if
the random selection (using closest birthday for instance) yields one of the more reticent students, the other students in the group can offset any disadvantage by becoming more vocal audience participants.
Barbara Glesner Fines and Mary Kay Kisthardt, University of Missouri-Kansas City School of Law

A Skills Workout
In my Family Law class I have used a series of three written assignments to get students to focus in a practical way on the theory they are learning. The assignments involve one client whom the students represent for the
semester. The students write an advice letter to the client, a petition for an order of protection, and a joint parenting agreement.
The students find out about the clients problem like any attorney would through the client herself. My research assistant portrays the client. I brief her on some of the key facts involved and then let her weave any story
around those key facts. She comes to class and is interviewed by the entire class, with people volunteering to ask
questions. The students are eager interviewers since they know that the facts for their assignment will come exclusively from the client.
For the first assignment the client presents a problem of not knowing whether she is married. She had a church
wedding and the minister gave her the wedding certificate to be filed the next week when the courthouse opened
up. Her husband, if thats what he was, got mad on the wedding night when the power went out and the turkey

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that was in the oven was ruined. In a rage he tore up the wedding certificate, and nothing was ever filed. The couple is now separated, and they have a child together. The client wants to know if she can walk away or whether
she has to get a divorce. An alert student will ask if there were other problems in the marriage, but the client is
briefed to avoid those issues for now.
After the interview the students must write an advice letter to the client and tell her if she is married or not.
Its a great exercise in communicating with ordinary humans. Many students struggle to summarize the law in
plain words. Most students have a hard time explaining uncertainty. These are challenges that students will have
for the rest of their careers. I enjoy reviewing the letters with the class and quoting from some of the best and
some of the worst. And of course the students have a better understanding of the requirements for a valid marriage.
The second time the client comes to be interviewed by the class she is more open. The real problem, it turns
out, is that she wants to get away from the husband (or non-husband) because he has been abusive to her in the
past and she is fearful of him now. The key facts involve past violence that required medical treatment and
current non-specific threats. Students learn that their clients fear is rational, but its not because she was physically harmed recently. This is a very common domestic violence scenario. This interview is more challenging for
the students because the stakes are high and the content is emotional. Each class is guaranteed to produce at least
one real stinker of a question. After the interview the client leaves, and we discuss why some questions would
lead a client to be hesitant to be open with an attorney and why complete information is critical.
The assignment after the second interview is to draft a petition for an order of protection. They are left to their
own devices to find a form. The only rule I issue is not to bother my friends at the Circuit Clerks office. The students have to decide if their client needs ex parte relief or whether notice should be provided. And when they get
to filling in the blanks in the forms they realize they should have asked more questions during the interview.
Thats one lesson I would have rather learned in law school than in practice! When I review the drafts with the
class my first focus is on whether students alleged that the parties were married. We discuss the cost of making
such a judicial admission. Next I focus on the level of detail in the allegations of abuse. Students see the petition
as a way to get into court, but they often fail to see it as a tool for the judge or as a way to box the respondent
into admissions and denials. Relief regarding custody and visitation issues is another hot topic. Through the interview, drafting, and review of the petitions, students get a much better appreciation for the complexity of domestic violence.
The third assignment is based on a memo from a partner in the firm. The memo tells the student that while
the student has been working on other matters the partner referred the custody dispute to mediation, which is
required by the local rules. The client has reported that through mediation she has worked out an outline of a
joint parenting agreement that the student must draft. The assignment requires the student to prepare a draft
joint parenting agreement and allows the student the option on a memo of up to one page explaining anything
that the partner might want to follow up on. The fun in this assignment is how the students handle the sticky issues involved in mediation and joint parenting for a couple with a history of violence. How does the student
point out these issues to the partner? What happens if she doesnt? What kinds of compromises are reasonable?
How specific should a shared custody schedule be? How can a non-specific schedule be enforced? We discuss why
forms are useful tools and what you can do to make sure they meet the requirements of the law and of the client.
At the end of this exercise the students have some new drafting skills, a better understanding of custodial arrangements, and a peek into ethical challenges in family law.
All three of the assignments make the cases in the textbook more meaningful. Students use new tools to understand something that the text has given them one crack at already. And guess what the tools are ones theyll
use in practice too! The students think theyre learning something useful for a change while I enjoy watching
them learn family law!
Sheila Simon, Southern Illinois University School of Law

