Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, September 7, 2021

Scholarly Impact and Catholic Legal Education (Part Three)

A few days ago, after reporting the 2021 update to the Scholarly Impact Ranking of law faculties (here), I began a short series of posts on why scholarly work and scholarly impact are especially important to Catholic legal education, which I conclude today.

The first point, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often assigned to religiously-affiliated law schools.

My third point today is that, as Catholic Christians, we have been called to share the Gospel, both directly and indirectly.  The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than Saint John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae:   “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”

NotredamelibraryFor some of us on law school faculties, that directive means writing on Catholic legal theory and applying Christian-grounded principles to the legal and social issues of the day.  For all of us, it means conducting the search for the truth with integrity and dedication.  The search for the truth is hard work — and for Catholic academics that hard work requires scholarly engagement.

Turning again to the words of Ex Corde, for a Catholic university

Included among its research activities, therefore, will be a study of serious contemporary problems in areas such as the dignity of human life, the promotion of justice for all, the quality of personal and family life, the protection of nature, the search for peace and political stability, a more just sharing in the world's resources, and a new economic and political order that will better serve the human community at a national and international level. University research will seek to discover the roots and causes of the serious problems of our time, paying special attention to their ethical and religious dimensions.

Through our work — through the excellent quality, regular production, and integrity of our work (comporting with the standards of our discipline) — we may have a significant influence on the development of the law and of the legal culture.  As my Dean Rob Vischer has written (here), “a fundamental mission of law schools is to advance knowledge and thereby contribute to human flourishing.”  For religiously-affiliated law schools, Vischer says, our mission includes “producing scholarship aimed at bringing a more just world into view.”  And this scholarly mission can resonate with and be integrated into our teaching and collaborative work with students.  To again quote Rob Vischer, we should not neglect “the formative potential of inviting students to be active participants in a law school's scholarly culture.”

On the call to challenge and inform the culture, Ex Corde speaks as well to the vital importance of scholarly work:

By its very nature, a University develops culture through its research, helps to transmit the local culture to each succeeding generation through its teaching, and assists cultural activities through its educational services. It is open to all human experience and is ready to dialogue with and learn from any culture. A Catholic University shares in this, offering the rich experience of the Church's own culture. In addition, a Catholic University, aware that human culture is open to Revelation and transcendence, is also a primary and privileged place for a fruitful dialogue between the Gospel and culture.

We cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences both within and beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed.

What a tremendous privilege — and a grave responsibility.

September 7, 2021 in Sisk, Greg | Permalink

Sunday, September 5, 2021

Scholarly Impact and Catholic Legal Education (Part Two)

Last week, I reported the 2021 update to the Scholarly Impact Ranking of law faculties that I and my team at the University of St. Thomas had just concluded: here.

Three years ago, I posted a series on the importance of scholarly activity and scholarly impact for Catholic legal education.  I am revising and re-posting those, as they remain just as salient today.  This is the second in the series of three.

The first point, which I made in a post last week, is that a meaningfully Catholic law school must be an intellectually engaged law school.  Intellectual excitement and depth cannot be sustained without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.

FordhamMy second point goes not only to Catholic legal education, but Catholic higher education in general:  Through our scholarly excellence and prominence, we witness to society the vibrancy of intellectual discourse by persons of faith.

Throughout American history — and with increasing tendency today — persons of devout religious faith have often been discounted in academic and other elite cultural circles, sometimes regarded as intellectually inferior.  As but one pertinent example, those who study reputational-based rankings of law schools (such as the U.S. News ranking which gives considerable weight to reputational surveys) have observed a “religious law school discount.”  See Monte N. Stewart & H. Dennis Tolley, Investigating Possible Bias:  The American Legal Academy’s View of Religious Affiliated Law Schools, 54 J. Legal Educ. 136 (2004). A law school that is religiously affiliated is likely to be downgraded an ordinal ranking level or more — due to poorer survey scoring by academic peers — when compared to otherwise equivalent law schools on objective measures such as student profile, employment statistics, faculty scholarly impact, etc.  The strongest counterpoint to this "religious law school discount" is to prove the falsity of the anti-intellectual stereotype by encouraging our colleagues to perform even better than scholars at our peer institutions without a religious affiliation.

