Teaching the Law School Curriculum - Institute for Law Teaching ...

Teaching the
Law School
Curriculum

Teaching the
Law School
Curriculum
edited by
Steven Friedland
Gerald F. Hess
Carolina Academic Press
Durham, North Carolina

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

Professor Hess: to Layne, Mike, and Amanda.
Dedication
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.

Contents
Contributors xxv
Preface xxix
Chapter 1 Business Associations 3
Introduction
Steven Friedland 5
Approach 5
Learning Goals for Business Associations Courses
Deborah Zalesne 5
Choice of Entity
Joan Heminway 6
An Organizational Structure for Teaching Corporations
Diane S. Kaplan 6
Challenges: Real-Life Context and Business Experience
Eric Gouvin, David Simon Sokolow, Linda Harrison, Eric Lustig, Douglas K. Moll 6
Material 8
The Greatest Show on Earth
Linda Harrison 8
“Top Five” Cases
David Simon Sokolow 9
Slides
Eric Lustig 9
Handouts and Outfits
Joan Heminway 10
Exercises 10
Exercises for the First Day of Class
Eric Gouvin, Eric Lustig, Joan Heminway, Diane S. Kaplan 10
Simulations and Small Groups
Deborah Zalesne 12
Brief Gems 13
Surviving, Dealing, and Laughing
David Simon Sokolow 13
Preserving Relationships
Eric Gouvin 13
Writing across the Curriculum
Joan Heminway 13
Teaching Corporate Governance through Shareholder Litigation
Jill E. Fisch 13
vii

viii Contents
Feedback and Evaluation 14
Class Participation
Diane S. Kaplan 14
Final Exam Preparation and Feedback
Joan Heminway 15
Chapter 2 Civil Procedure 17
Approach 19
Introduction to the Civil Procedure Puzzle
Robert M. Bloom 19
A Problem-Based Approach Using Real Court Documents
Robin Kundis Craig 19
The Two-Course Approach
Christopher David Ruiz Cameron 20
Teach the Whole Class
Walter W. Heiser 20
Motivating Students to Learn Forum Selection
Greg Sergienko 21
Supplemental Jurisdiction: “Decision Tree Analysis”
Diane S. Kaplan 22
Training First-Year Students to Work like a Lawyer: A Sneaky “Virtual Classroom” Experiment
Alfred R. Light 23
Plans of Attack
Robin Kundis Craig 24
Symposium on Teaching Civil Procedure
Gerald Hess 25
Material 26
Pennoyer v. Neff: A Play in One Act
Roberta M. Harding 26
Concept Sheets
Diane S. Kaplan 30
Film Clips
Christopher David Ruiz Cameron 30
Turn Off the Oldies Station
John P. Lenich 32
Illustrative Litigation Documents Provide Context
Michael Finch 32
Forms Are Nice, Explanations Are Better
John P. Lenich 33
Fortenbaugh’s Files
Gerald Hess 35
Handouts — Prior Exam Packet and PowerPoint Slides
Christopher David Ruiz Cameron 35
F.R. Civ. P. 4: Service of Process Exercise
Diane S. Kaplan 36
The Importance of Procedure
Gerald Hess 36

Contents ix
Exercises 37
Collaborative Creation of Flow Charts
Laura J. Cooper 37
Joinder Hot Potato
Robin Kundis Craig 40
A Drafting of Pleadings Exercise for a Large Class
Walter W. Heiser 41
Pleading Workshop
John P. Lenich 42
Oral Arguments
Gerald Hess 43
Brief Gems 44
Calling Cards
William Slomanson 44
Role-Playing — Client Autonomy
Lawrence W. Moore, S.J. 45
The “Walk Through”
Walter W. Heiser 45
A Devilish Case
Robin Kundis Craig 45
“Mini-Reviews”
Walter W. Heiser 45
Feedback and Evaluation 46
Using Grading Sheets to Improve Exam Feedback
Stephen Shapiro 46
The Practice Midterm
Walter W. Heiser 47
Make the Student the Professor
Katharine F. Nelson 48
Chapter 3 Clinical Law 51
Approach 53
Clinical Legal Education: An Annotated Bibliography
Gerald Hess 53
Using Difference Analysis to Teach Problem Solving in the Clinical Setting
Kimberly E. O’Leary 54
The 10 Commandments of Externships
Larry Krieger 55
Material 57
Video Reenactments
Lee Stuesser 57
Exercises 59
Teaching Collaborative Skills to Students
Sue Bryant 59
Broken Squares: An Exercise to Demonstrate the Shift from Individualistic to
Cooperative Problem Solving
Beryl Blaustone 60

x Contents
Teaching Creative Problem Solving
Linda Morton 61
Mirror, Mirror: Using Non-Traditional Reflective Exercises
Kim Diana Connolly 67
A Proxemics Exercise to Teach Observation, Communication, and Reflection
J.P. Ogilvy 68
How Terms and Ways We Think about Clients Influence Our Lawyering
Sue Bryant 70
Teaching Alternative Client Counseling Models in the Clinical Course
Kimberly E. O’Leary 70
Parallel Universe Thinking
Sue Bryant 71
Transferable Rhetoric
Paul Bergman 72
Brief Gems 73
Encouraging Attendance; Dealing with Absences
John Barkai 73
Little Words, Big Difference
Gail Hammer 73
Teaching Communication Skills and Mediation Skills
John Barkai 74
Feedback and Evaluation 74
Student Journals to Increase Reflection on Legal Practice and on Personal Professional Development
Harriet N. Katz 74
Recommendations for More Effective Use of Academic Dialogue Journals
J.P. Ogilvy 76
Educational Goals and Evaluation Criteria (Battered Woman’s Rights Clinic)
Sue Bryant and Maria Arias 77
Chapter 4 Constitutional Law 81
Introduction
Steven Friedland 84
Approach 85
Setting, Achieving, and Evaluating Course Goals
Wilson Huhn 85
Five Common Approaches
Steven Friedland 87
At the Heart of a Course in Constitutional Law
Sanford Levinson 88
On Interpretation: The Adultery Clause of the Ten Commandments
Paul Finkelman and Sanford Levinson 90
Embracing the History of the Constitution
Sanford Levinson 94
Teaching a Course on the Constitution: Finding and Using Founding Documents
Thomas E. Baker 95
Self-Reflection within the Academy: The Absence of Women in Constitutional Jurisprudence
Karin Mika 97

Contents xi
Problem Solving and Storytelling
William Kaplin 97
Setting the Stage for Interpretation
Stephen Wermiel 99
The State of the Canon in Constitutional Law: Lessons from the Jurisprudence of John Marshall
David E. Marion 99
Biggest Challenges
Nat Stern, Paul Finkelman, Stephen Wermiel, Andrew R. Klein, Sanford Levinson 99
The First Class: Marbury v. Madison or Other?
Steven Friedland 100
Yes to Marbury
Evan Caminker 100
No to Marbury
Sanford Levinson 101
Teaching Dred Scott
Diane S. Kaplan 103
Teaching the Freedom of Speech: Simon & Schuster; Prior Restraints; Obscenity; Fighting Words;
Commercial Speech; and the Freedom of Association
Stephen L. Sepinuck 107
Employing the Socratic Method
Dan T. Coenen 108
Top Cases
Nat Stern, Stephen Wermiel, Sanford Levinson 110
“Circles of Indecency”
Richard J. Peltz 111
Material 114
Casebook and Supplement
Thomas E. Baker 114
Problem-Solving Materials
William Kaplin 114
Storytelling Materials
William Kaplin 115
On Discrimination
Dan Levin 116
Web-Enhanced Constitutional Law
Alfred R. Light 116
Constitutional Law on Videotape
Steven Friedland 118
Internet Sites Can Make a Web-Based Course
Thomas E. Baker 119
Exercises 120
A List of Regulated Types of Speech
Stephen L. Sepinuck 120
Mock Oral Arguments
Stephen Wermeil 120
A Quiz on the Constitution
Steven Friedland 120
Illustrating the Levels of Scrutiny in Equal Protection Analysis
Stephen L. Sepinuck 120

xii Contents
Humanizing Papers
Stephen L. Sepinuck 121
Mock Admissions Committee
Steven Friedland 121
Drafting Student Opinions in Roe v. Wade
Stephen L. Sepinuck 122
Brief Gems 122
Using Hypotheticals as Advocacy Practice
Andrew R. Klein 122
Teaching the Free Exercise of Religion: Employment Division, Department of Human Resources
Stephen L. Sepinuck 123
Reading Out Loud
Sanford Levinson 123
Teaching Roe v. Wade
Peter Shane 123
The Second Amendment as Teaching Tool in Constitutional Law Classes
Eugene Volokh 124
Feedback and Evaluation 125
Using Quizzes
Thomas E. Baker 125
Extra Optional Reviews
Steven Friedland 126
Opinion Writing Assignment
Thomas E. Baker 127
Chapter 5 Contracts 129
Approach 131
Learning about Rules from the Legal Duty Rule
Joel K. Goldstein 131
International Law in First-Year Contracts
Mark A. Drumbl 132
Getting to Know Students and Involving Them in Class Pedagogy
Charles Calleros 133
Active-Learning Overview in Contracts
Greg Sergienko 134
Symposium on Teaching Contracts
Gerald Hess 135
Material 137
Teaching Consideration from Original Leading Cases
Val D. Ricks 137
Great Contracts Cases
Celia Taylor 138
Using Electronic Commerce to Teach a Transactional Viewpoint
Christina L. Kunz 139
Ethics: Client Interviews and Witness Preparation
Charles Calleros 140
Disney Films Teach the Basics of Contract Law
Gerald Hess 141

Contents xiii
Exercises 141
A Contracts Drafting Challenge
Ron Brown 141
Contract Negotiating and Drafting
Alison Grey Anderson 142
The Parol Evidence Rule and the “Living Contract”
Paula A. Franzese 144
Exploring the Difficult Concept of Reciprocal Inducement
Charles Calleros 145
A Soap Opera and Lesson on Contract Damages
Hazel Glenn Beh 148
Williams v. Walker-Thomas Exercise
Alison Grey Anderson 149
Contract Interpretation and Life Experiences
Irma S. Russell 150
Brief Gem 151
Unannounced Student Teaching
Celia Taylor 151
Feedback and Evaluation 152
Feedback Form
Charles Calleros 152
Preparing Students for Outlining and Exam Taking
Charles Calleros 152
Final Class Session — Maintaining Perspective
Charles Calleros 152
Chapter 6 Criminal Law 153
Approach 155
Introduction and Three Approaches to Criminal Law
Steven Friedland 155
Comparative and International Concepts
Richard S. Frase 156
Teaching Criminal Law to Undergraduate Students
Craig Hemmens 156
Challenges in Teaching Criminal Law
Steven Friedland 158
The Challenging Student
Kate Bloch 158
Three Pillars of the Classroom Community: Demystification, Rapport, and Engagement
Kate Bloch 159
Material 160
Movies and Videos
Kevin McMunigal, David McCord, Steven Friedland 160
Teaching Prostitution Seriously
Beverly Balos 161
Exercises 161
Teaching Constitutional Limitations on Criminalization in One Fun Class
Ellen Suni 161

xiv Contents
A Prelude to the Famous Case of Queen v. Dudley & Stephens
David McCord 162
Intellectual Treasure Hunts
Kate Bloch 163
A Plea Bargaining Simulation
Sidney L. Harring 164
Teaching Law, Skills, and Ethics through Negotiation
Jeffrey L. Kirchmeier 166
Teaching Rape
Ellen Suni 167
Using Teaching Assistants to Put Criminal Law in Context
Stacy Caplow 168
A Three-Hour Tour . . .
Steven Friedland 171
Moral Geography
Steven Friedland 171
Brief Gems 172
The First Day of Class
Kevin McMunigal 172
The Elements of a Crime and Chocolate Chip Cookies
Jeffrey Ershler 172
Feedback and Evaluation 172
Final Exam on the First Day of Class and throughout the Course
David Dominguez 172
Practice Exams and Quizzes
Kevin McMunigal 173
Chapter 7 Criminal Procedure 175
Introduction
Steven Friedland 177
Approach 177
Popular Emphases of Criminal Procedure Courses
Steven Friedland 177
Material 178
Fusing Crime Stories and Class
Catherine Arcabascio 178
Using Non-Fiction “Table Setters” to Enrich the Course
Michael Perlin 178
Adding a Comparative Perspective to American Criminal Procedure Classes: Germany
Albert W. Alschuler 179
Creating a Set of Materials on a CD
Johnny C. Burris 180
Exercises 180
The Mock Arrest
Pamela Bucy 180
Student Prosecutors and Defense Counsel
Melissa Tatum 180

Contents xv
Motions to Suppress Evidence
Christine Hutton 181
Serving a Search Warrant
Pamela Bucy 181
Using Narratives to Teach “Stop and Frisk”
Ellen Suni 181
Brief Gems 182
A Noteless Approach
Christine Hutton 182
Explaining the “Big Picture” of Crim Pro
Catherine Arcabascio 182
Teaching Cases with Practical Impact
Pamela Bucy 182
Motivating Students to Read Statutes Effectively
Melissa Tatum 183
Centering on the Facts
Christopher Slobogin 185
Feedback and Evaluation 185
Using Multiple-Choice Questions to Teach Application of the Law
Ellen Suni 185
Chapter 8 Evidence 187
Introduction
Steven Friedland 189
Approach 189
Three Approaches
Steven Friedland 189
Evidence Has Something for Every Student
Lynn McLain 190
Hypotheticals and Hearsay
Welsh White 191
Evidence and Trial Advocacy Courses, Side By Side
Robert P. Burns 192
Performance and Application in Small Groups
Linda E. Carter 193
The Need to Integrate Legisprudence into the Evidence Course
Ed Imwinkelried 194
Challenges in Teaching Evidence
Steven Friedland, Jack Sahl, Andrew Taslitz 196
Additional Perspectives
Steven Friedland 197
Material 198
Five Helpful Evidence Cases
Andrew Taslitz, Jack Sahl 198
Teaching Race Issues in the Required Evidence Course
Isabelle R. Gunning 198
Classic Cases, Newspapers, and Trial Transcripts
Lynn McLain 199

xvi Contents
Movies
Paul Bergman 200
Music and Movies, Not Notes
Christine Hutton 200
My Cousin Vinny, Revisited
Steven Friedland 201
Hearsay Analysis and Problem
Lynn McLain 201
Comparing Federal and State Rules of Evidence Using Side-By-Side Charts
John Barkai 202
Exercises 203
First-Day Exercises
Andrew Taslitz, Jack Sahl 203
Teaching Evidence from a Practical Perspective — Using Small-Group Advocacy Exercises
John Barkai 203
Teaching Hearsay through Structured Courtroom Observation
Beryl Blaustone 204
Brief Gems 205
Storytelling in the Classroom
Beryl Blaustone 205
Mock Trial
Steven Friedland 205
Courtroom Observation
Christine Hutton 206
Mock Witness Examination
Jack Sahl 206
Laying the Foundation
Christine Hutton 206
Teaching Evidence through the Drafting of Jury Instructions
Beryl Blaustone 206
Teaching Hearsay through Role Play
Louis Haffner 207
Feedback and Evaluation 207
Multiple-Choice Feedback
Paul Bergman 207
Practice Exam, Midterm, Closed-Book Final
Lynn McLain 208
Testing Federal and State Rules of Evidence
John Barkai 208
Performance Tests
William Slomanson 208
Cartoons, Captions, and Mnemonics on the Exam
John Barkai 209
Midterm Student Evaluations
Paul Bergman 209

Contents xvii
Chapter 9 Family Law 211
Approach 213
Why I Use Problems in Teaching Family Law
J. Eric Smithburn 213
Incorporating Experiential Components in Family Law Courses
Barbara Glesner Fines and Mary Kay Kisthardt 214
Problems, Cases, and Topics
Francis Catania 214
An Interactive, Traditional Approach to Family Law
Charles P. Kindregan, Jr. 215
Material 216
Family Law Verses
Robert E. Rains 216
Current Event Handouts
Charles P. Kindregan, Jr. 218
Exercises 218
Interviewing about Families — A First-Day Exercise
Barbara Glesner Fines and Mary Kay Kisthardt 218
Bringing Theater Techniques to the Classroom
Susan B. Apel 219
Understanding Family Law in Context: The Court Observation Assignment
Jane C. Murphy 220
Exploring Scholarly Perspectives: The Expert Panel Role Play
Barbara Glesner Fines and Mary Kay Kisthardt 222
A Skills Workout
Sheila Simon 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
Negotiating and Drafting a Marital Dissolution Agreement
Barbara Stark 225
Chapter 10 Federal Income Tax 229
Approach 231
Teaching Tax through Stories
Paul L. Caron 231
Goals, Philosophy, and Coverage
Nancy Shurtz 231
Statutory Interpretation and the Development of a Civic Perspective
Kim Brooks 232
Problems, Previews, Participation, and Preparation
Leandra Lederman 233
Providing a Framework for Learning
Mary L. Heen 234

xviii Contents
Statutory Analysis, Not Arithmetic
Eric Lustig 235
TaxProf: A Virtual Tax Community
Paul L. Caron 235
Material 236
Tax Case Limericks
Leandra Lederman 236
Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases
Paul L. Caron 237
Tax Returns, Casebooks, and Slides
Eric Lustig 237
Text and Handouts
Nancy Shurtz 243
General Outline of Federal Income Tax (Handout)
Leandra Lederman 245
Computing Taxable Gain (Handout)
Leandra Lederman 246
Introduction to Deductions Problems (Handout)
Leandra Lederman 247
Exercises 248
Introducing Statutory Interpretation with Song Lyrics
Kim Brooks 248
Brief Gems 248
Role-Playing
Nancy Shurtz 248
“Boot”
Leandra Lederman 248
Cartoons
Nancy Shurtz 249
IRC 212 Area Code
Leandra Lederman 249
Getting the Class Started and the Power of Bruce
Kim Brooks 250
“How Would the IRS Ever Know . . .”
Leandra Lederman 250
Feedback and Evaluation 250
Designing Writing Assignments and Exams Based on Course Objectives
Kim Brooks 250
The TaxProf Exam Bank: Practical Help for the Tax Professor
Paul L. Caron 251
Research Paper, Midterm, and Final Exam
Nancy Shurtz 252
Chapter 11 Legal Research and Writing 253
Approach 255
The Self-Directed LRW Assignment
Richard J. Peltz 255

Contents xix
Individualized Instruction
Ann Sinsheimer 257
50,000,000 Elvis Fans Can’t be Wrong: The Socratic Method Works
James B. Levy 258
Visualizing a Memorandum of Law
Okianer Christian Dark 259
The Evolution of a Legal Research Curriculum
George H. Pike 261
Material 262
Syllabus Bank
Jo Anne Durako 262
“The True Story of the Three Little Pigs”
Nancy Soonpaa 262
Using the Synthesis Chart to Bridge the Gap between Analysis and Drafting
Tracy L. McGaugh 263
Of Digests and Parties
Alex Glashausser 265
Law Library Research Flow Chart
James B. Levy 267
Exercises 268
Paragraph Parody Exercise on Writing Style
Judith D. Fischer 268
Using “Live Client Interviews” Instead of Fact Patterns
Mark E. Wojcik 268
Transactional Skills Workshop
Deborah Schmedemann and Ken Kirwin 270
Using Negotiation to Improve Thinking and Writing in the First Year
Teresa Brostoff 271
Pop Culture Prognostication
Nancy Soonpaa 272
The Application Process
Tracy L. McGaugh 274
What Self-Guided Museum Tours Can Teach Us about Legal Research
James B. Levy 276
Every Case Has Two Stories
Sue Liemer 277
Low-Stakes Assignments: Developing Strategies to Write Persuasive Advocacy Briefs
Silvia Rivero and Lori Wallach 278
Teaching Active Reading
Sheila Simon 280
Brief Gems 281
IRAAC in Living Color
Nancy A. Wanderer 281
“Remember the Paint Box?”
Brannon Heath 282
Persuasive Seating
Nancy Soonpaa 282
Judge and Lawyer Speakers
Nancy A. Wanderer 282

xx Contents
The Last Class—Ending on the Right Note
Sheila Simon, Andrea Mooney, Sue Liemer, Melissa Marlow-Shafer, Mary Beth Beazley 283
Feedback and Evaluation 284
Handling Student Reactions to Critiqued Work
Tracy L. McGaugh, Paul Toppins, Sue Liemer 284
Critiquing Student Papers — The Quick and the Dead
James B. Levy 285
Getting Students to Critically Review Their Writing
Stephen L. Sepinuck 286
Oral Exam of Research Skills
Judith A. Gire 287
The Research Quiz Show
Brannon Heath 287
Chapter 12 Professional Responsibility 289
Introduction
Steven Friedland 291
Approach 291
Telling Stories, Writing Rules: Creating Enthusiastic Professional Responsibility Students
Steve Hartwell 291
Getting Students Onboard
Howard Erichson 293
Applied Professional Responsibility/Law Practice Management
Ellen Suni 294
Professionalism
Mark Weisberg 296
Teaching through Different Methodologies
Nathan Crystal 297
First Day, Challenges, and Top Cases
Jack Sahl 302
Material 303
Moral Compass
Larry Raful 303
Readings for a Meaningful Life in the Law
Mark Weisberg 303
Exercises 306
Using Dramatization and Simulation in Professional Responsibility Teaching
Robert P. Burns 306
Bringing Professional Responsibility Home through Film
Nancy B. Rapoport 306
Learning through Role-Playing, Guests, and Videotapes
Jack Sahl 307
Reflection Papers
Larry Raful 307
Writing MPRE Questions
Ellen Suni 307

Contents xxi
Brief Gems 308
Reading Out Loud and Other Methods of Active Student Participation
Mark Weisberg 308
Feedback and Evaluation 310
Assigning Student Journals
Ellen Suni 310
Assigning Student Journals, Part II
Mark Weisberg 311
Using Quizzes to Promote Feedback
Nathan Crystal 312
Chapter 13 Property 315
Introduction
Steven Friedland 317
Approach 317
Four Approaches
Steven Friedland 317
Challenges in Teaching Property Law
Patrick Wiseman, Steven Friedland, Basil Mattingly 319
Teaching Property through the Problem Method
Steven Friedland 321
Teaching Property Law with Problems and Role Plays
Lonny Hoffman 321
Some Lessons from Lon Fuller for Teaching Property Law (or Anything Else)
Stephen C. Veltri 322
Teaching Real Property Law as Real Estate Lawyering
Roger Bernhardt 324
A Preface to the Teaching of Common Law Estates and Future Interests
Alan Weinberger 325
Teaching the Rule Against Perpetuities in First-Year Property
John Weaver 327
How to Be a Good Property Law Teacher: Some Suggestions
James Kainen 329
Negotiating a Lease
Steven Friedland 331
Problems and Role Plays
Joseph William Singer 331
Simulated Pre-Trial Conferencing
Zygmunt Plater 332
Material 333
Some Top Cases and Statutes
Joseph William Singer, Patrick Wiseman 333
Symposium on Teaching Property
Gerald Hess 334
First-Day Activities and Cases
Basil Mattingly, Patrick Wiseman, Joseph William Singer 335

xxii Contents
Brief Gems 336
Not Knowing the Answer
Joseph William Singer 336
Profit-A-Prendre in Action
Peter Reich 337
The Price Is Right
Judith Royster 337
Feedback and Evaluation 338
Difficulty Papers
Judith Wegner 338
Comprehension Reviews
David A. Thomas 340
Reviews and Past Exams
Patrick Wiseman 340
Practice and Feedback in the Property (and on the Golf) Course
Michael V. Hernandez 340
Chapter 14 Sales and Secured Transactions 343
Approach 345
We Are All Debtors and Creditors
Stephen L. Sepinuck 345
Teaching Students How to Read Statutes Critically
Carol L. Chomsky and Christina L. Kunz 345
Article 9 Transactions, Skills, Maps, and Fears
Karen M. Gebbia-Pinetti 347
Integrating Theory in Large, Upper-Level Commercial Law Classes
Curtis Nyquist 348
Parties, Problems, and Papers
John F. Dolan 350
Material 351
Adventures in PowerPoint
Alison Sulentic 351
Teaching Sales through History, Opera, Poetry, Literature, Art, and Baseball
Ann Lousin 353
Supplemental Readings and Props
Karen M. Gebbia-Pinetti 354
Parol Evidence Chart
Dan Keating 354
U.C.C. 2-207 Flow Chart
Dan Keating 356
Potential Recovery Theories in Sales Injury Cases
Dan Keating 358
Exercises 360
Collateral Conflict Role Play
Richard H. Nowka 360
Borrower/Lender Role Play to Begin Secured Transactions
Karen M. Gebbia-Pinetti 361

Contents xxiii
Repossessing Cars and Other Active-Learning Exercises
Stephen L. Sepinuck 361
Integrating Legal Research Skills into Commercial Law
Camille Broussard and Karen Gross 362
Interest Group Negotiations
Karen M. Gebbia-Pinetti 364
Sale/Lease Distinction
Stephen L. Sepinuck 364
Brief Gems 365
The Financing Statement as a Smoke Detector
Eric Gouvin 365
“The U.C.C. is Your Friend” and Other Gems
Karen M. Gebbia-Pinetti 365
Feedback and Evaluation 366
Ungraded Drafting Assignments
Karen M. Gebbia-Pinetti 366
Chattel Paper Extra Credit
Stephen L. Sepinuck 366
Rule Maps
Stephen L. Sepinuck 366
Secured Transactions Exam Format
Karen M. Gebbia-Pinetti 367
Chapter 15 Torts 369
Approach 371
Negligence and Duty First
Alan Calnan 371
Setting Out My Approach to Teaching and Making Students Experts
Kim Brooks 372
Exercise for First Day of Torts
Kathryn Kelly 373
Don’t Start with Vosburg
Greg Sergienko 375
Starting with Moore v. Regents of the University of California
Keith Sealing 376
Symposium on Teaching Torts
Gerald Hess 377
Material 378
Five Great Torts Cases
Andrew R. Klein 378
New York Times v. Sullivan — Ad
Judith D. Fischer 380
Hustler Magazine v. Falwell — Film and Ad
Judith D. Fischer 381
Using Star Trek to Introduce Privacy Law
Okianer Christian Dark 381

xxiv Contents
Exercises 382
Teaching Torts with Puzzles, Props, and Productions
Nancy Wright 382
A Little Variety Goes a Long Way
Christopher Guthrie 384
Teaching Palsgraf
Alan Calnan 386
Constructive Notice and Sufficiency of Evidence
Alison Grey Anderson 386
Demystifying Causation
Alan Calnan 387
Brainstorming Technique to Initiate a Torts Seminar
Okianer Christian Dark 388
Brief Gems 389
Res Ipsa Loquitur
Alison Grey Anderson 389
Visualizing Foreseeability
Alan Calnan 390
Ask Your Students
Louis J. Sirico, Jr. 391
Feedback and Evaluation 391
Students Writing Their Own Exam Question
Mark Weisberg 391
Index for Books, Casebooks, and Authors 393
Index for Cases 397
Index for Films and TV Shows 403
Subject Index 405

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
Contributors
xxv

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

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
O’Leary, 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
Contributors xxvii

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

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
xxix

Teaching the
Law School
Curriculum

chapter 1
Business Associations
Introduction
Steven Friedland 5
Approach 5
Learning Goals for Business Associations Courses
Deborah Zalesne 5
Choice of Entity
Joan Heminway 6
An Organizational Structure for Teaching Corporations
Diane S. Kaplan 6
Challenges: Real-Life Context and Business Experience
Eric Gouvin, David Simon Sokolow, Linda Harrison, Eric Lustig, Douglas K. Moll 6
Material 8
The Greatest Show on Earth
Linda Harrison 8
“Top Five” Cases
David Simon Sokolow 9
Slides
Eric Lustig 9
Handouts and Outfits
Joan Heminway 10
Exercises 10
Exercises for the First Day of Class
Eric Gouvin, Eric Lustig, Joan Heminway, Diane S. Kaplan 10
Simulations and Small Groups
Deborah Zalesne 12
Brief Gems 13
Surviving, Dealing, and Laughing
David Simon Sokolow 13
Preserving Relationships
Eric Gouvin 13
3

4 Business Associations
Writing across the Curriculum
Joan Heminway 13
Teaching Corporate Governance through Shareholder Litigation
Jill E. Fisch 13
Feedback and Evaluation 14
Class Participation
Diane S. Kaplan 14
Final Exam Preparation and Feedback
Joan Heminway 15

Business Associations 5
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 day’s class.
Deborah Zalesne, City University of New York School of Law

6 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.
An Organizational Structure for Teaching Corporations
Joan Heminway, The University of Tennessee College of Law
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. The legal consequences of failure to comply with corporate formalities
2. Fiduciary duties
3. Corporate finance
4. The lawyer’s 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.
Challenges: Real-Life Context and Business Experience
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)
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 institution’s 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.

Business Associations 7
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
won’t remain pure abstractions. Another challenge is that Business Associations is statutory, and most students
don’t 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

8 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 professor’s 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.
The Greatest Show on Earth
Material
Douglas K. Moll, University of Houston Law Center
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 shareholder’s election for the board of directors and an arbitrator’s 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

Business Associations 9
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 O’Nan (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 client’s lives. What we learn is that these agreements, made between otherwise
friendly relations, can and often do have consequences far into the future.
“Top Five” Cases
Linda Harrison, Nova Southeastern University Law Center
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.
Slides
David Simon Sokolow, The University of Texas School of Law
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 semester’s 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.)

10 Business Associations
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.
Handouts and Outfits
Eric Lustig, New England School of Law
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.)
Exercises for the First Day of Class
Joan Heminway, The University of Tennessee College of Law
Exercises
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

Business Associations 11
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 Coffee’s 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 article’s 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 shareholder’s 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

12 Business Associations
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.
Simulations and Small Groups
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)
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 character’s 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 lawyer’s, 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

Surviving, Dealing, and Laughing
Business Associations 13
Brief Gems
My supplement includes a one-page document prepared by former students on “How to Survive in Professor
Sokolow’s 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 “Let’s Make a Deal” to get volunteers for discussing
the problems in class. I have “Sokkie’s 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 it’s very dry. I use Yiddish expressions from
my mother and grandmother to enliven the proceedings, and I discuss my parents’ dress shop and my son’s travails
in opening a restaurant when appropriate. For example, in explaining that many clients don’t want to negotiate
a partnership agreement because they’d 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.
Preserving Relationships
David Simon Sokolow, The University of Texas School of Law
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 lawyer’s mind but especially in corporate
representation because so often the principals in the business are also related to each other.
Writing across the Curriculum
Eric Gouvin, Western New England College School of Law
I am a big believer in writing across the curriculum (however, I’ll 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

14 Business Associations
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).)
Class Participation
Feedback and Evaluation
Jill E. Fisch, Fordham University School of Law
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 day’s 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.

Business Associations 15
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.
Final Exam Preparation and Feedback
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)
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

chapter 2
Civil Procedure
Approach 19
Introduction to the Civil Procedure Puzzle
Robert M. Bloom 19
A Problem-Based Approach Using Real Court Documents
Robin Kundis Craig 19
The Two-Course Approach
Christopher David Ruiz Cameron 20
Teach the Whole Class
Walter W. Heiser 20
Motivating Students to Learn Forum Selection
Greg Sergienko 21
Supplemental Jurisdiction: “Decision Tree Analysis”
Diane S. Kaplan 22
Training First-Year Students to Work like a Lawyer:
A Sneaky “Virtual Classroom” Experiment
Alfred R. Light 23
Plans of Attack
Robin Kundis Craig 24
Symposium on Teaching Civil Procedure
Gerald Hess 25
Material 26
Pennoyer v. Neff: A Play in One Act
Roberta M. Harding 26
Concept Sheets
Diane S. Kaplan 30
Film Clips
Christopher David Ruiz Cameron 30
Turn Off the Oldies Station
John P. Lenich 32
Illustrative Litigation Documents Provide Context
Michael Finch 32
Forms Are Nice, Explanations Are Better
John P. Lenich 33
Fortenbaugh’s Files
Gerald Hess 35
17

18 Civil Procedure
Handouts — Prior Exam Packet and PowerPoint Slides
Christopher David Ruiz Cameron 35
F.R. Civ. P. 4: Service of Process Exercise
Diane S. Kaplan 36
The Importance of Procedure
Gerald Hess 36
Exercises 37
Collaborative Creation of Flow Charts
Laura J. Cooper 37
Joinder Hot Potato
Robin Kundis Craig 40
A Drafting of Pleadings Exercise for a Large Class
Walter W. Heiser 41
Pleading Workshop
John P. Lenich 42
Oral Arguments
Gerald Hess 43
Brief Gems 44
Calling Cards
William Slomanson 44
Role-Playing — Client Autonomy
Lawrence W. Moore, S.J. 45
The “Walk Through”
Walter W. Heiser 45
A Devilish Case
Robin Kundis Craig 45
“Mini-Reviews”
Walter W. Heiser 45
Feedback and Evaluation 46
Using Grading Sheets to Improve Exam Feedback
Stephen Shapiro 46
The Practice Midterm
Walter W. Heiser 47
Make the Student the Professor
Katharine F. Nelson 48

Introduction to the Civil Procedure Puzzle
Civil Procedure 19
Approach
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.
A Problem-Based Approach Using Real Court Documents
Robert M. Bloom, Boston College Law School
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

20 Civil Procedure
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.
The Two-Course Approach
Robin Kundis Craig, Indiana University School of Law-Indianapolis
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 doesn’t 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.
Teach the Whole Class
Christopher David Ruiz Cameron, Southwestern University School of Law
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

Civil Procedure 21
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.
Motivating Students to Learn Forum Selection
Walter W. Heiser, University of San Diego School of Law
People find it difficult to learn material when they don’t 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

22 Civil Procedure
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 Same case
or
Contract Counterclaim Controversy

I direct them to the Decision Tree Analysis.
Civil Procedure 23
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 B’s 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 User’s Guide to Supplemental
Jurisdiction, 27 U. of Tol. L. Rev. 85 (1995).
Training First-Year Students to Work like a Lawyer:
A Sneaky “Virtual Classroom” Experiment
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)
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 day’s
notes as a link on my course’s virtual classroom website along with supplementary materials related to that day’s
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 student’s 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 website’s 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.

24 Civil Procedure
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 school’s 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 one’s 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 partner’s dilatory and incomplete work on their joint work product.
This complaint provoked my second inspiration. Why not make homework assignments a regular consequence
of one’s 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 day’s 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.
Plans of Attack
Alfred R. Light, St. Thomas University School of Law
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?

Civil Procedure 25
II. If so, is there an apparent conflict between state and federal law regarding an issue within that
state-law claim?
III. 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?
IV. 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.)?
V. 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.
Symposium on Teaching Civil Procedure
Robin Kundis Craig, Indiana University School of Law-Indianapolis
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 1
USING CIVIL PROCEDURE TO TEACH PRACTICAL SKILLS
Exploring Some Unexplored Practical Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Jack H. Friedenthal 3
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

26 Civil Procedure
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
Pennoyer v. Neff: A Play in One Act
Material
Gerald Hess, Gonzaga University School of Law
Over the years I’ve 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 I’ve 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 I’ve 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. I’m a young man of 24 years and I think it is about time that I leave Iowa and
head west for Oregon.
NEFF’S MOTHER: But Marcus, Oregon isn’t 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!!!
NEFF’S MOTHER: Well son, I’m sure you know what is best. At least you’ll be traveling with others in a wagon train
so I won’t fret so much.
MARCUS NEFF: Thank you, Mama. I’m glad I have your blessing. I promise that I’ll 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. I’m glad this is where I’ve 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.
Neff’s land patent was originally dated December 15, 1850, approximately two years after Neff arrived in Ore-

Civil Procedure 27
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. I’m “notorious” for my legal acumen in land matters.
Tell you what I’m going to do. I’m 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
can’t get your land patent issued “1, 2, 3.” How does that sound?
MARCUS NEFF: That sounds great!!! I’ve 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, you’ve 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: I’d 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, I’ll 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 can’t seem to find where Mr. Neff is in Oregon. Seems like he is now living
somewhere in California and I can’t find him there, so I guess I’ll 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? It’s 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.

28 Civil Procedure
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 I’m 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 I’ll go ahead now and seek a writ of execution to
enforce this judgment I have against Neff. Since he isn’t here, I’ll just go ahead and have the judgment enforced by
seeking a writ of execution against Neff’s 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.
MITCHELL’S FRIEND: Hey, Mitchell. Congratulations on being the winning bid at the sheriff’s auction of Neff’s property.
It is a nice piece of land and you got it for what, $341.60? Talk about a bargain, that’s a real “steal”!
JOHN H. MITCHELL: Yeah, well ... thanks. Got to run.
NARRATOR: It is August 10, 1866, three days after Mitchell purchased Neff’s property that was sold to satisfy
Mitchell’s 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 let’s 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 Neff’s 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. There’s great farming there. In fact, I’m doing quite well now ... I have lots of property and livestock.
I’m married and have children and we live in a big house and have servants. The reason I’m 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-

Civil Procedure 29
gon land office sent me the land patent the U.S. government had mailed out on March 22, 1866. But I’ve been
told that you have been living on my land and think you own my land, which you don’t. So I’d like for you to just
move on off the land because it isn’t yours, it’s 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 hadn’t 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 couldn’t 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 sheriff’s 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, I’m afraid there is nothing that can be done as it was all done
according to the law.
MARCUS NEFF: But this isn’t fair. I didn’t even know about the lawsuit, when Mr. Mitchell claimed that I owed him
money and sued me for the money.
SYLVESTER PENNOYER: Well, that’s 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 couldn’t 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 that’s neither here nor there. I must say good day sir to you here as I think I’ve 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 don’t want him causing any trouble, I had better “look into” a few things. After
all, “caution is the better part of valor.”
NARRATOR: After Neff’s visit, Pennoyer, who must be a bit concerned about the sanctity of the transaction and,
thus, the validity of Neff’s 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 don’t 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 I’ll 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.