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Brief Gem
Abortion Issue
When we cover abortion, I use the following assignment to encourage students to develop the lawyers crucial
ability to see arguments on the opposing side. Each student writes either an essay or a story taking the opposite
point of view from the one he or she usually takes on abortion. Students then share their papers with the class,
and we discuss whether each paper effectively communicates its point of view. This exercise generates a good discussion that avoids the usual polarization associated with this subject.
Judith D. Fischer, Louis D. Brandeis School of Law, University of Louisville

Feedback and Evaluation


Class Participation, Simulation Exercises, and Take-Home Final
I believe that a significant part of the learning in any law school course takes place through presentation, discussion, and argument. The kind of analysis demanded on a law school or bar examination and in the practice of law is not something that can be turned on upon demand after having spent a period of time passively
absorbing waves of information coming from the oracle at the front of the room. Early in the semester I distribute a photocopy of a single-page article, The Lost Art of Political Argument by Christopher Lasch (Utne
Reader, March/April, 1991), and spend a half-hour explicitly encouraging students to get outside the law students omerta their tacit agreement to temper or stifle any disagreement with another law student. Family Law
is a course that lends itself to passionate argument, and I encourage students to take strong stands in class discussions (when they get to choose their sides) and in simulation exercises (when they are assigned a position to
argue). In my Family Law course I place a significant emphasis on in-class participation (20% of the grade). Half
of the class participation grade is for student performance in their assigned role in the final simulation exercise;
half is for participation when called upon in class or when volunteering for other in-class exercises. I keep a deck
of index cards with the names of students in the class and go through the deck repeatedly throughout the semester. The deck is reshuffled periodically, and every student is warned to think of himself/herself as on call
for every class. (This takes some care to make sure that everyone gets a fair number of turns, but it is doable.)
I have also developed a simulation exercise for the last one-third of the semester. It involves divorcing a hypothetical family, distributing their assets and debts, determining custody of their child, determining child support, and dealing with certain jurisdictional issues. The hypothetical family is that of Rob and Laura Petrie, of
the Dick VanDyke television program of yore (which is newly available and familiar to students through the good
offices of Nickelodeon). This exercise has worked quite well with classes of as many as 75 students.
When I introduce the exercise in class, usually about a month from semesters end, I sometimes have the parties (guest role players) come to class and have the students interview them. Students are given an explanation
of the process of the whole exercise and of the roles available in the exercise. The available roles are attorneys for
husband or wife, attorneys and guardians ad litem for the child, child support hearing officers, custody conciliators, and judicial clerks assigned to facilitate property settlement negotiations. Students indicate their role preferences. I try to assign each student her first or second choice and usually come up with anywhere from three to
six complete sets of role players. Thereafter, I introduce memos to the class from time to time to update the facts
and to give students a sense of the fluidity of facts in a real case. I also tell students that they can contact me at
any time with questions about the facts of the case and that I will make everyone aware of any facts that develop
out of such a question.

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The first in-class exercise is a jurisdictional hearing on the divorce and ancillary issues. I play the role of judge
in the hearing, and the case is argued by teams of three volunteer attorneys for each of the parties. This hearing
is essentially a lecture-in-disguise on aspects of jurisdiction. I control the script fairly tightly. It also serves, however, to get feet of the whole class wet and to create a supportive and collaborative tone for later exercises in which
students will be given much more of a free hand. For the rest of the semester, I make it a point to use aspects of
the hypothetical In re: Marriage of Petrie as illustrations in lectures and discussions and as problems.
The whole process comes to fruition in the next-to-last class of the semester. Students have, by then, received
reasonably detailed instructions about their roles in the big exercise, along with daily reassurances from me. They
have also had a couple of opportunities (10 minutes at the end of class set aside for Q&A) to raise questions.
Nevertheless, there is usually a good bit of anxiety about the final exercise and its effect on their grades. (The
final exercise counts for ___% of their grade.) On the day of the big exercise, the 90-minute class period is divided into thirds, and students in each set of role players are instructed to perform a (videotaped) custody conciliation conference, child support hearing, and property settlement conference. The facilitators have been given
readings on their particular roles as well as suggestions for keeping their portion of the exercise on time and on
focus. There is always at least one other person in each role in each group (i.e., three lawyers for Laura Petrie,
three lawyers for Rob Petrie, three custody conciliators, etc.), and I have circulated telephone numbers and email
addresses of the whole class and encouraged them to get together outside of class throughout the exercise to study
together and to prepare their particular aspect of the final exercise together. I usually spend the day of the final
exercise galloping from reserved room to reserved room in a state of mild anxiety (having reserved the rooms
and the audio-visual facilities well in advance), but I have never had anything worse than procedural questions
to deal with. I am always pleasantly surprised by the degree of resourcefulness and cooperativeness students bring
to the final exercise. It has gone over very well every time Ive done it.
Actually, to call the in-class simulation exercise of the next-to-last class the final exercise is misleading. The
last class, during which we debrief the in-class simulation and clear up any questions that may have arisen, is also
the class in which I hand out the final examination a take-home exam due two weeks from that date which is
worth ___% of the course grade. The exam develops facts of In re: Marriage of Petrie further and poses a number of essay questions. I have been able to tie aspects of the course from before the simulation exercise into the
examination questions and come up with a range of questions from one offering of the course to the next. An
additional advantage to using a take-home exam that continues a fact pattern from the last third of the course is
that students have an additional two weeks in which to study family law. With the final exam I hand out a 10page fact packet, with instructions that all factual issues in the exam are to be based on the contents of the packet,
a copy of pertinent parts of the Uniform Marriage and Divorce Act recast as the statute of our hypothetical jurisdiction, and a set of pertinent hypothetical procedural rules.
I would be happy to share details and materials of the exercise and to answer questions about the teaching and
grading process.
Francis Catania, Widener University School of Law (Delaware)