If Catholic legal education (or Catholic education in general) is to be acknowledged as intellectually fit, then faculty at Catholic institutions must be intellectually engaged.  By producing excellent and well-written legal research, sharing our legal scholarship with others, and receiving deserved accolades for our work, we thereby enhance the intellectual reputation of Catholic legal education.

A half century ago, Monsignor Tracy Ellis provoked Catholic higher education through a speech and monograph titled, “American Catholics and the Intellectual Life.”  Monsignor Ellis indicted Catholic colleges for failing to build a strong scholarly culture, leading to the disrepute of Catholic higher education.

Tom Mengler — who is President at St. Mary’s University in San Antonio and previously was dean at the University of St. Thomas School of Law and the University of Illinois College of Law — wrote thoughtfully about Monsignor Ellis in a piece published several years ago in the Journal of Catholic Social Thought titled “Why Should a Catholic Law School Be Catholic?” (here)

Monsignor Ellis blasted away at the anti-intellectualism of the American Catholic and the mediocrity —- especially the scholarly mediocrity — of American Catholic colleges and universities. Ellis wrote that the lack of an intellectual and scholarly tradition within Catholic higher education [was] a kind of self-imposed ghetto mentality * * *.  [In the early twentieth century, Catholic colleges] emphasize[d] what Ellis called a narrow vocationalism and anti-intellectualism.

* * * By all accounts, Ellis’s tiny book had enormous impact on Catholic higher education. Just a few years after Ellis‟s book was published, Father John Cavanaugh, formerly Notre Dame’s president, credited Monsignor Ellis with upgrading scholarship at Catholic universities across the country.  At most of the major Catholic universities — throughout their academic departments, including within the law schools — scholarship suddenly became a more important focus.

In our Catholic law schools, we are the heirs of Monsignor Ellis’s intellectual legacy.  And the need for a vibrant scholarly culture in Catholic higher education remains as compelling.  As I’ll turn to with the third point later this week, the additional challenge today is to ensure that our scholarly excellence includes a critical mass of distinctly Catholic or Catholic-inspired work to influence the larger society for the good.

September 5, 2021 in Sisk, Greg | Permalink

Wednesday, September 1, 2021

Ranking the Scholarly Impact of Law Faculties in 2021

Every three years, I lead a team at the University of St. Thomas to study the scholarly citations of thousands of tenured law professors (involving nearly half-a-million citations) to measure the scholarly impact of American law faculties, that is, whether other scholars are actually relying on their written works of scholarship.  Using the basic methodology pioneered by Professor Brian Leiter at the University of Chicago, we rank approximately the top third of law schools.

With the full study available here, I am pasting the Top 50 below.  Notably, five Catholic law schools appear in or near the Top 25: Georgetown, Fordham, the University of St. Thomas (Minnesota), the University of San Diego, and Notre Dame.

I am delighted that my own school, the University of St. Thomas, has remained inside the Top 25 again (at #23), far above its U.S. News ranking.

Fordham has been a remarkable success story on scholarly impact over the past decade, having debuted in our 2021 ranking at #43 and moving subsequently through #35 and #29 to arrive in the Top 25 at #23 for 2021.  While not suggesting it is anything miraculous, they do seem to be changing the water into scholarly wine at Fordham Law.

The University of San Diego continues to rank considerably higher for its faculty’s scholarly impact than the questionable U.S. News ranking. For 2021, The University of San Diego places #30 in the Scholarly Impact ranking, but is remarkably under appreciated when U.S. News drops it to #86.

Over the next few days, as I do every three years, I will follow-up with a three-part series on the importance of scholarly activity and scholarly impact for Catholic legal education.