30 Civil Procedure
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 International Shoe v. Washington
Mitchell v. Neff Presence
Neff v. Pennoyer Implied consent
Pennoyer v. Neff Amenability to service of process
Notice Doing business
Landowner’s Presumption Special appearance
Service Statutes General appearance
Personal Minimum contacts
Constructive Fair play and substantial justice
Publication Quid pro quo
Attachment Benefits and protections
Territorial Jurisdiction Irregular or casual activities
14th Amend. Due Process Clause Systematic and continuous activities
In personam jurisdiction Substantial activities over time
In rem jurisdiction Pervasive presence
Quasi in rem jurisdiction Specific jurisdiction
Full faith and credit clause General jurisdiction
Collateral Attack: Jurisdictional
Exception to FCC
Default judgment
Sheriff’s sale
Film Clips
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)
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 somebody’s
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 East’s 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 didn’t fly the house from Kansas and land it on East in Oz — a twister did that. Besides,

Civil Procedure 31
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 film’s 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 Nicholson’s character trespasses on private property, then himself is trespassed
upon by the owner’s 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 Dorothy’s house is swept away by a tornado and
kills East in Oz 13:43
Forum selection clause Willy Wonka and the Kids may not enter Wonka’s factory unless each
Chocolate Factory signs an adhesion contract 8:00
Service of process Chinatown Appearance of the real Evelyn Mulwray in
Geddes’ office 5:00
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
Pre-judgment seizure Wizard of Oz Miss Gulch takes Toto from Gale family with
sheriff’s writ 2:30
Transfer of venue Wizard of Oz Dorothy uses ruby slippers to return to Kansas
(“There’s no place like home”) 4:26
Importance of writing Take the Money and Woody Allen tries to rob bank with note saying,
clearly on exams Run “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
Who’s the client? The Verdict Galvan visits comatose client, meets sister and
sister’s husband 5:25
Professional responsibility The Verdict Galvan rejects $210K settlement offer 4:11
Professional responsibility The Verdict Client’s 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 defendant’s
final offer 4:05
David v. Goliath The Verdict Under-prepared solo practitioner gets ready for
med mal trial 3:02

32 Civil Procedure
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
Right to jury trial The Verdict Galvan explains jury’s role as providing chance
for justice 4:25
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
JNOV and new trial The Verdict Jury finds for plaintiff; asks judges if it’s okay to
award more money than plaintiff sought 1:39
Turn Off the Oldies Station
Christopher David Ruiz Cameron, Southwestern University School of Law
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 yesterday’s
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.
Illustrative Litigation Documents Provide Context
John P. Lenich, University of Nebraska College of Law
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.

Civil Procedure 33
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.
Forms Are Nice, Explanations Are Better
Michael Finch, Stetson College of Law
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

34 Civil Procedure
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.
Grounds
Title of the Action
Name of Court
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
YOUNG RIDERS CATTLE CO., )
a partnership, )
)
Case No. 4:CV01-0001
Plaintiff, ) DEFENDANT’S MOTION TO DISMISS
) FOR LACK OF SUBJECT MATTER
v. ) JURISDICTION, INSUFFICIENCY
) OF SERVICE PROCESS, AND
TEASPOON HUNTER, )
)
FAILURE TO STATE A CLAIM
Defendant. )
Defendant Teaspoon Hunter hereby moves pursuant to Rules 12(b)(1), 12(b)(5),
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
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.
This motion is also based on the Affidavit of Teaspoon Hunter in Support of Defendant’s
Motion to Dismiss, the Affidavit of Lou McCloud in Support of Defendant’s Motion to Dismiss,
Defendant’s Brief in Support of Defendant’s Motion to Dismiss, and on all the pleadings and
evidence before the Court in this action.
DATED: November 28, 2001
What the moving party wants
Required by Rule 11(a)
Required by Rule 5(d)
Authority
[attorney signature block]
Certificate of Service
File Number
Document Title
Consolidating all Rule 12 defenses
in one motion per Rule 12(g)
Identification of Supporting
Documents (including evidence
for 12(b)(1) and 12(b)(5) motions)

Fortenbaugh’s Files
Civil Procedure 35
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 “Fortenbaugh’s
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 Fortenbaugh’s 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 defendant’s
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 Fortenbaugh’s 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.
Handouts — Prior Exam Packet and PowerPoint Slides
Gerald Hess, Gonzaga University School of Law
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 batter’s box and face the guy. No umpire will award you
first base because you can describe how to hit him. Sure, you’re going to make mistakes, but eventually, you’re
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, you’ll 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

36 Civil Procedure
baseball, your mistakes won’t count against you. And you’ll 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.
F.R. Civ. P. 4: Service of Process Exercise
Christopher David Ruiz Cameron, Southwestern University School of Law
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 can’t serve?
5. Section 4(d)(1). Who does “waiver” of service mean? Does waiver of service mean that the
defendant has consented to the court’s 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?
The Importance of Procedure
Diane S. Kaplan, The John Marshall Law School (Chicago, Illinois)
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)

Civil Procedure 37
“I’ll let you write the substance ... and you let me write the procedure, and I’ll 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 won’t 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)
Collaborative Creation of Flow Charts
Exercises
Gerald Hess, Gonzaga University School of Law
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 student’s 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

38 Civil Procedure
No Joinder Problem
Join the
absent party
If the answer to
either
question is NO
Prodeed with the
case with the added
party included.
JOINDER UNDER RULE 19
Does the absence of the absent party:
Preclude complete relief for those already parties?
Impair the absent party’s ability to protect its interest?
or
Leave existing parties subject to multiple or inconsistent obligations?
Does the absent
party object
to venue?
Would joinder of
the absent party
render venue
improper?
If the answer to all
questions is NO
If the answer
to both
questions is
YES
If the answer to
both questions
is YES
Dismiss
the new
party.
If the answer
to either
question is
NO
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?
Four Factors:
1. Prejudice to absent and existing
parties.
2. Availability of protective
measures
3. Adequacy of remedy in party’s
absence
4. Adequacy of Plaintiff’s
remedies if action dismissed.
Can the action proceed without
the absent party in
equity and good conscience
(taking into account the four
factors)?
NO
Dismiss
the
action.
YES
Proceed
without the
absent party.

Civil Procedure 39
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
Personal Jurisdiction
Unconstitutional
Five Factors:
1. Burden on defendant
2. Forum interest
3. Plaintiff’s interest
4. Judicial efficiency
5. Shared social policies
NO
Personal Jurisdiction
OK
YES
Is there general jurisdiction
under federal
constitutional law?
NO
Are there sufficient minimum contacts
based on the defendant’s purposeful
availment to satisfy due process?
YES
Personal Jurisdiction
OK
Analysis in a Federal
Court begins here
NO
Is assertion of personal jurisdiction consistent
with state common law or statute?
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
Unconstitutional
YES
Can concerns be otherwise satisfied
(choice of law, change of venue)?
NO
Personal Jurisdiction
Unconstitutional
Analysis in a State
Court begins here

40 Civil Procedure
Joinder Hot Potato
It’s 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.
It’s 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 student’s.
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 don’t
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.

Civil Procedure 41
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.)
A Drafting of Pleadings Exercise for a Large Class
Robin Kundis Craig, Indiana University School of Law-Indianapolis
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 FRCP’s 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 classmate’s 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 classmate’s 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.

42 Civil Procedure
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 plaintiff’s attorney in Gomez v. Toledo, pages 589–592 of Pleading and Procedure
by Hazard, Tait, and Fletcher. Your assignment is to redraft Mr. Gomez’s 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 2–18
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 655–666 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.
Pleading Workshop
Walter W. Heiser, University of San Diego School of Law
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)

Civil Procedure 43
and imputed negligence (against the driver’s 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.
Oral Arguments
John P. Lenich, University of Nebraska College of Law
“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 70–72.) 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

44 Civil Procedure
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.”).
Calling Cards
Brief Gems
Gerald Hess, Gonzaga University School of Law
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 student’s 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/don’t 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

Role-Playing — Client Autonomy
Civil Procedure 45
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 client’s preferences. I am sure that the other students remember better the
lesson of the exercises than if I merely lectured about client autonomy.
The “Walk Through”
Lawrence W. Moore, S.J., Loyola University New Orleans School of Law
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.
A Devilish Case
Walter W. Heiser, University of San Diego School of Law
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 court’s power.
“Mini-Reviews”
Robin Kundis Craig, Indiana University School of Law-Indianapolis
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

46 Civil Procedure
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.
Feedback and Evaluation
Using Grading Sheets to Improve Exam Feedback
Walter W. Heiser, University of San Diego School of Law
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.

Civil Procedure 47
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 Student
Points Score
A. The basic removal statute, 28 U.S.C. § 1441 (a), allows removal if there was
original jurisdiction. 1
This is satisfied because there is diversity of citizenship and amount in
controversy as required by 28. U.S.C. §1332. 1
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. 3
Total 5
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. 2
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. 3
Total 5
Part B
The Practice Midterm
Stephen Shapiro, University of Baltimore School of Law
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

48 Civil Procedure
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 school’s 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.
Make the Student the Professor
Walter W. Heiser, University of San Diego School of Law
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 don’t know how many points to take off (or give).
You are the professor; it’s your call.” I also commiserate with their frustration over poor organization, sweeping

Civil Procedure 49
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)

chapter 3
Clinical Law
Approach 53
Clinical Legal Education: An Annotated Bibliography
Gerald Hess 53
Using Difference Analysis to Teach Problem Solving in the Clinical Setting
Kimberly E. O’Leary 54
The 10 Commandments of Externships
Larry Krieger 55
Material 57
Video Reenactments
Lee Stuesser 57
Exercises 59
Teaching Collaborative Skills to Students
Sue Bryant 59
Broken Squares: An Exercise to Demonstrate the Shift from Individualistic to
Cooperative Problem Solving
Beryl Blaustone 60
Teaching Creative Problem Solving
Linda Morton 61
Mirror, Mirror: Using Non-Traditional Reflective Exercises
Kim Diana Connolly 67
A Proxemics Exercise to Teach Observation, Communication, and Reflection
J.P. Ogilvy 68
How Terms and Ways We Think about Clients Influence Our Lawyering
Sue Bryant 70
Teaching Alternative Client Counseling Models in the Clinical Course
Kimberly E. O’Leary 70
Parallel Universe Thinking
Sue Bryant 71
Transferable Rhetoric
Paul Bergman 72
Brief Gems
Encouraging Attendance; Dealing with Absences
73
John Barkai 73
51

52 Clinical Law
Little Words, Big Difference
Gail Hammer 73
Teaching Communication Skills and Mediation Skills
John Barkai 74
Feedback and Evaluation 74
Student Journals to Increase Reflection on Legal Practice and on
Personal Professional Development
Harriet N. Katz 74
Recommendations for More Effective Use of Academic Dialogue Journals
J.P. Ogilvy 76
Educational Goals and Evaluation Criteria (Battered Woman’s Rights Clinic)
Sue Bryant and Maria Arias 77

Clinical Law 53
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

54 Clinical Law
E. Mediation
F. Negotiation
G. Problem Solving
H. Collaboration Among Professionals
I. MacCrate Report
VI. 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 client’s 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 client’s 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-

Clinical Law 55
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 client’s 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 client’s 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.
The 10 Commandments of Externships
Kimberly E. O’Leary, Thomas M. Cooley Law School
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.

56 Clinical Law
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 won’t?
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 don’t 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 — you’ll always come out “better” or “worse” than someone else. Work for salary and status
parity, but don’t forget to appreciate the great job you have and your chance to shape skilled and decent lawyers.
If that’s not enough, try remembering how happy you were to leave the old job for this one; and if that doesn’t
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

Clinical Law 57
office. Work to amend the supervisor’s 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 student’s 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. 1–2.)
Video Reenactments
Material
Larry Krieger, Florida State University College of Law
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.

58 Clinical Law
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 Lawyer’s 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.

Clinical Law 59
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. 4–5.)
Teaching Collaborative Skills to Students
Exercises
Lee Stuesser, University of Manitoba Faculty of Law
I assign students part of my article, Collaboration in Law Practice, 17 Vt. L. Rev. 461, 491–525 (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 client’s 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

60 Clinical Law
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.
Broken Squares: An Exercise to Demonstrate the Shift from
Individualistic to Cooperative Problem Solving
Sue Bryant, City University of New York School of Law
“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 group’s 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 other’s 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, 225–230.)
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-

Clinical Law 61
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 one’s 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.”
Teaching Creative Problem Solving
Beryl Blaustone, City University of New York School of Law
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, 386–387 (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 client’s emotional state. They

62 Clinical Law
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 group’s 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 client’s dilemma creatively?
Referring to my own model, I tell students the process of creative thinking most frequently arises when
considering general approaches to the client’s problem, as illustrated in the visual model.
To legitimize creative thinking’s 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 brain’s 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

6. Evaluation
5. Action
Plan
Clinical Law 63
Appendix A
A Process for Creative Problem Solving
1. Situational Analysis
Goals
Values
Investigation
Prevention
4. General Approaches
Creative Thinking
2. Problem
Diagnosis
3. Information
Gathering

64 Clinical Law
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 client’s and lawyer’s 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 client’s/lawyer’s current situation?
What are the symptoms?
What is the client’s/lawyer’s preferred situation?
II. Problem Analysis
What is the client’s problem?
Do we need anyone else’s 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 client’s/ lawyer’s objectives?
What are the client’s/lawyer’s 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?

Clinical Law 65
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. DeBono’s 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 you’ve 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.

66 Clinical Law
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 person’s 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.

Mirror, Mirror: Using Non-Traditional Reflective Exercises
Clinical Law 67
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. Schön 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 Schön 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:

68 Clinical Law
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 don’t know why I didn’t 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 didn’t 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 didn’t even cross my
mind later in the interview. But time was just flying by in the interview and I didn’t 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 won’t 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 I’m thinking of revamping it and trying it again with my next
clinic. I asked students to write a memo in their client’s 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 didn’t contain anything very deep. I suspect I didn’t give them sufficient direction
to imagine what their client really was thinking about or direction to explore the client’s experience from
multiple levels. I think a diary entry (rather than a memo) in the client’s 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. 6–7.)
A Proxemics Exercise to Teach Observation,
Communication, and Reflection
Kim Diana Connolly, University of South Carolina School of Law
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 lawyer’s ability to imagine, perceive, and recall detail is essential to the

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lawyer’s 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 lawyer’s 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 student’s findings
in writing. A section of the textbook that is used in the course, Bastress and Harbaugh’s 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 professional’s 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 (3–5 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. 133–37). 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 office’s 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.

70 Clinical Law
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 Lerman’s 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 women’s 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 lawyer’s 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.

Clinical Law 71
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).
Parallel Universe Thinking
Kimberly E. O’Leary, Thomas M. Cooley Law School
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 client’s 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

72 Clinical Law
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 lawyer’s 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.
Transferable Rhetoric
Sue Bryant, City University of New York School of Law
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 I’m 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 litigant’s 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 wife’s 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
Euphilitus’s 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.

Clinical Law 73
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 1–2 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 don’t 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 haven’t yet made these papers available to other students, but it is possible and, I think, would be useful.
Little Words, Big Difference
John Barkai, University of Hawaii William S. Richardson Law School
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 can’t stand this anymore.” This says it’s over.
“I love you, and I can’t 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 you’re 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 you’re 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 don’t
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

74 Clinical Law
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 won’t 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 don’t have much experience,
but I have a lot of enthusiasm” or “I can’t promise that we’ll win, but I can promise my very best efforts.”
Teaching Communication Skills and Mediation Skills
Gail Hammer, Gonzaga University School of Law
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). Here’s 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?
That’s 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

Clinical Law 75
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 student’s 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

76 Clinical Law
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 teacher’s 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 learner’s 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. 314–15.)
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 student’s
journal entries. Among the possible response types or strategies are responses that answer questions raised in the
entry, share the teacher’s perspective on a topic raised by the student, give the teacher’s 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 teacher’s
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 Lerman’s
Learning from Practice: A Professional Development Text for Legal Externs (West Group 1998).
Educational Goals and Evaluation Criteria
(Battered Woman’s Rights Clinic)
Professional Responsibility and Professional Relationships.
J.P. Ogilvy, Columbus School of Law, The Catholic University of America
• 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 lawyer’s 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:

78 Clinical Law
• Identifies client’s concerns;
• Identifies legal and non-legal alternatives for addressing client’s 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 client’s problems.
Develops theories of the case consistent with the applicable law and client’s goals.
Makes creative use of the law to accomplish client’s goals.
Theoretical Perspective.
Understands the value and limitations of developing a definition of the role of the lawyer.
• Understand the choices in defining the lawyer’s 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 women’s syndrome and other theories about battering;
• Applies other theoretical frameworks for analyzing a client’s 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.

Other professional communications:
• Effective letter writing; and
• Respectful communication with colleagues, courts and clients.
Clinical Law 79
Courtroom advocacy:
• Questions effectively to obtain relevant information and listens to responses;
• Presents arguments in clear, effective manner; and
• Effectively communicates client’s 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

chapter 4
Constitutional Law
Introduction
Steven Friedland 84
Approach 85
Setting, Achieving, and Evaluating Course Goals
Wilson Huhn 85
Five Common Approaches
Steven Friedland 87
At the Heart of a Course in Constitutional Law
Sanford Levinson 88
On Interpretation: The Adultery Clause of the Ten Commandments
Paul Finkelman and Sanford Levinson 90
Embracing the History of the Constitution
Sanford Levinson 94
Teaching a Course on the Constitution: Finding and Using Founding Documents
Thomas E. Baker 95
Self-Reflection within the Academy: The Absence of Women in Constitutional Jurisprudence
Karin Mika 97
Problem Solving and Storytelling
William Kaplin 97
Setting the Stage for Interpretation
Stephen Wermiel 99
The State of the Canon in Constitutional Law: Lessons from the
Jurisprudence of John Marshall
David E. Marion 99
Biggest Challenges
Nat Stern, Paul Finkelman, Stephen Wermiel, Andrew R. Klein, Sanford Levinson 99
The First Class: Marbury v. Madison or Other?
Steven Friedland 100
Yes to Marbury
Evan Caminker 100
No to Marbury
Sanford Levinson 101
Teaching Dred Scott
Diane S. Kaplan 103
Teaching the Freedom of Speech: Simon & Schuster; Prior Restraints; Obscenity;
Fighting Words; Commercial Speech; and the Freedom of Association
Stephen L. Sepinuck 107
81

82 Constitutional Law
Employing the Socratic Method
Dan T. Coenen 108
Top Cases
Nat Stern, Stephen Wermiel, Sanford Levinson 110
“Circles of Indecency”
Richard J. Peltz 111
Material 114
Casebook and Supplement
Thomas E. Baker 114
Problem-Solving Materials
William Kaplin 114
Storytelling Materials
William Kaplin 115
On Discrimination
Dan Levin 116
Web-Enhanced Constitutional Law
Alfred R. Light 116
Constitutional Law on Videotape
Steven Friedland 118
Internet Sites Can Make a Web-Based Course
Thomas E. Baker 119
Exercises 120
A List of Regulated Types of Speech
Stephen L. Sepinuck 120
Mock Oral Arguments
Stephen Wermeil 120
A Quiz on the Constitution
Steven Friedland 120
Illustrating the Levels of Scrutiny in Equal Protection Analysis
Stephen L. Sepinuck 120
Humanizing Papers
Stephen L. Sepinuck 121
Mock Admissions Committee
Steven Friedland 121
Drafting Student Opinions in Roe v. Wade
Stephen L. Sepinuck 122
Brief Gems 122
Using Hypotheticals as Advocacy Practice
Andrew R. Klein 122
Teaching the Free Exercise of Religion: Employment Division, Department of Human Resources
Stephen L. Sepinuck 123

Constitutional Law 83
Reading Out Loud
Sanford Levinson 123
Teaching Roe v. Wade
Peter Shane 123
The Second Amendment as Teaching Tool in Constitutional Law Classes
Eugene Volokh 124
Feedback and Evaluation 125
Using Quizzes
Thomas E. Baker 125
Extra Optional Reviews
Steven Friedland 126
Opinion Writing Assignment
Thomas E. Baker 127

84 Constitutional Law
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 subject’s 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 professor’s organization and treatment of the material,
whether the professor chooses to orient the reading list toward the approach taken by the different members of

Constitutional Law 85
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 one’s 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 Marshall’s 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.

86 Constitutional Law
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. Was there “state action?”
II. Did the government treat two groups differently?
III. Did the government intend to discriminate?
IV. Did the law affect a suspect class, use a suspect classification, or affect a fundamental right?
V. 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 one’s 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 one’s
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

Constitutional Law 87
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 don’t 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.
Five Common Approaches
Wilson Huhn, University of Akron Law Center
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

88 Constitutional Law
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 judge’s 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 Boyle’s Anatomy of a Tort Class, 34 Am. U. L. Rev. 1003 (1985).
At the Heart of a Course in Constitutional Law
The following is from the syllabus that I distribute to students.
Steven Friedland, Nova Southeastern University Law Center
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

Constitutional Law 89
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 Hughes’s notion as an analytic truth of constitutional meaning, on the other hand, would
make criticism of the Court’s 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 Beethoven’s
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 can’t 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-

90 Constitutional Law
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 don’t 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 Court’s self-designated role, as described in a number of recent opinions, as
the Constitution’s “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 don’t 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: “I’ve found that the Bible contains an answer to
just about everything and every problem that confronts us, and I wonder sometimes why we won’t 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

Constitutional Law 91
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 husband’s possession ... ,
and adultery constituted a violation of the husband’s exclusive right to her; the wife, as the husband’s
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 A’s 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 Black’s Law Dictionary that “Adultery is the voluntary sexual intercourse of a married person with a person
other than the offender’s 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 Black’s 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
Christ’s 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 II’s 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 Pope’s
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

Constitutional Law 93
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 else’s 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
A’s 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 Foundation’s 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 Foundation’s 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 family’s 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 court’s 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
shouldn’t 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. Mencken’s A New Dictionary of Quotations
654–62 (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 gymnast’s 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-train’d, intuitive, used to depend on them-

94 Constitutional Law
selves, and not on a few coteries of writers. W. Whitman, Democratic Vistas, in WALT WHITMAN: POETRY
AND PROSE 992–93 (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
3:4–6 (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, 644–45 (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).
Embracing the History of the Constitution
Paul Finkelman, University of Tulsa College of Law
Sanford Levinson, University of Texas School of Law
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.
Teaching a Course on the Constitution:
Finding and Using Founding Documents
Sanford Levinson, University of Texas School of Law
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

96 Constitutional Law
Gordon Wood’s 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 scholar’s filter. But there are some really
good one-volume sets of primary documents out there, such as Neil H. Cogan’s Contexts of the Constitution
(1999); Daniel A. Farber and Suzanna Sherry’s, A History of the American Constitution (1990); and John J. Patrick’s
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 Wood’s classic
intellectual history, The Creation of the American Republic 1776–1787 (1969) and the more accessible and more
broad-ranging survey by Forrest McDonald, Novus Ordo Seclorum (1985).
We also included Jules Lobel’s 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 Kermit’s 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 Garatty’s 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 university’s 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.)
Self-Reflection within the Academy:
The Absence of Women in Constitutional Jurisprudence
Thomas E. Baker, Florida International University College of Law
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 Boulding’s 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 Boulding’s 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.
Problem Solving and Storytelling
Karin Mika, Cleveland State University College of Law
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 student’s 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

98 Constitutional Law
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 law’s 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 story’s 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.

Constitutional Law 99
(This is excerpted from Problem Solving and Story Telling in Constitutional Law Courses, 21 Seattle U. L. Rev.
885, 886–887, 888–891 (1998).)
Setting the Stage for Interpretation
William Kaplin, Columbus School of Law, The Catholic University of America
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 can’t answer a question if it isn’t 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.
The State of the Canon in Constitutional Law:
Lessons from the Jurisprudence of John Marshall
Stephen Wermiel, American University College of Law
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).)
Biggest Challenges
David E. Marion, Hampden-Sydney College Department of Political Science
One challenge is recognizing that most students don’t 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

100 Constitutional Law
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 Court’s 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.
The First Class: Marbury v. Madison or Other?
Sanford Levinson, University of Texas School of Law
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 Constitution’s 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.
Yes to Marbury
Steven Friedland, Nova Southeastern University Law Center
I have always taught Marbury, and I don’t 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

No to Marbury
Constitutional Law 101
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 McCloskey’s classic The American Supreme Court, which includes
what David Engdahl has described as an “absurd [and] romanticized account of Marshall’s 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 Ackerman’s as yet unpublished account of the election of 1800 and its aftermath
or, for that matter, my colleague Scot Powe’s excellent description of the politics of Marbury in his contribution
to this symposium. In any event, McCloskey’s 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-

102 Constitutional Law
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 Marbury’s 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.

Constitutional Law 103
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
resumé 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 Marshall’s “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 Holmes’s 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 one’s 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 Marshall’s 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 don’t,
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 Shouldn’t Either, 38 Wake Forest L. Rev. 553 (2003).)
Teaching Dred Scott
Sanford Levinson, University of Texas School of Law
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

104 Constitutional Law
from Orlando Patterson’s 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 court’s 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 Court’s 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 Scott’s attorneys since, if Scott appealed the
Missouri Supreme Court’s 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 court’s diversity jurisdiction. Sandford challenged the court’s jurisdiction on the grounds that,
as a slave, Scott could not be a citizen of Missouri and, therefore, could not invoke the federal court’s
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

Constitutional Law 105
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. 9–10)
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 nahsa’i, 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 one’s 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 captor’s society. The stain of slavery was indelible. Social death was like
physical death: once dead, you remained dead.” (Freedom, pp. 12–13)
Professor: What was the slave’s 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 community’s
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

106 Constitutional Law
Professor: Were any of these changes possible?
Students: Only if the slave were freed. Once freed he was no longer another man’s 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 master’s 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 couldn’t 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 wasn’t 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 can’t 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 Taney’s 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 Dissent’s 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: ....

Constitutional Law 107
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 York’s “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 statute’s 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.

108 Constitutional Law
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 don’t 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 Black’s 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.
Employing the Socratic Method
Stephen L. Sepinuck, Gonzaga University School of Law
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 one’s teaching, as well as some new insights about
one’s 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

Constitutional Law 109
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 Congress’s 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 student’s 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-

110 Constitutional Law
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 one’s 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 one’s 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.
Top Cases
Dan T. Coenen, University of Georgia School of Law
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

Constitutional Law 111
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)
• Lincoln’s suspension of habeas corpus
• Strauder v. West Virginia, 100 U.S. 303 (1879)
• Home Building and Loan Ass’n 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 Lincoln’s
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 Holmes’s opinion in Giles v. Harris that whatever may be the extent of
Alabama’s 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.
“Circles of Indecency”
Sanford Levinson, University of Texas School of Law
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.

112 Constitutional Law
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 Media’s First Amendment
Protection (1996); American Amusement Mach. Ass’n v. Kendrick, 115 F. Supp. 2d 943 (S.D. Ind. 2000), rev’d
& 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

CP
Indecency (Cohen, 1971)
Constitutional Law 113
Circles of Indecency
OM
Ob
Pornography (Hudnut, 7th Cir. 1985)
Obscenity to Minors (Ginsberg, 1968)
Child Pornography* (Osborne, 1990)
Obscenity* (Miller, 1973)
* Illegal
I
P
I Carlin, Seven Dirty Words
P Anita Hill testimony
OM “so-called ‘girlie’ magazines”
CP lewd photos of children
Ob usually, Deep Throat the movie

114 Constitutional Law
Casebook and Supplement
Material
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 Garatty’s 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 O’Brien’s 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.)
Problem-Solving Materials
Thomas E. Baker, Florida International University College of Law
[Numerous] problems and problem sets appear throughout the text of Constitutional Law: Themes for the Constitution’s
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’ Teacher’s
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: It’s 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 899–902.)
William Kaplin, Columbus School of Law, The Catholic University of America

Storytelling Materials
Constitutional Law 115
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 people’s
lives. The story I use about the Cruzan family is an example. There are also two stories [in Constitutional Law:
Themes for the Constitution’s 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 Court’s first right-to-die case, Cruzan v. Director, Missouri
Department of Health. This compelling story extends far beyond the Court’s decision and culminates with the
apparent suicide of Nancy’s 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 Prince’s 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 Prince’s Cook” was told by Chuang Tzu, a Chinese Monk in ancient
times. See “Cutting Up an Ox” in The Way of Chuang Tzu 64–67 (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. 9–13 (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 903–905, & 904 n. 119.)
William Kaplin, Columbus School of Law, The Catholic University of America

116 Constitutional Law
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, Boulding’s essay appears, in my view, to explain the causes behind
a wide variety of discriminatory behavior.
I assign Boulding’s 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 Boulding’s essay leads to a lively and enlightening discussion about the nature of discrimination.
Web-Enhanced Constitutional Law
Dan Levin, Minnesota State University, Mankato College of Business
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-

Constitutional Law 117
terly’s 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 Chemerinsky’s 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 Professor’s 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 day’s 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
Channel’s 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 Rockwell’s images
on Roosevelt’s Four Freedoms, and audio excerpts of FDR’s 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 course’s 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

118 Constitutional Law
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.
Constitutional Law on Videotape
Alfred R. Light, St. Thomas University School of Law
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 Springsteen’s 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 Zandt’s 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 can’t understand.
23 million can’t vote because they’re black,
We’re stabbing our brothers and sisters in the back.
I ain’t 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 couldn’t 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 government’s 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: America’s Civil Rights Years, 1954–1965. 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 (1954–1956)”; “Fighting Back
(1957–1962)”; “Ain’t Scared of Your Jails (1960–1961)”; “No Easy Walk (1962–1966)”; “Mississippi: Is This
America? (1962–1966)”; 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.
Internet Sites Can Make a Web-Based Course
Steven Friedland, Nova Southeastern University Law Center
There are many Internet sites that could be linked together into a web-based course. For example, Philip Kurland’s
and Ralph Lerner’s 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 Franklin’s 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 Hamilton’s “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-

120 Constitutional Law
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 don’t forget the Supreme Court’s
own homepage (http://www.supremecourtus.gov).
A List of Regulated Types of Speech
Thomas E. Baker, Florida International University College of Law
Exercises
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.
Mock Oral Arguments
Stephen L. Sepinuck, Gonzaga University School of Law
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. I’ll have two students on each side and nine justices who are expected
to ask questions. Sometimes I’ll also have them act as a constitutional convention, deciding what they would like
to change and why.
A Quiz on the Constitution
Stephen Wermeil, American University College of Law
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-President’s 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?
Illustrating the Levels of Scrutiny in Equal Protection Analysis
Steven Friedland, Nova Southeastern University Law Center
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

Constitutional Law 121
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.
Humanizing Papers
Stephen L. Sepinuck, Gonzaga University School of Law
One of my goals for Constitutional Law is to humanize the subject: it’s not whether children must salute the
flag, it’s whether Lillian and William Gobitas can be expelled for refusing to do so. Similarly, it’s 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 Court’s 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 Court’s 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.
Mock Admissions Committee
Stephen L. Sepinuck, Gonzaga University School of Law
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-

122 Constitutional Law
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; I’m 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.”
Drafting Student Opinions in Roe v. Wade
Steven Friedland, Nova Southeastern University Law Center
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 Court’s 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 court’s 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.
Using Hypotheticals as Advocacy Practice
Brief Gems
Stephen L. Sepinuck, Gonzaga University School of Law
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

Teaching the Free Exercise of Religion:
Employment Division, Department of Human Resources
Constitutional Law 123
In discussing the free exercise of religion — and in particular the Supreme Court’s 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.
Reading Out Loud
Stephen L. Sepinuck, Gonzaga University School of Law
Probably the most important thing I do out of the ordinary is that I begin the course by having students read
aloud Madison’s 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.
Teaching Roe v. Wade
Sanford Levinson, University of Texas School of Law
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 counsel’s 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

124 Constitutional Law
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 lawyer’s 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 there’s 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 side’s” argument might make
students more open to the other side’s 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 it’s 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 Needn’t 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.

Constitutional Law 125
(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.)
Using Quizzes
Eugene Volokh, University of California, Los Angeles School of Law
Feedback and Evaluation
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 school’s formal written student policy, I take into account a student’s 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
day’s 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 Court’s 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 school’s 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

126 Constitutional Law
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 student’s law school mailbox.
Typically, I will start that day’s 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 day’s 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 day’s 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 school’s 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.)
Extra Optional Reviews
Thomas E. Baker, Florida International University College of Law
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

Constitutional Law 127
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.
Opinion Writing Assignment
I assign the following:
Steven Friedland, Nova Southeastern University Law Center
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 Court’s 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 1–6 & 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 student’s 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

chapter 5
Contracts
Approach 131
Learning about Rules from the Legal Duty Rule
Joel K. Goldstein 131
International Law in First-Year Contracts
Mark A. Drumbl 132
Getting to Know Students and Involving Them in Class Pedagogy
Charles Calleros 133
Active-Learning Overview in Contracts
Greg Sergienko 134
Symposium on Teaching Contracts
Gerald Hess 135
Material 137
Teaching Consideration from Original Leading Cases
Val D. Ricks 137
Great Contracts Cases
Celia Taylor 138
Using Electronic Commerce to Teach a Transactional Viewpoint
Christina L. Kunz 139
Ethics: Client Interviews and Witness Preparation
Charles Calleros 140
Disney Films Teach the Basics of Contract Law
Gerald Hess 141
Exercises 141
A Contracts Drafting Challenge
Ron Brown 141
Contract Negotiating and Drafting
Alison Grey Anderson 142
The Parol Evidence Rule and the “Living Contract”
Paula A. Franzese 144
Exploring the Difficult Concept of Reciprocal Inducement
Charles Calleros 145
A Soap Opera and Lesson on Contract Damages
Hazel Glenn Beh 148
129

130 Contracts
Williams v. Walker-Thomas Exercise
Alison Grey Anderson 149
Contract Interpretation and Life Experiences
Irma S. Russell 150
Brief Gem 151
Unannounced Student Teaching
Celia Taylor 151
Feedback and Evaluation 152
Feedback Form
Charles Calleros 152
Preparing Students for Outlining and Exam Taking
Charles Calleros 152
Final Class Session — Maintaining Perspective
Charles Calleros 152

Contracts 131
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 party’s 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 Josh’s yard for $20 on Tuesday afternoon, her
subsequent promise to rake the yard (or performance of her preexisting duty) is not consideration for Josh’s
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 rule’s 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 rule’s 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 rule’s 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

132 Contracts
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.
International Law in First-Year Contracts
Joel K. Goldstein, Saint Louis University School of Law
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 32–49 (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:

• 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).
Contracts 133
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 I’ll 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 student’s background and

134 Contracts
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.]
Active-Learning Overview in Contracts
Charles Calleros, Arizona State University College of Law
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 I’m 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 here’s 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:

Dear Mom:
I promise to give you my apartment on Queen Anne Hill.
Merry Christmas!!
Your son,
Greg
Contracts 135
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, don’t 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 one’s mother.
Symposium on Teaching Contracts
Greg Sergienko, Western State University College of Law
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

136 Contracts
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

Contracts 137
Material
Teaching Consideration from Original Leading Cases
Consideration confuses students. It makes assent redundant, for instance, because promise and mutual inducement
imply assent. And consideration’s bargain focus seems like laissez faire next to unconscionability. On
the other hand, consideration’s paternalism seems exceptional next to assent’s 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. Assent’s redundancy and consideration’s 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 Hadley’s inconsistencies as an opinion, however. Most are condensed lawyer’s 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 today’s 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 Golding’s 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 141–43 (1999); J.H. Baker,
Origins of the “Doctrine” of Consideration, reprinted in The Legal Profession and the Common Law 369, 371–74
(1986).)
Bargain/Reciprocity:
• Christopher St. Germain, Doctor & Student, 2d Dial., ch. 24 (1531) (passage at the end of the student’s 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.)

138 Contracts
Benefit:
• Reynolds v. Pinhowe, Cro. Eliz. 429, 78 ER 669; Moore 412, 72 ER 663 (Queen’s 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 (Queen’s Bench & Exchequer Chamber 1602)
(later compare with Wood v. Lucy, Lady Duff-Gordon).
• Game v. Harvie, Yelv. 50, 80 ER 36 (King’s Bench 1605).
Detriment:
• St. Germain, infra, 2d Dial., ch. 24 (passage near middle of student’s 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).
• Storer’s 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 Storer’s 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 (Queen’s Bench 1589) (contrast this case with Game v. Harvie;
you’ll 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 (King’s 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 consideration’s doctrinal development:
• The works of Baker and Ibbetson cited above, passim (or at least in Ibbetson’s 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: Slade’s 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 Spelman’s Reports, 94 Selden Society 286–98 (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).
Great Contracts Cases
Val D. Ricks, South Texas College of Law
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)
Using Electronic Commerce to Teach a Transactional Viewpoint
Celia Taylor, University of Denver College of Law
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. 00-962-
2001 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

140 Contracts
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.
Ethics: Client Interviews and Witness Preparation
Christina L. Kunz, William Mitchell College of Law
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 185–86 (“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 aunt’s 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 aunt’s 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, Don’t 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 witness’s testimony. These are vivid, concrete ways of generating
animated discussion of ethical questions raised by the problem in the casebook.
Disney Films Teach the Basics of Contract Law
Charles Calleros, Arizona State University College of 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.
A Contracts Drafting Challenge
Exercises
Gerald Hess, Gonzaga University School of Law
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 casebook’s table of contents
revealed that the subject covered the creation of obligations and the remedies available to enforce them. I

142 Contracts
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 don’t take what he’s 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.)
Contract Negotiating and Drafting
Ron Brown, Nova Southeastern University Law Center
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-

Contracts 143
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 don’t 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. Mike/Mary Mendes
Team Member 2. Lawyer for Mendes
Team Member 3. Susie/Sam Carr
Team Member 4. 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 — it’s 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 Carr’s 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

144 Contracts
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.
The Parol Evidence Rule and the “Living Contract”
Alison Grey Anderson, University of California, Los Angeles School of Law
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 statute’s 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 contract’s 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. Here’s 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 he’s 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.] “I’d like
all of you to imagine that Leonard is a contract. This morning, all of us, parties to this contract, gathered in
Leonard’s closet to determine this deal’s relevant terms. Here’s 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 deal’s 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 group’s 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 wasn’t 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 doesn’t fit.