Negotiating and Drafting a Marital Dissolution Agreement


These are handouts for a class exercise that the students seem to enjoy (and learn from) in Family Law. Included are a fact sheet and a grade sheet. The whole class (this year 70 students) divides into teams of four, husband and wife and their lawyers. They spend a 75-minute class period negotiating a settlement that we then discuss in the next class. Those students who are taking the class for Planning and Drafting credit (a law school
requirement) actually draft a completed MDA and a client letter.
Barbara Stark, University of Tennessee College of Law

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Family Law Planning and Drafting/MDA Workshop


Lily & Jake, 2000
Two years after they both graduated from UT, Lily and Jake were married in January 1984 in Lenoir City. Lily
gave birth to their daughter, Grace, in February 1985, and they bought a house in Knoxville for $45,000. Jake had
been working two jobs between college and the birth of his daughter, hoping to save enough to open his own
restaurant. They used Jakes savings, totaling $5,000, and a $4,000 loan from Lilys parents for the down payment
on the house. In 1990, they adopted a second daughter, Zoey, now nine. Zoey has a learning disability. Although
the school psychologist suggested medication (at a cost of $15.00 a month), Lily found a psychologist through UT
who suggested special tutoring (at a cost of $25.00 per week) as an alternative. Although this takes a bite out of
the household budget, it seems to be working well for Zoey, and Lily strongly prefers to keep her off medication.
After Grace was born, Jack quit his second job (as a dessert chef ) to focus on his first managing two, then
three, and finally five area restaurants in a growing chain (Sugar Magnolias) started by his college roommate. By
1997, he was earning $80,000 a year.
In 1994 Lily asked Jake, who handled the familys finances, for $5,000 from joint savings with which to open a
bookstore with her sister. Jake told her that they didnt have it, so she borrowed $5,000 from her parents.
The family lived quite comfortably and was able to rent a cabin in the mountains for a week every summer, but
there never seemed to be enough extra for the girls to take dance lessons or for Lily to get a new car. (She was still
driving her 1989 Mazda.)
In 1996, they sold their house for $85,000. After repaying Lilys parents, the mortgage, brokers fees, and closing
costs, they were left with $50,000, with which they purchased a $125,000 home, taking a $75,000 mortgage. In
1998, Jack persuaded Lily to let him take a second mortgage on the house (in the amount of $15,000) to open his
own restaurant. He quit his job, bought a building on Market Square, and opened Jakes. At the closing, Lily realized that he was putting an additional $50,000 into the deal. She refused to sign any of the papers until he told
her where it had come from. I scrimped and saved for the past ten years, he explained. This came from my earnings, and I can do with it what I please.
Jake was eventually able to persuade Lily to sign the papers, but this marked a real turning point in their marriage. Jakes increasingly long hours at the restaurant, and his failure to even come home some nights, deepened
the rift. By 1999, it was clear that the marriage was over.
As Lily tells her lawyer, Two Sisters Bookstore broke even last year, after paying each sister $3,000. Jake tells his
lawyer that Jakes netted $75,000 last year, $60,000 of which went to expenses and remodeling (setting up a
piano bar area). Jake has been paying the familys expenses, as well as his own, by juggling fourteen credit cards,
on which he has run up a total debt of $60,000. Although Jake knows that about half of new restaurants fail, he is
very positive about Jakes and believes that he will be netting $150,000 a year within five years.
Jake and Lily have had the house appraised and agree that it could be sold now for $150,000. After paying off
the mortgages, broker and closing costs, this would leave them with approximately $40,000. Lily wants to give her
share of the bookstore to her sister and get a full-time job at Borders & Noble, a local store that is part of a national chain. They have told her that she could probably move into a management position within two years.
While she would earn approximately $20,000/year while she was training, if she did become a manger she would
start at $28,000 and earn up to $40,000. The familys tax return for 1998 shows Jakes earnings at $15,000. For
1999, he reported income of $20,000, but Lily says he always seemed to have cash.
They have $6,125 left in their joint bank account, and Jake has a personal bank account with a balance of $1,050.
Lily will have coverage for herself and her daughters under Borders & Nobles health insurance policy. This will not
cover Zoeys tutor, although it would cover her medication. Lily and Jake have agreed to joint legal custody of the
girls, although they will spend most of their time with their mother, since Jake is living in a studio apartment around
the corner from the restaurant. The girls plan to camp out with sleeping bags at his apartment every other weekend. Jake would like to have the house sold. He wants to use his share of the proceeds to buy a loft (he would have
to put $10,000 down) and to invest the rest in Jakes. Lily would like to keep the house until Zoey graduates from