Table 1:  Summary of Scholarly Impact Ranking of Law Faculties, 2021

Rank

Law School

Weighted Score

1

Yale

1345

2

Chicago

1110

3

Harvard

940

4

NYU

921

5

Columbia

814

6

Stanford

752

6

Cal-Berkeley

749

8

Pennsylvania

663

9

Virginia

646

9

Vanderbilt

644

11

UCLA

605

12

Duke

597

13

Michigan

545

14

Cal-Irvine

537

15

Northwestern

528

15

Cornell

527

17

Georgetown

514

18

George Washington

472

18

Texas

471

18

Minnesota

468

21

Washington U

440

22

Cal-Davis

435

23

George Mason

420

23

Fordham

414

23

Boston U

411

23

U. St. Thomas (MN)

410

27

Arizona

387

27

William & Mary

384

29

USC

382

30

U. San Diego

367

31

Notre Dame

346

31

Illinois

344

33

Cardozo

340

33

Brooklyn

338

33

Colorado

336

36

Case Western

325

36

Utah

326

36

North Carolina

323

36

Emory

317

40

Kansas

311

40

Hastings

305

40

Chicago-Kent

304

43

Ohio State

300

43

Alabama

293

43

Georgia

289

46

American

287

46

Florida State

278

46

Maryland

278

49

Temple

275

49

BYU

268

49

Wake Forest

265

Note:  Original post updated to include discussion of the University of San Diego.

September 1, 2021 in Sisk, Greg | Permalink

Tuesday, July 13, 2021

Police Reform and Support for Police

Of all the divisions currently plaguing American society, one of the saddest and most self-destructive has been the tendency of too many who rightly demand accountability for police misconduct to then travel down the negative path toward outright hostility to the police.  That hostility tends to be expressed along with foolish proposals to undermine law enforcement in its essential duties.

I have been a visible and active advocate for police reform:

In my scholarly work, I have highlighted the lack of accountability for public officers for egregious wrongdoing, including sexual violence.

I have been a party to amicus briefs before the Supreme Court emphasizing the vital need for a Bivens claim for federal unconstitutional behavior when no other remedy is available.  That a federal border patrol agent may shoot an unarmed Mexican teenager in the head with no consequences and no remedy is an injustice that besmirches America.  The crucial difference between a republican democracy and tyranny is that we reject arbitrary official killing.

I have successfully represented a client who won damages for excessive use of force by law enforcement officers.

I have testified before the state legislature for the end to qualified immunity and have taken on cases pro bono to challenge application of qualified immunity.

And I just recently lost a case in the U.S. Court of Appeals that well-illustrates everything that is wrong with qualified immunity.  The prison officials involved had violated the state statute and regulation guaranteeing confidentiality for prisoner calls to attorneys; they had deliberately bypassed telephone technology and protocols within the prison that were designed to prevent eavesdropping while simultaneously preventing abuse by call-forwarding; and yet a divided appellate court still granted qualified immunity because, in the court’s view, no prior court had ruled on those precise facts.  When a rogue operation in violation of protocols and state law violates the constitutional rights of another, no qualified immunity excuse should be accepted.  And when qualified immunity cloaks such officials wrongdoing, the result is to encourage officers who push the envelope.  This in turn further undermines public trust.

But one can be strongly supportive of essential police reforms and still recognize that the vast majority of police officers are good men and women serving an essential public safety role in a dangerous climate.  The grave error is to take the righteous demands for justice to the victims of police brutality and new rules to weed out miscreant police officers and translate that into an outright hostility to the police.  We must resist the delusional belief that defunding the police does anything other than embolden criminals and increase violent crime and multiply the number of victims of trauma.  Indeed, one of the causes of police misconduct is that many police departments are severely understaffed, which makes it harder to separate those officers who are unfit and more likely that officers will be over-stressed and fatigued to the point of making poor judgments.  The empirical evidence is solid that better paid and more professional police do a better job and that more police present in the community save lives and deter a surge in violent crime (see here).

So, yes, let’s speak up clearly to denounce official misconduct.  Let’s stand up and demand transparency when police use of force has occurred to ensure that abuses are detected.  Let’s never again ignore the subcultures of racism, a warrior mentality, and anti-professional behavior that exists within many police departments.