Contracts 145
When we met in the closet this morning, we obviously talked about and decided on a shirt term. That’s why our
contract, Leonard, is wearing one. Deals entered into with some modicum of care don’t 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 it’s
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.”
Exploring the Difficult Concept of Reciprocal Inducement
Paula A. Franzese, Seton Hall University School of Law
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 50–51 (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
promisor’s 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 court’s opinion cryptically explains
majority and dissenting votes in two sentences, leaving much room for students to speculate about the court’s
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 50–52. 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
Ormond’s 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

146 Contracts
(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 client’s 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 6–7 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 party’s 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 Year’s Eve party and discuss their resolutions for the New
Year:
Bob — “I promise you this, I’m not going to take another drink for the rest of the year.”
Jan — “Good for you. I’ve quit smoking; I promise you that I won’t have another cigarette for the rest of
the year.”
b. Bob and Jan meet for brunch after a wild New Year’s 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 Debbie’s past acts and because Debbie’s 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.

Contracts 147
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. He’s 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. We’ll get it somehow.
Dan: Well, we heard as much, and we’d 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, let’s all meet at the bank at noon and
arrange the transfer of funds.
Debbie: I’ll 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. It’s ours for the taking.
Dan: No fooling!! That’s great!!
Nancy: But we’ll 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, we’ve got a conference call!
....
Bad news?
....
Oh no, you promised to help, and now I’m counting on you. I’ve been working so hard for this dream.
....
Debbie: Well, I don’t 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, we’ve 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.
....
I’ll need more than luck. I’m 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.

148 Contracts
Yes, I know you are still angry with me about missing the wedding, and I know that you don’t want to see me
or speak to me again, but you can’t 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 café. I would like to give you $10,000 to get started. If you will
just agree to meet me for lunch next Monday at Tomaso’s Restaurant, we can go to the bank after lunch to
transfer the funds.
....
You agree? Great, I’ll see you Monday.
A Soap Opera and Lesson on Contract Damages
Charles Calleros, Arizona State University College of Law
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 party’s 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.
SCRIPT ONE:
LOVE & LAW: THE BREAK-UP
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 can’t 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 doesn’t deserve it — and it was mine before it was
Dale’s.
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 can’t 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 Dale’s. 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].

SCRIPT THREE:
Contracts 149
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 can’t 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].
Williams v. Walker-Thomas Exercise
Hazel Glenn Beh, University of Hawaii William S. Richardson School of Law
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-Thomas’s marketing methods (from pages 744–745 of the Wisconsin casebook by Macaulary, Kidwell,
Whitford, and Galanter, Contracts: Law in Action— it’s 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 shouldn’t
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.
It’s 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.)

150 Contracts
______ 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.
Contract Interpretation and Life Experiences
Alison Grey Anderson, University of California, Los Angeles School of Law
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 court’s discussion included references to numerous
usage of trade cases, including trade terminology from bricklaying, shingle sales, and other areas, demon-

Contracts 151
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 court’s 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 don’t 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.
Unannounced Student Teaching
Brief Gem
Irma S. Russell, University of Memphis School of Law
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

152 Contracts
Feedback Form
Feedback and Evaluation
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. Identify at least one important concept that you believe you learned well in this course during the week. What
teaching techniques worked well?
2. 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?
Preparing Students for Outlining and Exam Taking
Charles Calleros, Arizona State University College of Law
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, 49–62 (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).
Final Class Session — Maintaining Perspective
Charles Calleros, Arizona State University College of Law
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

chapter 6
Criminal Law
Approach 155
Introduction and Three Approaches to Criminal Law
Steven Friedland 155
Comparative and International Concepts
Richard S. Frase 156
Teaching Criminal Law to Undergraduate Students
Craig Hemmens 156
Challenges in Teaching Criminal Law
Steven Friedland 158
The Challenging Student
Kate Bloch 158
Three Pillars of the Classroom Community: Demystification, Rapport, and Engagement
Kate Bloch 159
Material 160
Movies and Videos
Kevin McMunigal, David McCord, Steven Friedland 160
Teaching Prostitution Seriously
Beverly Balos 161
Exercises 161
Teaching Constitutional Limitations on Criminalization in One Fun Class
Ellen Suni 161
A Prelude to the Famous Case of Queen v. Dudley & Stephens
David McCord 162
Intellectual Treasure Hunts
Kate Bloch 163
A Plea Bargaining Simulation
Sidney L. Harring 164
Teaching Law, Skills, and Ethics through Negotiation
Jeffrey L. Kirchmeier 166
Teaching Rape
Ellen Suni 167
Using Teaching Assistants to Put Criminal Law in Context
Stacy Caplow 168
153

154 Criminal Law
A Three-Hour Tour . . .
Steven Friedland 171
Moral Geography
Steven Friedland 171
Brief Gems 172
The First Day of Class
Kevin McMunigal 172
The Elements of a Crime and Chocolate Chip Cookies
Jeffrey Ershler 172
Feedback and Evaluation 172
Final Exam on the First Day of Class and throughout the Course
David Dominguez 172
Practice Exams and Quizzes
Kevin McMunigal 173

Criminal Law 155
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 actor’s 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 actor’s 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 actor’s 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

156 Criminal Law
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.
Comparative and International Concepts
Steven Friedland, Nova Southeastern University Law Center
“For most students taking introductory criminal justice courses in American law schools, the world beyond
the United States’s 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).]
Teaching Criminal Law to Undergraduate Students
Richard S. Frase, University of Minnesota Law School
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

Criminal Law 157
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 Samaha’s 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 Robinson’s 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

158 Criminal Law
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.
Challenges in Teaching Criminal Law
Craig Hemmens, Boise State University Department of Criminal Justice Administration
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 professor’s 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.
The Challenging Student
Steven Friedland, Nova Southeastern University Law Center
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 I’ve 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 student’s 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 student’s tone or approach, the student clearly articulated
his/her argument, I might acknowledge the student’s ability to advocate for a position with clarity. Affirming the
student’s 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 I’ve 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 don’t know if this approach would succeed with stu-

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dents whose challenges have already undermined the professor’s 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.
Three Pillars of the Classroom Community:
Demystification, Rapport, and Engagement
Kate Bloch, University of California, Hastings College of the Law
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 it’s 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. We’re 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
children’s 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 White’s The Official Lawyer’s Handbook (p. 224).
It depicts three bears who seem to be consulting a lawyer about Goldilocks’s 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.

160 Criminal Law
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 don’t 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.
Movies and Videos
Why Video?
Kate Bloch, University of California, Hastings College of the Law
Material
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 don’t 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.
What Video?
Hollywood movie excerpts that make for good discussions:
Kevin McMunigal, Case Western Reserve University Law School
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 wife’s 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 Thelma’s urgent
insistence and immediately learns of the robbery. Use in conjunction with accomplice liability.
The Grifters. Begins with Anjelica Huston breaking into Jon Cusack’s 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.
What Video II?
Two examples of useful videos include the following:
David McCord, Drake Law School
• 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.
Teaching Prostitution Seriously
Steven Friedland, Nova Southeastern University Law Center
“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 teacher’s 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).]
Exercises
Beverly Balos, University of Minnesota Law School
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 Dressler’s Understanding
Criminal Law (chapters 5 and 6). I give the students some problems to work through on their own

162 Criminal Law
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 they’ve 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.
A Prelude to the Famous Case of Queen v. Dudley & Stephens
Ellen Suni, University of Missouri-Kansas City School of Law
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 — What’s good for people other than the actor? Often religiously based. E.g., Golden Rule
Pure egoism — What’s good for the actor alone? E.g., Nietsche, Ayn Rand
Group egoism — What’s 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 — ship’s 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!)
Intellectual Treasure Hunts
David McCord, Drake Law School
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, it’s 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

164 Criminal Law
groups switch response forms. We then reconvene and the groups grade each other’s 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, that’s 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, I’ve 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
you’ve 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 who’ve proposed various
game formats and inspired this rendition.)
A Plea Bargaining Simulation
Kate Bloch, University of California, Hastings College of the Law
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 isn’t because a “statutory element” is missing. A sexual assault may “look like rape,” but the students
discover that it really isn’t — 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 defendant’s 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 State’s 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 defendant’s 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 defendant’s 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 defendant’s
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 “lawyer’s” 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.
Teaching Law, Skills, and Ethics through Negotiation
Sidney L. Harring, City University of New York School of Law
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 prosecutor’s 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.
Teaching Rape
Jeffrey L. Kirchmeier, City University of New York School of Law
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 Dressler’s 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 party’s 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

168 Criminal Law
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.
Using Teaching Assistants to Put Criminal Law in Context
Ellen Suni, University of Missouri-Kansas City School of Law
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. It’s 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-

170 Criminal Law
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 defendant’s 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

Criminal Law 171
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.
A Three-Hour Tour ...
Stacy Caplow, Brooklyn Law School
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.
Moral Geography
Steven Friedland, Nova Southeastern University Law Center
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

172 Criminal Law
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.
The First Day of Class
Steven Friedland, Nova Southeastern University Law Center
Brief Gems
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 state’s 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.
The Elements of a Crime and Chocolate Chip Cookies
Kevin McMunigal, Case Western Reserve University Law School
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.
Feedback and Evaluation
Final Exam on the First Day of Class and throughout the Course
Jeffrey Ershler, Lynn University
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 other’s 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 committee’s 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, women’s shelters, legislative assistants, public defenders, and prosecutors.
Where it is useful, the teams follow up with visits to explain, for example, how a women’s shelter might propose
new wording or new definitions for a revised statute.
Practice Exams and Quizzes
David Dominguez, Brigham Young University, J. Reuben Clark Law School
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 can’t 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-

174 Criminal Law
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

chapter 7
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 178
Using Non-Fiction “Table Setters” to Enrich the Course
Michael Perlin 178
Adding a Comparative Perspective to American Criminal Procedure Classes: Germany
Albert W. Alschuler 179
Creating a Set of Materials on a CD
Johnny C. Burris 180
Exercises 180
The Mock Arrest
Pamela Bucy 180
Student Prosecutors and Defense Counsel
Melissa Tatum 180
Motions to Suppress Evidence
Christine Hutton 181
Serving a Search Warrant
Pamela Bucy 181
Using Narratives to Teach “Stop and Frisk”
Ellen Suni 181
Brief Gems 182
A Noteless Approach
Christine Hutton 182
Explaining the “Big Picture” of Crim Pro
Catherine Arcabascio 182
175

176 Criminal Procedure
Teaching Cases with Practical Impact
Pamela Bucy 182
Motivating Students to Read Statutes Effectively
Melissa Tatum 183
Centering on the Facts
Christopher Slobogin 185
Feedback and Evaluation 185
Using Multiple-Choice Questions to Teach Application of the Law
Ellen Suni 185

Criminal Procedure 177
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 Amendment’s prohibition
against unreasonable search and seizure, the Fifth Amendment’s privilege against self-incrimination, and the Sixth
Amendment’s 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 course’s 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 subject’s 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

178 Criminal Procedure
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.
Fusing Crime Stories and Class
Steven Friedland, Nova Southeastern University Law Center
Material
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.
Using Non-Fiction “Table Setters” to Enrich the Course
Catherine Arcabascio, Nova Southeastern University Law Center
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. I’ve done this in Mental
Health Law since 1985 (using Susan Sheehan’s Is There No Place on Earth For Me? (1983)) and in Civil Procedure
since 1990 (using Gerald Stern’s The Buffalo Creek Disaster (1977)), and it’s 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 — it’s 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.
I’m 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 haven’t 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, 67–68 n. 15 (2000)).
NHNV involves a fact pattern that law professors couldn’t 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

Criminal Procedure 179
was unaware of Skagen’s 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 Phillips’s 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 I’ve run into students a year or two after they’ve
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 didn’t identify himself in this context until the last day of class — had actually
worked on patrol with the decedent. Res ipsa ...
Adding a Comparative Perspective to American
Criminal Procedure Classes: Germany
Michael Perlin, New York Law School
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 writer’s description
of an intriguing German homicide trial. Langbein’s 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 Langbein’s 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 actor’s 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

180 Criminal Procedure
independent responsibility for truth finding judges should have. Under this last heading, the class considers how
Langbein’s 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.
Creating a Set of Materials on a CD
Albert W. Alschuler, University of Chicago Law School
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 instructor’s 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.
The Mock Arrest
Johnny C. Burris, Nova Southeastern University Law Center
Exercises
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.
Student Prosecutors and Defense Counsel
Pamela Bucy, University of Alabama School of Law
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

Criminal Procedure 181
policies and how they work together. During each class period, I briefly review the relevant set of rules and policies
for the day’s 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.
Motions to Suppress Evidence
Melissa Tatum, University of Tulsa College of Law
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.
Serving a Search Warrant
Christine Hutton, University of South Dakota School of Law
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.
Using Narratives to Teach “Stop and Frisk”
Pamela Bucy, University of Alabama School of Law
As I have taught Criminal Procedure through the years (and “stop and frisk” in particular), I’ve 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 other’s 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.

182 Criminal Procedure
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.
A Noteless Approach
Ellen Suni, University of Missouri-Kansas City School of Law
Brief Gems
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 student’s if I happen to be walking around the room.
Explaining the “Big Picture” of Crim Pro
Christine Hutton, University of South Dakota School of Law
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.
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)
Catherine Arcabascio, Nova Southeastern University Law Center
Pamela Bucy, University of Alabama School of Law

Motivating Students to Read Statutes Effectively
Criminal Procedure 183
One common factor running through the rule- or statutory-based courses I’ve 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 I’d 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 we’re 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 group’s 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 dealer’s 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 don’t satisfy f(1)(a) and it doesn’t 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 can’t 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.

184 Criminal Procedure
2. 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 state’s 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 isn’t “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; doesn’t 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 Paula’s 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

. What is the maximum possible sentence?
Criminal Procedure 185
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 Paula’s 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.”
Centering on the Facts
Melissa Tatum, University of Tulsa College of Law
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 Court’s 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-

186 Criminal Procedure
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

chapter 8
Evidence
Introduction
Steven Friedland 189
Approach 189
Three Approaches
Steven Friedland 189
Evidence Has Something for Every Student
Lynn McLain 190
Hypotheticals and Hearsay
Welsh White 191
Evidence and Trial Advocacy Courses, Side By Side
Robert P. Burns 192
Performance and Application in Small Groups
Linda E. Carter 193
The Need to Integrate Legisprudence into the Evidence Course
Ed Imwinkelried 194
Challenges in Teaching Evidence
Steven Friedland, Jack Sahl, Andrew Taslitz 196
Additional Perspectives
Steven Friedland 197
Material 198
Five Helpful Evidence Cases
Andrew Taslitz, Jack Sahl 198
Teaching Race Issues in the Required Evidence Course
Isabelle R. Gunning 198
Classic Cases, Newspapers, and Trial Transcripts
Lynn McLain 199
Movies
Paul Bergman 200
Music and Movies, Not Notes
Christine Hutton 200
My Cousin Vinny, Revisited
Steven Friedland 201
Hearsay Analysis and Problem
Lynn McLain 201
187

188 Evidence
Comparing Federal and State Rules of Evidence Using Side-By-Side Charts
John Barkai 202
Exercises 203
First-Day Exercises
Andrew Taslitz, Jack Sahl 203
Teaching Evidence from a Practical Perspective — Using Small-Group Advocacy Exercises
John Barkai 203
Teaching Hearsay through Structured Courtroom Observation
Beryl Blaustone 204
Brief Gems 205
Storytelling in the Classroom
Beryl Blaustone 205
Mock Trial
Steven Friedland 205
Courtroom Observation
Christine Hutton 206
Mock Witness Examination
Jack Sahl 206
Laying the Foundation
Christine Hutton 206
Teaching Evidence through the Drafting of Jury Instructions
Beryl Blaustone 206
Teaching Hearsay through Role Play
Louis Haffner 207
Feedback and Evaluation 207
Multiple-Choice Feedback
Paul Bergman 207
Practice Exam, Midterm, Closed-Book Final
Lynn McLain 208
Testing Federal and State Rules of Evidence
John Barkai 208
Performance Tests
William Slomanson 208
Cartoons, Captions, and Mnemonics on the Exam
John Barkai 209
Midterm Student Evaluations
Paul Bergman 209

Evidence 189
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 state’s 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.
Three Approaches
Case Law
Steven Friedland, Nova Southeastern University Law Center
Approach
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.

190 Evidence
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 accused’s
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.
Evidence Has Something for Every Student
Steven Friedland, Nova Southeastern University Law Center
If there is one fantasy most law students have had, it is the fantasy of so skillfully conducting cross-examination
that the opponent’s witness is exposed as a liar and the opponent’s 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

Evidence 191
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 can’t 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 judge’s 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.
Hypotheticals and Hearsay
Lynn McLain, University of Baltimore School of Law
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 clerk’s 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

192 Evidence
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 don’t fit neatly into this structure.
Evidence and Trial Advocacy Courses, Side By Side
Welsh White, University of Pittsburgh School of Law
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 student’s 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-

Evidence 193
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 teacher’s 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.
Performance and Application in Small Groups
Robert P. Burns, Northwestern University School of Law
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-

194 Evidence
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 American’s representation of a client depended
largely on the quality of the lawyer’s skill in case analysis. Modernly, the caliber of the representation often depends
on the lawyer’s 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

Evidence 195
text of] a Rule,” the legislative history material trumps the apparent plain meaning. However, in the period since
the release of Professor Cleary’s 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 defendant’s 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 Thayer’s and Morgan’s 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

196 Evidence
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 Imwinkelried’s 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

Evidence 197
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.
Additional Perspectives
Andrew Taslitz, Howard University School of Law
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

198 Evidence
Five Helpful Evidence Cases
Material
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, Daubert’s 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
Teaching Race Issues in the Required Evidence Course
Jack Sahl, University of Akron Law School
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 defendant’s 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

Evidence 199
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.
Ehle’s testimony can be used to show two propositions: (1) Mills’s 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 defendant’s 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 witness’s] 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.
Classic Cases, Newspapers, and Trial Transcripts
Isabelle R. Gunning, Southwestern University School of Law
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.

200 Evidence
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.
Movies
I use uses film clips, including the following:
Lynn McLain, University of Baltimore School of Law
• From My Cousin Vinny, Marisa Tomei’s 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. It’s 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 didn’t 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.
Music and Movies, Not Notes
Paul Bergman, University of California, Los Angeles School of Law
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 student’s 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 Gaye’s “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

My Cousin Vinny, Revisited
Evidence 201
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. Pesci’s questioning revealed that the length of time it
takes to make real grits contradicts the witness’s claim about having the time necessary to observe the alleged
perpetrators of the crime.
Hearsay Analysis and Problem
Steven Friedland, Nova Southeastern University Law Center
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 Jeb’s dog, Shadow. At trial, Jeb testifies that:
(a) he was walking by with his friend Perkins and saw Shadow in Brian’s yard and
(b) Shadow wagged his tail at Jeb.
(c) Jeb turned to his friend Perkins and said, “That’s my dog!”
(d) Jeb called the police and reported that Brian had stolen his dog.
(e) 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, “That’s 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

202 Evidence
we can discuss why animals are not treated as declarants: (1) try cross-examining them! and (2) they’re 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 Jeb’s dog was in Brian’s
yard, which is the TOMA by Jeb when he made the earlier OCS. Therefore, it is hearsay.
• Sometimes students don’t “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, it’s 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, I’m sure; Brian
stole my dog.” Because it is offered for TOMA, it’s hearsay.
RULE 407. SUBSEQUENT REMEDIAL MEASURES
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.
HAWAII FEDERAL
When, after an event, measures are taken which, When, after an injury or harm allegedly caused
if taken previously, would have made the event by an event, measures are taken that, if taken
less likely to occur, evidence of the subsequent previously, would have made the injury or harm
measures is not admissible to prove negligence less likely to occur, evidence of the subsequent
or culpable conduct in connection with the event. measures is not admissible to prove negligence,
culpable conduct, a defect in a product, a defect
in a product’s design, or a need for a warning or
instruction. [amended in 1997]
This rule does not require the exclusion of This rule does not require the exclusion of
evidence of subsequent measures when offered evidence of subsequent measures when offered
for another purpose, such as proving dangerous for another purpose, such as proving ownership,
defect in products liability cases, ownership, control, or feasibility of precautionary measures,
control, or feasibility of precautionary measures, if controverted, or impeachment.
if controverted, or impeachment.
John Barkai, University of Hawaii William S. Richardson School of Law

First-Day Exercises
Evidence 203
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 women’s 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 wife’s 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 Supplement’s
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.
Teaching Evidence from a Practical Perspective —
Using Small-Group Advocacy Exercises
Jack Sahl, University of Akron Law School
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

204 Evidence
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 statement’s 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 proponent’s 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 student’s 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

Storytelling in the Classroom
Evidence 205
Brief Gems
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 Wigmore’s life in my article, Teaching Evidence: Storytelling in the Classroom, 41 Am. U.L. Rev.
453 (1992).
Mock Trial
Beryl Blaustone, City University of New York School of Law
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 O’Ruben, 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 defendant’s wife for the defense).
The facts are clear and easily grasped. A convenience store, Magruder’s, 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 defendant’s 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 defendant’s car. Sally identified the defendant as the robber
in a later photo array.
There are several problems with the prosecution’s evidence. Sally’s 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 defendant’s
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 defendant’s.
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

206 Evidence
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.
Courtroom Observation
Steven Friedland, Nova Southeastern University Law Center
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.
Mock Witness Examination
Christine Hutton, University of South Dakota School of Law
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.
Laying the Foundation
Jack Sahl, University of Akron Law School
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.
Teaching Evidence through the Drafting of Jury Instructions
Christine Hutton, University of South Dakota School of Law
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

Teaching Hearsay through Role Play
Evidence 207
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 can’t 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, isn’t that correct?
A. Yes, that is correct.
Q. Now, Mr. Bloodstone, I want you to consider this next question carefully. Isn’t 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 client’s body?
A. Woof! Woof!
Multiple-Choice Feedback
Feedback and Evaluation
Louis Haffner, Empire Law School
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 don’t 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

208 Evidence
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 they’d better learn it now, when they’re 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.
Testing Federal and State Rules of Evidence
Lynn McLain, University of Baltimore School of Law
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.
Performance Tests
John Barkai, University of Hawaii Wm. Richardson School of Law
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. That’s 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

Cartoons, Captions, and Mnemonics on the Exam
Evidence 209
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.
Midterm Student Evaluations
John Barkai, University of Hawaii Wm. Richardson School of Law
I ask for feedback from my students with the following midterm course evaluation:
With the semester about half over, I’d 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, I’ve 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_______
We’ve 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?
Let’s discuss cases________ Let’s not_________

210 Evidence
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

chapter 9
Family Law
Approach 213
Why I Use Problems in Teaching Family Law
J. Eric Smithburn 213
Incorporating Experiential Components in Family Law Courses
Barbara Glesner Fines and Mary Kay Kisthardt 214
Problems, Cases, and Topics
Francis Catania 214
An Interactive, Traditional Approach to Family Law
Charles P. Kindregan, Jr. 215
Material 216
Family Law Verses
Robert E. Rains 216
Current Event Handouts
Charles P. Kindregan, Jr. 218
Exercises 218
Interviewing about Families — A First-Day Exercise
Barbara Glesner Fines and Mary Kay Kisthardt 218
Bringing Theater Techniques to the Classroom
Susan B. Apel 219
Understanding Family Law in Context: The Court Observation Assignment
Jane C. Murphy 220
Exploring Scholarly Perspectives: The Expert Panel Role Play
Barbara Glesner Fines and Mary Kay Kisthardt 222
A Skills Workout
Sheila Simon 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

212 Family Law
Negotiating and Drafting a Marital Dissolution Agreement
Barbara Stark 225

Family Law 213
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. I’ve 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 court’s discretion, reviewable by the abuse of discretion
standard. Since there is substantial appellate deference to the trial judge’s 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 student’s 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 Ken’s 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

214 Family Law
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.
Incorporating Experiential Components in Family Law Courses
J. Eric Smithburn, Notre Dame Law School
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 student’s 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).

Family Law 215
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 America’s 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)
An Interactive, Traditional Approach to Family Law
Francis Catania, Widener University School of Law (Delaware)
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 night’s 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.)

216 Family Law
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 school’s 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 school’s highspeed
computer network. (Every seat in Suffolk’s 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.
Family Law Verses
Material
Charles P. Kindregan, Jr., Suffolk University Law School
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))

Family Law 217
• “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 you’ll 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 he’d give a new name a try.
Although you might reckon that “David’s” okay,
David just didn’t quite see things that way.
He filed a petition (typed nice as can be)
Applying to alter his name legally.
He wasn’t 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 state’s 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

218 Family Law
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?”
Exercises
Interviewing about Families — A First-Day Exercise
Charles P. Kindregan, Jr., Suffolk University Law School
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 peer’s, 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 client’s 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? Don’t you imagine
your clients will be very uncomfortable?” We elicit suggestions for facilitators for communication and cover some
basic principles of active listening.

Family Law 219
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 classmate’s 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 other’s 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: 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.
Step #2: 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.
Step #3: 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.”)
Step #4: 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 group’s sentence on the board.
Step #5: 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-

220 Family Law
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

Family Law 221
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. To develop a critical perspective about the operation of courts, including highlighting the differences between
“law in the books” and the “law in operation.”
II. Assignment
A. Court Observation
You are responsible for observing proceedings in a court hearing a domestic relations matter for a 2–3
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 1–3 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
judge’s 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

222 Family Law
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?” Here’s 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.
A Skills Workout
Barbara Glesner Fines and Mary Kay Kisthardt, University of Missouri-Kansas City School of Law
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 client’s 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 that’s what he was, got mad on the wedding night when the power went out and the turkey

Family Law 223
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.
It’s 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 client’s fear is rational, but it’s 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 Clerk’s 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.
That’s 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 doesn’t? 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 they’ll
use in practice too! The students think they’re learning “something useful for a change” while I enjoy watching
them learn family law!
Sheila Simon, Southern Illinois University School of Law

224 Family Law
Abortion Issue
Brief Gem
When we cover abortion, I use the following assignment to encourage students to develop the lawyer’s 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 semester’s 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.

Family Law 225
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 I’ve 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.
Negotiating and Drafting a Marital Dissolution Agreement
Francis Catania, Widener University School of Law (Delaware)
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

226 Family Law
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 Jake’s savings, totaling $5,000, and a $4,000 loan from Lily’s 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 family’s finances, for $5,000 from joint savings with which to open a
bookstore with her sister. Jake told her that they didn’t 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 Lily’s parents, the mortgage, broker’s 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 “Jake’s.” 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.
Jake’s 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 Sister’s Bookstore broke even last year, after paying each sister $3,000. Jake tells his
lawyer that “Jake’s” 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 family’s 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 “Jake’s” 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 family’s tax return for 1998 shows Jake’s 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 & Noble’s health insurance policy. This will not
cover Zoey’s 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 “Jake’s.” Lily would like to keep the house until Zoey graduates from

Family Law 227
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 Drafting—Lily 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 — Jake’s $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 — 16-year marriage
— comfortable standard of living
— legislative preference
2–3 years (training salary plus first year — $12–15,000
two years; $10,000 for third year?)
— lump sum, payable over time, may be a good way for
• in solido Lily to get her share of “Jake’s”
3. Children— 20 pts.
(15 pts.) 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?
(5 pts.) 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:

chapter 10
Federal Income Tax
Approach 231
Teaching Tax through Stories
Paul L. Caron 231
Goals, Philosophy, and Coverage
Nancy Shurtz 231
Statutory Interpretation and the Development of a Civic Perspective
Kim Brooks 232
Problems, Previews, Participation, and Preparation
Leandra Lederman 233
Providing a Framework for Learning
Mary L. Heen 234
Statutory Analysis, Not Arithmetic
Eric Lustig 235
TaxProf: A Virtual Tax Community
Paul L. Caron 235
Material 236
Tax Case Limericks
Leandra Lederman 236
Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases
Paul L. Caron 237
Tax Returns, Casebooks, and Slides
Eric Lustig 237
Text and Handouts
Nancy Shurtz 243
General Outline of Federal Income Tax (Handout)
Leandra Lederman 245
Computing Taxable Gain (Handout)
Leandra Lederman 246
Introduction to Deductions Problems (Handout)
Leandra Lederman 247
Exercises 248
Introducing Statutory Interpretation with Song Lyrics
Kim Brooks 248
229

230 Federal Income Tax
Brief Gems 248
Role-Playing
Nancy Shurtz 248
“Boot”
Leandra Lederman 248
Cartoons
Nancy Shurtz 249
IRC 212 Area Code
Leandra Lederman 249
Getting the Class Started and the Power of Bruce
Kim Brooks 250
“How Would the IRS Ever Know . . .”
Leandra Lederman 250
Feedback and Evaluation 250
Designing Writing Assignments and Exams Based on Course Objectives
Kim Brooks 250
The TaxProf Exam Bank: Practical Help for the Tax Professor
Paul L. Caron 251
Research Paper, Midterm, and Final Exam
Nancy Shurtz 252

Teaching Tax through Stories
Federal Income Tax 231
Approach
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 law’s 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 one’s 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.
Goals, Philosophy, and Coverage
Goals
On my Tax I syllabus, I list the following course objectives:
Paul L. Caron, University of Cincinnati College of Law
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.

232 Federal Income Tax
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;

Federal Income Tax 233
• 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 society’s 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.
Problems, Previews, Participation, and Preparation
Kim Brooks, Queen’s University Faculty of Law
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 taxpayer’s
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 taxpayer’s 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 couple’s 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,

234 Federal Income Tax
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.
Providing a Framework for Learning
Leandra Lederman, George Mason University School of Law
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

Statutory Analysis, Not Arithmetic
Federal Income Tax 235
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.
TaxProf: A Virtual Tax Community
Eric Lustig, New England School of Law
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 Tax-
Prof debate over the appropriate tax treatment of the fan who caught Mark McGwire’s 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 can’t 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 President’s tax return on the first day of class and referring to it periodically through-

236 Federal Income Tax
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.
Tax Case Limericks
Material
Paul L. Caron, University of Cincinnati College of Law
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 format (see Michael
J. Graetz, Tax Case Limericks; The Rest of the Story, 93 Tax Notes 1225 (2001)). Ms. Hevener replied with a letter
to the editor written in rhyme (see Mary B. Hevener, Edward Lear Would be Proud, 93 Tax Notes 1348 (2001)).
During the same time period as this exchange, Tax Notes also published limericks about Gitlitz v. Commissioner,
531 U.S. 206 (2001), and Alexander v. Commissioner, Tax Notes 1115 (2001). The discussion closed with Alvin D.
Lurie’s contribution, An Ode to Crane and Tufts, 93 Tax Notes 1505 (2001). The letters and the limericks make for
fun reading. The following two previously unpublished limericks should serve as something of a sample:
Olk v. United States, 536 F.2d 876 (9th Cir. 1976):
There was a craps dealer named Olk
Who excluded from income his tokes
“No dice” said the court —
Fortune’s bounty was sought
And to you they’re like tips from these folks
Philadelphia Park Amusement Co. v. United States, 130 Ct. Cl. 166 (Ct. Cl. 1954):
Phila. Park made a taxable trade:
rail franchise received, bridge conveyed
Its basis was cost
(franchise value), a loss
when abandoned within a decade
Leandra Lederman, George Mason University School of Law

Federal Income Tax 237
Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases
Tax Stories (Foundation Press, 2003) provides additional raw material to enhance the study of federal income
tax. It tells the stories behind the 10 leading U.S. Supreme Court federal income tax cases, exploring the historic
contexts of these cases and the role they continue to play in our current tax law. Each of the 10 chapters sets forth
the social, factual, and legal background of the case, discusses the various court proceedings and judicial opinions,
and explores the immediate impact and continuing importance of the case. The companion website
(www.law.uc.edu/TaxStories) contains the complete record of the case in the Supreme Court, including the lower
court opinions, briefs of the parties and amici curiae, oral arguments (audiotapes and transcripts, where available),
and the Supreme Court’s opinion.
Tax Returns, Casebooks, and Slides
Paul L. Caron, University of Cincinnati College of Law
I have found that one way of making the subject accessible and topical is to begin the course with something
that most, if not all, students are familiar with— the individual income tax return. I can usually get their attention
by using the most recent tax returns filed by the President and Vice-President. (Although these returns, like
all returns, are non-public information, most Presidents since the early 1970s have generally made their returns
public. Returns from Presidents Franklin Roosevelt, Nixon, Carter, Reagan, George H.W. Bush, Bill Clinton, and
George W. Bush have been archived at Tax Analyst’s Tax History Project (http://www.taxhistory.org/presidential/).)
I then move from the tax return to a slide setting forth the components of the computation of taxable income and
tax (gross income (inclusions and exclusions), deductions from gross income, deductions from adjusted gross income,
determination of tax, and credits). This slide becomes a template for the structure of the course as well.
There are two particular methods that I employ in teaching Personal Income Tax: (1) using the problem approach
combined with frequently changing the casebook and (2) using slides in class. Like many who teach tax,
I use the problem approach to work through the intricacies of the statute. I believe the problem method works
best when the students have struggled with the problem. Indeed, it is often most effective when the students make
the obvious mistakes and their missteps become clear as we go through the problem in class. I have found that
one difficulty has been when I use the same book for a number of years the students tend to pass class notes from
year to year (including the solutions to the problems). I have found that the most effective way to deal with this
is to change casebooks yearly. (I actually rotate through four or so casebooks. So it really is not a completely new
preparation each year.) Because most of the books cover the same basic cases and areas, albeit in somewhat different
organizational form, what I mostly gain are new problem sets. And I am able to incorporate particularly
good problems and cases from other books into my lecture as hypotheticals. Most importantly, the basic organizational
structure of the Internal Revenue Code remains the same.
For a number of years I have utilized slides in class. The slides are overhead transparencies. I am transitioning
into using computer-projected PowerPoint slides. The slides fill several roles. First and most important, I have
slides for all of the major Internal Code provisions that we study. As we go through a section, I can underline key
words, point out cross-references, and add annotations. In addition, terms like “flush” paragraph are easier to
utilize if the students can literally see the paragraph flush against the margin. I also use slides to provide conceptual
overviews as well as to illustrate the application of a statutory provision. Finally, I use slides to illustrate
case facts and problem sets. Most of the conceptual and Code-application slides were prepared using PowerPoint.
These slides are a combination of concepts and diagrams from courses I have taken, treatises, and teacher’s manuals.
And some are my own creation. I believe that it is very helpful to distribute the slides to the students at the
beginning of class so that they do not have to copy the illustration and can simply take notes on the handout.
This distribution can also be done electronically by email list or web page. (Five sample slides follow.)
Eric Lustig, New England School of Law

238 Federal Income Tax
Sources of Tax Law
Judicial
Legislative
Admin.
Department
of
Treasury
Supreme Ct.
Senate
JCT
House
(Orig Cl)
IRS
Policy
Circ. Cts. of
Appeal
Senate
Finance
Conf. Comm.
Ways & Means
Regulations
Interp/Legis
Treasury Dept.
Reports
Ct. of Fed.
Claims
Refund Juris
Dist. Ct.
Refund Juris
Tax Court
Deficiency Juris
Other
Promulgations
Rev. Rul.
Rev. Proc.
etc.

Tax Computation
Gross Income
less Above-the-Line Deduction
= Adjusted Gross Income
Federal Income Tax 239
less either Itemized Deductions or Standard Deduction
less Personal Exemptions
= Taxable Income
× Tax Rate
= Tax
less Credits
= Tax

240 Federal Income Tax
Section 1001(a)
Gain = Amount Realized – (excess over) Adjusted Basis
To 61(a)(3)
1011
1001(b)
Adjustments
+/–
Basis
1016
Other
1012
1014 1015 1041

Tax Treatment of Payments in Divorce/Separation
Payor Spouse Payee Spouse
Federal Income Tax 241
Alimony Deductible Included §71
§§215 and 71
Child Support Not deductible §71(c) Not included §71(c)
Property Settlement Not deductible, but Not included
see §1041(a) for See §1041(b) for basis
nonrecognition

242 Federal Income Tax
Section 1015
General Rule Exception
gain
gain
Donor’s basis
Donor’s basis
FMV@D.O.G.
loss
loss

Text and Handouts
Federal Income Tax 243
I use Fundamentals of Federal Income Taxation (Foundation Press) by Freeland, Lind, and Stephens because it
has great cases and wonderful problems that elucidate specific code provisions. I supplement the book with comprehensive
problems, sample exams, and bar exam questions as well as useful charts, newspaper articles, and short
journal articles.
I have included (below) two of my favorite handouts. “Framework for Studying Deductions” leads the student
through deductions and can actually be filled out by students. “Gains from Dealing in Property” leads the student
through part of the property segment of my course.
Framework for Studying Deductions (Handout)
Nancy Shurtz, University of Oregon School of Law
Is there a Is there a Is the If the Is it Better to
Specific Specific Deduction Deduction is Are the Elect to Itemize
Code Section Code Section Above the Below the Line Deductions or Take the
Allowing the Limiting the Line Under is it Subject Subject to Standard
Deduction? Deduction? § 62? to § 67? § 68? Deduction?
§ 162 Trade a § 262 Personal • Employer § 162 Not § 213
Business § 274 Business § 165(c)(1) Not § 163(d)
§ 212 Entertainment Expenses § 165 (c)(2) Not casualty or
Nonbusiness § 263 Capital • Employee § 167-168 theft losses
§ 165 Loss § 1211 Capital Reimbursements § 212 under § 165(c)(2)
§ 167-168 Loss • Performing § 179 or (3)
Depreciation § 465 At Risk Artists § 166 Not wagering
§ 216 Alimony § 183 Hobby • Capital Loss Not § 163 losses under
§ 166 Bad Debts Loss • Production of Not § 164 § 165(d)
§ 170 Charitable § 280-A Vacation Rents Not § 165 (c)(3)
§179 Election to Home and • Production of Not § 170
Expense Home Office Royalties Not § 213
Depreciable § 469 Passive • Alimony Not § 217
Business Assets Loss
§ 195 Start Up § 172 NOLs
Expenditures § 275 Taxes
§ 213 Medical § 461 Taxable
§ 217 Moving Year

244 Federal Income Tax
Gains from Dealing in Property (Handout)
How Was If Realized,
Property Any Is There If Realized, is Loss
Acquired? What Kind Adjustments What is Recognition is Gain a Allowed?
What’s of Property to Basis of Is There a Gain or of Gain Capital And is it
Basis? to TP? Property? Realization? Loss? or Loss? Gain? Capital?
Gift § 1015 • Trade or Improve- • No Like Kind § 1221 § 165
Inheritance Business ments Realization Exchange § 1211
§ 1014 • Inventory § 1016 if Gift § 1032
Divorce • Depreciable Depreciation • No Involuntary
§ 1014 • Accounts §§ 1016, Realization Conversion
Taxable Receivable 167, 168 upon Death § 1033
Exchange • Investment § 179 • Disposition (Loss
§ 1012 • Personal § 197 • Sale/ Recognized)
Nontaxable • Other? Other? Exchange § 121
Exchange • Abandon- Exclusion
§§ 1031, ment for sale of
1033 • Other? personal
Purchase residence
§ 1012
As
Compensation
§ 1012
As Prize
§ 1012
As Fringe
Benefits
§ 1012
As Rent
§ 1012
Stolen
§ 1012
Other?