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high school. She concedes, however, that she and the girls could rent a three-bedroom apartment for $650/month,
which would be significantly less than the $1,000/month mortgage and maintenance costs of the house. If the house
has to be sold, she thinks she should get the proceeds, to compensate her, in part, for the $50,000 he hid from her. If
Jake gets any of the proceeds, Lily wants his share to be put in escrow as security for child support.
The parties have agreed to file for divorce on the grounds of irreconcilable differences. Now they would like to
amicably resolve all other issues arising out of the divorce. Please prepare an MDA.
Family Law Planning and DraftingLily and Jake, 2000
Student #:

Grade:

1. Equitable distribution 20 pts.


(10 pts.) a. marital assets
house
($150,000 with $90,000 mortgage, worth $40,000
after closing costs)
restaurant (and building)
($65,000 + $60,000 invested = $125,000) (as close to book
value assets liabilities as these facts get you)
car(s)
liabilities
$5,000 bookstore debt?
(gift? or loan? marital debt? appraisal?)
credit card debt
separate assets Jakes $5,000? (or gift?)
(10 pts.) b. fairness
probably need to sell house, give Jake restaurant, Lily house, bank account,
and her car; provision for giving Lily and girls a stake in restaurant?
(see in solido)
2. Alimony 20 pts.
rehabilitative

in solido
3. Children 20 pts.
(15 pts.)

(5 pts.)

16-year marriage
comfortable standard of living
legislative preference
23 years (training salary plus first year $1215,000
two years; $10,000 for third year?)
lump sum, payable over time, may be a good way for
Lily to get her share of Jakes
a. support, 32% of net
(options? $20,000 reported taxable income, $26,000
imputable in TN, $80,00 capable of earning)
any basis for deviation?
plus tutoring?
plus dance lessons?
b. custody
physical? legal?
visitation

4. Letter to client 20 pts.


a. explain alimony
b. explain equitable distribution, including separate versus marital property, treatment
of marital home, restaurant
c. explain child support
5. Spelling, grammar, punctuation, syntax 20 pts.
Total Grade:

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Federal Income Tax


Approach

231

Teaching Tax through Stories


Paul L. Caron
Goals, Philosophy, and Coverage
Nancy Shurtz
Statutory Interpretation and the Development of a Civic Perspective
Kim Brooks
Problems, Previews, Participation, and Preparation
Leandra Lederman
Providing a Framework for Learning
Mary L. Heen
Statutory Analysis, Not Arithmetic
Eric Lustig
TaxProf: A Virtual Tax Community
Paul L. Caron

Material

231
231
232
233
234
235
235
236

Tax Case Limericks


Leandra Lederman
Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases
Paul L. Caron
Tax Returns, Casebooks, and Slides
Eric Lustig
Text and Handouts
Nancy Shurtz
General Outline of Federal Income Tax (Handout)
Leandra Lederman
Computing Taxable Gain (Handout)
Leandra Lederman
Introduction to Deductions Problems (Handout)
Leandra Lederman