But let us also honor the heroes on our police departments who under the most trying circumstances today still report to the job and protect us.  When I see a police officer on the job, I try to say thank you and thereby remind them that the vast majority of us are not among the shrill voices of the anti-police haters.  Let’s take every opportunity to let the brave men and women who are persevering in police protection that we are proud of them.  They became cops to help people, and the people need to honor that when appropriate.

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July 13, 2021 in Sisk, Greg | Permalink

Friday, February 12, 2021

An Open Letter About/To Senator Marco Rubio on the Eve of the Senate Trial Verdict

In 2016, I was a proud supporter of Senator Marco Rubio’s campaign for the Republican nomination for President. I put a Rubio sign in my front yard. I blogged about my support for Rubio. I encouraged people I knew to turn out for Rubio at the Minnesota caucuses. I attended the Minnesota caucuses, where my precinct voted overwhelmingly for Rubio. Although Donald Trump carried primaries nearly everywhere else that day, the good people of Minnesota stood for principle and character, giving the strong win to Marco Rubio.

Rubio1
In 1980, I was a delegate to the Republican National Convention, as part of the Montana delegation that put Ronald Reagan over the top for the nomination. In 2016, I thought I saw in Marco Rubio another powerful leader of principle and character. Rubio integrated conservative values with equal opportunity. Rubio spoke openly of his Christian faith and how it provided moral guidance to his political role. He saw faith and people of faith as playing a key role in promoting the common good for people of all faiths and beliefs. I saw him as offering us the best of a person of deep faith and positive spirit in seeking political office.

After the tragedy of Trump’s nomination and then the start of the long four-year downward spiral of the Trump presidency, Rubio’s moral standing appeared to falter, not by words or action but too often by silence. From time to time, Rubio would return to his first values and separate himself from this or that of the worst of Trump’s outrages. Indeed, I often defended Rubio to others who were dismayed by the Trump perversion of the conservative movement.

No more.

Barely a month ago, we watched a defeated president call for his extremist followers — the White Nationalists and conspiracy theory crazies that Trump had welcomed for four years — to join him at what he promised would be a “wild” rally on January 6 to overturn the election results. Once again drawing on his repertoire of violent imagery, Trump enraged the crowd and then sent his crazed mob down Pennsylvania Avenue to the Capitol. Repeating word-for-word what Trump had told them, the mob chanted Trump’s slogans and lies as they attacked the citadel of democracy. We watched the Trump mob beat police officers with Trump flags.

When Trump’s long-delayed response came hours later, he said of these domestic terrorists who were acting in his name, “We love you. You’re very special.”

Documenting history is a moral obligation if we are ever to learn from mistakes and aspire to something better. Over the past few days, the impeachment managers have done exactly that. As graphic and disturbing as was the video and documentary evidence, we as citizens were rightly called to bear witness along with the Senate to Trump’s inflammatory words and to the Trump mob attack on the Capitol.

Then we learn what Marco Rubio thinks about this. He branded the whole thing as “stupid.” To be sure, he said that Trump bore responsibility for what happened. But he nonetheless said that he wanted to end it as soon as possible and, indeed, even before any evidence was presented. And Rubio promised to join most of his fellow Republicans in the Senate in giving Trump a pass for the most dangerous attack on American democracy in more than a century. In fairness, however, Rubio said this before we saw the full story in living color.

I pray that Marco Rubio will think carefully about what he now has seen. I hope that he did not turn his eyes away, but watched carefully and thoughtfully. I urge him to draw on the conscience that he spoke of during his 2016 presidential run. Please consider, Senator Rubio, that you may be on the wrong side in dismissing the infamous events of 1/6 as something to rush past “at the first chance” to “end” this. Do not allow others behind the scenes to sweep away the broken glass, while you fail to demand that justice be rendered against the president who shattered the windows of American democracy.

Now is the time. Later recognition that this opportunity was lost is simply too late. It’ll be too late for history, which will not look kindly on those who hastened to move past this outrageous episode. It’ll be too late for our country which needs a new beginning. It’ll be too late for the Republican Party which has tolerated a faction that accepts political violence and desperately needs to move on to a different and more uplifting path.