General Outline of Federal Income Tax (Handout)
Federal Income Tax 245
I note to the students that this mini-outline is not a substitute for their own detailed outline or other synthesis
of the course material.
General Outline of Basic Federal income Tax
COMPUTING TAX LIABILITY: Gross Income – “above-the-line” deductions = Adjusted Gross Income (AGI)– {Standard
Deduction (SD) or Itemized Deductions (IDs)} – personal (and dependent) exemptions (PDEs) = Taxable Income
x rates = Tentative Tax Liability – credits = tax due or refund owed
Subject to phaseout for at higher levels of AGI: IDs, PDEs.
Subject to inflation adjustments: SD, PDEs, rate breakpoints. (Also various other amounts in other parts of course.)
Special capped rates may apply to any “net capital gain” that was included in GI: § 1(h).
GROSS INCOME: §§ 61, 74, etc. Very broad, includes most “accessions to wealth” absent applicable exclusionary
provision. Specifically includes, e.g., salaries, rents, interest, dividends, punitive damages, gains from dealings in
property, prizes, awards, found money, annuities, discharge of indebtedness, amounts received under claim of
right. Also must determine who is the proper taxpayer if there is more than one candidate for taxation.
GAINS are derived from dealings in property. On sale or other disposition, A/R – AB = gain realized (§ 1001). Realized
gains are recognized unless an exclusion provision applies.
EXCLUSIONS FROM GROSS INCOME include loan proceeds, gain on sale of principal residence (subject to cap —
§ 121)), gifts & bequests (§ 102), qualified scholarships (§ 117), life insurance proceeds paid by reason of death of
the insured (§ 101), discharge of indebtedness in insolvency and other situations (§ 108), statutory fringe benefits
(§§ 106, 119, 132).
OTHER NON-RECOGNITION PROVISIONS resulting in exclusions from gross income include like-kind exchanges
(gain realized is only recognized to the extent of “boot” received, § 1031), and transfers between
spouses incident to divorce (§ 1041).
DEDUCTIONS may be taken for allowable expenses and losses.
DEDUCTIBLE EXPENSES include amounts that qualify as trade/business expenses under § 162, including, e.g.,
supplies; employee salaries; office rent; business travel, including travel away from home; certain business-related
education; and certain meals and entertainment expenses. They also include investment/profit-seeking
expenses under § 212, such as expenses to produce income from stock or securities or rental income; depreciation
expense on business and investment property (§§ 167, 168); interest expense (§ 163); tax expense (§ 164);
medical expenses, subject to a 7.5% floor (§ 215); deductible IRAs (§ 219); and qualified moving expenses
(§ 217). PERSONAL/FAMILY EXPENSES (commuting, many meals, most clothing, costs of automobile for personal
use, legal fees for divorce, etc.) ARE NOT DEDUCTIBLE — § 262.
DEDUCTIBLE LOSSES are those allowed by §§ 165 and 166, generally trade/business losses, investment/profitseeking
losses, casualty losses, theft losses, and bad debt losses. Losses may occur on sale or other disposition
of property (AB – A/R = loss realized), or on uncollectibility of debt. Realized losses are not recognized unless
they are (1) allowed by §§ 165 or 166 and (2) not disallowed by another provision.
DEDUCTIONS MAY BE DISALLOWED even if they are otherwise deductible.
Re: EXPENSES: § 274 disallows certain meal and entertainment expenses, and generally limits the rest to 50%.
§ 265 disallows a deduction for expenses to produce tax-free income. §§ 263 & 263A disallow a deduction for
CAPITAL EXPENDITURES. Those expenditures create basis instead.
Re: LOSSES: § 267 disallows loss on sale to related party. § 1211 limits deductibility of capital losses.
CHARACTER OF GAINS & LOSSES: Character may be capital or ordinary. Capital gain/loss requires (1) a capital
asset (§ 1221), (2) a sale or exchange (§ 1222). Holding period does not determine character. Capital gains and
losses may be long-term or short-term.
CREDITS (dollar-for-dollar reduction of tax liability): Credits include child care credit (§ 21), child tax credit (§ 24),
HOPE scholarship and lifetime learning credit (§ 25A), withholding tax (§ 31), and earned income credit (§ 32).
Leandra Lederman, George Mason University School of Law

246 Federal Income Tax
Computing Taxable Gain (Handout)
COMPUTING TAXABLE GAIN
§ 61(a)(3): Gross income includes gains derived from dealings in property. How do you compute this gain?
Reg. § 1.61-6(a): “GAIN is the excess of amount realized over the unrecovered cost or other basis for the property
sold or exchanged.” It refers you to § 1001 for specific rules.
§ 1001(b): “AMOUNT REALIZED from the sale or other disposition of property shall be the sum of any money
received plus the fair market value of the property (other than money) received.”
§ 1011(a): The ADJUSTED BASIS for determining the gain or loss from the sale or other disposition of property
shall be the basis (determined under section 1012 or other applicable sections ... ), adjusted as provided
in section 1016.”*
§ 1012: “The BASIS of property shall be the cost of such property, except as otherwise provided. ...” We
will get to other basis provisions (e.g., for gifts, inheritances, & property received in tax-free exchanges),
in later chapters.
§ 1001(c): In general, except as otherwise provided, “the entire amount of gain or loss, determined under this section,
on the sale of property shall be recognized.”
General Formulas from § 1001(a):
Amount Realized minus Adjusted Basis equals Gain Realized
AR – = Gain Realized**
Adjusted Basis minus Amount Realized equals Loss Realized
AB – = Loss Realized**
* As we will study in subsequent chapters, an asset’s basis is “adjusted” to reflect recovery of investment or additional
investment in that asset. In effect, an asset’s adjusted basis reflects the “tax history” of that asset.
** Caveat: Realized gain and loss is not always recognized. We will study various nonrecognition provisions in
subsequent chapters.
Leandra Lederman, George Mason University School of Law

Introduction to Deductions Problems (Handout)
Part I. Instructions: Provide a brief answer.
1. What is the “2% floor?”
2. Explain the mechanics and effect of Code § 68.
Federal Income Tax 247
Introdution to Deductions Problems
Part II. Instructions: Please label each of the types of deductions listed below with all of the following that apply:
Above-the-line deduction, below-the-line deduction, miscellaneous itemized deduction.
1. The home mortgage interest deduction of § 163.
2. The deduction for alimony paid under § 215. _________________________
3. The deduction under § 212 for expenses incurred in the production of
dividend income. ________________________________________________
4. The deduction under § 170 for charitable contributions. ________________
5. The deduction under § 162 for non-employee ordinary and necessary trade
or business expenses. ____________________________________________
Leandra Lederman, George Mason University School of Law

248 Federal Income Tax
Exercises
Introducing Statutory Interpretation with Song Lyrics
Statutory interpretation can be a hard sell for a class of 75, so I try to find some way to make it real. I start
with song lyrics. It is much easier to feel passionate about song lyrics than to feel excited about whether a bicycle
is a “vehicle.”
And because I am addicted to Bruce Springsteen, I start with Bruce.
I begin by playing the opening bars of the version of “Born in the U.S.A.” from Tracks (1998), an album that
contains songs and versions of songs that never made it to release. (This version of “Born in the U.S.A.” was originally
recorded for Nebraska (1982).) The opening bars are moody. The tone is despondent. Alienating. I stop the
CD before the first verse begins.
I ask if anyone knows the song. No one does.
I then play the opening bars of “Born in the U.S.A.” from Born in the U.S.A. (1984). Immediately everyone
knows the song. Again, I stop the CD before the first verse begins.
I ask the class what the song is about. This usually requires some care, because there are some people who actually
have listened carefully to the lyrics. I can usually find someone who will guess that it is, in essence, an anthem
to America. I think this is the common perception of the song.
I then ask them to listen carefully to the first verse. “Born down in a dead man’s town, the first kick I took was
when I hit the ground. You end up like a dog that’s been beat too much, till you spend half your life just covering up.”
It is hardly an anthem. And yet in 1984, as reported by Eric Alterman, a number of politicians actually referred
to or used the song in their political campaigns.
I then ask the students to talk about some of their favorite songs and how those songs are misunderstood.
There are lots of examples. And the conversations involve debate about the meanings of the lyrics.
A lot of this discussion essentially serves the purpose of getting the students’ attention. There isn’t much about
statutory interpretation that can be learned, except that you have to be careful when you read and interpret language.
Also, students can see from the Bruce example that the context of words is important. If Bruce had released
“Born in the U.S.A.” as it was recorded for Nebraska it would not have been misinterpreted.
Role-Playing
Brief Gems
Kim Brooks, Queens University Faculty of Law
We role-play every day we discuss a case — one student is the taxpayer, one student is the IRS, one student is
the attorney for the taxpayer, and one student is the judge. The class gets to criticize the judge’s conclusions and
reasoning and ask questions of all parties.
“Boot”
Nancy Shurtz, University of Oregon School of Law
For like-kind exchanges, the first (and often only) non-recognition transaction that I cover, I explain the origin
of the term “boot” when describing non-qualifying property — the taxpayer receives something else (other
than qualifying property) “to boot.”
Leandra Lederman, George Mason University School of Law

Cartoons
Federal Income Tax 249
I have a series of cartoons in my supplement that elucidate the case materials. For example, I have a cartoon
of a mom on a beach, looking at her baby who has just picked up a diamond ring. She is saying “Leave it there,
dear. It may knock us out of our bracket.” This helps illustrate Cesarini, the treasure-trove case, as well as casualty
loss. I have a cartoon for barter that shows a man who has just finished painting a house, saying “I painted
your house and you fixed my computer.” The owner, in the doorway, says “That makes us even?” A neighbor is
peering over the fence saying “I didn’t see a thing if you paint my house, too!!”
IRC 212 Area Code
Nancy Shurtz, University of Oregon School of Law
Students often have trouble remembering the Code section number for expenses for the production of income,
although they tend to remember the section for trade or business expenses, section 162. The section for
production of income (investment-type expenses) is 212, and I tell them that that’s the telephone area code for
Manhattan — where Wall Street is located.
Leandra Lederman, George Mason University School of Law

250 Federal Income Tax
Getting the Class Started and the Power of Bruce
This is how I have started the course.
Sheldon Cohen, Former Commissioner of Internal Revenue, has said, “Taxation, in reality, is life. If you know the
position a person takes on taxes, you can tell their whole philosophy. The tax code, once you get to know it, embodies
all the essence of life: greed, politics, power, goodness, charity.”
I’d like to add something to that. Taxation, and Bruce Springsteen, are life. Anytime you want to know something
about the way life is you can figure it out from tax law or Bruce Springsteen, or both.
Why is Bruce Springsteen relevant for tax students? First his lyrics are terrific. But I won’t be able to convince all
of you that this is the case. There is no accounting for taste.
Second, he plays full out. You can’t fight me on this. When Bruce gives a concert, it’s three hours of sweaty
mess. There is no opening act. There is no fooling around. The music screams from the stage and the audience is
entranced. It is a rock and roll revival. It is a regeneration of souls.
And that is what tax is like. It’s four hours a week of sweaty mess. I’m going to be sweating; you’re going to be
sweating. This is hard stuff. It is the stuff of life. People may have told you that life was about being nice to others,
or being a good person, or making a lot of money. No. It is all about tax. At least, it will be all about tax for the
four hours a week that we spend together.
There are two other common characteristics of the nature of both life and tax that I want to highlight before we
begin. These are themes that recur in the songs of Bruce. One, it’s about discovery. Discovery of a path, or paths.
Tax is like that. It’s a puzzle you’re given to solve. There are lots of solutions often. Some are better than others.
Two, you can’t do it alone. Generally true about life, certainly true about tax. You cannot do this alone. That’s
why I’m here. That’s why your colleagues are here. When you lose your path, find me or find a fellow student.
Let’s get started.
“How Would the IRS Ever Know ...”
Kim Brooks, Queen’s University Faculty of Law
I am often asked “How would the IRS ever know about ...” a particular transaction or item of gross income.
I periodically remind students that just because a law is difficult to enforce does not mean it’s not the law. I generally
use mandatory seat belt laws as an analogy. I also remind students that their character forms part of their
fitness to practice law. As my father says, “Honesty is a lawyer’s stock in trade.”
Leandra Lederman, George Mason University School of Law
Feedback and Evaluation
Designing Writing Assignments and Exams Based on Course Objectives
My main objectives in basic tax are: (1) to talk with students about approaches to statutory interpretation and
have them develop some statutory interpretation skills and (2) to assist students in understanding some of the
policy rationales that underlie the tax system.
I offer both exam and writing options. I offer three writing assignments, equally weighted at 33%. The exam
is weighted for the difference between the value of the writing assignments students choose to complete and
100%.
About half the students choose to write only the exam. Instead of the traditional fact-pattern style exam, I ask
about fourteen short-answer questions, each worth between 5 and 15 points (out of 100). This allows me to test

Federal Income Tax 251
a variety of skills. I ask three types of questions, each type worth about one-third the total value of the exam.
Conceptual questions ask the students to classify particular transactions or receipts: is X more like Y or more like
Z? Knowledge questions ask the students to tell me the appropriate tax treatment of something. Policy questions
ask the students to explain why a particular rule is drafted the way it is and to discuss whether this rule makes
sense.
The other half of the students choose to complete the writing assignments (or a few writing assignments and
the exam). I generally set two memoranda and one “policy” paper. Given that the course is designed to take up
approximately three months, I set one assignment to be due at the end of each month.
The first assignment is a memorandum that requires little substantive knowledge but, instead, tests statutory
interpretation skills. It generally requires students to take one section of the Code and apply it to a new fact situation.
The second assignment is the policy paper. This paper can test either the students’ understanding of the tax
expenditure concept or their ability to grapple with tax policy issues. For example, it could be an evaluation of
the mortgage interest deduction or an assessment of the arguments for and against a reduced tax rate on capital
gains.
The final assignment is a second memorandum, but this memorandum is designed primarily to test substantive
knowledge. The students receive a statement of facts and are asked to identify and discuss the issues raised.
I place this assignment at the end of the course so that it potentially can include all the material we cover in the
course. Also, I find this ensures that the students who choose the writing option remain engaged in the discussions
we have in class.
There is no doubt that offering a writing option takes more time, both for students and for me. The length of
the various assignments ranges from 6 to 20 pages. I provide significant feedback on the first two assignments
and only limited feedback on the last assignment. This means that students get detailed feedback while they are
still in the course and before they are required to hand in another assignment.
In general, the students who choose the writing assignments seem more engaged in class. I think this is in part
because the issues we are discussing become relevant sooner. They do not have the luxury of hoping they will be
able to put the course together between the end of classes and the exam. I also suspect that they learn more and
are more engaged. And it is possible that they also become more interested in the role of taxes in civil society.
The TaxProf Exam Bank: Practical Help for the Tax Professor
Kim Brooks, Queens University Faculty of Law
One of the most thankless (and difficult) tasks of the tax professor is coming up with the end-of-the-semester
examination. As anyone who has prepared a tax exam can attest, it takes quite a bit of time to come up with
a fair exam that accurately measures student performance. The TaxProf Exam Bank assists tax professors in this
process by giving them access to exams given by tax professors at other schools.
The TaxProf Exam Bank currently has over 100 exams in 10 tax subjects (income tax, business tax, corporate
tax, advanced corporate tax, partnership tax, estate and gift tax, estate planning, income taxation of trusts and
estates, international tax, and tax procedure). The site is password-protected; access is afforded only to TaxProf
members. (See “TaxProf: Virtual Tax Community”in the Approach section for information about becoming a
TaxProf member.)
Paul L. Caron, University of Cincinnati College of Law

252 Federal Income Tax
Research Paper, Midterm, and Final Exam
I give the students a research paper (counts 10%), a midterm (counts 40% if student performs better than on
the final), and a three-hour final (counts 50% if midterm counts, otherwise counts 90%). The midterm is mostly
multiple choice and objective, with one essay. In general, the students like the midterm. First, it does not count
if they do not do well. Second, if they do do well, there is less stress on the final exam. Third, the students appreciate
the practice experience and the feedback given on the exam. The research paper is around five to seven
pages long. The students can choose from 10 different research problems on hot topics such as contingent fees,
alternative minimum tax, innocent spouse, jeopardy assessment, gambling losses and hobbies, etc. In this assignment,
students must compare tax research using the books, with either Westlaw or Lexis.
Nancy Shurtz, University of Oregon School of Law

chapter 11
Legal Research and Writing
Approach 255
The Self-Directed LRW Assignment
Richard J. Peltz 255
Individualized Instruction
Ann Sinsheimer 257
50,000,000 Elvis Fans Can’t be Wrong: The Socratic Method Works
James B. Levy 258
Visualizing a Memorandum of Law
Okianer Christian Dark 259
The Evolution of a Legal Research Curriculum
George H. Pike 261
Material 262
Syllabus Bank
Jo Anne Durako 262
“The True Story of the Three Little Pigs”
Nancy Soonpaa 262
Using the Synthesis Chart to Bridge the Gap between Analysis and Drafting
Tracy L. McGaugh 263
Of Digests and Parties
Alex Glashausser 265
Law Library Research Flow Chart
James B. Levy 267
Exercises 268
Paragraph Parody Exercise on Writing Style
Judith D. Fischer 268
Using “Live Client Interviews” Instead of Fact Patterns
Mark E. Wojcik 268
Transactional Skills Workshop
Deborah Schmedemann and Ken Kirwin 270
Using Negotiation to Improve Thinking and Writing in the First Year
Teresa Brostoff 271
Pop Culture Prognostication
Nancy Soonpaa 272
253

254 Legal Research and Writing
The Application Process
Tracy L. McGaugh 274
What Self-Guided Museum Tours Can Teach Us about Legal Research
James B. Levy 276
Every Case Has Two Stories
Sue Liemer 277
Low-Stakes Assignments: Developing Strategies to Write Persuasive Advocacy Briefs
Silvia Rivero and Lori Wallach 278
Teaching Active Reading
Sheila Simon 280
Brief Gems 281
IRAAC in Living Color
Nancy A. Wanderer 281
“Remember the Paint Box?”
Brannon Heath 282
Persuasive Seating
Nancy Soonpaa 282
Judge and Lawyer Speakers
Nancy A. Wanderer 282
The Last Class—Ending on the Right Note
Sheila Simon, Andrea Mooney, Sue Liemer, Melissa Marlow-Shafer, Mary Beth Beazley 283
Feedback and Evaluation 284
Handling Student Reactions to Critiqued Work
Tracy L. McGaugh, Paul Toppins, Sue Liemer 284
Critiquing Student Papers — The Quick and the Dead
James B. Levy 285
Getting Students to Critically Review Their Writing
Stephen L. Sepinuck 286
Oral Exam of Research Skills
Judith A. Gire 287
The Research Quiz Show
Brannon Heath 287

The Self-Directed LRW Assignment
Legal Research and Writing 255
Approach
An unfortunate limitation on the typical two- or three-semester program in legal research and writing (LRW)
is that students are not exposed to any number of the countless documents they will be expected to draft routinely
in practice. Despite having taken Contracts and perhaps Trusts and Estates, a student may graduate from
law school without ever having drafted an employment agreement or a will, never mind a covenant not to compete
or a living will. Certainly the typical first-year attorney has never drafted legislation, set up a limited liability
partnership, or drawn up a workplace sexual harassment policy.
The self-directed LRW assignment allows students — ideally in an advanced legal writing seminar, or perhaps
in a required LRW class divided into groups — to explore the law and nuances of documents that the students
might not otherwise encounter in law school. The assignment is “self-directed” because students may draft their
own problems to solve or choose from problems prepared by the professor. Each problem calls for the creation
of the same array of documents:
• A document to address the needs of the fictional client;
• An annotated form document for use by the “lawyer” and “firm” in future cases; and
• An annotated bibliography so that other lawyers can duplicate the author’s research, update the form, and
adapt the form to new uses not contemplated by the author.
At semester’s end, students participating in a self-directed LRW exercise may make oral presentations on their
findings and exchange their documents. Each student’s presentation may be held as if it were a client meeting,
in which the student presents the problem solution to the client. Every student, in a 12-person seminar for example,
will leave the class armed with a binder containing annotated forms and bibliographies on 12 different
legal documents. And besides the benefits to students, the professor is enriched by exposure to perhaps previously
unfamiliar experiences in legal drafting.
Problem design for the self-directed LRW assignment poses surmountable challenges to the professor. A problem
must be sufficiently narrow and sufficiently deep to engage and challenge the student without overwhelming
him or her. Consistency in problem difficulty also aids the professor in fair evaluation. These design considerations
are already familiar to the LRW professor but can be difficult to gauge in the context of the self-directed
assignment, where the professor might not be fluent in the subject matter in which each student becomes immersed.
If a student is developing his or her own fictional problem rather than using a problem developed by
the professor, research and student conference time must be built into the syllabus so that the student can develop,
in consultation with the professor, an appropriately challenging but manageable problem. Repeated administrations
of the self-directed LRW exercise will allow a professor to build a library of problems, and participants
in Legal Writing Institute conferences may share (and have shared) tested problems.
Strong problems for a self-directed LRW exercise are not unlike the problems that professors in LRW are already
skilled in drafting. However, guiding a student in the creation of such a problem is often a new, if productive
and enjoyable, experience for professor and student. The professor might have to articulate some precepts
in problem design that previously seemed intuitive. When I guide students in problem design, I share with
them three ideas that guide me in the process. These ideas I derive from “real-life” interaction with clients.
• What the client wants, ultimately, is impossible.
• What the client wants is more complicated than the client thinks.
• There is more and less to the problem than the client reveals.
First, what the client wants is always in some part impossible; i.e., among the client’s objectives will be one
that the law does not allow. For example, an employer might want a covenant not to compete that has no re-

256 Legal Research and Writing
striction as to the nature of the activity proscribed. Drafting the document to meet the client’s needs should compel
the student to consider how far to push, to balance the client’s unreasonable demands against the possibility
that the document would draw litigation and be held unenforceable. If the student’s presentation to the class is
held as a mock presentation to the client, the student at that time may address these limitations and advise the
client as to strategy at that time. The professor might also require that the student write a cover letter to the client
explaining any pertinent strategy decisions and legal limitations.
Second, what the client wants is more complicated than what the client thinks. A client tends to see his or her
position as clear and right and to ignore countervailing interests. For example, a university desiring a harassment
policy might like to eliminate all hate speech on campus and might not be sensitive to countervailing free-speech
interests. The problem should compel the student to consider other points of view besides those of the client.
The effect of this consideration is likely to loop back to the first idea, that what the client wants is in some part
impossible. The student will have to consider how to meet the client’s needs within the bounds of the law and
also how to sensitize the client to countervailing interests that might change the client’s thinking or render the
client’s ultimate objective unreachable.
Third, there is more and less to the problem than the client reveals. Ideally, a problem includes information
that is important to the client but unimportant to the legal analysis, and simultaneously the problem omits information
that is important to the legal analysis. Though students should be made aware of this likelihood with
respect to “real-life” client interactions, this idea might be dispensed with in the creation of a self-directed LRW
problem, depending on the needs of the professor. If client interviewing and interaction are a component of the
class, then this aspect of the self-directed problem may be explored in a mock client interview.
Grading the products of self-directed LRW assignments also poses surmountable challenges to the professor,
not unlike the challenge of grading seminar papers on different topics. Naturally, a professor grading an assignment
in an unfamiliar area of the law might have to conduct some cursory research, but the student’s own bibliography
offers a starting point. In advance of semester’s end, the professor may develop evaluative criteria to
examine the qualitative characteristics of each project on a “substance-neutral” basis. The professor may view the
student’s work from two perspectives: that of client, for whom the student has prepared the problem-solving document;
and that of supervising attorney, for whom the student has also produced a form document and research
bibliography. Here are some considerations from each perspective:
The client asks:
• Does this document (appear to) do what I asked the lawyer to do for me?
• Has the lawyer explained the applicable law?
• Has the lawyer (in cover letter or oral presentation) explained strategic decisions and risks?
• Has the lawyer explained strategic alternatives for when I can’t get my way?
The supervising attorney asks:
• Did the lawyer exhaust diverse resources, including:
library, electronic, and personal?
primary and secondary authorities?
legal sources and policy sources?
legal sources and legal tools, i.e.,
form books, drafting texts, and applicable drafting laws?
• Have research tools, especially forms, been exhausted, properly developed, and incorporated?
• Is the form annotated for ready future use, including technical accuracy so that research can be readily updated?
• When anticipated needs exceed the scope of this assignment, has the need for further research been indicated?
• Is the legal research substantively complete and accurate?

Legal Research and Writing 257
The self-directed LRW assignment provides a rewarding experience to students and professors. Students enjoy
working on a problem that they themselves have helped to develop or, at least, in which they have a personal interest.
They further benefit from the research and writing of their colleagues, leaving class with their own “form
book.” Professors are enriched by exposure to LRW exercises in perhaps unfamiliar areas of the law, and repeated
administrations of the class will generate a treasure-trove of LRW resources. In the end, a student’s experience
with a self-directed LRW assignment can help the student reach the confident conclusion that when faced with
a novel legal problem in practice, or when asked by a client or supervising attorney to create a form of work product
that is wholly unfamiliar, the student has the skills and means to generate a professional product.
(This essay is based on a presentation by the author and Terry Seligmann, Associate Professor of Law and Director
of LRW, University of Arkansas at Fayetteville, at the Legal Writing Institute (Seattle 2000).)
Individualized Instruction
Richard J. Peltz, University of Arkansas at Little Rock School of Law
A major component of my Legal Analysis and Writing course is individualized instruction. We meet as a class
to cover the general principles of legal analysis and the format for legal documents such as memorandum and
appellate briefs, but I also meet with my students several times a semester for individual conferences. I have found
that a great deal of the learning in my course occurs during these one-on-one meetings.
In the first semester, we cover predictive writing, and the students complete three written assignments: a summary
of an appellate court opinion or a case brief, a closed-source memorandum, and an open-source memorandum.
In this semester, the students are required to meet with me three times. The first meeting occurs the
first week of class. The purpose of this meeting is to discuss the case brief, which they turn in before the meeting.
These meetings are short, no more than 20 minutes, and allow me to give students feedback on their reading
and summarizing skills. The meetings also give me a chance to learn the students’ names and interests. Particularly
since my class can be quite large — anywhere between 50 and 70 students — these early meetings help
me to get to know the students and identify their needs faster. For example, if a student appears extremely anxious
or is struggling with reading cases, I can talk about strategies or set up weekly meetings, or I can assign one
of my teaching assistants to work with the student on a regular basis. For my students, these early meetings give
them a chance to locate my office, to meet me, and to ask questions and get comments.
The students’ second meeting occurs after they have written the closed-source memorandum. I return these
memos to them during the conference and discuss my comments regarding the memo. These conferences focus
on the students’ analysis and writing style and are typically 30 minutes long. I am able to identify the strengths
of their work and to indicate the areas where they need to improve. Occasionally, I will ask students to redraft a
portion of the memorandum and have them return to discuss the changes. These meetings allow the students to
see how the general principles we cover in class can be applied to their own work, specifically how to organize
their analysis or to use plain English. I try to use the same terminology we use in class and to point out where
they are using or could use these concepts in their writing.
The third mandatory meeting occurs before they hand in their open-source memorandum, which is their only
graded assignment during the semester. I meet with them after they have a rough draft of the discussion section
of the memo, approximately two to three weeks before the memo is due. The drafts are usually between five and
seven pages long and may or may not be a complete discussion section. As a result of these meetings, students
are forced to think about the assignment and to write something well before the deadline. The students are, therefore,
less likely to wait until the last minute to begin the writing process. If a student comes to the conference
without a draft or with just an outline, I am put on alert. I have the opportunity to talk to the student about his
or her work and to determine if the student needs additional help with the assignment.

258 Legal Research and Writing
These third meetings help me to learn about students’ writing habits. I ask the students to bring a draft to their
conference rather than submit it in advance so that they can bring their most recent draft to me. I allow 30 minutes
for these appointments and use the time to make sure that their papers are well-organized and that they are
adequately supporting their ideas with legal authority.
Students are usually less anxious after these meetings since they are able to ask very specific questions and are
able to get comments at a point when they can still incorporate these comments into their work. My comments
at this stage help students to identify underdeveloped thoughts and help them to view writing not as a static
process but as communication. They see, as I read the document for the first time in front of them, how I as a
reader respond to their text and how I interpret the information. This process helps students develop their own
voice as writers. They have a chance to test out various styles and to see if these techniques are effectively conveying
information.
Many students request additional appointments. I accommodate these requests by having slightly shorter appointments,
longer office hours, and a Saturday time period for walk-in appointments.
In the second semester, we have much less formal class time because the last third of our semester is devoted
to oral arguments. However, in the first 10 weeks of the semester, as the students are writing their appellate briefs,
I require one mandatory meeting. These meetings occur just after students are required to complete a rough draft
of the argument section of their briefs, about four weeks before their final draft is due. Like the meetings for the
open source memo, students bring their most recent draft to the conference, although I also ask students to turn
in a draft prior to their conferences. Again, the meetings operate as a deadline for students. This helps students
to break the writing into smaller tasks. I have these meetings well before the final deadline so that I can identify
who is having trouble with “writer’s block” and can help them establish an outline. I set up the meeting schedule
so that I can meet with all the students a second time, but I do not require a second meeting since many students
feel comfortable working independently at this point.
These meetings are labor intensive. While I am holding conferences, I use my teaching assistants, who are thirdyear
law students, to hold class. Typically, the teaching assistants will cover topics such as the Bluebook citation
system or will guide the students through basic research, completing in-class research assignments. The rewards
of these meetings are numerous. I am able to focus on the individual needs of each student in a way I could not
do with lectures alone. This individualization helps me to develop an evaluation system based, in part, on their
personal growth as writers. These meetings also seem to increase student accountability and work ethic, as well
as their professionalism, since our relationship mirrors the relationship they are likely to have with their supervisors
in the legal profession. Finally, the meetings help me to understand different learning styles and to develop
new teaching materials.
50,000,000 Elvis Fans Can’t be Wrong:
The Socratic Method Works
Ann Sinsheimer, University of Pittsburgh School of Law
A recent study by Professor Steven I. Friedland published in the Seattle Law Review titled How We Teach: A
Survey of Teaching Techniques in American Law Schools concluded that “an overwhelming majority of those who
[teach] first-year classes” use the Socratic method.
Nearly all educators agree that a pedagogical approach that encourages students to engage in the learning
process is better than one that permits them to passively absorb information. Educational psychologists recognize
that students who actively discover the concepts being taught learn it better than those who merely listen to
an explanation of the same material. This helps explain why the Socratic method is still the preferred teaching
technique in law school more than 120 years after Professor Langdell of Harvard first introduced it.

Legal Research and Writing 259
Unfortunately, the typical legal research and writing curriculum does not always permit the use of a purely
Socratic teaching style. Many of the subjects we teach — like how to do legal research or write a brief — require
extensive explanations. In many instances, lecturing to students about key concepts or skills may be the most efficient
way to impart that information to them.
Nevertheless, it is pedagogically important to incorporate the Socratic method into your teaching style whenever
possible in order to engage your students in the learning process. That is especially true when teaching students
legal analysis. As our doctrinal counterparts already know, engaging students in a colloquy that requires
them to dissect and examine the different portions of a judicial decision is the best way to train their minds to
think like lawyers. When we teach analysis in a legal writing class, however, we often have to focus not on a single
case but instead on several cases at once as well as how to synthesize and apply them to a hypothetical fact
pattern. While it is not always obvious how to use the Socratic method in this context, it is important that we try
to do so.
Accordingly, whenever I teach legal analysis — whether it is how to identify the cases most analogous to our
hypothetical writing problem, how to recognize the holdings of those cases, or how to organize a discussion of
multiple cases within a memorandum — I always try to engage the students in the material through an interactive
dialogue. For instance, if I am teaching my class how to write an office memorandum on nuisance, I begin
by discussing the importance of finding analogous legal authority. But merely explaining this to the students is
not enough. Instead, I want them to discover for themselves the skill of recognizing analogous authority. To accomplish
that, I describe to the class several hypothetical cases and then ask them to consider which one they
would choose to discuss in their office memo. I then call on a student and ask him to explain which of my hypothetical
cases he would choose and why. I call on a second student and ask her whether she agrees with the
first student’s answer or not. Finally, I may ask the entire class to vote by a show of hands which case they think
is the most analogous to our hypothetical writing problem. In this way, I try to engage the entire class in learning
how to think like a lawyer.
With some resourcefulness, the same technique can be used to teach other subjects we cover. When teaching
students how to begin their research for an open-universe writing assignment, for example, call on students and
ask them to suggest appropriate search terms. Write their suggestions on the board and then ask others in the
class to critique them. If anyone disagrees with those search terms, ask them to suggest alternatives and explain
their reasons for doing so. In this way, the entire class learns in an interactive way how to formulate search terms
for that assignment.
Use the same technique to teach the class about proper citation form. After explaining how to use the index
at the back of the Bluebook, call on students and ask them to find the correct citation form for a list of research
tools you suggest, such as AmJur, ALR, or any other secondary source. Ask them to identify the page number in
the Bluebook where the rule appears and then call on other students to say whether they agree with those answers
or not.
The Socratic method may not represent the cutting edge of law school pedagogy, but it is a tried and true
teaching technique that nearly all law school teachers have used with great success for more than a century.
(Parts of this idea appeared in 14 The Second Draft 5 (May 2000).)
Visualizing a Memorandum of Law
James B. Levy, Nova Southeastern University Law Center
The memorandum of law is one of the first assignments that first-year students encounter in most legal research
and writing courses. The memorandum requires students to engage in a variety of tasks almost simultaneously.
The students are expected to analyze the problem; identify the issue or issues; analyze the relevant case

260 Legal Research and Writing
law on the issue or issues; organize the relevant facts; write the document using analogical and other reasoning
tools; write clear, accurate, and useful sentences that support good paragraphs; use the rules of grammar and
punctuation properly; follow the citation system that has been adopted by the program; and proofread everything.
Given all of these tasks, first-year law students invariably say that they do not understand the memorandum
of law because they do not really understand its purpose and/or format. In short, they cannot visualize what
they are expected to produce as an end product. Out of shared frustration, I developed the following two ways
to describe a memorandum of law to students.
Making a Shrimp Casserole
I ask the student to imagine that he or she is planning to have a shrimp casserole for lunch or perhaps dinner.
The main course is a scrumptious shrimp casserole served in a beautiful clay dish with handles on both sides
of it. The student is asked to describe the process and preparation of the shrimp casserole, which is the meal for
a prospective luncheon or dinner guest.
The student should start with the fact section, a list of ingredients for the shrimp casserole, some description
of how the table will be set so that the casserole can be consumed, and the beautiful clay dish with the handles
on both sides of it. If the student says that the shrimp casserole includes hamburger as an ingredient, then I remind
the student that ingredient must be used in the body of the memorandum (or in this case, the recipe). If
the student suggests that he or she will put a soupspoon down on the table for consumption of the casserole,
then the question is how does the soupspoon support the shrimp casserole in a beautiful clay dish with handles
on both sides? The writer should put in this section only those facts that are relevant and useful to the resolution
of the issue in the memorandum of law. The writer may also include background facts that support or improve
the understanding of key relevant facts. For example, including plates, forks, and the fact that the meal is
lunch or dinner are supportive facts for the shrimp casserole that will be consumed at the meal.
The issue or focus of the meal is the shrimp casserole served in a beautiful clay dish with handles on both sides
of it. The brief answer should affirm or deny that the main course for lunch is a shrimp casserole in a beautiful
clay dish. The discussion section of the memorandum is an opportunity to explain how the shrimp casserole was
made. The directions for the use of the ingredients would be included in this section. The discussion about how
to make the casserole should have citation support to the recipe for all directions. If there is an alternative way
to combine ingredients or if there are potential problems that need to be identified, then this should be included
in the discussion section but only after a full explanation of the principle way to combine certain ingredients.
The discussion should proceed in a logical, organized manner. The discussion would never start in the middle
of the instructions but, rather, should take the cook (writer) from the beginning through each step in the process
until you reach the point where the shrimp casserole comes out of the oven in a beautiful clay dish with the handles
on both sides.
The shrimp casserole is placed on the table and now we have reached the conclusion section of the memorandum
of law. The conclusion should logically follow from the discussion section and should not include an
item, issue, or fact that was not discussed in the body of the memorandum or raised in the issue or brief answer.
The test is when the cook (writer) serves the casserole (memorandum) to his or her guest (reader). If the guest
tastes the casserole and exclaims that the casserole tastes like a cheeseburger casserole rather than a shrimp casserole
or that the casserole tastes like a shrimp casserole but it is not in the beautiful clay dish with handles on both
sides but instead is in a Tupperware bowl, then the conclusion does not logically follow from the discussion. In
other words, each section of the memorandum of law should be congruent and compliment the other. The memorandum
of law is an integrated document and not a series of separate parts that do not touch and concern each
other. The goal is to have the guest (reader) taste your casserole and remark with a satisfied smile that indeed you
have produced a shrimp casserole in a beautiful clay dish with two handles on it for the meal. It will be up to the
guest (reader) to determine whether he or she likes the casserole, but there will be no denying that a thoroughly
prepared document supports it.