236
237
237
243
245
246
247

Exercises

248

Introducing Statutory Interpretation with Song Lyrics


Kim Brooks

248

229

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Brief Gems
Role-Playing
Nancy Shurtz
Boot
Leandra Lederman
Cartoons
Nancy Shurtz
IRC 212 Area Code
Leandra Lederman
Getting the Class Started and the Power of Bruce
Kim Brooks
How Would the IRS Ever Know . . .
Leandra Lederman

Feedback and Evaluation


Designing Writing Assignments and Exams Based on Course Objectives
Kim Brooks
The TaxProf Exam Bank: Practical Help for the Tax Professor
Paul L. Caron
Research Paper, Midterm, and Final Exam
Nancy Shurtz

248
248
248
249
249
250
250
250
250
251
252

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Approach
Teaching Tax through Stories
In tax law, as in other subject areas, there are certain landmark cases that set the law on a path that continues
to shape much of the current developments in the field. In these seminal cases, the tax law was faced with a fundamental choice, the resolution of which would influence tax law for generations to come. (Or, as Yogi Berra
would put it, the tax law came to a fork in the road and took it.) My thesis is that we tax teachers should re-focus
on the pivotal issues reflected in the major cases, rather than the noise of the latest tax developments that students will forget (if they ever learned them in the first place) soon after the final exam. With new tax legislation
now an almost annual event, along with an increasing torrent of new cases, regulations, and rulings, the basic tax
course needs to convey the underlying tax architecture to empower students to understand the tax law du jour.
The major cases are the best markers to guide the journey down the tax laws currents and eddies. [A disclaimer:
I am the editor of Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases (Foundation Press,
2003), and the general editor of a new series of Law Stories books in other areas of law patterned after Tax Stories. I discuss the pedagogical theory behind the Law Stories approach in Back to the Future: Teaching Law through
Stories, 71 U. Cin. L. Rev. 405 (2002)(symposium).] Whatever ones views about the case method, it remains the
predominant mode of law school instruction. I believe that the use of Tax Stories can enrich the case method in
the classroom. (See the Materials section of this chapter for a brief description of Tax Stories.) I agree with Kevin
Clermont that if we try to use the case method, we should do it as well as we can. Teaching Civil Procedure
Through Its Top Ten Cases, Plus or Minus Two, 47 St. Louis L.J. 111, 115 (2002)(symposium). He extols the benefits of teaching a slightly smaller number of cases and pausing on the key ones, thoroughly examining them in
a rich context. This in-depth analysis of fewer cases allows students to engage in schema-building a bottomup process of constructing their own schematic understanding of an area of law. Cognitive science teaches that
such active learning produces more lasting value to students, who are better equipped to process new information and solve new problems within the context of their self-constructed schemata. Professors thus should resist
the temptation to do this work for students, conveying our schemata in a top-down fashion, with students playing a merely passive role in receiving this oracular wisdom. As a result, we should not sacrifice depth of coverage at the altar of scope of coverage. Rather than rush through the signature tax cases in order to get to the latest hot topic or fashionable theory, we should savor the opportunity to unpack with our students what it is that
makes these cases central to a deep understanding of tax law. Whatever its other faults, the case method is ideally suited to help students build their own schematic understanding of tax law.
Paul L. Caron, University of Cincinnati College of Law

Goals, Philosophy, and Coverage


Goals
On my Tax I syllabus, I list the following course objectives:
1. Survey the major components of the federal income tax system and their underlying concepts; develop
an understanding of these elements sufficient to successfully surmount any bar examination in this area.
2. Develop problem-solving skills in analyzing complex tax problems, utilizing knowledge of statutes
gained from extensive interpretive readings of the tax code and regulations.
3. Learn research skills that will enable the student to answer any tax question at any time, even in the
wake of statutory change.