Please surprise me, Senator Rubio. Please let us see the same man of principle, character, and conscience that inspired me in 2016. Prayerfully and regretfully, but firmly, vote to convict Trump. Let the truth set you free.

February 12, 2021 in Sisk, Greg | Permalink

Wednesday, January 27, 2021

Mixed Feelings from a Department of Justice Alum About the Belated Ethical Stand by DOJ Leaders at the Close of the Last Administration

Doj
My affectionate professional relationship with the U.S. Department of Justice (DOJ) has persevered in one form or another for more than three decades.

After working as a legislative assistant to a U.S. Senator on Capitol Hill and clerking for a U.S. Court of Appeals judge, I was fortunate to be chosen through the Honors Program to become an appellate attorney at Main Justice in Washington, D.C. For three years, I represented a wide variety of government officials (from the President and Cabinet secretaries to line government employees) and federal agencies (from the Central Intelligence Agency and Department of Defense to the U.S. Postal Service). I was the attorney on appellate cases in the U.S. Courts of Appeals and the Supreme Court. The subjects ran across the civil litigation spectrum, from constitutional challenges to government programs to simple tort claims against the government.

That wonderful opportunity for a young lawyer proved to be the beginning of my life's work.

As a law professor, I have devoted much of my academic attention to civil litigation involving the federal government. I have authored the hornbook on "Litigation With the Federal Government," published by West Academic Press in 2016 and now on contract for a new edition in 2022. I have also published the only law school casebook on the subject, having now taught the course more than a dozen times. I have written many, many scholarly articles on jurisdiction over government cases, contract and takings disputes with the federal government, attorney's fee recoveries against the federal government, the Federal Tort Claims Act, etc. Most recently, I have been working on federal government accountability for official wrongdoing, with a focus on redressing sexual violence perpetrated by federal employees.

My pro bono appellate practice over the past decade has put me more than once on the other side of the Department of Justice, when I have been court-appointed counsel for those bringing claims against the federal government and when I have written or joined amicus briefs in the Supreme Court. When appearing opposite DOJ attorneys in court, I have continued to appreciate the professionalism and high standards of ethics of federal government attorneys. As any good lawyer will tell you, it is much easier and more satisfying to litigate against good and responsible attorneys, while it is hard and unpleasant to litigate against poor attorneys. And with the DOJ, you interact with the best of the best. Thus, even as a litigation opponent, my affection for the DOJ remains strong.

Because of those sentiments and my hard-earned knowledge of the vital importance of this legal institution, I have been heartbroken to watch the politicization of the Department of Justice over the past four years by the Trump White House. Especially under Attorney General Barr, DOJ has too often been degraded to the personal law firm of Donald Trump. DOJ’s true mission is to serve as the legal counsel for the federal government as a whole, bearing allegiance not to an individual but to the United States. The devolution of DOJ during the Trump Administration has undermined its role as an independent source of legal advice for the government and executive officials, tarnished its reputation before the courts and public, and caused many of its best and brightest to leave Main Justice.

It was with mixed feelings that I learned of former President Trump’s final disgraceful attempt to recruit the DOJ as a legal foot soldier in his misguided army of insurrection against democratic governance.

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January 27, 2021 in Sisk, Greg | Permalink

Sunday, January 24, 2021

Teaching in Person at a Catholic Law School During the Pandemic (Part Three: Fostering Community)

This is the third and final in a series of posts about my experiences teaching in person last semester during the pandemic at a Catholic law school. The first post was about health and safety for teaching in person despite the contagion. The second post was about educational quality given the accommodations necessary to teach in person during a pandemic. This post is about fostering community in challenging times with social distancing.

Community as a Hallmark Value at the University of St. Thomas School of Law

Fostering community among students, faculty, and staff is a hallmark at the University of St. Thomas School of Law. It is one of the visible attributes that draws prospective students and that is frequently emphasized by our current students and alumni. As more than one person has said, community is simply baked into our DNA at St. Thomas. If you ask a typical St. Thomas law student what stands out about the law school experience, he or she is quite likely to speak to a positive atmosphere that nurtures students and draws people together.