Christmas Tree
Legal Research and Writing 261
A memorandum of law is like a perfectly adorned Christmas tree. (If I feel that I have a student who is not
Christian and may be insulted by this analogy, then I always ask them if I may share with them an analogy based
on a Christmas tree to describe the process of writing a legal memorandum.) One must be able to make out the
shape and type of tree. Therefore, the tree should not be loaded with so many ornaments that it is impossible to
see the shape of the tree or to get any sense of how the ornaments were selected and arranged. A tree that is
loaded with too many ornaments makes it difficult for one’s senses to take in and appreciate the design of the
tree, the individual ornaments, and the way the different ornaments compliment each other on the tree. Likewise,
in a memorandum of law, the writer must be careful not to overload or adorn the discussion with so many
cases and/or statutes the reader cannot make out the shape of the argument or the type of issue being discussed
in the memorandum. So often students take the position that more is better and therefore put too many unexplained
cases (ornaments) on their argument (tree). The key is to place only those cases (ornaments) that will
enhance the argument (tree) so that at the end of the memorandum the reader is still able to see the argument
(tree) and, at the same time, the reader has a good appreciation of the writer’s choice of cases (ornaments) as
they amplify or develop the argument.
The Evolution of a Legal Research Curriculum
Okianer Christian Dark, Howard University School of Law
For a number of years, the University of Pittsburgh School of Law offered a traditional, upper-division Advanced
Legal Research course. The course was team-taught by the library director and other law school librarians.
Students were presented with a number of lectures and discussions on various research tools and tactics,
completed three or four small assignments, then completed a twenty-page “pathfinder” on a research topic upon
which much of their final grade rested. The course had an enrollment limit of 25 (mainly because of the
pathfinder) and was generally full.
A number of concerns came to our attention a few years ago about our students not being as well prepared
as they needed to be for research in the real world. Students receive only a minimum amount of research training
in the mandatory first-year legal writing and research course and had come to rely heavily on LEXIS and
WESTLAW for their research needs. Out in the real world, however, many students were not able to use LEXIS
or WESTLAW and struggled with research projects. Our solution was to separate the traditional course into two
separate courses: a one-credit Foundations of Legal Research and a three-credit Specialized Legal Research.
Recognizing that this would be the only formal legal research instruction that many students would receive,
the Foundations course concentrates on basic research skills utilizing both traditional and electronic sources with
an emphasis on locating and using primary law. The course is taught in three, one-hour sessions per week over
a five-week period so the students complete the course early in the semester. The curriculum is fairly straightforward,
with class sessions on statutory law, cases and case-finding, administrative research, Pennsylvania research,
secondary sources, and the use of citators such as Shepards and KeyCite. Electronic resources including
both free resources through the Internet and proprietary resources including LEXIS, WESTLAW, and LoisLaw
are integrated with traditional resources.
Student performance is evaluated through a series of three research assignments and an objective final examination.
For the research assignments, students are assigned to one of eight research tracks. The assignment track
begins with a narrative discussion of a hypothetical client’s legal problem. It then asks the student to locate a series
of sources that may provide information addressing the problem. Subsequent research assignments are based
on the same hypothetical problem, giving students the opportunity to see how a given research resource leads to
subsequent resources addressing the same issue. The 50-question final exam combines multiple-choice, true/false,
and fill-in questions and is taken on the final day of class.

262 Legal Research and Writing
The Specialized Legal Research course has evolved considerably since the introduction of the Foundations
course. Initially, it was a two-credit course that minimized overlap with Foundations by addressing only those
areas of research not covered in the other course, including legislative research; foreign and international research;
research in topical areas such as tax, environmental, and labor law; and non-legal areas such as business and medical
research. After the first year we added a third hour to the course for a lab session. There is some coverage of
primary law material in the Specialized course, essentially to provide context for more advanced subjects. For example,
statutory research is covered in the context of legislative and legislative history research. The lab sessions
are often conducted in the computer classroom and are geared toward hands-on sessions with specialized resources
like Congressional Universe, CCH Tax Online, and business resources such as Hoovers Online and Edgar.
The evaluation of the Specialized Legal Research course remains chiefly based on the pathfinder and a series of
short-memo research assignments.
The legal research curriculum as a whole continues to evolve. Starting in the fall of 2002 we introduced a onecredit
Internet Legal Research course using the same three hours per week for five weeks format as the Foundations
course. The Internet course will be offered in alternate years with a one-credit International Legal Research
course to be offered in the fall of 2003. As a result, the Specialized course will return to two credits and will take
on more of a seminar feel.
Syllabus Bank
Material
George H. Pike, University of Pittsburgh School of Law
LWIonline.org now has the beginning of an online syllabus bank. Thanks to the many contributions of legal
research and writing teachers and law librarians we have over 40 advanced course syllabi that can easily be accessed
and downloaded (in Word). Karla Luce, web designer at Seattle University, put the syllabi online at
www.lwionline.org/publications/advanced.asp.
To reach the syllabus bank go to lwionline.org, then to LWI Publications on the left navigation bar; click Syllabus
Bank and then go to Advanced Courses (http://www.lwionline.org/publications/advanced.asp). You’ll find
over 40 advanced syllabi arranged by course type, then identified by teacher and school. We have many advanced
legal writing syllabi, advanced advocacy syllabi, even 10 advanced research syllabi, and a few other types, too.
In the course of collecting the advanced course syllabi, I found another great resource. Lee Peoples at Oklahoma
City University told me about the project at the University of Tulsa collecting advanced research syllabi.
To check out that resource go to http://www.law.utulsa.edu:8080/library/alr_syllabi. Those syllabi may be a bit
older, but they are still very useful.
“The True Story of the Three Little Pigs”
Jo Anne Durako, Rutgers-Camden School of Law
To teach students how to write a persuasive statement of facts, I often start by reading them The True Story of
the 3 Little Pigs, by Jon Scieszka, which tells the familiar story from the wolf’s point of view. This story is great
for discussing perspective and emphasis/de-emphasis.
Nancy Soonpaa, Texas Tech University School of Law

Using the Synthesis Chart to Bridge the Gap
between Analysis and Drafting
Legal Research and Writing 263
The standard curriculum for first-year legal writing courses usually includes some time devoted to teaching
students how to synthesize or fuse rules of law from several cases. The rule resulting from this synthesis can then
be applied to a hypothetical client situation. This synthesis (or fusion) of the rule and its application to the client’s
situation are usually demonstrated by using a chart called a synthesis chart. Some professors use another name
for the chart such as fusion chart, decision chart, or something along those lines. The chart usually looks something
like this:
SYNTHESIS CHART FOR FALSE IMPRISONMENT CASES
Element 1: Element 2:
Willful Detention Without Authority of Law Result
Black v. Kroger *threatened with not seeing Not discussed Recovery
Tex. App. 1975 child and with jail
*long-time employee
Morales v. Lee *threatened to call the police Not discussed No recovery
Tex. App. 1984 *plaintiff left and came back
Randall’s v. Johnson ER insisted that EE “stay put” *supervisor restricted EE to No recovery
Tex. 1995 office
*on the clock
*subject (theft) was
job-related
Our Case: Hall 2000 *threatened with detention *off the clock Probable recovery
order *subject (alcohol abuse) was
job-related
In the chart, the issues students will analyze, along with the results of each case, are listed across the top of the
chart as the first row. The case names and jurisdictions are listed down the left side of the chart as the first column.
The last square in the first column represents their client’s case. In each square within the chart are the facts
from the cases that correspond to the issues to be analyzed. Once students have categorized information in this
way, they can derive a general rule that comes from synthesizing the cases. Next, they can compare the facts of
other cases to the facts of their case in the last row to help them apply the rule to their client’s situation.
Although many first-year students use a synthesis chart to help them analyze their first legal issue, they generally
leave the synthesis chart behind when it is time to draft the analysis. However, the synthesis chart can be
used not only as a pre-writing guide for their analysis but also as a checklist for the written product itself.
If students have correctly filled in their charts with the facts that correspond to the issues, they automatically
have an issue-by-issue catalog of the primary legally relevant facts from each case, including their client’s case.
Although many first-year students have trouble understanding and identifying legally relevant facts, they generally
do not have trouble deciding which facts should occupy which boxes in the chart. Consequently, if someone
specifically points out to them that the facts inside the chart are the legally relevant facts and that those are the
facts that they should include in the memo, many students have less trouble deciding which of their client’s facts
to include in the Questions Presented, Brief Answers, and Facts sections of the memorandum. This method of
identifying relevant facts also helps them understand which of the supporting cases’ facts to use in the rule explanation
portion of the Discussion.

264 Legal Research and Writing
The chart can also help them distinguish between law and fact. On the top row of the chart are the elements
or factors that determine the issue. If they are told specifically that the law is across the top of the chart and the
facts are in the body of the chart, they may have less trouble with those portions of the memo requiring an understanding
of the distinction between law, facts, and conclusions. For example, a common challenge for firstyear
students is framing the Questions Presented so the questions do not include legal conclusions. This problem
is usually caused by including elements of law in a Question Presented instead of legally relevant facts.
However, the synthesis chart gives them a quick reference for what should be included in the Question Presented.
If the “facts” in their Question Presented come from the top row of the chart, then the Question likely contains
a legal conclusion. However, if the “facts” come instead from the bottom row of the chart (where their client’s
facts are catalogued), then the Question is more likely to be framed correctly.
Finally, the synthesis chart can help students see what should be included in both the rule explanation and
rule application portions of the Discussion section. Although students generally seem to understand that a rule
explanation and application are needed, it is not unusual for them to leave out critical information. Using the
synthesis chart, they can see that analogizing and distinguishing cases relating to one element or factor simply
means comparing or contrasting the legally relevant facts that appear within one column of the chart. Framing
the task of choosing case facts in those terms seems to make the task more concrete and manageable. Rather than
comparing the mountain of information in the case law to the mountain of information in the assignment, students
can use pre-categorized information that is already in a manageable format. They simply can take the information
already organized in a single column and compare the squares from other cases to the square for their
client’s case.
If students will continue to use the synthesis chart as they move from the analysis to the drafting stage of a project,
they can use it as a way to identify legally relevant facts, differentiate between facts and law, and analogize or
distinguish cases. In using the chart for these purposes during the drafting phase of the project, students can also
see more clearly the link between the way legal problems are analyzed and the way they are communicated.
The following handout explains these uses of the synthesis chart.
Case Factor 1 Factor 2 Factor 3 Factor 4
A v. B Fact X
Int. Ct. 1972
C v. D Fact Y
Int. Ct. 1983
E v. F Fact Z
S.Ct. 1997
Our Case Fact Q
2000
ANATOMY OF A SYNTHESIS CHART
This chart is designed to show you how a thorough, completed synthesis chart can help you even after you
have planned your analysis and begun to draft your argument.
* Facts X, Y, Z, and Q are legally relevant facts. Remember that one of the goals of this assignment is to
demonstrate that you know the difference between relevant and irrelevant facts by including only the legally relevant
facts. If you have already identified those facts in your synthesis chart, then you have a quick reference for
the legally relevant facts in your case and in the precedent cases. You will need to use relevant facts in your Questions
Presented, Brief Answers, Statement of Facts, and Discussion.

Legal Research and Writing 265
* Remember that in CREAC (the organization of your Discussion section), the “A” stands for “Application.” An
effective way to demonstrate that a previous case does or does not apply to your case is through fact analogy. For
example, if you want the same result as A v. B and C v. D, an effective way to argue for that result is to demonstrate
how those cases are factually analogous to your case. For example, you would argue that Fact Q is significantly
similar to Facts X and Y. Likewise, if you wanted to argue that you should not have the same result as E v. F, then
you would argue that Fact Z and Fact Q are significantly different. Identifying and developing comparisons and
contrasts between the cases are much easier if you have a chart with all of the facts organized.
* The elements or factors (listed across the top of the chart) can help you organize your Discussion. They
will guide you in deciding what points you will need to make to argue your case successfully. For example, if you
have an aggregate rule that requires that you satisfy a majority of the elements, then the chart gives you a quick
reference for which elements your case satisfies and, later, gives you a checklist with which to compare your Discussion,
so you can make sure you included all the elements you had intended to include.
(This idea appeared in Perspectives: Teaching Legal Research & Writing (vol. 9, no. 2, p. 80).)
Of Digests and Parties
Tracy L. McGaugh, South Texas College of Law
To teach the basic but sometimes tedious process of using a digest to find cases, I lead my students through
an example involving what I think of as the “Wayne’s World case.” (Yes, as in the movie.) It goes like this.
You sue a diverse defendant in state court. Months later, you add a new diverse party as a defendant, and that
party immediately removes the case to federal court. You want to argue that the case should be remanded to state
court because the original diverse defendant missed the opportunity to remove. How might you find a case on
point?
You might well start with West’s Federal Practice Digest. (With West’s permission, I copy all relevant pages and
hand them out to the class.) In the index, under the topic “removal of cases,” you will find the potentially relevant
key number 103. When you look that number up in the body of the Digest, you will see columns of synopses
of relevant points of law from federal cases around the country. None of them seem to fit your situation
though. Just as your eyes start to glaze over, you perk up when you find a dead-on case:
Defendant’s most bogus attempt at removal almost ten months after plaintiff commenced suit was untimely
and thus constituted defect deemed “way” improvident and “not worthy,” even though defendant
attempted removal promptly upon being added to suit, where suit was removable when filed and original
defendants did not remove.
Those West editors must be pulling a fast one, right? They must have just been having fun with the case and
spiced it up, but you hope that at least they were right about the law. You know you can never rely on someone
else’s summary and must actually read the case, so you go find Noble v. Bradford Marine, Inc., in volume 789 of
the Federal Supplement, at page 395, just as the Digest tells you. Sure enough, headnote 7 has the exact same language
you saw in the Digest.
In the actual opinion, though, the court could not have used such language — or could it? You scan ahead to
find the page with your headnote and read the federal judge’s text:
The addition of a new Defendant in an Amended complaint ...does not start the time for removal anew
when the original Complaint itself was removable.
The court has made the point you want, albeit in sober tones. But wait — there’s more:

266 Legal Research and Writing
[The new Defendant]’s removal, almost ten months after [the Plaintiff] commenced suit, is untimely and
is a defect deemed “way” improvident. ... In short, [the] most bogus attempt at removal is “not worthy”
and the Defendants must “party on” in state court.
You notice that the court’s heading for this section is “A Schwing and a Miss.” But the case is a hit with you.
Party on!
Alex Glashausser, Washburn University School of Law

Law Library Research Flow Chart*
Read case
annotations.
Locate applicable digest
topics & key
numbers.
Cases:
Descriptive Word
Index for West’s State
Digest
Use loose leaf
service if appropriate
to monitor
current developments
in the law.
Read case
annotations following
statute. Get key
numbers.
Locate applicable
statute.
Statutes:
Descriptive Word
Index for West’s State
Statute
Use key numbers
to locate and read
similar cases from
other jurisdictions
in Decennials &
General Digests.
Shepardize jury instructions.
Secondary Source:
State Material (e.g.,
State Practice Series,
State Jury Instruction)
Legal Research and Writing 267
Shepardize
each case
to validate
it and find
more cases.
Read cases. Note
any other applicable
West digest
topics and key
numbers.
Read applicable sections.
Check pocket
parts.
Secondary Source:
Am. Jur. (Topic Outline),
(Index), (Table
of Statutes) (New
Topic Service)
Begin by
Formulating
Search Words
Secondary Source:
ALR (Index Digest)
1. Basis of Action
2. Things, Places
3. Parties, Persons
4. Defenses
5. Relief Sought
You may want to
read secondary
sources to validate
your reading
of the cases.
Read applicable ALR
annotation. Check
pocket parts.
Read applicable sections.
Check pocket
parts.
Secondary Source:
CJS (Topic Outline)
(Index)
Read applicable Restatement
sections.
Check pocket parts.
Secondary Source:
Restatements (Choose
topic & series)
(Index)
Law Library
Research
Flowchart
Read applicable
sections or paragraphs.
Check
pocket parts.
Treatises (Index)
(Table of Contents)
(Table of Cases)
Secondary Source:
Legaltrac for treatises
and other secondary
sources
Shepardize
article for cases
& articles.
Read periodical
article.
Secondary Source:
Index for legal
periodicals
CDROM/ILP&CLA
* This flow chart is based on one created by Professor Aviva Meridian Kaiser that was distributed several years ago at the Legal Writing
biennial summer conference.
James B. Levy, Nova Southeastern University Law Center

268 Legal Research and Writing
Exercises
Paragraph Parody Exercise on Writing Style
To teach writing style, I assign readings on plain language and strong expression. Then I present the students
with a parody of a section from an opinion by Justice Brennan:
After careful consideration, it would seem that an incorrect analysis of the pending issue has been advanced
herein. It has been argued that if one causes a type of disrespect to be seen concerning the nation’s
commonly accepted emblem, then in order to uphold respect therefore in the future, it is necessary
to have in place some mechanism for levying sanctions criminally. The obverse of this argument can
be seen to be more reasonable and more practicable. Where it is desired by a nation to have respect for
its common symbol put into practice, sometimes such an attitude can practicably emanate from the arena
of the citizenry itself, in the form of actions by those individuals, such as performing commonly understood
ritualistic practices which can be seen as an affirmation of the thoughts that went into the original
conceptual process behind said device. Deterrentwise, it could be reasonably said that putting criminal
penalties into effect can be ineffectual to reinforce such an emblem when the principles that went
into the symbol would seem to suggest that assessing sanctions criminally is the obverse of a certain climate
of openness which was sought to be enabled by the aforementioned device.
After a short general discussion about the passage, I divide the class into small groups and ask them to apply
the assigned reading material to explain why the passage is so awkward and difficult to understand. The students
identify some of the paragraph’s weaknesses, such as excessive use of the passive voice, nominalizations, and vague
language.
Then I present the original passage as Justice Brennan wrote it:
The way to preserve the flag’s special role is not to punish those who feel differently about these matters.
It is to persuade them that they are wrong. ... And, precisely because it is our flag that is involved, one’s
response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine
no more appropriate response to burning a flag than waving one’s own, no better way to counter a flagburner’s
message than by saluting the flag that burns, no surer means of preserving the dignity even of
the flag that burned than by — as one witness did here — according its remains a respectful burial. We
do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this
cherished emblem represents.
Texas v. Johnson, 491 U.S. 397, 419–20 (1989).
The groups discuss why this passage works better, identifying such characteristics as active voice, concrete language,
and vivid verbs. This exercise generates lively discussion and reinforces the students’ understanding of the
reading material.
Using “Live Client Interviews” Instead of Fact Patterns
Judith D. Fischer, Louis D. Brandeis School of Law, University of Louisville
It is the norm for legal writing professors to give their students a fact pattern for every writing assignment. But
once a semester, instead of giving my students a fact pattern, I will bring in actors to portray clients. These “actors”
may be real actors, lawyers, judges, or third-year students. The students then collectively interview their
client. One or two student volunteers with laptop computers act as “court reporters” to write down the questions
and answers. Students know that they must later cite to particular pages of the transcript when writing their

Legal Research and Writing 269
memoranda or briefs, so they are careful to build a record of all the essential facts they will need. They also try
to pace their questions, so that the “court reporters” have a chance to write them down. This is not always an easy
task, because the exercise itself is fun and moves quickly. The transcript will be proofread, printed out, and circulated
to all of the students at the next class session, or before then in an email attachment. The transcript then
becomes the fact pattern that the students will use for their assignment.
Students really enjoy the opportunity of being able to interview a client. They learn how to phrase questions
clearly. They learn how to check the facts for each element of the cause of action they will be writing about. They
learn the limitations of working from a written record that they themselves helped to create.
I have not yet had any bad experiences using this technique, and I recommend it to colleagues who have not
yet tried it. Over the years I have tried many variations of this live client interview:
• You can give the students a basic fact pattern the week before the “client” is scheduled to visit the class. For
example, the students may learn that a client will come to class next week to discuss a problem that he is
having with his ex-girlfriend. After they broke up, the girlfriend falsely spread rumors that he has AIDS.
The client would like to know what he can do about that. The students, in the coming week, have a chance
to research the laws on defamation and intentional infliction of emotional distress. They will also examine
the possible remedies. The students then come to class with their written questions (or an outline of them),
to be sure that they cover each of the elements of those torts.
• Alternatively, a “client” from a previous memorandum can visit to discuss that case and further problems
that have developed from it. The students will already generally be familiar with the case and the controlling
law of certain aspects of it. For example, a landowner who complained about the noise of a neighbor’s
stereo may be interviewed for facts that would develop a cause of action for subsequent actions of retaliation
by that same neighbor that may amount to trespass, nuisance, assault, battery, intentional infliction of
emotional distress, or negligence.
• The students can be asked to switch sides, as often happens in Socratic dialogue, and be given the defense
of a client that they were going against in a previous problem. Because of the ethical issues involved in the
duty owed the former client, the new client will have a different name and will be sued by a different client.
We will still discuss the ethical issues about duties owed to present and former clients, a discussion that the
students appreciate much more because they are faced with the immediate ethical dilemma. The students
put into practice Aristotle’s admonition in the Rhetoric to learn the arguments of the opposing side so that
they can better anticipate them in their own arguments.
• A final variation is the surprise interview, in which the students are told nothing about the client who is
coming to class. The process is essentially the same, but the students here are given the opportunity to ask
further questions in the following weeks to clarify facts or to seek further information. This may better reflect
the lawyer-client relationship where there is open dialogue between the lawyer and the client, instead
of a single visit where the students usually have no further opportunities to build their factual record. (Of
course, even in the prepared interviews the professor can give the students the opportunity to ask questions
later, but I have found that by telling them it will be their only opportunity to ask questions the students
prepare more diligently for that first and only client interview.)
No matter which method I have chosen for a particular semester, at the conclusion of each client interview I
give the client a chance to comment and critique the “lawyers” who were asking the questions. For example, if
the questions become adversarial, the clients may reveal that they felt they were being attacked by their own
lawyers. The client may reveal that the students failed to ask about underlying motives for certain actions or have
forgotten to ask for essential facts.
This live client interview usually consumes an entire class period. But it is time well spent. The students get
practice in interviewing their own clients or in taking a deposition of an adverse party. Where they have had time

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in advance to prepare for the interview, they realize that the quality and focus of their questions depend on the
quality and focus of their preparation. And when the students are actually doing the research for their problems,
they remember that they are preparing to enter a profession where people will depend on them and the quality
of their work.
Transactional Skills Workshop
Mark E. Wojcik, The John Marshall Law School (Chicago, Illinois)
First-year students are immersed in dispute resolution through the Civil Procedure course, the case law method
of doctrinal courses, and first-year skills courses that focus on arguing for one side of a dispute. This need not
be so; it is possible to instruct students in transaction planning as well. At William Mitchell, we do so at the start
of the spring semester in our first-year skills course— Writing & Representation: Advice & Persuasion (WRAP)—
through a four-week unit called (unimaginatively but accurately) the “contract case.”
Actually, there are 10 contract cases; five stories, each set in two different states. The topics of the five stories
are: a restrictive covenant in a broadcaster’s employment contract, assignment and purpose clauses in a lease between
a small retail mall and a non-profit gift shop, force majeure issues in a contract for the sale of Christmas
trees, per diem and time-of-the-essence clauses in a contract for the installation of a major statue on a museum’s
grounds, and risk-allocation options in a contract for the storage of dinosaur bones. Each homeroom of about
12 students is assigned one of the 10 cases.
Students are guided through their case and evaluated by two adjunct faculty members (a writing professor
and a representation professor). The students also meet with one or the other for two hours sometime during
each week. In addition, two tenured faculty members who coordinate the course teach one-hour large-section
classes each week.
In WEEK 1, during the two-hour homeroom class, students receive the shared information about their case,
typically correspondence between the two parties to the contract and information about the industry or parties
(drawn from the Internet). The cover memo identifies the legal issues to be addressed. Students review what they
learned about legal research and office memos from the first semester and brainstorm about researching the case.
At the one-hour large-section class, students find a partner and do a “silent auction” exercise involving sale of
first-year law school books. Then they watch a very short excerpt from Monty Python’s Life of Brian regarding
positional bargaining. Finally, with one side of the room viewing the situation from the standpoint of one party
and the other side of the room viewing the situation from the standpoint of the other party, they watch and critique
the first part of a videotaped fictional contract negotiation, which focuses on basic principles of negotiation
and planning for negotiation.
In WEEK 2, students submit research notes, which are graded by the writing professor (worth up to three
points). During the homeroom class, students discuss the research process and brainstorm the analysis of the
legal issues in the case. Students receive confidential information about a simple deal (the sale of law books from
one firm to another) to be reviewed for the negotiation practice at the Week 3 homeroom class.
During the one-hour large-section class, with the students on each side of the room continuing to view the
situation from the standpoint of the party they represented in Week 1, the discussion of negotiation continues
as students watch and critique the last part of the videotaped fictional contract negotiation, which focuses on negotiation
styles and strategies.
In WEEK 3, students submit research memo outlines (worth up to three points) to the writing professor. The
writing professor conducts an abbreviated, one-hour homeroom class, during which the final brainstorming on
the case occurs. At the conclusion of this homeroom class, students receive additional information. They are informed
of two additional non-legal issues to be negotiated, such as price and timing, and they receive confidential
information that one party, but not the other, knows.

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Then students break into six-person groups. Each six-person group has a one-hour session conducted by their
representation professor. This session involves discussion and practice of negotiation with the negotiating partner
that the student will have at the following week’s graded negotiation exercise.
The first part of the Week 3 large-section class is devoted in part to special challenges that arise in negotiation,
including ethical issues, and negotiation preparation outlines. The remainder of the Week 3 large-section
class is devoted to contract drafting, including research in form books.
At the beginning of WEEK 4, students submit research memos, which are graded by the writing professor
(worth up to 12 points). The next day the negotiations occur, conducted, orally critiqued, and graded by the representation
professor (worth up to nine points). Each student submits a negotiation preparation outline (worth
up to three points). Each pair of students not only negotiates for 20 minutes but also observes another pair negotiate.
The Week 4 large-section class continues and concludes the discussion of contract drafting.
Finally, in WEEK 5, students draft and submit the contract clauses negotiated during the Week 4 negotiation
(either the clauses to which the partners agreed or clauses embodying terms specified by the representation professor
if the partners did not agree) and also an undickered clause on mediation. This assignment is worth up to
six points. At the homeroom class, the negotiating partners exchange and critique each others’ clauses.
We value this unit for many reasons. It permits us to shift from the advisory work of the first semester to persuasion
on behalf of a client, without the complications entailed in litigation. Students are introduced to two important
skills: negotiation and drafting. Students see how various types of skills — research, analysis, writing, oral
communication — come together. They learn about the importance of facts, especially client goals and industry
norms, and they learn that lawyers must be able to do math too! They learn that lawyers not only fight over the
past but also help to create the future. Students learn from each other, by watching another pair negotiate and
by critiquing the partner’s draft. And, of course, the unit reinforces what students are studying in their Contracts
course.
Deborah Schmedemann and Ken Kirwin, William Mitchell College of Law
Using Negotiation to Improve Thinking and Writing in the First Year
In my Legal Analysis and Writing course for first-year law students, I have incorporated a negotiation exercise
as the culmination of the predictive writing component of the course. The negotiation exercise occurs immediately
after the students have written a complex memorandum for which they have researched the applicable law.
The students are assigned “opposing counsel” who research and write on the same issue, but for the opposing
party. The students meet to negotiate a settlement in the case armed with their knowledge and understanding of
the applicable law, their client’s perspective and information, background readings, lectures, and practice in negotiation.
The negotiations are lively with the students conducting knowledgeable and structured discussions of
the law within the parameters of the case. The students leave the negotiations with increased confidence in their
abilities to “use” the law.
The negotiation serves the purpose of providing real-world experiences to students in a structured environment
with legal issues designed also to promote the pedagogical goals of identifying legal issues, organizing complex
legal analyses, and considering varying legal perspectives. The students enjoyed having an application aspect
to their legal thinking after a semester of purely theoretical pursuits. However, I soon found that negotiation as
the culminating experience to their predictive writing added other dimensions to the students’ learning.
The students began to consider that they would have to be persuasive to present their legal view of the case to
opposing counsel. This allowed the students to see that predictive writing many times also has the goal of success
for the client. While this goal should never overwhelm an objective view of the chances of the client’s success
on the substantive legal issue, students consider the client’s legal goals more seriously when they face the

272 Legal Research and Writing
prospect of representing the client as an advocate. Additionally, they also consider opposing legal perspectives in
a deeper and more realistic way when they know that they will have to answer “opposing counsel.”
During the negotiation, the students have a chance to develop their professional, interpersonal, and advocacy
skills. The students discuss their client’s legal perspective through intelligent, informed discussion of legal precedent
and the facts of the case. This may be the first time that the students have a chance for a prolonged legal
discussion of complex issues in a structured setting. Unlike class participation where students only occasionally
speak, the students negotiate in pairs so each student plays a vital role and has an extended chance to speak about
legal issues. The students also begin to learn bargaining techniques for reaching their desired goals for the client.
The students end the negotiation process by drafting a settlement agreement that each student must sign. This
returns them to the task of precise legal writing. The students take the negotiation quite seriously, but also enjoy
it quite a bit. It is an enriching culmination to their first semester in law school.
(An earlier version of this article was published in the The Second Draft (Vol. 12, No. 1, p. 12.)
Pop Culture Prognostication
Teresa Brostoff, University of Pittsburgh School of Law
Students often accept the basics of legal analysis more easily when introduced to them in a non-legal context.
This exercise, used in the first semester before students begin drafting an office memorandum, introduces students
to inductive reasoning to create rules and then deductive reasoning to apply those rules to facts to create
arguments and predict an outcome.
This exercise works with popular songs, television shows, and movies. This example is based on situation comedies.
Here’s the scenario for the students.
Analysis and Synthesis Exercise
You are an aspiring television writer and seek to create a Top-10 situation comedy, the success of which will
bring you fame and fortune. Unfortunately, aside from avidly watching sitcoms for much of your life, you know little
about how to create one from scratch, and you need help, so you start to plan a way of testing any idea that
you develop.
[Teaching Note: This first step teaches students how to develop rules, and I use that language later when I’m recapping
the purpose of the exercise at the end of class and as a reference later in the semester. Developing the rule — Task
One — can take from half to an entire 50-minute class period.]
You decide to start by looking at previous Top-10 shows (i.e., you look to precedent). As avid fans of late-night
cable, you select The Mary Tyler Moore Show, Three’s Company, and All in the Family (three “seminal decisions”).
Task One: What “rules” regarding Top-10 sitcoms can you extrapolate, through analysis and synthesis, from
these shows? A useful technique that you can use to organize information about the shows is to use a chart (see
truncated example below). A chart allows you to break out the component parts of a whole (analysis) to identify
patterns and make meaning across those individual examples (synthesis). We’ll use “decision charts” later in the semester
to help us to analyze and synthesize cases.
The chart below includes partially completed “Characters” and “Length” boxes. What pattern(s) do you see?
State them as declarative sentences. These patterns are some of the “rules” for a successful sitcom. For this exercise,
continue to fill in the boxes, and then look for patterns that cut across individual examples.

Legal Research and Writing 273
[Teaching Note: After they have read this far, let them share the initial rules that they have synthesized to demonstrate
the task and to model the process that they will continue on their own. The students should have generated at
least two rules, ranging from “successful sitcoms are 30 minutes long” to “a successful sitcom requires a ditzy blonde.”
After they have shared, let small groups of 3–5 students continue to fill in the chart and to synthesize rules. After about
10–15 minutes, reconvene to allow the groups to share their work.]
Setting Characters Length Tone/Mood Social Consciousness
Mary Tyler Lou: gruff,
Moore stern father
figure
Georgette:
ditzy blonde,
sweet, not
too bright
Three’s Co. Chrissy: ditzy
blonde, not
too bright
All in the Archie: gruff,
Family stern father
figure
Gloria: ditzy
blonde
Large-group debriefing: Ask the small groups to share the rules that they synthesized, then if necessary, push
them to look for rules that aren’t as obvious or that require flexible definitions — for example, the three shows
above all involve family-like relationships, even if the characters are not related by blood or marriage. The students
might even come up with policy-based reasons for some characteristics of these shows — network censorship,
societal norms, etc. You can wrap up this part of the exercise by recapping why rules are so important in
legal analysis.
[Teaching Note: Along with using this exercise to teach rule development, you can also extend your use of it to teach
rule explanation/proof. Task Two can take from half to an entire 50-minute class period, depending in part on what
you set up in the previous class and what you ask them to do as homework.]
Task Two: As you review the sitcom rules that you developed, note that some of them are clear on their face
and that some of them would be more easily understood if you included detail and explained them for your
reader. What rule is clear on its face? What rule would be more easily understood with additional examples to clarify
it?
[Teaching Note: You are now using this exercise to have the students draft a rule and rule explanation/proof or analogous
case sequence per their legal writing text. Walk them through their initial responses to the preceding questions,
modeling for them how to write an explanation or analogous case paragraph. Then let small groups of 3–5 students
continue work on their own. After about 10–15 minutes, reconvene to allow the groups to share their work.]
Now examine the rest of your rules, identifying those that need additional explanation. Choose one, then write
a paragraph that explains it and that draws on the three “seminal decisions” from your chart and on any policy that
you identified in your earlier analysis. Remember to start with a thesis sentence that identifies the focus of your
paragraph. Also remember that you may need to address “counter-arguments” — those examples or policies that
contradict or are inconsistent with the ideas you are asserting.