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4. Perfect writing skills in the composition of a research problem (an extensive research problem may satisfy a basic or comprehensive writing requirement).
5. Learn tax return preparation skills (bye, bye, H & R Block!!).
6. Learn strategies for generating and preserving wealth and keeping more of what you earn.
7. Learn the relationship taxation law bears to the larger communities of law and politics, and recognize
the important role taxation law can play in promoting the ideals of social justice.
Some of these requirements are unique to the State of Oregon and the University of Oregon. Federal income
tax is a subject on our bar exam and passage of the bar is probably the most important goal to the student, other
than getting an A in the course. In addition, our students must write both a basic and a comprehensive writing
project to graduate and they often fulfill these requirements through a course.
General Philosophy
The tax code is a wonderful place to deal with the impact of law on women, minorities, gays, lesbians, and the
poor. For example, many tax code provisions (fringe benefits, medical deduction, joint return, imputed income)
provide benefits to the taxpayer with a spouse and/or children. These rules therefore discriminate against single
and unmarried cohabitants, in particular gays and lesbians. In addition, the tax code provides numerous benefits to the rich. Tax shelters (rentals), capital gains, deferrals (like-kind exchanges), and exclusions (gifts, inheritances, fringe benefits) all have an upside-down effect. Deductions are also more beneficial the wealthier the taxpayer. Many tax benefits (such as educational credits, child care and child credits, adoption credits, etc.) are not
even available to those with no tax liability.
In addition, the tax code can be used to explore policy issues: political, economic, social, and environmental.
Why do we exempt municipal bond interests and not corporate bond interests or savings account interest? Do
cash rebates and low tax rate promote economic growth? Is it good policy to allow home owners to deduct mortgage interest and real estate taxes on both their principal residence and vacation home, while renters get no deductions? Does it make good environmental sense to allow an exclusion for employer-provided parking?
Coverage and Organizational Scheme
I essentially divide the course into three segments. I spend the first half of the course on understanding gross
income, exclusions, above- and below-the-line deductions, personal and dependency exemptions, and credits.
Most of the second half of the course deals with property, including discussions of basis, adjustments to basis,
mortgages, capital gains and losses, realization, and non-recognition. Included here are analyses of discharge of
indebtedness, annuities, life insurance damages, divorce, hobbies, home office, and passive activities. I end the
course with a two-week segment on who is the taxpayer? Here we deal with income from services and property, the kiddie tax, income in respect to decedent, and the grantor trust rules.
Nancy Shurtz, University of Oregon School of Law

Statutory Interpretation and the Development of a Civic Perspective


I set five goals for the basic federal income tax course. I lay these out to the students on the first day. I hope
that by the end of the course they will:
Understand and be able to apply the basic principles and rules of the income tax system as it applies to individuals;
Be familiar with different approaches to statutory interpretation and have some ability to apply those approaches when reading legislation;
Have a good working knowledge of the major policy decisions that inform the personal income tax system;

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Be able to apply tools of tax policy analysis to evaluate potential advantages of, and problems with, the current system, including the impact of income tax law on different groups and individuals; and
Understand the role of lawyers in tax planning and tax reform, including the issues of professional responsibility and ethics.
Of these goals, I am most concerned about the students ability to understand and apply different approaches
to statutory interpretation and to understand the policy decisions that inform the personal income tax system.
I think it is easy in federal income taxation to become obsessed with the various detailed rules that apply to
individual taxpayers. This is a mistake. If students have the skill to read and interpret legislation, they will be able
to figure out the rules on their own. Realistically, all of the applicable rules cannot be covered in the course. In
addition, for many students the basic tax course is the only significant exposure they have to developing the skill
of statutory interpretation, even though many of their upper-year courses involve reading legislation.
Understanding at least some of the policy underlying the income tax system makes students better members
of civil society. A societys economic and social policy is intricately connected to the kind of taxes it imposes.
When students realize the significance of the tax system its role in raising revenue, redistributing income, influencing behavior, correcting market failure, and stabilizing the economy they become more informed about
the political and social choices they make as citizens.
Kim Brooks, Queens University Faculty of Law

Problems, Previews, Participation, and Preparation


In my experience, the problem method works best for most tax courses, including Federal Income Tax. I find
it helpful to start out with an overview of the course presented in the format of computing an individual taxpayers tax liability. I use a handout that I distribute with the syllabus (see the Materials section of this chapter)
to facilitate analysis of an overview problem in the casebook that I use, Burke and Friel, Taxation of Individual
Income.
I tell the students in the first class that one focus of the class is learning to read, interpret, and apply the Internal Revenue Code. Another focus is exploring the main themes of: (1) what constitutes gross income, (2) what
is deductible, (3) when items are income or deductible (timing), (4) who is the taxpayer, and (5) character (ordinary or capital). I also stress that every student should leave the class understanding basis, how to compute gain
or loss realized on the sale or other disposition of property, and the differences in the tax treatment of recognition and nonrecognition transactions.
In covering the material, I follow the traditional order of gross income, deductions, and miscellaneous issues.
I find that order works well with the course overview that focuses on computing tax liability.
There are several areas that students typically do not find intuitive initially, so I cover those each year, generally with examples. I explain the progressive tax rate system, illustrating that the rate structure taxes each additional dollar at the taxpayers top marginal rate but does not increase the rate of tax on prior dollars even when
the taxpayer enters a new tax bracket. I also illustrate the very different dollar value of a deduction and a credit.
Another thing I need to illustrate and remind students of is that lower taxes cannot be considered in a vacuum.
For example, a taxpayer probably will not turn down a $50,000 raise just to avoid paying the taxes on it. As another example, students generally need to be reminded that when a couple is divorcing, working together to lower
the couples aggregate tax liability preserves more assets that the spouses can then divide between them.
I seek and obtain a lot of class participation. I strive for an atmosphere in which students feel comfortable participating but do not waste class time with tangential questions. With respect to student questions, in the first
class I tell the students that they should feel free to ask questions but that I may sometimes determine a question
would be better answered outside of class, and they should not take that personally. I also inform students that,

