Tuesday, January 19, 2021
January 19, 2021 | Permalink
Monday, January 18, 2021
Sunday, January 17, 2021
As we reflect on the life and ministry of Martin Luther King Jr., my friend Yohuru Williams and I have published an op-ed in today's St. Paul Pioneer-Press about how insights from our experience teaching "Race, Law & U.S. History" may help guide difficult conversations in the days ahead. An excerpt:
When we portray progress on racial justice as a simplistic good-versus-evil battle, we are setting ourselves up for disappointment. Progress requires us to recognize the scourge of racism, but it also requires our best thinking to discern what will prove most effective in addressing it in a complicated world. Cartoonish renderings of complex issues only serve to further divide rather than create the opportunity for constructive engagement around important issues that deserve not only our full attention but the best of our energies.
Saturday, January 16, 2021
This is the second in a series of three posts about my experiences teaching at a Catholic law school in person during the pandemic. The first post was about safety for teaching in person. This second post is about educational quality. And the third and final post next week will be about fostering community in challenging times.
Premise of Superior Quality of In-Person Teaching:
I begin this post by forthrightly stating my premise that teaching in a classroom to students who are physically present to each other and to the professor is superior. I genuinely believe that this is the ideal setting for legal education. Of course, a pandemic can make a mockery of the ideal.
Even in normal times, I acknowledge exceptions to this premise, such as a special unit of one or two credits for subject that by its nature requires less of a synchronous dialogue. And there is value in an online course designed for students who are unavoidably remote, such as during a summer session for students working elsewhere. For a fully online course, assuring educational quality requires precise organization, development of asynchronous online elements to engage students, use of technology with video and interchange elements, etc. As the experts and those who teach online regularly know, a fully online class demands intense prior planning and rigorous attention to best practices.
But for the typical doctrinal law school course, in-person instruction is better. And for the course that primarily involves a back-and-forth dialogue between the professor and students, in-person instruction is essential to keep the entire class engaged.
And we have good evidence for these conclusions from this past spring. A survey conducted by Thomson Reuters, “Law Schools and the Global Pandemic,” found that a large majority of law students found it difficult to stay engaged with fully online courses, with 39 percent finding it very difficult and 23 percent agreeing it was difficult. Unfortunately, the same survey showed that only about as third as many professors, 14 percent, recognized this as a serious problem. From the professor’s perspective, he or she may have had a satisfying discussion online with the students who were called on for that day and then subjectively judge the day’s class to be a success. But the professor didn’t realize that a larger group of students were tuning out.
As one student told me, online classes during the pandemic have been “prime territory for distraction.” We have to remember that our students who are accessing a class at home, rather than being situated in a classroom designed for instruction, have multiple distractions that are calling constantly to them.
But our ideals cannot always be realized. We now are struggling with the Covid pandemic, which demands creative accommodations and empathy for the difficulties so many face. The hard reality is that not everyone can be in person, whether a professor or a student, even if that state, city, or university permits in-person instruction. We must remember that many of us simply do not have such a choice, either by reason of their own health risks or those of loved ones. And if anyone has to be online, there are reasonable arguments that being fully online avoids some of the complications of dividing between those students who are in-person and those who are remote. We all long for the return of normalcy, where these questions are not before us.
I focus here on those of us who are fortunate to have a choice and who thus are able to teach in person to students who can attend in person. I contend here that the complications can be overcome and that high quality education can still be achieved. In other words, I believe if you can do it safely, then it is worth the candle.
For those of us able and dedicated to continuing in person instruction, we had to make two key accommodations: (1) a hybrid setting in which some students were in person and others online, and (2) social distancing and mask-wearing for those in person. Let me speak to each.
Challenges of the Hybrid Combination of In-Person and Online:
I know of at least one law school that told incoming first-year students they must be in person for the fall or accept a deferral to the following year. But of the law schools that offered any in-person instruction, most allowed students to choose whether to attend in person or simultaneously attend remotely. What then of the quality of instruction for those who are in person, while the professor is juggling responses to online students as well? And what of the quality of instruction for the remote students who are listening in on the in-person class? For the first question, the impact on those in-person by the hybrid format proved to be minimal. For the students online, the situation was definitely more complicated, but in the end I think the question whether educational quality was maintained received a qualified “yes.”
For my each of my two Civil Procedure sections (that is, with the main section broken into two during the pandemic), we began the semester with approximately 38 students in person and 6 online. For those 38 attending in person, the simultaneous participation of a small number online did not appear to have any impact. So for in-person students, the quality question goes to the impact of social distancing and mask wearing (discussed below), rather than how they received instruction. Since instruction was directly from the professor, with participation by others students who were also physically present, things were much the same as usual. As I noted in the first post, students repeatedly commented how much they appreciated the opportunity to attend law school in person, despite the accommodations that had to be made to make it possible during the pandemic.
For the smaller number of students who were online (because they could not safely attend in person), a hybrid setting was more of a challenge. The university sought to address this by setting up a second monitor for the professor in the classroom on which would appear the online students. For me with my approach, that proved unworkable and so I quickly abandoned it (although I understand other colleagues found it helpful). I had all students — both those in the classroom and those who were remote — sign in to Zoom so that we could all participate in polling questions. As a consequence, the second monitor showed everyone, not just the online students. Moreover, the second monitor was set in front of me so that I could see it, which meant that its placement physically blocked my view of several students in the classroom. In addition, having two monitors awkwardly affected how the cursor moved, jerking between the two monitors. So I turned it the second monitor off and moved it away.