274 Legal Research and Writing
Large-group debriefing: Ask the small groups to share their paragraphs with the class (using an overhead projector
and transparencies or a document projector works well here). For each paragraph, test it: Does it relate to
some part of the rule? Does it address a point that needs explaining? Is the thesis sentence focused and consistent
with the rest of the paragraph? Does the rest of the paragraph support the thesis? Does it include counterarguments?
You can wrap up this part of the exercise by reiterating the importance of explanation/proof in legal
analysis.
[Teaching Note: Along with using this exercise to teach rule development and rule explanation/proof, you can also
extend your use of it to teach rule application. Task Three can take from half to an entire 50-minute class period, depending
in part on what you set up in the previous class and what you ask them to do as homework.]
Task Three: Inspiration has struck — you have a great idea for a new sitcom. However, you realize that you need
to critically examine your idea to predict whether it’s objectively as strong as your initial and hopeful reaction indicates.
Please review the idea on the reverse of this page. [Teaching Note: On the reverse, describe a current popular
sitcom. Perhaps it’s Friends — six twenty-somethings living in the big city. Perhaps it’s Will & Grace — a gay man and a
straight woman who live together and share their lives.] What is your first best argument about whether your idea
could become a Top-10 sitcom?
[Teaching Note: You are now using this exercise to have the students draft a rule application sequence per their legal
writing text. Walk them through their initial responses to the preceding question, modeling for them how to write an application
paragraph. Then let small groups of 3–5 students continue to work on their own. After about 10–15 minutes, reconvene
to allow the groups to share their work.]
Now draft additional argument or “application” paragraphs, applying your rules, policy, and “cases” to the proposed
sitcom (i.e., the “facts”) in order to predict whether the show will be a Top-10 hit. Remember to draft both
arguments and counter-arguments, and remember the various types of arguments set out in your legal writing
text.
Large-group debriefing: Ask the small groups to share their paragraphs with the class (using an overhead projector
and transparencies or a document projector works well here). For each paragraph, test it: Does it identify
a well-based and reasonable argument? Does it relate back to a rule or rule explanation/proof paragraph? Is the
thesis sentence focused and consistent with the rest of the paragraph? Does the rest of the paragraph support the
thesis? Is the best “authority” used? Does it need or include counter-arguments? You can also encourage the students
to see that rules can be worded broadly or narrowly and that how they draft a rule and explanation/proof
affects the application/arguments that they can make. For instance, can a character fulfill the “ditzy blonde” rule
if the character is male with brown hair? You can wrap up this part of the exercise by reiterating the importance
of application of law to fact in legal analysis.
This exercise is manageable and fun and can be tailored to whatever part of the analytical sequence you want
your students to practice. It helps to demystify the process and to decrease the intimidation factor by using a
non-legal scenario. Aside from making all of your students want to pack and move to L.A. to seek fame and fortune,
it’s a good introduction to reasoning skills and the analytical sequence.
The Application Process
Nancy Soonpaa, Texas Tech University School of Law
Although students arrive at law school knowing little about how to apply the law to certain facts, they do know
quite a bit about how to apply to law school. Every law student has been in the position of trying to convince the
admissions committee that he or she should be admitted. I use an example for legal writing application that capitalizes
on students’ expertise in law school application. Besides using an example the students know about, talking
about the admissions process reminds students that they have already accomplished something significant

Legal Research and Writing 275
by being admitted to law school, which takes some of the focus off the difficulty they may be having in legal writing.
I use this example in conferences for students having a difficult time understanding the need for applying legal
rules to facts or the process of doing so. However, the example can be easily converted to an in-class exercise.
Many law students have a tendency when they are first learning legal analysis to assume that a rule has only one
meaning (the one the court has assigned it) and that elaboration on the rule is unnecessary. In a student’s mind,
you need only state the rule and conclude that your facts are or are not governed by that rule. This example is
designed to help students understand that rules are not self-explanatory and that analogy to cases involving the
rule can be a critical component in explaining the application of a rule to a specific set of facts.
I ask the student to imagine she is a member of the law school admissions committee. I am a current student
who has come to her to persuade her to vote for the admission of a friend of mine. We assume for this exercise
that the only admissions requirement (the “rule”) is being a good student.
First I say, “The admissions committee admits good students. Therefore, you should admit my friend.” I ask
the student if she’s ready to admit my friend. She says no, and I ask why. The student can usually articulate that
my conclusion doesn’t relate directly to my rule — my rule is about the admission of good students, but my conclusion
is about the admission of my friend. I haven’t linked the two.
So, I try again: “The admissions committee admits good students. My friend is a good student. Therefore, you
should admit my friend.” I ask the student if she’s ready to admit my friend yet. Again, she says no, and I ask why.
The student can usually articulate that being a good student may not mean the same thing to me as it does to
the committee; an example of someone I believe is a good student and who has met their criterion in the past
would be helpful.
Next, I say, “The admissions committee admits good students. I was admitted to the law school; therefore, I
must be a good student. I had a 3.7 GPA and scored in the 95th percentile on the LSAT. I was the president of
two undergraduate student organizations and a member of student government. My friend is like me. Therefore,
you should admit my friend.” I ask the student if she’s ready to admit my friend yet. The student will probably
say no. If she agrees to admit my friend, it will probably be with some reservation. The student can probably articulate
that I’ve demonstrated that we have the same idea of what makes a good student but that she would like
to have information about my friend similar to the information about me. So, I begin again, this time giving information
about my friend similar to the information I gave about myself but not expressly comparing our characteristics.
I ask if my friend gets in yet. She’ll probably say yes.
I then tell the student that, even though she found my argument adequate, I think I can do even better. “My
friend should be admitted to this law school. The admissions committee admits good students. I was admitted
to law school; therefore, I meet that requirement. I had a 3.7 GPA and scored in the 95th percentile on the LSAT.
I was the president of two undergraduate student organizations and a member of the student government. Like
me, my friend had a GPA above a 3.5. In addition to a similar GPA, she has an LSAT score in the 96th percentile.
She, too, was the president of two undergraduate student organizations and surpassed my position in student
government by holding office.” The student usually begins nodding about half way through and agrees that it
would be difficult to justify denying admission to my friend. I’ve not only elaborated on the meaning of the rule,
I’ve given specific facts about a prior “case,” given specific facts about the new “case,” and expressly compared
them to one another.
By then, the student sees why it’s important to do a full application of the “law” to the facts. The student has
seen that the law alone is not sufficient to draw a conclusion. You must instead first elaborate on the meaning of
the rule by giving an example of how it was applied. Then, you can best demonstrate how the law should apply
to your specific facts by drawing parallels between facts the court has already ruled on and your facts.
I usually wrap up the example by pointing out which parts of my argument correspond to the parts of legal
analysis that we’ve talked about in class. (Although we use CREAC for legal analysis, the components are similar
for most teaching methods.) My Conclusion, stated first, is that the admissions committee should admit my

276 Legal Research and Writing
friend. The Rule is that the admissions committee admits good students. The Explanation of that rule is given
through my characteristics (characteristics that have previously met the standard of “good student”). Next, the
rule is Applied to the new facts by explicitly comparing the previous facts (my characteristics) to the new facts
(my friend’s characteristics). Finally, I restate my Conclusion that my friend should be admitted to law school.
You can go through the entire example as an illustration, or you can specifically contrast different parts of the
example, depending upon which part of legal application is most troublesome to your student.
(This idea appeared in The Second Draft (vol. 14, no. 2, p. 12).)
Tracy L. McGaugh, South Texas College of Law
What Self-Guided Museum Tours Can Teach Us about Legal Research
Teaching legal research is difficult. It is a labor-intensive type of instruction that requires the teacher to give
each student a lot of personal attention. To properly learn legal research, like any new skill, students need feedback
from their teacher at the same moment they try it out for themselves. Because of high student-teacher ratios
at most law schools, however, we are simply unable to provide students with that kind of individual attention.
Instead, we teach the subject by delivering undifferentiated advice to a classroom full of students and then
assign library exercises that, for the most part, leave it up to them to figure out on their own.
This is a terribly inefficient way to learn for both students and teachers. As teachers, all the hours we spend
preparing class lectures, visuals aids, and taking students on library tours will do little good if students procrastinate
the start of their research projects, as they almost always do. The students, on the other hand, do not get
much out of passively listening to a class lecture on legal research when they may not try these skills until days,
or even weeks, later.
After observing this phenomenon for several semesters, I realized that any solution to this problem would have
to involve finding a way to deliver personalized instruction to every student in the class at the exact moment each
one begins working on their research projects. It occurred to me that the prerecorded, self-guided audio tours
used by many museums were designed to address the problem of providing a large group of people with an individualized,
self-paced learning experience. I recognized there are two ways we can adopt self-guided museum
tours to the law school context to improve the quality of the research instruction we provide our students.
First, we can develop our own prerecorded, self-guided audio tours that would deliver personalized library instruction
to every student in the class at the moment it has the most effect — when students begin working on
their research projects. Indeed, undergraduate libraries have experimented with the use of self-guided audio tours
and have found them to be a good substitute for “live” instruction. A prerecorded, self-guided tour of the law library
(available in either cassette or compact disc format, which students could check out from the reserve desk)
would enable students to schedule a library tour whenever it was most convenient for them. It would also allow
them to learn about the research tools at their own pace since they could pause the tape or CD and then repeat
any lesson as needed. Another important pedagogical benefit of a self-guided library tour over classroom instruction
is that it encourages active learning, the key to successful teaching. For example, a prerecorded library
tour could be designed to include instructions that direct students through research exercises as they stand in
front of the books in the law library.
Aside from these advantages, a self-guided audio tour could make a trip to the library interesting and fun.
Many of the cases found in the library involve great stories concerning basic rights, ethical dilemmas, and interesting
characters. In particular, decisions from the United States Supreme Court would make especially good material
for inclusion on a prerecorded audio tour since the transcripts of oral argument in several landmark cases
are readily available. We could use actors, evocative music, and sound effects to make the stories behind these
cases really come alive for students as they stand in front of the books and leaf through the pages that give rise
to some of our most basic rights.

Legal Research and Writing 277
In addition to creating audio tours, we can also develop written library exercises that emulate self-guided museum
tours by giving students written instructions for finding and using all the research tools they will need to
complete their library assignments. This can be an effective, low-cost approach for teachers who do not have the
resources or wherewithal to develop a pre-recorded audio library tour on their own. I have developed such an
exercise for use in my classes. It consists of a library map, flow chart, and research log that provide students with
a script for finding and using every library tool they will need to research their open-universe writing projects.
It approximates the experience of a self-guided audio tour by providing students with instructions they can carry
with them as they engage in their research projects. I give students a map showing the location of every research
tool they will need, a flow chart that provides a schematic diagram on how to use them, and a research log that
includes written instructions for using these tools, plus space to record the results of each step in their research.
(See my “Law Library Research Flow Chart” in the Materials section of this chapter.)
Student response to my exercise has been extremely good. In fact, they have consistently told me in their course
evaluations that providing them with a written script for finding their way around the law library is so effective
I can spend less time lecturing about research in class. I have also observed that this exercise makes students more
confident and self-reliant in their use of the law library earlier in the semester than when I used more traditional
library exercises.
(This summary is based on Escape to Alcatraz: What Self-Guided Museum Tours Can Show Us About Teaching
Legal Research, 44 N.Y. Sch. L. Rev. 387 (2001), and Better Research Instruction Through “Point of Need” Library
Exercises, 7 Legal Writing 87 (2001).)
Every Case Has Two Stories
James B. Levy, Nova Southeastern University Law Center
It is the first week of fall semester and a roomful of 1Ls are staring at you as nervous as deer in the proverbial
headlights. You know many of them consulted Black’s Law Dictionary until the wee hours of the morning, trying
to fathom meaning in the one case you assigned. Yet they still seem hopelessly lost. Perhaps you are not trying
to play Kingsfield, and you are wondering if there is a kinder, gentler way to help students learn quickly to
read and brief cases.
Try telling them this: “Relax. It’s really very simple. Every case has two stories.” And then, without the need for
any high-tech equipment, you can have a visual aid just by holding up two fingers.
Two fingers. Two stories. What could be easier? Everyone loves a good story. And every case by definition is a
little human drama, complete with settings, characters, tensions, plots — well, two plots actually, the two stories.
The first story (hold up the first finger again) is the story of what happened in “real life.” What happened in
the world to get someone so upset he or she wanted to sue someone else? Did someone slip on a banana peel in
the produce department? Did someone steal bananas from the produce department? You get the picture — what
was the real-life dispute, what happened up until the time someone filed a lawsuit? All of those details are the
facts of the case.
Tell the 1Ls that is what they should tell you if you ask them to recite the facts of the case. That’s what they
should write under “Facts” in their case brief. If you want to hear facts and they veer off into the law or other
areas, it’s easy enough to chide them with a curt, “Just the facts.” Just the real-world story.
The second story (and here you get to hold up a second finger) is the story of how the lawsuit wound its way
through the courts. Tell the 1Ls that in law we call this second story “procedure.” Sometimes they may hear it referred
to as the procedural history or procedural posture of a case. The first story is facts, and then the second
story is procedure.
This second story, how the case wound its way through the courts, is what they should write under “Procedure”
in their case brief. It’s what they should recite if you ask for the procedural posture of the case. And above

278 Legal Research and Writing
all, it’s what they should focus on when studying for that befuddling course called Civil Procedure. It’s what their
Civil Procedure professor will be focusing on. Professors in other courses are likely to put the focus elsewhere.
Inevitably, some brand-new students will arrive at Contracts class clear on the standards for personal jurisdiction
or they will come to Civil Procedure class more concerned about an intentional tort. The two-story approach
should help them focus their efforts more productively right from the start.
So that’s all there is to it. There are two stories for every case. The first is facts; the second is procedure.
I realize this two-story approach has its limits. It ignores any subtleties in determining exactly what triggers
commencement of a lawsuit. It also delays for another day application of the axiom, “There are two sides to every
story,” a key element of legal training, of course. But in the first week of law school, the two-stories-per-case explanation
preempts a lot of potential confusion among 1Ls.
(A longer version of this idea appeared in The Law Teacher, Spring 2001, p. 12.)
Low-Stakes Assignments: Developing Strategies to Write
Persuasive Advocacy Briefs
Introduction
Sue Liemer, Southern Illinois University School of Law
The Writing Center at the CUNY School of Law presents two workshops on the use of persuasive language in
legal writing, more specifically, in briefs. The goal of these workshops is to enable students to develop revision
and editing strategies that they will be able to apply to written assignments for their law school courses as well
as to the writing requirements in their future professional lives.
The series of workshops conforms to the goals and methodologies set forth by the Writing Across the Curriculum
(WAC) initiative adopted by the City University of New York. This institutional effort aims to both develop
students’ writing skills and enhance their learning in all disciplines by incorporating writing tasks more
broadly throughout the curriculum. Among the techniques recommended by WAC practitioners is the use of
low-stakes writing assignments.
Low-stakes assignments (Peter Elbow, High Stakes and Low Stakes in Assigning and Responding to Writing, New
Directions for Teaching and Learning 69 (Spring 1997), 5–13) are more informal types of writing, developed in
a nonevaluative context, and, therefore, typically ungraded. The incorporation of this type of task (either inside
or outside the classroom) allows students to explore possibilities of expression without the level of exposure,
pressure, and consequent inhibition typically generated by high-stakes assignments.
Developing students’ perception and production strategies for legal persuasive writing
Recognition and analysis of the strategies used by other writers (perception) allow students to gain some distance
from their own texts and become aware of useful writing techniques. Subsequently, students are able to use
these techniques in their own work (production). Perception and production are complementary aspects of the
creative process.
Workshop I
The goal of this workshop is to introduce students to the persuasive techniques available to them when writing
an advocacy brief. First-year students who are about to encounter advocacy writing assignments in their
classes are the primary audience, but second- and third-year students would also find the exercise a useful reinforcement
of important skills.

Perception Stage:
Legal Research and Writing 279
To begin the workshop, we present students with documents akin to what they are likely to see in their classes
and, ultimately, on the job. The students are first given background information for a hypothetical court case.
After reading through brief summaries of the plaintiff’s and defendant’s trial testimony and a summary of the
relevant law, they receive a copy of a post-trial brief written by the plaintiff’s attorney. To direct their reading, we
also distribute a list of questions that ask them to focus on the writer’s legal and rhetorical choices in the statement
of facts.
We then initiate a group discussion of the statement. Both a Writing Fellow and a law professor take part in
the exchange, so that questions about both writing and legal strategy are fully addressed. Our goal is to help students
become more aware of the connections between legal goals and rhetorical technique. The persuasive effect
of certain sentence structures, passive or active voice, and modifiers is discussed, but the emphasis is on the relationship
between these grammatical devices and the legal argument of the brief as a whole.
Generally, we have found such discussions to be lively and self-directing. Students perceive the activity to be
low stakes, since it takes place outside of their classrooms and is not part of a graded assignment. The observations
of one student often spark follow-up comments by others, and we may hear valid points we had not considered
when putting together the materials.
Production Stage:
The goal of the production stage is to have students put into practice what they have learned. WAC pedagogy
emphasizes that writing is a powerful method of reinforcing other modes of learning and is in fact, for many students,
the primary tool for ensuring mastery of material. In our case, the writing component of the workshop
serves the additional purpose of giving students practice in the type of writing they will soon be doing in their
classes.
Students write a statement of facts for the same case from the perspective of the defendant. They are expected
to take into consideration both the legal arguments that seem most appropriate and the rhetorical strategies that
would most effectively support those arguments. The end result should be a statement quite distinct from the
one they have just read and discussed.
This component of the workshop can be perceived as a higher-stakes activity, since the students are being asked
to produce a written piece and be able to discuss the choices they made. To lessen anxiety we prefer to have them
exchange their statements with one other person and discuss their strategies in pairs. We then would bring the
whole group together for a wrap-up conversation, asking students to volunteer what they found most effective
in their partners’ papers. If time does not allow for such an exchange, however, we hold a group forum in which
a few students who are comfortable with peer critique read out their statements and discuss their decisions.
We do not collect the students’ papers or pressure more reticent students to speak, although we are happy to
read and comment on the work of any student who approaches us after the workshop. The activity of writing
with a conscious focus on the strategies discussed in the perception stage is, we believe, a valuable learning experience
in and of itself.
Workshop II
The goals of this workshop are to foster students’ awareness of writing strategies and to help them develop
their analytical and editing skills. This second workshop mimics the first in its two-stage organization: perception
and production. In addition, it deals with the text at two levels: syntactic and lexical.
Perception Stage:
In the first stage, students analyze the relation between syntactic structures and focus of information within
the sentence. They learn to detect specific structures such as subordination, passive voice, subject/verb distribution,
etc. and discuss how a writer can use these structures persuasively by focusing the reader’s attention on spe-

280 Legal Research and Writing
cific parts of the text. Choice of words (shades of meaning, connotation value of words) and the effect of certain
choices in persuasive writing are also discussed.
First, the Writing Fellow presents students with some strategies that help the writer de-emphasize unfavorable
facts about clients’ activities. The Writing Fellow then provides specific contrasting examples illustrating the use
of those strategies to help students perceive the effect the writer achieved.
Following this discussion, students read two statements of facts that achieve an opposite effect: one presented
by the plaintiff’s lawyer, the other by the defendant’s. They then discuss the way in which the writers manipulate
the information in the text using the strategies already mentioned.
Next, students move towards a more specific analysis at the lexical level. The lexical analysis of the persuasive
text focuses on four word categories — nouns, adjectives, adverbs, and verbs — and on the effect that the presence
and nature of these categories have on the text. In the first exercise, students are requested to “mark the adjectives
and adverbs in the second paragraph of the plaintiff’s Statement of the Case and comment on the writer’s
use of persuasive language. What means does the plaintiff’s lawyer use in this paragraph in order to make this
text serve his/her purpose?” This ensures that the student will analyze the same text from a different perspective.
With respect to verb choice, an exercise on recognition of positive, negative, and neutral connotation and on
substitution of colorful verbs by colorless ones, and vice versa, allows students to explore the availability of a wide
range of words varying in shades of meaning.
In general, these awareness exercises foster the discovery of the mechanisms through which the writer manipulated
information in the fact statement section of the brief. This gives students the possibility of evaluating
texts from a new perspective and objectifying those mechanisms available in grammar.
Production Stage:
The Writing Fellow presents a set of sentences and then paragraphs and asks students to rewrite them following
the procedures discussed in the workshop, in order to change the effect these texts trigger. After that, students
conduct peer review, engaging in a discussion about the writer’s general persuasiveness and the strategies
the writer resorted to in order to change the effect of the text.
Conclusion
The incorporation of low-stakes assignments (either in class or outside of class) into the writing agenda generates
in students the possibility of exploring writing issues in a less pressured environment. The creation of
spaces where students can focus on writing, reflect on their practice, produce texts, and revise their production
in a less exposed manner and in a safe context is necessary, especially in law schools, considering the demands of
legal writing. This dynamic helps students cooperate in the creative process and lose the fear of sharing their
work product with their peers. They gradually move toward a more critical approach to their own writing and
to an understanding of writing as a process, a practice, and a learning tool.
Teaching Active Reading
Silvia Rivero and Lori Wallach, City University of New York School of Law
To be able to understand law, students must first be good legal readers. For a teacher to understand how the
student is reading, the student’s case brief is a good place to start.
My colleagues and I at Southern Illinois University School of Law spent our first two class sessions in the fall
discussing briefs that the students turned in for our Lawyering Skills class. We wanted to make sure our students
were reading carefully and accurately. One of my colleagues, Melissa Shafer, referred us to an article by Laurel
Currie Oates about successful reading strategies of lawyers and law students, Beating the Odds: Reading Strategies
of Law Students Admitted Through Alternative Admissions Programs, 83 Iowa L.Rev. 139 (1997). Melissa sum-

Legal Research and Writing 281
marized it for us and noted that the successful readers were actively involved with the text. Sue Liemer, the director
of our program, incorporated the discussion of active reading into our lesson plans.
I looked at my list of questions for the students. I would encourage them to ask themselves what court decided
the case, in what year the case was decided, who sued whom, how much money was involved, what grudges
were involved, whether the holding could be predicted, and what words signaled important parts of the case. Finally,
I would ask the students to create a mental picture of the case. I imagined a moment of silence when the
students would create that mental image — but that seemed more like Lamaze class than legal writing — so I
found a better way.
I asked my class to cast the movie of the case! Our case included a pair of inept buyers who agreed to purchase
a tavern with a sagging, stained ceiling. The sellers discouraged — but did not prevent inspection — and a
plumber finally discovered roof problems. The students eagerly took up the task of casting the movie of Smith
v. Ethell, 494 N.E.2d 864 (Ill.App.4th Dist. 1986). It was agreed that Gene Hackman could play any role in the
movie. Suggestions for the pair of buyers included Meg Ryan and Woody Harrelson, and Laurel and Hardy. Suggestions
for the sellers included Marlon Brando, with a note as to what girth would be appropriate, and the characters
Edith and Archie Bunker from the television show All in the Family. The plumber who saves the day for
the unsuspecting buyers was to be played by either John Goodman or George Wendt, known better as Norm from
the television show Cheers.
We had all that fun casting just the factual drama. In a case with complicated procedural issues we could cast
the lawyers and judges for the law office and courtroom scenes as well. And why not take it further? At the end
of the semester we could vote on and present Academy Awards for best plaintiff, best supporting lawyer, and bestwritten
opinion. (I hope my sequined gown will be back from the cleaner in time!)
As the year moves on the students will see the value of reading like a lawyer, noting the court, the date, and
important signals in the case. They will develop their abilities to synthesize while reading. But I am positive that
after our casting session, in the second week of law school, they have mastered one way to be an active reader —
visualizing a case.
(This idea appeared in The Law Teacher, Spring 2001, p. 11.)
IRAAC in Living Color
Brief Gems
Sheila Simon, Southern Illinois University School of Law
I have taught the students to use a form of IRAC using the colors of the rainbow in the order in which they
appear in a rainbow. Here is my system:
I = Issue (pink)
R = Rule of Law (orange)
A = Analogous cases [or facts from rule cases](yellow)
A = Application [or arguments of parties in an objective memo] (green)
C = Conclusion (blue)
I emphasize that the order of the IRAAC is as important as having each of the “letters” represented. Students
are required to “IRAAC” all their drafts up until their final one by using highlighters (or computerized coloring)
to show the various sections of their analysis. The students love the system; it’s easy to remember once they understand
the logic involved. I find the papers much easier to comment on because of the colors. They allow me
to get inside my students’ minds. We find ourselves speaking the same language. For example, I can tell the stu-

282 Legal Research and Writing
dents that all cases should be introduced and cited in the orange and yellow sections or that they shouldn’t include
any citation in the blue or green sections.
“Remember the Paint Box?”
Nancy A. Wanderer, University of Maine School of Law
For a number of years, I have used a child’s paint box to explain the need for separation between rule explanation
and rule application in my students’ first memos for Legal Methods. First, I explain the format and stress
the need to lay a foundation for the arguments pro and con in rule application. Then I tell students that one of
the mistakes many first-year students make is to mix rule explanation into the rule application section. At this
point I take out my paint box. It is white and has about eight squares of color, all pristine in their clarity. I take
the little brush, dip it into cup of water I’ve brought with me, and go from one square of color to another. Soon,
the crisp clarity of the squares disappears, replaced by muddy blobs of color. This muddy mess, I tell students, is
what happens when they mix rule explanation with rule application. When I comment on papers during the semester,
I can say, “Remember the paint box?” to remind students of the problem.
Persuasive Seating
Brannon Heath, Touro College Law Center
During the semester on persuasive writing in which students will represent the same party for the duration of
the semester, I physically separate them to emphasize the switch from objective to persuasive writing. The appellants
sit on one side of the room; the respondents, the other side. It’s easy, then, to have them argue and
counter-argue, to develop opposing themes, to respond to each other’s practice oral argument questions, etc.
Judge and Lawyer Speakers
Nancy Soonpaa, Texas Tech University School of Law
I have tried to bring as many judges and lawyers to the class as possible. During the first eight weeks we work
with an actual Maine Supreme Judicial Court case that is on appeal. I teach the students to write a bench memo
on the case using the actual parties’ briefs. Then I invite the lawyers from both sides to come to class and talk
about the case with the students. Finally, the entire class of 80 or so students attends the actual oral argument.
After the argument, right in the courtroom, the lawyers talk with the students again and process their impressions
of how the argument went. A few weeks ago, the court issued an opinion and we were able to dissect it and
determine the probable impact the opinion will have on future cases.
I have also brought in a lawyer each year who has argued in the United States Supreme Court to talk about
his or her experience; three panels of lawyers to explain discovery, motion practice, and ethical duties; the chief
justice of the Maine Supreme Judicial Court to talk about what makes for a good brief or oral argument; and a
senior circuit judge from the First Circuit to talk about federal practice, brief writing, and oral argument. Although
these visitors say basically the same thing I have been saying, the students really perk up and listen when
they speak.
Nancy A. Wanderer, University of Maine School of Law

The Last Class—Ending on the Right Note
Legal Research and Writing 283
This year my last class included a few minutes devoted to passing out awards to everyone. Two people from
each class were selected for official oral argument honors, so I went ahead and gave out some fun honors to the
rest of the class. The range was pretty broad. One was for being unflappable. One was for the best faces made to
help an argument. One was for stopping by my office more than anyone else to ask if his brief has been graded.
It was a fun way to mark the end of our year together.
Sheila Simon, Southern Illinois University School of Law
I show a very brief snippet (less than five minutes) of the movie Philadelphia—the part where Denzel Washington
asks his witness, Tom Hanks, if he likes being a lawyer. Tom Hanks replies that the best thing about being
a lawyer is that every once in a while you get to be part of justice being done. Then I talked (again, very briefly)
a bit about what being a lawyer means to me and how I hope that they remember some of the more “lofty” ideas
that brought them to law school in the first place. A little corny, perhaps, but I think that they don’t hear enough
about the noble side of law.
Andrea Mooney, Cornell Law School
At the risk of stating the obvious, I buy enough doughnuts for everyone in the class to have one, trying to
honor any specific flavor requests that come in ahead of time, and everyone just enjoys a doughnut the last day
of class. And for those who do not want to eat a whole serving of sugar fried in fat, I’ve discovered offering some
doughnut holes is very helpful, so everyone gets at least a taste. I have contemplated bringing in something healthier,
but I figure this small indulgence is a symbolic reward for all the hard work they’ve done all semester. I actually
wish I could offer snacks at every class meeting, like we always have at our own professional meetings and
conferences. What better way to build a sense of community than to break bread together?
Sue Liemer, Southern Illinois University School of Law
I always like to end the year with sharing three thoughts about legal writing, law, and life. The reason I do this
is because the best teachers I had taught me not only something about the subject matter, but also something
about life. For example, I tell them on writing that they should never underestimate the impact the quality of
their writing will play on the outcome of a case. On the law, I tell them things such as, “You will be given a lot of
power when you have your license to practice law, and I really encourage you to always use that power in a positive
way.” About life, I tell them “Remember to always take time to pick some daisies. You’ll be very busy in your
legal careers and don’t forget to smell the roses along the way.” I realize I may be the “Queen of Corn” for being
so emotional about all this in a legal writing class, but I’ve had more than one student tell me that they really appreciated
the heart-to-heart chat, and at least one class offered a lengthy applause! I’m still waiting on the standing
ovation!
Melissa Marlow-Shafer, Southern Illinois University School of Law
I work with the class to create a prompt sheet that I call a Personal Revision Checklist. (This is a personalized
adaptation of the Revision Checklist, which I first learned of from Teresa Godwin Phelps when I was her student
at Notre Dame Law School.) I created this exercise because during the semester, students tend to be focused on
the specific things they need to do for each document and don’t notice the legal writing doctrine they are learning
and assimilating into their writing. The lack of an exam in legal writing means that many students never synthesize
the many tasks they complete into general principles for effective legal writing. I use this technique to encourage
them to step back and think about what they need to do in general when they do legal writing, with

284 Legal Research and Writing
particular attention to what to do at a summer job. We usually end up with a few writing-process-based categories
(The first one was inspired by Jill Ramsfield’s presentation at AALS in January, 2002):
• What to know before you leave the assigning attorney’s office (or hang up the phone)
• Research
• First draft
• Substantive revision
• Organizational revision
• Polishing
I designate one student as the official note taker while I write categories on the board and call on people for
contributions to lists of tasks for each category. Some categories generate quite a long list of ideas. I try to encourage
silly answers to get them to share some of the tips that have worked for them in tough situations. Of
course, I add tasks or techniques that I think are significant if no one offers them. After class, the note taker emails
me his or her notes, and I post the notes to the rest of the class so they have something to take with them to a
summer job.
Some alternatives:
• Instead of a group exercise, require each student to submit a personalized list to you in writing, perhaps
giving the categories in advance.
• Break the class into groups, assign one category to each group, and have the students brainstorm a list of
tasks for their category before posting the results on the board or a document camera.
• Keep in mind that the last class meeting often takes place while students are finishing up the last document,
and so it is best to keep this exercise as low-stress as possible.
Feedback and Evaluation
Handling Student Reactions to Critiqued Work
Mary Beth Beazley, Ohio State University College of Law
Many students have strong reactions to receiving the first criticism of their written work in law school. Three
teachers offer their approaches to handling those student reactions.
* * *
When I return critiqued work, I tell the students that I’ll be happy to spend as much time going over their
paper with them as they need and that they may begin scheduling appointments for that in X number of days
(usually three if it’s mid-semester; for a final grade, I don’t schedule appointments until the second week of the
next semester). This gives them time to cool down so we can deal with the criticism rather than the reaction to
it. Also, before I talk to individuals about their own work, I give them a good student paper (anonymous) to read
through. The combination of the time and seeing what a good paper looked like usually diffuses the reaction significantly.
Before I did that, I had MANY conferences with angry students. Since I’ve done that, none. (That’s not
to say that I don’t have conferences with very disappointed students.)
Tracy L. McGaugh, South Texas College of Law
At a class before the first graded papers were returned, I handed each student a sealed envelope. Inside the envelope
was a letter grade that I assigned randomly, but the total distribution of different grades corresponded to

Legal Research and Writing 285
the type of grading curve typical of first-year classes. I got the students to open all the envelopes at once and then
had all the “A”s stand, then the “B+”s, “B”s, and so on.
I wanted to accomplish a couple of things by this mock exercise. First, I wanted to illustrate that not everyone
would get an “A”, and, in fact, that the total number of “A”s might be small. I also hoped that all the students who
were expecting an “A” might get a mock “C” or “C+” and would have to deal with that feeling. Finally, I told the
students that they might sometimes feel that grading in law school was just as arbitrary as what they had just experienced.
This last comment doesn’t help me too much, but I know students feel that way and I wanted to acknowledge
that feeling. I did add that I personally did not think that law school grading was totally arbitrary but
that I had to acknowledge that some degree of subjectivity was inherent in the process.
Paul Toppins
Before handing back the first graded papers, I like to read my students a passage about the value of being critiqued
from Bird by Bird, by Anne Lamott (pp. 166–167):
My first response if they have a lot of suggestions is never profound relief that I have someone in my
life who will be honest with me and help me do the very best work of which I am capable. No, my first
thought is, “Well. I’m sorry, but I can’t be friends with you anymore, because you have too many problems.
And you have a bad personality. And a bad character.”
Sometimes I can’t get words to come out of my mouth because I am so disappointed, ... Criticism is
very hard to take. But then whichever friend is savaging my work will suggest that we go through it together
page by page, line by line, and in a clipped, high-pitched voice I’ll often suggest that this won’t be
necessary, that everything’s just fine. But these friends usually talk me into going through the manuscript
with them over the phone, and if I’ll hang in there, they’ll have found a number of places where things
could be so much stronger, ...
When someone reliable gives you this kind of feedback, you now have some true sense of your work’s
effect on people ...
My students always laugh at the right places. And then I also impose a 24-hour waiting period before I’ll talk
to them about their papers.
If you haven’t read Bird by Bird, I can’t recommend it enough. A great book for any writing prof to put on
their must-read-over-break list.
Critiquing Student Papers — The Quick and the Dead
Sue Liemer, Southern Illinois University School of Law
Teaching law students to write well depends on effective review of their work product. In discussing the feedback
we leave on student briefs and memoranda, we most often focus on what we say as teachers rather than
when we say it. We discuss the importance of pointing out the good things students do as well as the mistakes.
We debate the need for extensively marking their papers versus a more minimalist approach. We also discuss the
benefit of margin comments as well as endnotes that summarize the areas that need improvement. However, another
critical consideration that should be part of any sound writing pedagogy is the timing of that feedback. Indeed,
when it comes to effective feedback from the students’ standpoint, there may be only two kinds: the quick
and the dead.
Learning to write well is a skill. The best way to teach it, like any skill, is to give students examples of the performance
expected, have them try it for themselves, and then provide feedback on their mistakes to help them
improve. Educational theory holds that to make teacher feedback as effective as possible it should be closely

286 Legal Research and Writing
connected in time to the students’ efforts to learn that new skill. With respect to critiquing student writing,
therefore, students need to receive feedback from the teacher while the original assignment is still fresh in their
minds.
Most legal writing programs are built around large assignments like office memoranda or briefs. Given student-teacher
ratios and the heavy workload of most legal writing professors, it is simply not possible to turn these
papers around with lightning speed. Moreover, conscientious teachers never want to compromise thorough and
insightful comments simply for the sake of returning papers quickly. The reality is that it takes time to thoughtfully
comment on papers in a way that helps students improve.
Nevertheless, it is pedagogically important to create opportunities during the semester for students to receive
timely feedback on their writing. This can be accomplished by including some short writing assignments in the
curriculum that can be marked and returned very quickly. For example, I begin the semester with a series of
short, two-page assignments that ask students to analyze a hypothetical fact pattern using a few cases that we
supply. These assignments can be critiqued and returned to the students relatively fast, thereby providing them
with more immediate feedback. Each of these short papers also has a follow-up assignment that asks students to
rewrite their original draft in light of the comments they received. Although the students’ final grade is based
largely on a more extensive office memorandum, augmenting that with shorter assignments creates the opportunity
to give students more immediate feedback during the semester.
If it is not possible to fit short writing assignments into your curriculum, consider other ways to provide quick
feedback. For example, consider doing an in-class editing exercise that allows the class to see how to turn an excessively
wordy sentence into a model of pithiness. Write a sentence on the chalkboard or use an overhead projector,
and then ask a student to revise it so the whole class learns how to edit in real time. When holding student
conferences, consider reserving part of that time for a self-editing exercise. Demonstrate for a student how
to revise a wordy sentence and then ask her to do the same for you with another sentence.
Sound pedagogy requires that students receive guidance from the teacher on how to improve their writing
skills that is connected in time as closely as possible to their own efforts to master those skills. In that
sense, there really are only two types of feedback — the quick and the dead. And to borrow a line from the
film The Outlaw Josie Wales, when it comes to effective legal writing pedagogy, “Dying ain’t much of a living.”
(A longer version of this idea appeared in 14 The Second Draft 5 (November 1999).)
Getting Students to Critically Review Their Writing
James B. Levy, Nova Southeastern University Law Center
One of the most difficult aspects of teaching LR&W is getting students to critically review their own writing,
or, to put it another way, teaching them to be effective self-editors. Here are two techniques that I have used, with
some limited success.
First, at the beginning of the course, I inform students that one assignment starts now and continues throughout
the entire course: to create their own personal editing checklist. At the end of the course they must submit
their lists to me. For each student, the list should identify the things the student tends to do improperly. It may
include specific words the student often misspells, grammatical rules the student tends to violate, the student’s
failure to use thesis sentences at the beginning of each paragraph or point, citation errors the student frequently
makes, or anything else similar. Although I have not graded these checklists, I have contemplated doing so just
to make sure students put some effort into them.
Second, after making extensive comments on the first half of a student’s paper, I make a photocopy of the
paper and give that copy to the student. I instruct the student to review my comments on the first half and then
figure out what comments I will make on the second half. We then meet to compare my comments on the sec-

Legal Research and Writing 287
ond half to what the student thought I would say. This forces the student to internalize at least some of my comments
and then to apply them to another part of the student’s own work.
Oral Exam of Research Skills
Stephen L. Sepinuck, Gonzaga University School of Law
For nearly a decade the research instructors at the Franklin Pierce Law Center have administered an oral competence
test to all students enrolled in the required introductory legal research course as one of our final methods of
evaluation. We call this test “the practicum.” The original idea came from Paul Richert’s article Oral Competence Testing
in Legal Research Techniques, 77 L. Lib. J. 731 (1984–85). Although we also use traditional research exercises and
a research diary as evaluation tools, the practicum provides a hands-on, individualized way to ensure students understand
how to perform essential research skills. We evaluate practicums on a pass/fail basis and find this motivates
students to review their research skills through a practical experience that is more effective than a written exam.
Practicums are required for all first-year students and are administered during the last four weeks of the fall
semester by the librarians who teach legal research and the legal research-teaching assistants. Students are also
given a list of the skills we expect them to demonstrate in the practicum. Traditionally these skills have included:
(1) how to access and update a print West digest to locate relevant cases, (2) how to access and update a statute
in a print annotated code, and (3) how to shepardize a case in a print citator. We continue to require students to
know these skills in print because many of our students work in smaller firms where print tools are still used.
We also believe that if the students can master the print tools, they can readily transfer this knowledge to the electronic
counterparts. In addition, we ask the students to access an A.L.R. annotation or periodical literature or
material in American Jurisprudence 2d using LEXIS or WESTLAW. This gives us an opportunity to assess the students’
facility with an online system and on-line query formulation.
The librarians and teaching assistants administering the practicums develop their own fact patterns and issues.
We avoid complex, problematic issues and provide enough key words to jump-start the most nervous and neurotic
students. The instructors ask students to answer specific questions about the source or tool they are using. If
the student is a research whiz, the questions become more challenging. If the student flounders, the instructor
seizes this rare one-on-one teachable moment to review and explain more thoroughly. Students are advised they
must successfully complete three of the four required skills in order to pass the practicum. Those who are unsuccessful
must reschedule and repeat the practicum. Usually by the second time, the student has mastered the skills.
While students may experience initial angst over the idea of an individualized research exam, they also like it.
They are savvy enough to recognize they need to conquer legal research and they appreciate that the research instructors
care enough to devote hours of time to guarantee that they have mastered the most basic skills. Word
travels quickly among the students that the instructors are not trying to embarrass or humiliate; rather, the goal
is educational and positive. The payback for the instructors comes when we watch the students tackle a digest or
an annotated code and show us they know what they are doing. And although the practicums are time consuming,
all involved feel they are worth it.
The Research Quiz Show
Judith A. Gire, Franklin Pierce Law Center
We give a research exam at the end of first semester that counts 20 percent of a student’s grade. It is a multiple-choice
exam that emphasizes the process of legal research. Students prepare by doing a series of research exercises
from Ruth Ann McKinney’s Legal Research: A Practical Guide and Self-Instructional Workbook (West 1996)
[Note: 4th ed. West 2003] and by researching a problem for a memorandum. Beth Mobley, the head of public

288 Legal Research and Writing
services in our library and a superbly qualified reference librarian, helps teach basic research skills to my students.
This year I wanted to inject more life into our review of research skills, so I decided to stage a quiz show. I put
a table and four chairs in the front of the room. I gave each contestant a noisemaker to signal that he/she knew
the correct answer. One noisemaker was a toy phone. Another was a dog’s toy — a rubber jack-in-the-box that
emitted a loud squeak when squeezed (also, a man’s head popped up). The third noisemaker was a child’s key
chain rattle, while the fourth was a pair of plastic hands that clacked when waved. This strange choice of noisemakers
became necessary when I could not find little metal clickers at the toy store, and my quiz was scheduled
for the next day. The noisemakers proved a huge success.
I divided the students into four groups. Each group sent a member to join the panel at the table. Each panel
was given three questions to answer. I put the questions on transparencies and projected them on a screen in the
front of the room. The questions focused on the sources and process students had learned for a particular research
exercise along with questions about New York courts. Students were awarded a point for each correct answer.
After three questions, I summoned a new panel.
As moderator, I posed the questions and decided which noisemaker had rung first. Beth Mobley served as the
judge. I gave her a whistle, which she blew when a student gave an incorrect answer or when too much time had
elapsed.
I rewarded the team that won the first quiz with an extension for their second research exercise. I awarded the
winners of the second quiz “magic” pencils to use when taking the final research exam. For the first quiz, we did
not have time to go over mistakes, so I used my discussion forum on TWEN to answer questions and suggest
sources of study. For the second quiz, we factored in time to go over the quiz and answer student questions.
The quizzes were very successful. Students loved them as they provided a break from stress caused by the struggles
with their memoranda. They allowed me to involve our librarian in a more casual way than she usually gets
to interact with students. On the final exam students performed as well as, if not better than, when I have done
a more standard question-and-answer review.
(This idea appeared in The Law Teacher, Spring 2000, p. 11.)
Brannon Heath, Touro College Law Center

chapter 12
Professional Responsibility
Introduction
Steven Friedland 291
Approach 291
Telling Stories, Writing Rules: Creating Enthusiastic Professional Responsibility Students
Steve Hartwell 291
Getting Students Onboard
Howard Erichson 293
Applied Professional Responsibility/Law Practice Management
Ellen Suni 294
Professionalism
Mark Weisberg 296
Teaching through Different Methodologies
Nathan Crystal 297
First Day, Challenges, and Top Cases
Jack Sahl 302
Material 303
Moral Compass
Larry Raful 303
Readings for a Meaningful Life in the Law
Mark Weisberg 303
Exercises 306
Using Dramatization and Simulation in Professional Responsibility Teaching
Robert P. Burns 306
Bringing Professional Responsibility Home through Film
Nancy B. Rapoport 306
Learning through Role-Playing, Guests, and Videotapes
Jack Sahl 307
Reflection Papers
Larry Raful 307
Writing MPRE Questions
Ellen Suni 307
289

290 Professional Responsibility
Brief Gems 308
Reading Out Loud and Other Methods of Active Student Participation
Mark Weisberg 308
Feedback and Evaluation 310
Assigning Student Journals
Ellen Suni 310
Assigning Student Journals, Part II
Mark Weisberg 311
Using Quizzes to Promote Feedback
Nathan Crystal 312

Professional Responsibility 291
Introduction
Professional Responsibility, sometimes called Legal Ethics, is offered as a required upper-level course in most
law schools, with some schools offering a variation attached to the first-year program. The course covers the professional
conduct of attorneys and judges and revolves around the mandatory and aspirational rules that delineate
the acceptable bounds of that conduct.
Since students in almost all states must pass the Model Professional Responsibility Examination (MPRE) to
become members of their state bar and engage in the practice of law, students understand the course’s importance
on a pragmatic level. Yet, the class is important for broader reasons as well. The legal profession has suffered
from a decline in reputation in the past several decades, often at the hands of alleged ethical deficiencies.
Instilling legal ethics in students is an instrumental part of reversing that decline. Further, practicing attorneys
recognize the frequency with which they are confronted by ethical issues, issues that are rarely exposed in the
public domain for scrutiny or review. Yet, these daily dilemmas pose hard choices for attorneys, and an ethics
class can help shape the future attorney’s decision-making process when these issues inevitably arise.
Motivation can be a problem for upper-level students, regardless of the course, but there are several reasons
such a malaise often challenges professional responsibility teachers in particular. First, the course is required,
meaning there will be students taking the course out of obligation, not choice. This lack of choice may foster
some resentment. Also, if the course is embedded as a third-year requirement, students already may have their
sights set on graduation and beyond, not on the classes directly in front of them. Further, some students have
difficulty with the rules orientation of the subject matter. Finally, the subject matter — dealing with the ethical
dilemmas and duties of attorneys — is beyond the experience of students, who, with the exception of some foreign
attorneys wishing to obtain a license in the United States, have never practiced law. Thus, students may find
little, if any, intuitive relevance in the material.
Even so, many professional responsibility professors manage to make the material practically jump from the
page. These professors use a wide variety of pedagogical tools, from role-playing and simulations to problem
solving and other active educational devices. Some professors use the natural competitiveness of students to
arrange for adversarial hearings, motions on pertinent issues, and moot court arguments. Some professors create
interest through other forms of engagement, from writing assignments to the use of film, television, and current
events. Many of these techniques will be discussed on the pages that follow.
Steven Friedland, Nova Southeastern University Law Center
Approach
Telling Stories, Writing Rules:
Creating Enthusiastic Professional Responsibility Students
Problem #1: Few instructors actually like to teach Professional Responsibility (PR) and many students resent
taking it. After two-plus years of reading cases and hearing lectures, students are tired of both.
Solution: Don’t use cases or lectures. I love teaching PR, and my students actually look forward to coming to
class every day. I have persuasive empirical data indicating that teaching the way I do has a profound positive effect
in promoting their moral reasoning. (See Promoting Moral Development through Experiential Teaching, 1
Clinical L. Rev. 505 (1995).)
Problem #2: Learning ethics is optimally a cooperative activity that must typically be graded competitively.
“Ethics” derives from the Greek “ethos” that means, roughly, “the customs of the community.” Ethics is best
learned together, relationally, among a community of students. Yet law school administrations typically require
the instructor to grade students competitively on a curve.