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with respect to my frequent questions, I will take volunteers first and then call on students who tend not to volunteer. I generally ask more follow-up questions of those called on randomly than of volunteers. I check off students on my seating chart as they participate to try to ensure widespread participation.
I monitor attendance through a roll sheet and preparedness by requiring unprepared students to give me a
note. I reserve the right to lower the grade of a student with excessive absences and/or unprepareds, and, in an
extreme case, to bar a student from taking the final. If I catch a student unprepared who has not given me a note,
I sternly reiterate my policy and mark on the roll sheet or on my seating chart that the student was unprepared.
That generally results in a high degree of compliance with my unprepared policy.
Leandra Lederman, George Mason University School of Law

Providing a Framework for Learning


Below is an excerpt from a course description I provide to students about the basic tax course. It describes my
approach to teaching federal income taxation.
This course introduces students to the principles and policies of federal income taxation. Although the details
of tax law are constantly changing, the overall structure and design issues related to an income tax remain relatively stable. The course provides a framework for recognizing and dealing with tax issues and with tax-related
strategies or transactions encountered in other legal practice specialties.
The course is designed to provide students with the following:
A basic understanding of the major theoretical and structural issues posed by an income tax and of the
policy considerations involved in resolving those issues;
A basic knowledge of the individual income tax treatment of various types of business and personal
transactions and events (including taxation of compensation and fringe benefits, the taxation of various
types of investment vehicles, debt-financed property transactions, installment sales, issues related to
capitalization and cost recovery, timing issues, and selected issues regarding taxation of the family);
The skills necessary to apply a complex statute;
An understanding of the planning function provided by tax lawyers; and
The technical grounding necessary for further tax study or research.
A set of problems is used as a focus of class discussion and as a means of accomplishing the goals described
above. I distribute the problems and assignments at the beginning of each unit and require students to analyze
and apply the statutory provisions, administrative rulings, and course book readings assigned for class discussion.
Students are encouraged to meet in groups to discuss the problems prior to class; many find small-group discussion of the problems useful as an aid to learning by identifying additional issues and approaches they may not
have considered in answering the problem. During class discussions, students may be asked to discuss, among
other things: 1) how to approach the problem under current law or from a tax policy perspective, 2) the difficulties
encountered in reaching a conclusion (including the types of additional information needed), and 3) the reasoning process used in coming to a resolution of the issue. There is an examination at the end of the course.
This course is a foundational course, and students are encouraged to take it during their second year of law
school. Although taking a tax course is not technically required in many law schools today (including our own),
the course provides important basic knowledge that will add a necessary dimension to the transactions discussed
in (or the skills needed for) other upper-level courses regardless of the legal practice area.

Mary L. Heen, University of Richmond School of Law

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Statutory Analysis, Not Arithmetic


The Personal Income Tax course I teach is a three-credit class. The course is strongly recommended to our
students, so most of them take it at some point in their last two years. As with the other basic business course I
teach, Business Organizations, many of the students have little business background and tend to be intimidated
by the subject matter. I believe this intimidation flows largely from the perception that tax is a numbers course.
I try to dispel this notion early on by noting that the course focuses on the tax statute (the Internal Revenue
Code) and any problems involving numbers is really about reading the statute. Moreover, any number problem generally can be handled by basic arithmetic. I remind the students that tax is as much about how the government operates and civics, as it is about numbers.
I want students to read and rely on the Code, rather than any textual explanation. Indeed, I believe that all
students should emerge from Personal Income Tax with solid Code-reading skills. This focus on the Code is reinforced by my final exam, in which the students may use only their Code and Regulations volume (annotated).
In addition, I use a sight-reading problem in which students must work through a Code section that was not
covered during the semester.
Eric Lustig, New England School of Law