Another technological problem was that online students had difficulty hearing what the in-person students were saying. For the most part, online students had no difficulty hearing me, as long as I stayed behind the podium (which during the pandemic was expected anyway). But early on, it was nearly impossible for online students to hear the students in the classroom. The university adjusted the microphones in the classroom, which helped but remained imperfect. I tried to remember to restate the questions or frame my answer for the benefit of the online students, which online students indicated got better as the semester wore on.
Two technology features also enhanced educational quality for online students especially, but also for in-person students:
I enjoyed speaking about the relationship of substantive and procedural ideas of justice to the rule of law and stare decisis on this panel, part of The International Forum on the Future of Constitutionalism's "Global Summit" organized by Professor Richard Albert. In my remarks, I argued against a thin, purely proceduralist view of the rule of law and stare decisis, and also against a morally thick, substantive view of the rule of law and stare decisis. I urged an intermediate possibility. As the rule of law seems to be in the air, so to speak, I thought I would reproduce my remarks. They are below.
I want to reflect on the relationship of substantive political morality to the rule of law and stare decisis. On some accounts, the virtues of both the rule of law and stare decisis are purely procedural. On other accounts, the rule of law incorporates thick, substantive conceptions of political morality. For example, a set of substantive human rights as defined by an international body or other community. Or some thick, substantive ideal of equality or justice. Interestingly, people do not take this second view about stare decisis, the obligation of courts as a general matter to stand by a prior precedent even when they disagree with it. So far as I know, nobody thinks stare decisis contains an ideal of human rights, for example.
So, which account is right? There are a few possibilities. One possibility is that the rule of law *and* stare decisis both embody purely procedural ideals, and that those arguing for a substantive political morality within the rule of law are wrong. A second possibility is that the rule of law embodies substantive political morality while stare decisis does not. That is, the rule of law and stare decisis are relevantly different on this score. And a third possibility is that both the rule of law and stare decisis incorporate procedural and moral values. Now, even though as I indicated, nobody takes this view as to stare decisis (though some do as to the rule of law), I actually think this is the correct position.
But the type of substantive political morality incorporated within the rule of law and stare decisis is not the sort of thick view of the second possibility—equality or human rights or liberty or antidiscrimination, for example. It is instead a kind of political morality related to the procedural virtues of both.
Let me briefly describe the first two views. I’ll then take on the third view, sketching Lon Fuller’s position and extending it in ways that thicken it somewhat, but not all the way, so to speak. Not to oatmeal or gruel thickness, but more like to lobster bisque or vichyssoise thickness.
Friday, January 15, 2021
Thursday, January 14, 2021
My love letter to my country in the form of a brief essay: "Whither Dialogue After the Capitol Riot?" has just been posted on Emory University's Center for the Study of Law & Religion Canopy Forum. It includes a few practical ideas for building a conversational bridge in the midst of the currently intense political polarization. Suggestions include focusing our efforts on "listening to understanding", and cultivating a relationship of trust with a "buddy" who can help us to hear how we might sound in the ears of someone on the "other side."
January 14, 2021 | Permalink
Notre Dame Law School Moot Court Board is pleased to announce its Fifth Annual Notre Dame National Appellate Advocacy Tournament for Religious Freedom, taking place Friday, April 9, 2021 through Sunday, April 11, 2021.
Every year, teams from law schools across the country participate in our Tournament, arguing before a mock Supreme Court of the United States. We hope you will join us this spring to celebrate student scholarship, appellate advocacy training, and address challenging questions involving the First Amendment. Be sure to mark your calendars, and we hope to see you (virtually) for this exciting event!
Tournament takes place: Friday, April 9, 2021 through Sunday, April 11, 2021 Formal registration opens: January 21, 2021
Tournament Fee: $300 per team Prompt released: February 1, 2021 Briefs due: March 27, 2021
If you have any questions or would like to reserve space for your team(s) before formal registration opens, please contact Natalie Piazza, Tournament Director, at [email protected].
January 14, 2021 | Permalink
Wednesday, January 13, 2021
Tuesday, January 12, 2021
Over the next week, I plan to post three observations from my personal experiences teaching — and teaching in person — at a Catholic law school during the pandemic. In today’s post, I’ll address the question of health and safety for faculty and students in an in-person classroom environment, while a virulent disease rampages through our society. In the next post, I’ll discuss effectiveness of education given the constraints of a hybrid in-person/online format and social distancing with masks. In the third post, I’ll discuss the unprecedented challenges during the pandemic of fostering a sense of community, which is a central part of our mission as a Catholic law school.
Like other universities and law schools, we deferred to each professor’s (and student’s) judgment as to whether appearing in the classroom was safe. For the law school, we ended up (for first-year students) with more than 80 percent of our course sessions being offered in person, through the voluntary choices of teaching faculty, including myself. Our mostly in-person availability for first-year classes proved to be very popular with incoming students, several of whom told me that it influenced their final choice among schools, especially as the other two law schools in the Twin Cities had moved almost entirely online.
The University of St. Thomas, and the law school, devoted the months since the pandemic lock-down in March to plan for returning to in-person teaching in the fall. The dedication of the administration, information technology experts, and support staff cannot be praised enough. They made sure that we had the necessary technology to simultaneously provide in-person instruction and include students who had to remain online. They prepared each classroom for the necessary social distancing and essential sanitation.