292 Professional Responsibility
Solution: Dampen the competitive curve. Assure students that everyone who shows up and participates will
get a passing grade. Warn students who must get a 93 as they compete for valedictorian honors that they may
want to take a different class!
Problem #3: Students are anxious about passing the MPRE examination.
Solution: Give them preparatory MPRE questions every week. Figure on devoting about one-fourth of your
entire class time to prepare them for the MPRE. Their anxiety vanishes.
Problem #4: So what to do with the other three-fourths of your class time?
Solution: Engage them!
Problem #5: How do you engage bored, third-year students who don’t want to take a PR course except, perhaps,
to get them past the MPRE.
Solution: Read on!
First Class
I will explain in some detail how I teach the first class because this class sets the tone for the rest of the semester.
If the students do not buy the first class, they won’t buy the course.
Assuming a 75-minute class hour, spend the first 15 minutes going over grading, the text (I use Rotunda’s Professional
Responsibility), and such. Then give each student two pieces of blank paper and a #2 pencil. Tell them to
take a few minutes to think about some event in their life that they would least want the state bar admissions committee
to know about. You are going to ask them in a few minutes to write a few notes about this event. After they
have written these notes, you will ask them all to fold their paper in half in the identical manner and then you will
collect them. The papers will all be shuffled together and handed back randomly so that each student now has
someone else’s notes. (It is possible that someone will get back his or her own notes, but no one will know this.)
After they have read the notes given to them, they will each write on the second sheet of paper a brief account of
what they just read, giving the new story a few details from their own lives. That is, the notes they received anonymously
become the plot for a story they make up about themselves. Then you will collect the original notes (sheet
#1), tear them up, and dispose of them in class. This step helps ensure the anonymity of the original writers.
Telling Their Stories
The next step is to have the students meet in groups of three or four to tell “their stories” as if the stories had actually
happened to them. After all of the stories are told, ask the students to write a rule that attends to the stories
told. They must write a rule by which they must decide whether each of them, based on the reported event, should
be admitted to the bar. This exercise takes up the entire period. When we meet next, I ask them to judge their rule
by three principles: (1) Is this a rule with which you can live? Does it meet your personal moral standards? (2) Is this
a rule with which the Bar can live? Does it meet the needs of the legal profession? (3) Is this a rule with which the
public can live? Does it meet the needs of protecting the public? This part of the exercise takes an entire class period.
In writing their rules, students may not refer to any published code or rules. The rule must emanate from their
own thoughts, feelings, and discussion. The group should work towards a common rule, but if they are unable
to do so they can construct majority/minority rules.
Homework
They are then assigned as homework the task of writing up a clean copy of their “story.” They are to write it
in a way that protects the anonymous original writer, if that be necessary, by disguising or changing anything
that might accidentally disclose the identity of the writer (e.g., that the event occurred while in the Navy or while
working at Wal-Mart). They must apply the rule to their stories and decide if they should be admitted to practice
or not on that basis. They must comment on the rule based on the three principles.
All of these assignments are then collected, reprinted, and distributed to each member of class. In this way,
students gain a realistic picture of what sorts of events in the real world Bar applicants deal with. Each student

Professional Responsibility 293
gets a sense of how his or her individual original story compares with the stories of others and how a small group
of fellow students assessed that event. The activity underlines one of the key themes of the course: ethics is a
communal activity to which we all relate.
In addition, students begin the class by doing something that is both personal and professional. They talk
about real events but in the context of professional ethics. They get to know something about each other’s values
and how their fellow students see things.
Each week, I present a new problem for the students to work on. Sometimes I pull an ethics-related item from
the day’s newspaper. For example, I recently gave them a copy of a news item in which the DA congratulated the
police department for apprehending a suspect after a thorough investigation that included the finding of a fingerprint
that matched the suspect. The DA said she looked forward to prosecuting this suspect. I did not tell the
students whether I thought there was an ethical problem or, if there were one, what it might be. The students,
meeting in small groups, were to decide that issue for themselves. I asked them to write a rule and to analyze the
rule using the three criteria. Only when the discussion and analysis were complete did we refer to the class text.
I (nearly) always have the students count off when forming groups. For example, with 32 students, I divide up
the class into eight groups of three students and two groups of four students. With 64 students — or more — I
teach the class twice. I think ethics is too important to teach by mass lecture.
When taught this way, the course requires a fair amount of time during the semester reading student papers.
I assign four journal entries per student of 300 to 500 words each. I also assign a term paper in which I ask them
to relate their religious or spiritual beliefs, however defined, to their personal ethical code. On the other hand,
my final exam is brief because I already know by then so much about each student.
Getting Students Onboard
Steve Hartwell, University of San Diego School of Law
The biggest challenge in teaching Professional Responsibility, at least where it is taught as a required upperlevel
course, is getting students to buy into it. Many students arrive at the class resentful that they have to endure
an ethics course. To those of us who care deeply about legal ethics, this comes as a shock the first time we experience
it; the centrality of this material to a legal education seems obvious to us. But we quickly learn that most
of our students do not come to the topic with the same enthusiasm.
Therefore, our most important objective on the first day of class— far more important than coverage or thematic
introductions— should be to have students leave class thinking, “Hey, this stuff is interesting. And it’s important
to me as a future lawyer. I actually have thoughts about it and need to think about it more.” I am convinced
that we can achieve this in the first class, and while we’re at it, we can sneak in some of those thematic introductions,
historical background, and even some law. I will describe my own method, but the details of my approach
are less important than the idea that we need a plan for day one to accomplish the buy-in as our primary goal.
I use the famous dead-bodies case, People v. Belge, but I do not assign it as reading prior to the first class. Instead,
at the start of class, I offer the story as a hypothetical: four young campers in the Adirondacks, their disappearance,
two bodies discovered, a suspect charged with murder, two young women still missing. “You are appointed
to represent the defendant,” I say. “You meet with your client, and he tells you that he killed all four, and
he tells you where he hid the remaining bodies. You go to the spot and find the bodies. Meanwhile, the parents
are still desperately searching for their missing daughters, not knowing whether they are alive or dead. They come
to your office and ask whether you have any information that can help them. What do you do?”
This generates a number of ideas from the class, some of which raise provocative issues. A consensus often develops
around the idea that it would be wrong to reveal what the client told us. At this point, I acknowledge that
there are rules that govern lawyer conduct, and I direct the students to their Model Rules supplement. I ask them
for rules that seem useful here, and someone quickly figures out that this is a confidentiality issue and finds Rule

294 Professional Responsibility
1.6. We do a close textual reading of the rule, concluding that it forbids us to reveal the information about the
dead bodies. We discuss the competing policies underlying the confidentiality rule. I then direct the class to a
handout of our own state’s Rules of Professional Conduct, and we compare our Rule 1.6 with Model Rule 1.6.
We find divergences with huge practical significance, but we conclude that under either version we cannot reveal
the bodies.
Asking what all these rules are, I launch into a mini-lecture on the various sources of the law governing lawyers,
the notion of self-governance, the role of the ABA, and a brief history of the Canons, Model Code, Model Rules,
Ethics 2000, and the Restatement. Because this background arrives as an explanation of rules we are using to solve
our problem, it gets a warmer reception than it would if introduced at the outset.
At this point I vary the hypothetical: “You’re not a lawyer anymore, but a carpenter. You are installing cabinetry
in a customer’s home when he says, ‘You heard about those campers who disappeared? I killed them, and here’s
where I buried the bodies.’ What do you do?” Nearly everyone responds that they’d reveal the information to the
authorities and the parents. With a little probing about why, they answer along the lines of “It’s the right thing to
do” and back it up with sound moral reasoning. This, of course, is when I’ve got them. “Let me get this straight. The
very thing you say you would be obliged to do as a good person is exactly the opposite of what you say you would
do as lawyers and the opposite of what the rules require of you. What have you gotten yourselves into?” I raise but
leave open the question of role-differentiated morality and whether we can justify conduct as lawyers that we would
find wrongful as non-lawyers. For the first day, it is enough to get the class paying attention to detailed rules in the
law governing lawyers and to get them thinking about the practical and moral significance of those rules.
I then confess that the case is not hypothetical but real, the killer’s name was Robert Garrow, and the lawyers
were Francis Belge and Frank Armani. I play a short clip from the PBS Ethics on Trial videotape, pre-wound to
the spot where Fred Graham begins his interview with Armani. The video raises many of the issues students have
hit upon during the discussion, which reinforces that they have useful thoughts to contribute.
This all takes about an hour. I teach in two-hour blocks, so at this point I call a break. When the class returns
I deal with the syllabus and other preliminaries, and then I turn to another problem for the remainder of the class.
By the end of the first class, if I have done my job right, a good number of the students are excited about a class
that has both practical importance and moral heft, and along the way they have learned a thing or two about Rule
1.6, the law governing lawyers, and several of the central themes of the course. But I know that if I tried to launch
straight into the law of confidentiality or a lecture about big themes I would have a room full of unsold students.
Applied Professional Responsibility/Law Practice Management
Howard Erichson, Seton Hall University School of Law
Several years ago, I noticed that more of our students were going out into law practice on their own than had
been the case in the past. It struck me that students were not very prepared to do so and that a course in law practice
management would be desirable. I already teach a full load of courses, but I had for several years been “doubletiming”
Professional Responsibility (teaching the two-hour course four hours a week) in order to finish before the
MPRE. I decided to add a one-credit follow-up course to PR that students could take after the regular course had
ended. I typically get an enrollment of 15 to 20 students, and most have an interest in solo or small-firm practice.
We begin the course by getting to know each other and then talking about the structure of law firms and legal
practice. We then talk about fees: setting, billing for, and collecting them. The reading materials are taken primarily
from current articles in Law Practice Management and similar practical journals and magazines (and I
prepare a bibliography with relevant books and articles as well). We also read relevant Rules and ethics opinions.
We discuss both the ethical limitations on conduct in the relevant area as well as very practical considerations.
After talking about setting and collecting fees, we discuss splitting the pie. We see that the issues are similar
whether the firm is a three-person operation or a mega-firm. Our fourth class is a firm meeting, where each stu-

Professional Responsibility 295
dent is given resumé and financial information about our made-up firm and is assigned to play the role of one
of the attorneys in setting compensation for the year. This exercise brings home the difficulty in deciding who
gets what piece of the pie. The remaining classes address marketing, law office systems, insurance, forming a firm,
and leaving a firm. We also have a visit to a technologically savvy law firm where the students see the systems in
operation. By the end of the semester (seven two-hour sessions for one hour of credit), the students are exposed
to the most basic issues they will confront in solo and small-firm practice.
The final exercise is also a unique aspect of this course. It is assigned on the first day and is due at the end of
the semester. Essentially, it requires the student to develop a personal marketing plan. The components of the
plan are as follows.
The final project is a personal self-evaluation and marketing plan. It is designed to have the student define an
area or niche of practice that is appropriate for his/her background, interests, and needs and to devise a plan that
would show how the student would identify the appropriate market for that practice and market to it. The project
is designed to pull together the material we have discussed in class with each student’s own personal experiences
and to take the student through a process of thinking through his/her goals, aspirations, and expectations
as a lawyer and the means by which they might be met. Although the project should be somewhat realistic, it
should not be constrained by the reality of the availability of actual funds or the existence of other current impediments
to actually entering into this practice. If there are significant non-monetary impediments, however,
the student may want to address them in the narrative.
There are four components to the project: self-evaluation, identification of niche, determination of market,
and marketing plan. The self-evaluation and marketing plan should take up most of the paper, although the identification
of niche is crucially important (it is merely usually shorter to explain). The determination of market
should be very brief. The components should include:
• Part I — Self-evaluation
The self-evaluation requires that the students think about and express who they are and what they need
and want from a career as a lawyer. It should address background information that may include, to the extent
it would have relevance to choosing a practice niche, where the student is from; family background;
religious background; education, job and career experience; whom the student (and his or her family)
knows; what the student likes to do; personality and what makes the student happy and unhappy; particular
needs for satisfaction (i.e., challenge, working with others, lack of conflict); areas of legal interest; etc.
• Part II — Identification of Niche
This section should set out what legal (or quasi-legal) services the student intends to provide, to whom
and where. It should be as specific as possible (e.g., matrimonial practice for men only, marketed to those
with incomes above $75,000, primarily in Johnson County, Kansas). The niche should be some sort of
private practice, but it can be any setting: solo, small- or medium-size firm, particular niche within a
large firm, etc. It must set out the setting in which this practice will occur. The student should describe
the practice area enough so the reader can understand what the student is planning to do and can see its
consistency with Part I.
• Part III — Determination of Market
This section should be a very short indication of how the student might go about determining whether
a market exists for the services to be provided. It should include how one might go about determining
that — not a detailed analysis; just some thoughts. If the student has some creative ideas, though, he/she
should feel free to set them out.
• Part IV — Marketing Plan
This is the final, crucial component of the project. It should contain a creative but somewhat realistic
plan for marketing the practice. It should contain sound means to reach the market chosen that are re-

296 Professional Responsibility
alistic, given who the student is and what he/she is selling. It should include traditional marketing devices
properly adapted to the chosen market, as well as some innovative ideas. These can include creative
places for brochures or ads, creative formats, logos, interesting means of cross-selling, or anything else
that is ethically appropriate and consistent with the theme.
The project should be no longer than 10 pages using reasonable margins and font size, and the four parts of
the project should be identifiable. Papers are graded based primarily on evidence of thought and effort, consistency
from beginning to end, soundness of plan, and creativity.
I have found that this class is fun to teach and very much appreciated by those who take it. Former students
come back to tell me how helpful it was to them in actually setting up their own firm or entering a small practice.
Even students who do not enter into small-firm practice find the experience of developing their personal
marketing plan to be an important aspect of career planning. I highly recommend adding a course like this to
your curriculum, and I am happy to share my materials (available on my TWEN site) with you.
Professionalism
Ellen Suni, University of Missouri-Kansas City School of Law
Professionalism. We expect it from ourselves as teachers and lawyers; we expect it from our colleagues and from
members of the Bar. We hope our students will understand themselves as professionals and expect that when they’re
in school, and certainly when they graduate, they will act professionally. After all, law schools are professional schools.
But how will those students come to understand themselves as professionals, and what will it mean for them
to have that understanding? I don’t think we can be satisfied hoping it will occur by osmosis as the unreflective
result of exposure to professional language and professional culture. Nor do I think it sufficient for us simply to
offer people someone else’s definitions of professionalism and professional ethics, expecting them to take root.
As Mary Rose O’Reilley reminds us, “Students do not really listen well to the answers to questions they have not
learned to ask.” (O’Reilley, M., The Peaceable Classroom 34.)
Many of our students are worried about how practicing law will affect their lives and their character. Many of
the popular images of lawyers that confront them regularly confirm them in those fears. They wonder whether
it will be possible to lead a meaningful, ethical life in the law. I think they’re right to wonder.
If that is a burning question for our students, then, following O’Reilley, I understand one of my primary goals
in teaching ethics and professionalism is to help people explore it. How to do that?
Here’s what’s worked for me. I use stories to prompt discussion and reflection. Unlike many texts in professional
school, stories are specific, focused, and personal. As Natalie Goldberg puts it, “They’re not about a ‘co-dependent,
neurotic man, but (about) Harry, who runs to open the refrigerator for his wife, thinking she wants an apple,
when she is headed for the gas stove to light her cigarette.’” (Goldberg, N., Wild Mind 3.) Reading stories encourages
us to participate imaginatively in other lives and to construct our own stories in relation to the ones we are
reading. Consequently, readers come to know themselves better, to connect who they are to what they are doing.
The stories we read offer a variety of images of professionalism and professional ethics. Many of them challenge
dominant assumptions about professional life: that work and life are, and should be, kept rigidly separate;
that understanding oneself as a role player in a system or as mouthpiece or an instrument is an adequate and
sustaining self-concept; that one’s ethics are innate, or so firmly established in childhood that there’s nothing
more one can learn about them, no room to grow in one’s character.
I think that by inviting us to share and explore those assumptions and to listen to ourselves and to each other
as we do so, reading stories can lead to a more satisfying and sustainable self-concept and can help promote the
integrity we expect of lawyers. Integrity, whose dictionary definition is “wholeness, uprightness, honesty,” and
which is associated with the verb “to integrate, to combine parts into a whole,” is the first Rule of the Canadian
Bar Association’s Rules of Professional Conduct:

Professional Responsibility 297
Rule 1. The lawyer must discharge with integrity all duties owed to clients, the courts, the public and
other members of the profession.
Commentary. Integrity is the fundamental quality of any person who seeks to practice as a member
of the profession.
Consistent with this perspective, I think the primary vehicles for exploring and integrating what one discovers
are peer group discussion and reflection. Most of the classroom work in Ethics is done at tables in small
groups. The people in the course will be, already are, the members of the legal profession, and I think it’s important
that they learn to speak openly about topics we rarely discuss publicly and to listen attentively to each
other and their diverse perspectives. As Mary Rose O’Reilley puts it:
Attention: deep listening. People are dying in spirit for lack of it. In academic culture most listening
is critical listening. We tend to pay attention only long enough to develop a counter argument; we
critique the student’s or the colleague’s idea; we mentally grade and pigeonhole each other. In society
at large, people often listen with an agenda, to sell or petition or seduce. Seldom is there deep openhearted
unjudging reception of the other. And so we all talk louder and more stridently and with a terrible
desperation. By contrast, if someone truly listens to me, my spirit begins to expand. (Radical Presence
19)
Working in small groups tends to feel safer for most people, and they feel freer in sharing their fears and aspirations
than they would in a larger forum.
Along with classroom discussion, students write frequently, in class and out. Often in class we’ll pause for
five minutes of free-writing on a controversial topic. When they free-write, let their pen just move across the
page without stopping, people often find that ideas seemingly inaccessible to concentrated thinking will surface
and that what minutes before had seemed an empty mind will be full of ideas. Also, having written them down,
people usually feel more committed to those ideas and are more willing to express them, making conversation
richer and more meaningful.
The most significant writing component in the course is reflective writing. Students keep a journal throughout
the year, consisting of their responses to our readings and class discussions and to issues that concern them.
In doing that they model for themselves a process of reflecting on their experiences that I think is an essential
component of professional life and an essential obligation of every teacher to encourage. As Wayne Booth puts
it in The Vocation of a Teacher: Rhetorical Occasions, “Every effective teacher owes it to students to teach them the
art of reflecting on the personal and social meaning of what they are being taught.”
Teaching through Different Methodologies
Mark Weisberg, Queen’s University Faculty of Law
[The following is an excerpt from the teacher’s manual of a professional responsibility book, Professional Responsibility:
Problems of Practice and the Profession (Aspen 2d ed. 2000), by the contributor.]
Aside from the question of values and skills, I think we all agree that our fundamental goal in teaching is
for our students to learn (although we might disagree quite a bit on what they should learn). Learning requires
effective instruction. Instruction that is restricted to a single methodology is less effective than instruction that
uses a variety of approaches. Single-dimensional instruction is simply less interesting, less productive of student
involvement, and less likely to appeal to students with diverse learning styles than a multifaceted approach.
The following sections of this essay outline the principal methodologies that I have used in my course on professional
responsibility.

298 Professional Responsibility
Role-Playing
Almost all of the problems in these materials can be taught through role-playing. If you are considering using
role-playing in your course, you should think about a number of questions: What are the advantages and disadvantages
of role-playing? What form should role-playing take? How should role plays be organized and assigned?
Will students be graded on their role-playing?
I think role plays have four major advantages. First, they require students to grapple with problems of professional
ethics in a direct and personal fashion, as distinct from the more detached analysis that is typical in a discussion
class. In role plays students must engage in conduct, rather than simply say what they or what some abstract
lawyer should do. Second, plays are usually more fun and interesting than the standard question-and-answer
class, which has become routine by the second year. Students can be creative and humorous in their role plays and
still present the issues that you consider important to cover. Third, role plays break down the teacher-centered focus
of most classes. Fourth, instructors who have taught the course for a number of years can easily become lifeless and
stale. Role plays create uncertain twists and developments that require the instructor to be alert, fresh, and flexible.
Role plays have some disadvantages. While the disadvantages are not overwhelming, you should carefully consider
these potential problems. I have thought about three major disadvantages of role plays: additional work for
the instructor, student involvement, and assessment. The major disadvantage of role-playing is that it requires some
additional work and organization on the part of the instructor. The role plays must be assigned. You will usually
need to meet with the students who engage in role-playing exercises prior to class. The second issue regarding role
plays is student involvement and participation. The issue arises in two ways: involvement of students in the role
plays (“role play involvement”) and class participation by students (“class participation”) when they are not involved
in role plays. As to the issue of role play involvement, will all students be required to participate in role plays or only
some students? If you require all students to participate, you must face the possibility of adverse reactions from
some students who feel that they are being coerced into participation that they find uncomfortable. One answer to
this complaint is that role-playing is a course requirement, just as class participation can be a course requirement.
That answer, however, may not quell student dissatisfaction. On the other hand, if only some of the students participate
in role plays, how are they to be selected, by assignment or by asking for volunteers? You must also consider
the problem of class participation by students who are not involved in the role plays. Students not involved in role
plays will naturally tend not to be as well prepared for class as students who are participating in the role plays. The
third issue regarding role play is assessment. Will students be graded or receive any form of credit for role-playing?
Role Play Skits
What forms of role play should you consider and how do they deal with the disadvantages outlined above?
Let me describe one type of role play — volunteer role play skits — and explain how it deals with the potential
disadvantages of role plays described above. I will then offer some other alternatives for you to consider.
At the beginning of the course, I solicit volunteers to engage in role-playing during the semester. Appendix 1
contains a description of voluntary role-playing and a form for students to complete. I can accommodate almost
any number of students who would like to participate. On average about 20 percent of the class will be willing
to volunteer. Students may be reluctant to volunteer because of uncertainty about the time commitment that the
project will entail, but you can overcome this by assuring the students that the role-playing exercises will require
preparation but will not be overly demanding of their time. You should not have trouble finding volunteers. The
number of volunteers for each problem will not normally pose any difficulty because the number of participants
in a role play can easily be adjusted from as few as two to as many as seven.
After the students return the role play forms, I assign the students to problems based on the areas of practice
and skills in which they are interested. I then send the students a memorandum confirming the topic, date, and
other participants in their exercise. I ask them to contact me about a week before their exercise, after they have
read the assigned material and are prepared to discuss the problem.

Professional Responsibility 299
I meet with the students sometime during the week before their assignment. The meeting typically takes about
30 minutes. I treat the meeting like an informal Socratic class, asking the students for their analysis of the problem
and raising questions that they might not have considered. In addition to discussing the issues raised by the
problem, the focus of the meeting is on reaching agreement on the skit by which the students will present the
problem to the class. Students can enact the problem as it is written, but they are also free to develop an alternative
script that would be interesting and informative for the class. The skit can take any form that the students
think appropriate: for example, a client interview, a negotiation, or a court appearance. Students are free to be
creative and humorous so long as they satisfy their obligation to cover the issues raised by the problem. Depending
on the number of students involved, I may or may not be a participant in the skit. For example, a skit
might involve me as a senior partner, with a student playing the role of an associate.
How does the voluntary role play skit technique deal with the disadvantages of role plays? You must review
the role play forms and assign the students to problems. In addition, you must meet with students who are engaged
in role-playing prior to class to prepare for the exercise. I estimate that the initial organization requires
about two hours of work and that the individual group meetings require approximately 30 minutes each. Since
the role plays take place in class, however, the meetings with students are essentially class preparation time that
you would be spending in any event. In addition, sessions with students to prepare for role plays give you an opportunity
to meet with students in a more cordial setting than the typical large class. Thus, in my judgment, the
role play skit adds only marginally if at all to the amount of time that you must devote to class preparation.
Participation of students who are not engaged in role-playing in class discussion is a potential problem, but probably
no more so than in ordinary question-and-answer classes. The solution to noninvolvement by students is to
try to get them involved in the discussion. See some of the techniques discussed in the section, Class Discussion.
I do not grade the skits since they are voluntary. However, you could give extra credit for the skit if you want
to give students an incentive to participate. I have not found it necessary to give extra credit. A number of students
seem willing to participate either because they are naturally outgoing or because they find the role plays to
be useful learning experiences.
Mandatory Role Play Skits
Some instructors may decide to use mandatory role-playing, in which every student must participate in a roleplaying
exercise as a course requirement. The skit format described above can be used for a course in which roleplaying
is mandatory. At the beginning of the course the class can be organized into groups of two to seven members.
I would not recommend groups larger than seven students because it becomes too difficult for the students
to arrange to meet and to organize their skits. Ideally, the groups would have fewer than seven students. Groups
can be organized in a number of ways, but probably the easiest way is for the instructor to post sign-up sheets
for each problem for which the instructor plans to have a role-playing exercise. Students who sign up for a problem
become a group. Since students have a choice about the problem in which they will engage in role-playing,
the coercive element is reduced to some degree.
If you decide to have mandatory role-playing, you must have enough role play assignments to allow all students
to participate. This is not a problem even in fairly large classes approaching 100 students. With a class of
98 students, every member of the class can be involved in a role play if you have 14 role play assignments and
groups of seven members each. In a two-hour course, this means that one-half of the classes involve role plays,
leaving the remaining half for other forms of instruction. I think an optimal size for the course is 50 students,
which would allow 10 role plays by groups of five students each.
I offer the following instructions that can be included in the course syllabus for groups to use in preparing
and presenting their skits:
• The skit must not exceed 15 minutes in length. (It is easy for the skits to go on too long. I suggest using a
bell timer to enforce time limits.)

300 Professional Responsibility
• The skit must cover most of the important issues raised by the problem and accompanying reading material.
• The skit may take any form that the students think appropriate: for example, a client interview, a negotiation,
or a court appearance. Students are free to be creative and humorous if they desire so long as they satisfy
the obligation to cover the issues raised by the problem.
• To assure coverage and to avoid any major blunders, the group (or several of its representatives if meeting
with everyone in the group cannot be scheduled) must meet with the instructor at least two days before
class to go over the skit that the students plan to present.
• After the skit, one or more members of the group must comment and analyze the ethical issues presented
in the skit for the class. This analysis must not exceed 10 minutes. This leaves 25 minutes for general class
discussion of the issues posed in the skit and of other issues raised by the materials but not covered in
the skit.
• All members of the group must participate in the skit, except with permission of the instructor for good
cause. One technique for having everyone participate is to have multiple scenes in the skit so that there can
be changes of role.
Instructors could grade the role plays, but I do not recommend doing so, except to the extent of giving extra
credit to students with borderline grades for outstanding performances. I believe that grading is more trouble
than it is worth. Assigning grades is hard, problems may differ in their degree of difficulty, and groups vary in
the abilities of their members. I do not think that the lack of grading affects the quality of students’ performances.
Peer pressure, both within the group and from the public nature of the task, is more than sufficient to assure
good work.
Teacher/Class Role Plays
Another possible form of role play is teacher/class role play. In this form of role play the teacher takes on the
role of one of the individuals in the problem and the class plays another role. For example, the teacher might
play the role of client and the class the role of lawyer, or the teacher might play the role of senior partner and the
class the role of an associate. This form of role play has several advantages. First, it does not require any more
advance preparation or organization than for an ordinary class. Second, the teacher can exercise control over the
course of the discussion even while remaining in role. The teacher can also step out of role from time to time to
make comments on points being raised in the role play. Third, the technique can be used to accomplish the same
coverage as an ordinary question-and-answer class, but the variation from the normal teaching technique should
increase student attention and participation.
Demonstrations
The fundamental difference between demonstrations and role plays is that students are not involved in
demonstrations. Demonstrations use the teacher, actors, practicing lawyers, judges, or ordinary people to present
a fact situation. The obvious disadvantage of the demonstration is the lack of student involvement. Demonstrations,
however, can have two major advantages. First, they can present ethical problems with a degree of
realism that students are unable to produce because of their lack of experience. Second, demonstrations can
be used to illustrate and to provide students with information about customs, norms, and methods of practice
that are not contained in the rules. For example, you could arrange for a demonstration by practicing lawyers
showing problems that can occur at a deposition and ways in which those problems can be handled. See Problem
4-4.
Small-Group Discussions
The group discussion methodology is an adaptation to the classroom of the breakout groups commonly used
at conferences. I give my students the following instructions regarding group discussion:

Professional Responsibility 301
• Organize yourselves into groups of no more than five students. (The students will do this quickly.)
• Appoint one member of the group as reporter. The reporter’s job is to make notes of the group’s discussion,
particularly of the main points made by the group, and to be prepared to report to the entire class
when the small groups break up.
• Begin discussion of the problem or other assigned material. (To focus the discussion, the instructor can distribute
a list of questions, but this is not necessary. See the questions under each of the problems in the text
of this manual.)
• You have a maximum of 25 minutes to discuss the problem. (As with the role plays, I use a bell timer to
keep to a schedule.)
• During the small-group sessions, I will circulate among the groups and listen to your discussions. Treat me
as a “fly on the wall.” You should not direct any questions to me, and I will not answer any questions or
make any comments.
• When time expires, the class will reconvene. I will ask the reporter for each group to summarize its discussions.
To maximize group participation, each group should give one or two significant points without repeating
points covered by prior groups.
As groups make their reports, I will act as reporter for the class as a whole, noting significant points on the
board, making comments, and asking students for questions and comments. (I will also make corrections if a reporter
makes a significant mistake.)
Group discussions have a wide range of advantages. First, the technique results in much greater student involvement
in discussion of the material than is available in the traditional question-and-answer class, even when
the instructor is adroit with the technique and calls on many students. Almost all students participate in group
discussions. Second, a corollary of increased student involvement is the generation of a much wider variety of
ideas and points of view than often occurs in the standard class. Third, by circulating among the groups and listening
to the discussions, the instructor is able to get a feel for student preparation and understanding of the material.
Fourth, the technique promotes a number of skills not practiced in the traditional classroom, such as group
analysis and interpersonal communication. Reporters also learn to listen carefully, to make accurate notes, and
to make oral presentations on the spur of the moment.
The major objection that I have heard about group discussion is the issue of coverage. How can instructors
insure coverage of the material when they do not control group discussion? Many instructors question the primacy
of coverage as a value for organizing courses, but even if coverage is accepted as an important value, group
discussions pose no problem of lack of coverage. The groups will cover all of the issues that the instructor considers
important, plus many more. Further, the instructor exercises a degree of control both over the formulation
of questions for the group to consider and in the subsequent discussion by the entire class. Coverage is simply
not a problem with group discussion.
Videos
Videotapes offer a number of advantages. They can dramatize ethical dilemmas. High-quality videos provide
context and texture to ethical issues that are often lacking in written problems. Since our society is visually oriented,
many students will take naturally to video instruction. In addition, occasional use of videos during a course
may be a welcome and interest-enhancing change of pace.
Lack of quality and length are the major disadvantages of videos. Although many videotapes on ethical issues
have been produced, a number of these do not come across as realistic or interesting. Following the discussion
of each problem in this manual, I have included a section on Other Methodologies, which includes a description
of videos that I have found useful. These videos can be obtained from their producers. For a bibliography of audiovisual
materials with information about how to obtain them, see Deborah L. Rhode, Annotated Bibliography
of Educational Materials on Legal Ethics, 11 Go. J. Legal Ethics 1029 (1998).