TaxProf: A Virtual Tax Community


TaxProf opened its virtual doors on (appropriately) April 15, 1995, as an email discussion list enabling law
school tax professors to exchange information about tax teaching and scholarship. In the ensuing seven and onehalf years, TaxProf has become an electronic academic community in which tax colleagues from around the country can communicate with each other at the stroke of a computer key. Indeed, Eric Jensen recently noted that
the TaxProf bulletin board has brought quite a few tax scholars together for electronic bull sessions. Critical
Tax Theory and the Loneliness of the Tax Prof, N.C. L. Rev. 1753, 1754 (1998).
TaxProf is now the official listserv of the AALS Section on Taxation and has over 300 members. Over 15,000
messages about tax teaching and scholarship have been posted on TaxProf through the years, but daily traffic is
quite manageable averaging fewer than 10 messages per day. Tax professors are an eclectic lot, and list discussions run the gamut from narrow questions about the application of specific tax rules to broad tax policy and
theoretical debates.
TaxProf discussions often make their way into the media. For example, the New York Times reported the TaxProf debate over the appropriate tax treatment of the fan who caught Mark McGwires 62nd home run, and the
Wall Street Journal reported (on the front page) TaxProf exchanges over the appropriate tax treatment of Olympic
gold medals and of the cash settlement in the O.J. Simpson civil litigation.
TaxProf also provides a vehicle to test scholarly ideas. For example, Jeffrey Sherman noted that his article had benefited immensely from the challenging questions and thoughtful suggestions of [certain tax colleagues], thanks to a
splendid Internet automated mailing list called TaxProf. All You Really Need to Know About Subchapter J You Learned
from This Article, 63 Mo. L. Rev. 1,1 n.* (1998). Similarly, Daniel Posin noted that his article was developed from several drafts presented [on] TaxProf, the tax law professors computer discussion group. . . . [He] would like to acknowledge the substantial contributions of [various list members], as well as the general free-wheeling atmosphere
of the discussion group. The Big Bear: Calculating Capital Gains After the 1997 Act, 76 Tax Notes 1450, 1450 (1997).
TaxProf also has been useful in assisting list members in the classroom. Posts often begin by saying something
like I was preparing for class today and I cant figure out . . . , or a student in class today asked . . . TaxProf provides a forum to get a quick response from tax colleagues a virtual tax faculty lounge if you will. Early on I
mentioned that I responded to student complaints that my course was too theoretical and not practical
enough by handing out the Presidents tax return on the first day of class and referring to it periodically through-

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out the semester to explain where various items are reported on the form. Nearly 50 list members took me up
on my offer each year to give copies to other interested faculty (until I stopped the practice in recent years as the
return became readily available on the Web).
If you are not already a TaxProf list member, I urge you to give it a try. You can subscribe by visiting http://listserv.uc.edu or by sending me an email at paul.caron@law.uc.edu.
Paul L. Caron, University of Cincinnati College of Law

Material
Tax Case Limericks
In the fall of 2001, Professor Barbara Hauser asked on the TaxProf listserv run by Professor Paul Caron of
Cincinnati Law School (see the Approach section of this chapter) whether anyone could locate a limerick about
Farid-es-Sultaneh v. Commissioner, 160 F.2d 812 (2nd Cir. 1947), that she remembered reading. Professor Daniel
Posin of Tulane Law School responded with a limerick about that case and one about Crane v. Commissioner, 331
U.S. 1 (1947). That sparked contributions by a number of other professors. Professor Hauser subsequently discovered the lost limerick in a prior edition of the income tax casebook co-authored by Professor Michael Graetz,
and reprinted it, along with the collected contributions, in the article Tax Case Limericks: A Casual Collection, 93
Tax Notes 865 (2001). Tax Notes also included a note encouraging readers to submit their own tax limericks. A few
days later, Mary (Handy) Hevener responded to the article, explaining in a letter to the editor that she had authored the lost limerick as well as several others when she had taken Income Tax from Professor Edwin Cohen at
the University of Virginia in 1976. (See Mary B. Hevener, Tax Case Limericks: Some Golden Oldies, 93 Tax Notes
1003 (2001).) She explained that when Professor Graetz expressed an interest in the limericks several years later,
she sent some to him. Her letter to Tax Notes includes as exhibits both the limericks she sent to Professor Graetz
and his thank-you note. Professor Graetz responded to the letter to Tax Notes, partly in limerick for