Ustlaw2
Now many law schools tell prospective students that they have a strong community and portray images of community in publicity brochures and alumni magazines. Assertions of a supportive community are easily uttered. For the University of St. Thomas, we fortunately have considerable concrete evidence that our community is genuine and distinctive.

First, in national surveys of law student engagement, law students at the University of St. Thomas consistently report they are happier and feel more supported.  UST law students are much more positive about their law school experience than is generally reported at other law schools.

Second, I take an anonymous survey of students in my Professional Responsibility class each spring when they are more than half-way through their legal education. Substantial majorities of our students report  each year that they are more committed to and even happier about their choice to become lawyers than when they began their legal education. By contrast, across the country, many law students become disenchanted by the end of their first year, and upper-level students often express regret about their decision to go to law school.

Third, in yet another survey, which is publicly available, our students vote regularly in the Princeton Review to include us among the top ten law schools for “Best Quality of Life.”

Now some law deans and professors would openly or quietly disclaim that community should be a signature characteristic of legal education. The purpose of law school, they would say, is to effectively prepare students to pass the bar and competently engage in the practice of law. Others might say that a law school as part of a university should be first and foremost about demanding critical thinking and challenging students with new ideas, rather than seeking to flatten out student experience into an anodyne good feeling. And in public law schools, there are constitutional free expression expectations that restrict efforts to vigorously press a particular theme, which in the legal academy can become ideologically rigid.

I believe that the University of St. Thomas has generated a sense of community that is neither heavy-handed in approach nor indifferent to differences in viewpoints. To be sure, as a private and faith-based law school, we would have the freedom to choose a motivating theme, even if it trespassed on freedom of thought or excluded contrary points of view. But that is not our path. We do not assume that any human institution, including the Catholic Church, has a monopoly on truth. Especially when it comes to law and public policy, the Church encourages prudential judgment and respects the expertise of others in translating values into policy. Moreover, we embrace ideals of academic freedom in our encouragement of intellectual exploration. As I say when describing our Catholic identity to students, we are always Catholic, but we are not only Catholic. We welcome the expression of values and the sharing of insights from all traditions, while not neglecting the Catholic Intellectual Tradition.

Rather, at the University of St. Thomas, we seek to foster a community that is diverse in every way, that consists of people who disagree passionately about matters of values and who draw their most deeply-cherished beliefs from a variety of backgrounds and traditions. What is distinctive for us is to celebrate this diversity and see it as an entry point to draw everyone together. As our Vision Statement defines community, “[w]e foster a diverse environment in which each student feels supported in his or her unique journey from law student to lawyer and called to share his or her gifts to enrich the collective learning community.”

The crucial link that brings us together is a very intentional attempt to talk across the political, cultural, and religious divisions that plague our country. Our sense of community is a bridge, a search for common ground. In so doing, we discourage the demonization of different viewpoints or the presumption that those who disagree with us are acting in bad faith. At the same time, we encourage speaking truth to power and shedding light on uncomfortable realities and damaging attitudes that others might wish to avoid. Far more than is true at most other law schools, UST law students who espouse quite conflicting positions on legal and political issues are in conversation with each, attend programs sponsored by groups with a different perspective, and collaborate on ventures to to better understand alternative viewpoints and find a common ground if possible.

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January 24, 2021 in Sisk, Greg | Permalink

Saturday, January 16, 2021

Teaching in Person at a Catholic Law School During the Pandemic (Part Two: Educational Quality)

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.”

Sisk.Face.Shield.cropped
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:

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January 16, 2021 in Sisk, Greg | Permalink

Tuesday, January 12, 2021

Teaching in Person at a Catholic Law School During the Pandemic (Part One: Safety)

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.

CovidThe bottom-line to this first post on the health and safety concerns is that we appear to have succeeded without exception in keeping the virus at bay in the classroom.

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.

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January 12, 2021 in Sisk, Greg | Permalink

Thursday, January 7, 2021

From Four Years Ago: With Donald Trump, The Wolf Comes as a Wolf