302 Professional Responsibility
The major problem with videos is their length. Most videos run 30 minutes or more. If the video is played in
full, you will have little time to discuss the video in the standard 50-minute class. I have thought of three solutions
to the problem of length. First, if you plan to use videos in the course, you could try to arrange to teach the
course in a block of time longer than one hour: 90 minutes, two hours, or three hours. Second, you could use a
carefully selected portion of the video, leaving sufficient time for discussion of the video in class. I do not recommend
dividing the viewing and the discussion of the video into two classes because memories fade and some
students may be unable to participate in the discussion if they were absent when the video was shown. Selection
of a portion of a video, however, is somewhat time consuming; you must, in essence, edit the video. I have attempted
to provide guidance to instructors who wish to use portions of videos. Third, you could arrange a special
two- or three-hour class to show and discuss a video. Usually once a semester I treat my class to a pizza-andethics
video dinner. Deans are often willing to pay the cost of such a class.
Guest Speakers or Panels
Some critics of legal education have condemned the isolation of law schools from the life of the law. Using
guest speakers or panels is one way to bridge this divide. In addition, guest speakers can provide context and
practical details regarding particular ethical problems that students can then critically evaluate. Many of the problems
in this book can be usefully taught with the assistance of guest speakers.
Student Projects or Reports
Role plays are, of course, a type of student project, but you can assign other types of projects. The projects can
be either individual or group. One type of project to consider is a written analysis of a problem in the materials.
This project requires the students to focus more carefully on a problem than they would normally do in preparing
for class. In addition, the project requires the students to present their analysis in a written form. Students can be
directed to select problems that relate to the type of practice that they are considering. A drafting exercise is another
possible written exercise that you could assign. A number of the problems have suggested drafting exercises.
Another type of student project is more empirical in nature. Students can be required to conduct interviews
dealing with a particular issue. For example, a group of students could interview lawyers in several large firms to
determine the types of conflict of interest issues the firms face; how the firms deal with these conflicts; and the
documents, such as consent forms, used by the firms to deal with conflict problems. Or, students could determine
by interview and research the methods for delivery of legal services in criminal cases used in their jurisdiction
and the problems with those methods.
What form should the presentations of the projects take? The results of the project should be reduced to written
form. In addition, you could arrange for oral presentations. For example, you could set aside the last class of
the semester for presentation of selected projects to the entire class. Another possibility is to have a special session
for group presentations. Consider the following workshop format: Arrange a special two-hour session time
(a Friday afternoon, when classes are often not held, is a possibility). Divide the class into three groups. Students
or teams in Group A make their presentations during the first 30-minute session while the other two groups act
as the audience. Groups B and C make their presentations during the next two sessions, with the nonpresenting
groups serving as the audience. To further stimulate interest, you could invite local attorneys and judges to participate
in the workshop. A concluding social would be a nice ending to the workshop.
First Day, Challenges, and Top Cases
Nathan Crystal, University of South Carolina School of Law
On the first day of my Professional Responsibility course, I provide students with an overview of the course.
I also suggest that it is important to their professional well-being and that it can be a pleasant learning experi-

Professional Responsibility 303
ence. I relate some of my work in the field, either as an expert witness in malpractice actions or as a bar member
investigating lawyer misconduct, to underscore the professional and personal cost for lawyers who fail to follow
professional responsibility norms. I also briefly mention the fact that the subject is heavily tested on the bar
examination, which provides additional incentive to keep up with the work. I point out to students that the course
is designed to provide them with insights into some of the challenges of daily practice (e.g., client interviews,
fees, and retention contracts). After outlining the history of bar regulations we spend time examining the role of
lawyers and some of the reasons why they and judges are unpopular in society.
The most significant challenges in teaching Professional Responsibility are: the multi-faceted nature of many
ethical problems; the need to work with an integrated body of regulations in solving ethical problems; and the
differences in interpretations of the same rules in different states.
I teach different cases from year to year, but five that top the list are:
• Florida Bar v. Went-For-It, 515 U.S. 618 (1995), discussing lawyer advertising and the commercial speech
doctrine;
• In re James H. Himmel, 125 Ill. 2d 531, 127 Ill. Dec. 708, 533 N.E.2d 790 (1988), examining a lawyer’s ethical
obligation to report another lawyer’s misconduct;
• Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2nd Cir. 1976), concerning conflict of interests standards
in federal cases;
• UpJohn Co. v. United States, 449 U.S. 383 (1981), about the attorney-client privilege and its application in
the federal courts to corporations; and
• Nix v. Whiteside, 475 U.S. 157 (1986), discussing ethical limitations on advocacy (e.g., cases involving client
perjury).
Moral Compass
Material
Jack Sahl, University of Akron Law Center
I find that all of the casebooks are somewhat value-neutral, and so I also assign the new Zitrin and Langford
book, Moral Compass, and have the students read chapters out of order, aligned with the topic of the problem
they are studying in the casebook. The students have been very, very positive towards Moral Compass.
Readings for a Meaningful Life in the Law
Larry Raful, Creighton University School of Law
“Stories are the most basic way we have of organizing our experience and claiming meaning for it.” (James
Boyd White, Heracles’ Bow, 169.)
Since many of the students in my ethics and professional responsibility courses are fearful of whether they can
lead a meaningful, fulfilled life in the law, and since stories provide models of successful and unsuccessful lives
on which people can reflect, they form the primary materials in the two courses I teach that focus on professionalism:
Legal Ethics and Professional Responsibility, and Images of Doctors and Lawyer in Literature. Here
are several highlights from the reading lists for these courses. (The reading list follows these highlights.)
Seymour Wishman wrote “Confessions of a Criminal Lawyer,” reproduced and discussed by James Elkins in
21 Legal Studies Forum, 139, 151 (1997). Wishman is a criminal defense lawyer, seemingly satisfied in his work,
until he’s confronted in a hospital by a screaming nurse, whom he subsequently recognizes as the complainant
in a rape case Wishman had tried. Wishman had humiliated her during cross-examination, allowing his client to

304 Professional Responsibility
be acquitted, and now he realizes that she probably had been telling the truth. Extremely uncomfortable remembering
the trial, Wishman begins reflecting on his life in the law, examining the ways in which he’d justified
what he’d been doing. Each of the justifications he finds inadequate, leaving him, and us, wondering how he can
continue to practice.
Wishman’s justifications — such as “I did it to be effective;” “There was nothing personal in it;” “It was part of
my professional responsibility;” and “What’s important was winning” — are familiar to law students. They hear
them from their teachers, and they read them in the literature. The story problematizes each justification, making
visible and challenging what usually pass as accepted assumptions about law practice. And in reflecting on
his conduct and his justifications for it, Wishman offers a powerful model of what it might mean to lead a reflective
professional life, how reflecting regularly can help us avoid becoming habituated to acting in ways we
later might regret.
Harper Lee’s To Kill A Mockingbird offers a different model. Atticus Finch is a person who leads an integrated
life; he cannot be different at work than he is at home. At least until he decides to participate in Sheriff Tate’s lie
about Boo Radley not having killed Bob Ewell. Along with the novel, we read Tom Shaffer’s argument that Atticus
is “uncommonly devoted to the truth.” (Shaffer, T., American Legal Ethics, CH 1). Students wonder and debate
whether Shaffer is right about Atticus, whether lying ever is appropriate in professional life, and whether in
our world it is possible, even desirable, to live as Atticus does.
Yet another model is Stevens, the butler in Kazuo Ishiguro’s beautifully realized novel, The Remains of the Day.
Stevens is a butler who, throughout a long career serving an English gentleman, tries to be a consummate professional.
To him that means rigidly separating his personal feelings from his professional behavior. That conception
resonates strongly with one powerful model of professionalism that many students share and that they
project onto their professors and onto their profession. Living such a rigidly controlled life costs Stevens dearly;
his “professionalism” leads him unquestioningly to assist his master, who’s deluded into trying to help keep Britain
out of World War II; for fear of missing a moment at his station, he fails to respond to his dying father; and he’s
unable to express his love for the one woman for whom he feels it, losing her to another. This is the life many of
our students fear, to be trapped by work in one way or another, unable to express themselves, cut off from the
rest of their lives. Can they practice law and in the process not lose themselves?
We read A Civil Action, which offers a broad spectrum of models for practicing law, each of which seems plausible,
and each of which seems flawed. The book invites discussion of alternative ways of responding to the challenges
the Woburn case presents and invites students to imagine themselves as the several participants and to
think what they might have done.
Late in the course we read two stories that seem particularly appropriate for exploring people’s conceptions
of professionalism: Louis Auchincloss’s “Equitable Awards” and Irvin Yalom’s “Fat Lady.” “Equitable Awards” is
about Gwen, an upper-class woman, probably in her early fifties, who wants to divorce her lawyer husband but
who thinks that because she didn’t earn anything in the marriage, she’s not entitled to much in the divorce settlement,
and Miriam, her younger, feminist lawyer who has a different view of entitlements and equality. The
clash of generations and the ways in which the lawyer does and does not interact with her client evoke strong responses
from students, who express and argue for differing conceptions of professionalism.
More powerful still is “Fat Lady.” Written by a famous psychiatrist, this story is about his encounter with a patient
he doesn’t like; here it’s Betty, an extremely obese woman. Knowing he’s repelled by Betty, Yalom nevertheless
accepts her as his patient and struggles with his feelings throughout the therapy. Rarely in law school do we
discuss the important and pervasive problems of countertransference, the (often unconscious) feelings that a
therapist or other helping professional transfers onto a patient or client, feelings that are inappropriate to their
situation. Usually these are feelings that originated in earlier relationships, feelings that haven’t been recognized
or dealt with in that context, and that then get displaced onto the current situation. “Fat Lady” presents these issues
in an extremely open and provocative way, and like “Equitable Awards,” evokes strongly differing opinions
about what constitutes professional behavior.

Professional Responsibility 305
Interspersed with our stories, we read several thoughtful, provocative essays about ethics and professionalism.
Most helpful and challenging are David Luban’s chapters on the adversary system in his Lawyers and Justice. Luban
effectively challenges all the standard justifications for the adversary system, forcing students to question what
they ordinarily take for granted, encouraging them to identify and question their assumptions about the legal
system and their role in it, helping them engage in the important reflective process of trying to make visible to
analysis what ordinarily is invisible to us. In addition, Luban offers a controversial conception of a lawyer’s relationship
with his client, which he calls “moral activism” and which challenges the more dominant conception of
a lawyer as their client’s instrument or mouthpiece.
Also helpful is Anthony Kronman’s “Living in the Law,” which asks an often unasked but important question:
why would anyone want to practice law in the first place; what is it that is intrinsically valuable about learning
and practicing law? Kronman argues that it is judgment, which he defines as an almost simultaneous combination
of sympathy and detachment. The conception of professionalism as requiring a practitioner to be able to
contain two contradictory impulses is a provocative and, I think, extremely helpful one for students, who often
want to rush to a single, unambiguous conclusion.
We also look at videos. Early in the course I show at least one of the videos from the Ethics in America series,
produced in the 1980s by PBS and Columbia University. These involve panels of lawyers, judges (including Justice
Scalia), law teachers, journalists, and private citizens responding to a hypothetical client, played by a law professor.
Two particularly powerful ones are “To Defend a Killer” (yuppie stockbroker has just killed his former girlfriend)
and “Truth on Trial” (manufacturer of a space heater discovers that, when tipped over, it can start fires, and he decides
not to recall it, because doing nothing and paying for injuries would be cheaper than recalling and fixing it).
Both involve fascinating, important ethical issues, and the panelists diverge greatly in their responses to them.
LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITY
SUPPLEMENTARY READINGS
Wishman, Confessions of a Criminal Lawyer (in 21 Legal Studies Forum)
Shaffer, The Gentleman from Maycomb Alabama (in American Legal Ethics)
Shaffer, The Gentleman from Baltimore (in American Legal Ethics)
Shaffer, A Separate Professional Morality (in American Legal Ethics)
Luban, Enter the Adversary System (in Lawyers and Justice)
Noonan, Other People’s Morals: The Lawyer’s Conscience (in 48 Tennessee Law Review)
Auchincloss, Equitable Awards (in Narcissa and Other Stories)
Harrington, Women Lawyers: Rewriting the Rules
Kronman, Living in the Law (in 54 University of Chicago Law Review)
Yalom, Fat Lady (in Love’s Executioner)
May, Professional Virtue and Self-Regulation
Kronman, Legal Scholarship and Moral Education (in 90 Yale Law Journal)
Shaffer, Schools (in Faith and the Professions)
LaRue, Teaching Legal Ethics by Negative Example (in X Legal Studies Forum)
Weisberg, Learning to Trust Your Own Mind (in Queen’s Law Journal)
IMAGES OF DOCTORS AND LAWYERS IN LITERATURE
READING LIST 2002
Auchincloss Equitable Awards; The Fabbri Tape; in Narcissa and Other Fables (1983)
Bolt A Man For All Seasons (1960)
Fadiman The Spirit Catches You and You Fall Down (1997)
Glaspell “A Jury of Her Peers;” in Plays (1987)
Ibsen Arthur Miller’s Adaptation of An Enemy of the People (1987)

306 Professional Responsibility
Klass “Learning the Language; “Macho;” in A Not Entirely Benign Procedure (1987)
O’Connor The Lame Shall Enter First; in Flannery O’Connor: The Complete Stories (1971)
Porter Noon Wine; in The Collected Stories of Katherine Anne Porter (1965)
Selzer Down From Troy (1992)
Verghese The Tennis Partner (1999)
Yalom Fat Lady; in Love’s Executioner (1989)
Using Dramatization and Simulation in
Professional Responsibility Teaching
Exercises
Mark Weisberg, Queen’s University Faculty of Law
Simulation involves placing students fully in role to perform fundamental lawyering tasks, such as interviewing,
counseling, negotiation, or witness examination. Dramatization involves a performance by the teacher or a
practicing lawyer of those same tasks. Both can be extremely useful tools in teaching professional responsibility
in the law school.
I have written elsewhere that eight philosophical and education principles underlie the simulation method
of legal ethics instruction. First, perception and blindness are central metaphors in legal ethics, as in all ethics.
Much destructive behavior occurs because a lawyer immersed in the pressures of a concrete situation fails to
see its ethical dimension. Second, an important aspect of ethics involves imposing limits on legitimate purposes.
Placing students in competitive situations exposes them to the pressures adversary practice can bring and the
importance of those limits. Third, law students want to become good lawyers and so will master the proficiencies
necessary to perform competently. If an understanding of legal ethics is presented as an element of competent
practice, as I believe it is, students will master the subject, aided by all the powerful incentives of active
learning. Simulation holds the promise of legal ethics becoming “dyed in the wool” lawyering skills from the
start. Fourth, meaning is use. Ethical dilemmas that are conceptually irresolvable may be addressed by a competent
practice that respects the conflicting values implicit in a situation. Such a practice can serve as an antidote
to cynicism. Fifth, because simulation involves human interaction in concrete situations, it can illuminate
aspects of legal ethics that casebooks cannot. It dramatizes fundamental questions such as the balance between
benevolence (or “paternalism”) and respect for client autonomy. It allows the student to perceive the effect of
lawyering practices and his own moral identity. Sixth, it demonstrates the centrality of good judgment and the
limited reach of rules. Seventh, a contextual understanding of what the law of professional responsibility both
allows and requires makes mature criticism of that law possible. Eighth, it provides an opportunity for a student
to embrace ideals that cannot effectively be enforced through the disciplinary process as elements of his
reflectively chosen professional identity.
Bringing Professional Responsibility Home through Film
Robert P. Burns, Northwestern University School of Law
I’ve found that teaching the rules of professional responsibility, even with the best textbook (and I love Roy
Simon’s text), gets students only halfway home: they can become adept at learning the rules, and even at roleplaying,
but they don’t seem to “get” the fact that their own clients will have pre-determined concepts of how
lawyers should behave. I use movies to bring home the point that clients’ expectations will put additional pressure
on practicing lawyers, especially new ones, to behave more like their fictional TV and film counterparts.

Professional Responsibility 307
Here’s my ultimate dream of a PR class: I start by showing The Verdict on the first day of class and I ask the
students to write down things that “feel” like ethics violations to them. (They’ll keep that list and use it to review
for the end of the course.) Then I take specific themes, ranging from trial movies to women in movies, and we
work through ethics rules by watching snippets of films. In fact, I have come close to this dream. One of the most
enjoyable things I’ve done in the past is to mix law students with undergraduate honors students and group them
in threes (two law students to one honors undergraduate). Each team has to present a paper on a movie that the
team chooses (with my approval — not everyone is allowed to choose My Cousin Vinny), and each team member
has a specific role. One law student discusses the ethics issues raised by the movie; the other law student discusses
the practice skills in the movie; and the undergraduate discusses the historical or sociological context in
which the film was made. My favorite presentation involved an undergraduate presenting on the “history” of Watergate
(!) (yes, I felt old) and commenting on the fact that radio talk show host G. Gordon Liddy “had done
something famous before his talk show started.”
Visual learners enjoy this way of applying the rules, and law students seem to enjoy the association with the
honors undergraduates.
Learning through Role-Playing, Guests, and Videotapes
Nancy B. Rapoport, University of Houston Law Center
I use role-playing, in which students are asked to serve as disciplinary counsel and prosecute miscreant lawyers.
I include guest speakers, such as judges, bar counsel, and one lay person from the state disciplinary body. I also
show videotapes of news shows, for example a 60 Minutes excerpt concerning personal injury lawyers, and two
movies, The Indictment and I Am Sam, to highlight controversies and problems confronting the legal profession.
I list focus questions on the blackboard for the students to consider in viewing the videotapes and movies. These
visual aids help generate robust debate. I have also asked students to write a short essay about how the rules of
professional responsibility might help (or not help) resolve a personal problem or challenge in their lives. The
writing of the essay helps connect what they are learning in the classroom to their personal experiences.
Reflection Papers
Jack Sahl, University of Akron Law Center
I ask students to interview a lawyer and write a reflection paper of three to five pages. I realized that so many
students have never met a lawyer before they come to law school — they all know what doctors and dentists do,
but very few know what lawyers do, except for what they see on TV or in the movies. Students have been very
positive about this experience. I give them some guidelines about questions they might ask, topics they might
discuss, and ways to approach the paper. It has been a valuable exercise.
Writing MPRE Questions
Larry Raful, Creighton University School of Law
I have taught in our Academic Enrichment Program for years, and one of the exercises we do is get students
to brainstorm and write short essay exam questions. I have always believed that writing questions gives you insight
into answering ones written by others. This has been an effective technique in Enrichment, and I am now
transferring that technique to my Professional Responsibility course.
This semester, I have required students to write and submit an MPRE-type question. I direct students to sources
where they can find such questions, and then I assign them to various topics covered by both the class and the

308 Professional Responsibility
MPRE. They are required to craft a question with four answers and to provide an explanation of why the correct
choice is right and other choices are not. Their grade on the question, along with journals and postings, will
count for up to 15% of their total grade in the course. Although some of the questions I have received are rather
simplistic, some are quite sophisticated and reflect a real understanding of the subject matter and the nuances it
presents. I think students who go through this exercise are more likely to carefully read and analyze MPRE-type
questions when presented with them in the future.
Another hopeful byproduct of this exercise is the development of a cadre of questions that I can give to my
class for practice in the future. Although many of the questions will require editing and revision, they do present
some new ideas for fact scenarios that I never would have thought up on my own.
Reading Out Loud and Other Methods
of Active Student Participation
Ellen Suni, University of Missouri-Kansas City School of Law
Brief Gems
Legal Ethics begins with Anatole Broyard’s “The Patient Examines the Doctor.” Broyard, a long-time editor of
the New York Times Book Review, got prostate cancer late in his life. He wrote a book of essays about his illness
called Intoxicated by My Illness. “The Patient Examines the Doctor” is Broyard’s meditation on what he’d want in
his ideal doctor. It’s elegant, funny, and moving. On the first day in class, we read parts of the essay aloud, paragraph
by paragraph. Most students read, allowing many voices to fill the room. Then each person takes time to
write, doing for his or her ideal lawyer what Broyard has done for his doctor. After writing for several minutes,
students compare conceptions with a partner, and then we generate a list of qualities people imagine wanting in
their ideal lawyer. That list forms the basis for interesting discussion and for continuing reflection. Which are the
qualities you possess? How did/will you acquire them? Which ones has your legal education helped you acquire?
Why has it focused on those and not others?
Another form of reading aloud comes with our novels. I’ll ask people when reading to note a passage that
stands out for them and, when they’re in class, to read it out and explain why they’ve chosen it. We hear some of
the most provocative or moving passages of the story, discover what students have found meaningful, and do so
in a way that invites listeners to expand their thinking, consider aspects of the story they might have missed, and
appreciate their classmates for enlarging their vision.
Focus Notes
Each week, several students from the class are responsible for submitting a Focus Note: a paragraph or two
about something from the readings or the previous week’s discussion that’s interested or annoyed them or that
they want to know more about. Notes are due the day before class, and I post a selection of them to the class listserv.
The notes serve several purposes. To write is to commit, so each week I know there will be a group of people
eager to express their commitments. The notes can set an agenda for class discussion. Since typically they reflect
people’s concerns, they’re written in “lively, human, and experienced language” (see Peter Elbow, Embracing
Contraries: Explorations in Learning and Teaching 56), making them accessible and revealing a diversity of perspectives
that often won’t emerge in more formal academic writing.
Writing Assignments
In addition to Focus Notes, in the first class I ask students to complete and bring to the next week’s class the
following Writing Assignment, adapted from James Boyd White’s The Legal Imagination:

Professional Responsibility 309
1. Describe a difficult ethical problem in the life of a lawyer, one that’s meaningful to you. Alternatively,
describe a difficult personal ethical problem.
2. Say why the problem is difficult and draft a section from a code of professional (or personal) responsibility
that would help a lawyer (or person) deal with that problem. Explain what you have done.
3. Finally, based on what you have written, what inferences would you draw about what it means to live
an ethical life (in the law)?
Students bring their assignments with them to class; in their groups they share and discuss what they’ve written
and report highlights to the plenary. Then they exchange papers, and each students responds to (not criticizes) the
paper they’ve received and returns the original and the response to the author. Finally, each person does some process
writing, reflecting on their experience of writing the assignment and of giving and receiving feedback. I read the
entire package and, rather than respond individually, report to the class what I’ve observed about the assignments
as a whole: what issues and concerns emerge; and what images of lawyers, clients, and law practice are revealed
Group Work
The primary method of conversation in class is small-group discussion. Students sit at tables in groups of five
or six, working together on questions or prompts that I provide or that they set for themselves. (Yes, this can work
in a large class, even without the proper furniture.) That encourages everyone to be engaged and to contribute.
It allows people to be aware of the diversity of responses and approaches to ethical problems that they’re likely
to encounter in the legal profession, and I hope it encourages people to learn to listen to each other, one of the
skills I think most important for lawyers and one many of us have to struggle to learn (see the entry on line-ups).
Role Plays
Here’s one example of using role plays in class. When we read A Civil Action, I assign different Focus Note groups
one of the central characters in the story. Some people are not assigned, and they know that their job in class will
be to act as journalists and to interview the Focus Note characters. Assigned groups write their Note about that
character, or better, in the voice of that character. After we’ve discussed the story for a while, and after people have
had time to discuss their assigned character or role, the journalists interview each character to discover how they
feel about their role in the story: what they regret, what they’re proud of, what they’d do differently, etc. Characters
are interviewed collectively; the only rule is that at any time only one person who is that character can speak
in the voice of that character. We finish by watching a video of an actual interview with these characters.
Jigsaws
With a particularly long, complex reading, such as David Luban’s chapters on the adversary system in his
Lawyers and Justice, I often use a jigsaw. Groups of students are assigned primary responsibility for one of the
chapters. They study it individually at home, knowing their job will be to teach it to their peers. When students
arrive in class, those responsible for a particular chapter group together to discuss the chapter’s argument, its
strengths and weaknesses, and how they want to teach it. Then groups form with one representative from each
chapter, and those people teach their chapter to the others in their group.
Students always seem to enjoy this exercise; discussion usually is lively and stimulating. To me, it confirms that
one of the most effective ways of learning material is to have to teach it to others.
Line-ups
Line-ups encourage people to commit to a position and to do it with their bodies. They’re particularly effective
when working with a controversial topic, say, a story that raises questions about a lawyer’s professionalism, or a
case like Palsgraf with good arguments on either side. They can be used on their own, at the beginning or at the
end of a discussion, but I find them even more useful when combined with a “three-minutes-each-way” discussion.
For example, if we’re discussing a story such as Auchincloss’s “Equitable Awards,” whose family lawyer is likely

310 Professional Responsibility
to seem highly professional to some and extremely unprofessional to others, I’ll have placed a long strip of masking
tape on the floor and will ask people to find and stand on the place on the tape that represents their position
on whether that lawyer is professional or unprofessional. After people find their place on the line, I invite everyone
to find someone standing at a different place on the line from them. Each person, in turn, has three minutes
to tell his interlocutor why he’s chosen his particular spot. The listener’s job is just that: to listen. No interrupting,
no affirming, just listening. After three minutes and a prompt from the teacher, pairs switch roles. If there’s time
after that, I might invite comments from the participants about the experience: what they learned, how it felt.
Advantages/strengths. Just having people move and express their commitment physically can be a powerful
experience, and for most people it’s fun. I think the experience of listening also can be powerful. Although we
probably all agree that active listening is an exceptionally important skill for a lawyer, I think most of us and most
of our students don’t practice it very often. Most of the time, when someone else is talking, we either tune out
or are so busy formulating our own response to what she’s saying that we don’t listen to her. Our heads are too
full of noise to be able to hear. At least that’s my own experience and one my students confirm. The three-minutes-each-way
strategy encourages us to listen to our partners, as do the discussion strategies described above.
And as I suggested, I think writing helps us listen to ourselves.
I think one of the overriding challenges in teaching and learning is helping construct an environment in which
people trust themselves and each other, and I’ve found most of these strategies helpful to me in doing that.
Panel Discussions
Because I think it’s helpful to hear real stories along with fictional ones, every year I invite a panel of four
lawyers to speak with the class about the challenges of leading an ethical life in the law. I try to assemble a diverse
group of people with differing practices. Students brainstorm and produce questions for the panelists, which
they receive before the session, and after each panelist introduces himself or herself, the class proceeds as a question-and-response
session. This class is a meaningful one for many students, helping some calm their fears about
practicing law, confirming others in their chosen direction, offering models on which to reflect.
Oral Histories
Following the lead of Walter Bennett, formerly a professor at the University of North Carolina Law School and
now a novelist, in the Images of Doctors and Lawyers in Literature course that I co-teach with a medical school
colleague, we’ve adopted a practice of asking every student to take an oral history of a physician, lawyer, or judge.
From a list of willing participants that my colleague and I produce, students choose a candidate, meet with him
or her for at least an hour — often much longer — and take their history. Often they tape record it. Each person
then reports that history to the class.
The reports are fascinating, allowing people a glimpse of what it means to lead a meaningful life in law and
medicine, inviting comparisons between the professions. Equally important, the reports offer students an opportunity
for at least a brief moment of intergenerational mentoring and often a meaningful opportunity for the
person interviewed to reflect on her or his life, to tell that story, and be heard.
Assigning Student Journals
Feedback and Evaluation
Mark Weisberg, Queen’s University Faculty of Law
I have been teaching Professional Responsibility for more than 20 years and find the most difficult problem is
getting students engaged with the material. In order to do so, I require students to submit journals to me at least
twice during the semester.

Professional Responsibility 311
All class members are required to submit journal entries during the semester. Journal entries are submitted
anonymously and must be submitted by each student for two of the seven weeks of classes (I double-time the
class so as to finish before the MPRE). Each student must:
• Discuss a real situation (from observation at work, as a client, through knowledge of a friend or family
member’s experience, from news reports, etc.) or a fictional situation (from books, TV, movies, etc.) involving
lawyers and assess the lawyer’s conduct in light of material in the readings and/or in class, OR
• Discuss a rule that the student has serious concerns about. The student must explain why he or she has
these concerns and how he or she might deal with them.
• The student must also discuss the following: What issue do you expect to be the most troublesome for you
when you get out in practice? Why? How do the existing Rules help or hamper your dealing with that issue?
How do you think you will address it when it arises?
Journal entries are to be the equivalent of two typed pages and are turned in to an envelope in class. I read each
of the journal entries and grade them based on effort and insight. Most credit is given for sincere efforts to think
about the material, explore its applicability, and critique the rules in light of perceptions of professionalism and
appropriate lawyering roles. But more important than grading, I comment on what each student tells me. Except
in those cases where the student puts in only minimal effort (and receives a minimal grade), the journals serve as
a vehicle for the students to personalize the material and make it theirs. Additionally, it provides a safe, anonymous
opportunity to get feedback on concerns they have about their clerking experiences and future practice issues. Although
reading, commenting on, and grading the journals takes several hours each weekend, I am convinced it is
time well spent. I used to require four journals per semester but have reduced that assignment due to a class posting
requirement. I have found that, while the postings are helpful and provide the students an opportunity to engage
and talk to each other about the material, they are not a substitute for the direct interaction with me provided
by the journals. Additionally, I find that I can use some of what I read in the journals in future years to generate
relevant hypotheticals. While some students view the journals as “make work,” I think the majority of students find
them to be a valuable opportunity to connect with the material and explore issues of concern to them.
Assigning Student Journals, Part II
Ellen Suni, University of Missouri-Kansas City School of Law
Students keep journals in Legal Ethics and in Images of Doctors and Lawyers in Literature. Here’s how I describe
the course requirement in my Ethics syllabus.
The primary writing requirement for the course is a Journal I would like you to keep during the term to record
your thoughts, reactions, responses to readings and class discussions. Unlike papers or examinations, which synthesize
work done over time, distill it, and reduce it to one product, a journal is a record of responses that needn’t
culminate in a single conclusion or set of conclusions. For example, someone writing a journal might want to approach
a subject several times, from several perspectives, trying out different voices.
Also unlike papers or exams, journals cannot be written all at once, at the end of the course. You should write
in yours regularly, typically once a week. What you write, or how you write it, however, are for you to decide; journals
have no fixed content, no fixed form.
I encourage all of you writing journals to try to write them for yourselves, for what you can get out of them, not
to meet the (imagined) standards of an (imagined) professor. During the term I’ll be available to discuss with you
the evolving shape of your journals.
Journals offer an opportunity for people to bring themselves to their work, to see what it might mean to integrate
personal and professional. That responds to what I’ve perceived to be one of their central concerns about prac-

312 Professional Responsibility
ticing law, and I think it also responds to the Canadian Bar Associations first Rule of Professional Conduct, that
lawyers conduct themselves “with integrity.” Journals are a place for each person to explore what that might mean.
It often takes students several entries before they can begin to trust themselves and me enough to write honestly.
I offer to meet with anyone who wants to talk about their journal, and I offer to collect a group of journals
each week from students interested in feedback. I try to give what Peter Elbow calls “descriptive feedback” rather
than “normative evaluation:” that is, my experience of reading the submitted entries instead of my critical judgment
of them. Usually that’s all a cautious student needs to get her going.
For the last journal entry I ask for a self-evaluation. Here’s the prompt I offer people:
Reflecting on the experience of writing and of reading over your journal, what have you learned from doing it?
What do you want to learn more about? How did you challenge yourself, or not? What do you notice about the
journal? What voice or voices predominate? What voices are not present in it? What images or metaphors predominate?
What do you make of what you observe?
Did you work toward the goals you set for yourself during our free-writing exercises on the first day (what
you’re looking forward to in the course and to a life in the law? What you’re fearful about)? Would you identify the
same goals today? How would you describe the picture of an ethical life as a lawyer that emerges from reading
this journal? What do you like (admire) about this picture? What don’t you like? Would you draw that picture differently
now?
Journals are meant to be a record of your engagement with the course over time. You can include anything on
them that reflects that engagement. I do want everyone to write about their group project, what they did, how it
worked, what they learned.
As Natalie Goldberg suggests, try to be specific, to get underneath the conclusions you might draw and describe
the experiences or reasons that led you to those conclusions.
I think self-evaluations help people achieve closure on a cycle of reflection and model a form of reflecting that
they could continue to use.
I’ve been pleased with the journal format. Most people welcome the freedom it offers and use it productively.
Of course, in a class of 58 students, as I had this year, some don’t commit themselves and instead will write their
journals at the end of term, skipping any of the challenging readings or discussions in the process. But those are
the exceptions. For most people, keeping a journal turns out to be the most meaningful part of the course. And
reading them is a pleasure.
What isn’t fun is marking them. It’s difficult to assign a grade to work as unique and personal as a journal.
When marking, I try to assess engagement with the course, taking my cue from the self-evaluations. But I’m never
satisfied with the grades, and I think the process contradicts my invitation that people write for themselves. At
my law school, any teacher can grade a course pass/fail as long as they announce it in advance and apply it to all
students. That’s what I want to do; I’m still summoning the courage to do it. Maybe next year.
Using Quizzes to Promote Feedback
Mark Weisberg, Queen’s University Faculty of Law
Students often complain about the lack of feedback they receive in law school. Periodic quizzes represent one
way to respond to this objection. Many faculty members are reluctant to give quizzes because of the time it takes
to grade them. I have used the following in-class graded quiz structure to eliminate this problem.
In my syllabus I inform the students that we will have periodic unannounced quizzes during the course. I tell
the students that the quizzes will not count in their final grade but are instead a device for discussing the material
and providing feedback. An alternative possibility is to use the quizzes as a way of dealing with borderline
grades or of providing extra credit for students who do particularly well on the quizzes.

Professional Responsibility 313
The quizzes I use are typically analytical, consisting of a fact situation raising one or two ethical issues. Quizzes
could be used, however, to address policy issues or more philosophical topics. I give the students 15 to 20 minutes
in class to analyze the problem and to write an answer not to exceed one page. (Another possibility is to assign the
quiz out of class and instruct the students to bring their written analysis to class for grading.) I tell the students
to write their names on the back of their answers. I then collect the quizzes, shuffle them, and redistribute them
to the class. I tell the class not to look at the names of the students on the papers that they are grading.
We then proceed to grade the papers in class. I have a grading sheet for the quiz similar to the grading sheets
that I use for examinations, identifying the issues raised by the quiz and providing point assignments for each
issue. I call on students to identify and to analyze issues raised by the quiz. We engage in a fairly typical class discussion
of the issues, except that after we have discussed the issue fairly thoroughly I provide the students with
general guidance about how to award points for different possible answers that we discussed. Students may ask
how many points to award if they are unsure how to proceed. They are also free to argue about the issues and
point awards that we have discussed, but I remain the ultimate authority on relevance and analysis.
After we complete grading the quizzes, I direct the students to total the points on the quiz. If time permits, we
can generate a distribution and award grades in class. If not, I take up the papers and assign grades. I always scan
through the papers to gain a sense of how the students are handling the material in the course. I encourage students
who did poorly on a quiz to consult with me to try to improve their work.
Nathan Crystal, University of South Carolina School of Law

chapter 13
Property
Introduction
Steven Friedland 317
Approach 317
Four Approaches
Steven Friedland 317
Challenges in Teaching Property Law
Patrick Wiseman, Steven Friedland, Basil Mattingly 319
Teaching Property through the Problem Method
Steven Friedland 321
Teaching Property Law with Problems and Role Plays
Lonny Hoffman 321
Some Lessons from Lon Fuller for Teaching Property Law (or Anything Else)
Stephen C. Veltri 322
Teaching Real Property Law as Real Estate Lawyering
Roger Bernhardt 324
A Preface to the Teaching of Common Law Estates and Future Interests
Alan Weinberger 325
Teaching the Rule Against Perpetuities in First-Year Property
John Weaver 327
How to Be a Good Property Law Teacher: Some Suggestions
James Kainen 329
Negotiating a Lease
Steven Friedland 331
Problems and Role Plays
Joseph William Singer 331
Simulated Pre-Trial Conferencing
Zygmunt Plater 332
Material 333
Some Top Cases and Statutes
Joseph William Singer, Patrick Wiseman 333
Symposium on Teaching Property
Gerald Hess 334
First-Day Activities and Cases
Basil Mattingly, Patrick Wiseman, Joseph William Singer 335
315

316 Property
Brief Gems 336
Not Knowing the Answer
Joseph William Singer 336
Profit-A-Prendre in Action
Peter Reich 337
The Price Is Right
Judith Royster 337
Feedback and Evaluation 338
Difficulty Papers
Judith Wegner 338
Comprehension Reviews
David A. Thomas 340
Reviews and Past Exams
Patrick Wiseman 340
Practice and Feedback in the Property (and on the Golf) Course
Michael V. Hernandez 340

Property 317
Introduction
Property law is one of the anchors of the first-year curriculum. It is generally offered as a one-semester course
of three or four credits or as a two-semester course stretching across the first year of law school. The course combines
historic antecedents of modern law with various discrete substantive areas involving real property, including
estates in land, future interests, encumbrances such as easements and mortgages, and landlord-tenant issues.
At its irreducible minimum, the course essentially revolves around one word — “Mine!” — and the resulting conflicts
regarding claims by individuals and the state.
The course sometimes includes a foray into the law of personal property, primarily the law of finders and bailments.
Property law also intersects with other basic first-year courses, such as tort law (in the form of nuisance), constitutional
law (takings), and criminal law (as a result of trespass and destruction or damage to another’s chattels).
Four Approaches
Steven Friedland, Nova Southeastern University Law Center
Approach
The property law course offers a variety of organizational approaches. A basic chronological framework commences
with older concepts of property (e.g., fee tails) and progresses to newer ones (e.g., intellectual property).
One alternative organizational scheme focuses on legally enforceable property rights, tempered by legally enforceable
limits. Another organizational scheme explores the outer perimeters of property recognition by examining
what things of value are given legal protection. Yet another structural arrangement orders property law by
relationships — from neighbors (issues of nuisance, adverse possession, and easements), to partners (co-ownership
issues), to multiple claims of ownership (found property, adverse possession, recording statutes). Several of
these organizing frameworks are discussed in greater detail below. (Note: Some of these ideas have been expressed
in Friedland, Teaching Property Law: Some Lessons Learned, 46 St. Louis L. Rev. (2002).)
Historical Chronology
Since the roots of modern property law mostly lie in the English feudal system, many professors find the historical
approach to be a natural fit. Understanding the feudal system as both an arbiter of property disputes and
as a political system for maintaining power and control creates a framework for rules not immediately intuited
by youthful American law students. The evolution of the system, through various important statutes and rules,
provides the backdrop for understanding how property rules work in modern America. These rules included the
Doctrine of Worthier Title, the Rule in Shelley’s case (1581), and the Statute of Uses (1536), among others.
In accord with the historical perspective, many property courses emphasize the subject of estates in land and
future interests. This area of property law is in many ways unique to the first-year curriculum. It is often the only
area of the curriculum where the answer “it depends” is entirely misplaced. Instead, there are “answers” to many
future interests and estates in land problems, much like analytical puzzles. There also is a special vocabulary associated
with estates in land and future interests, deriving from feudal times. The most successful of students
achieve fluency in this vocabulary, a skill similar to learning a foreign language. In addition, the form of a conveyance
(including punctuation), and not just its substance, truly matters. How the conveyance is written can be
critical to its interpretation and validity.
Property Law as Relationship
Property law can be viewed as a means of resolving disputes between people. The law can resolve conflicts between
private individuals (such as restrictive covenants and nuisance law) and between individuals and the gov-

318 Property
ernment (such as in Shelley v. Kraemer, 334 U.S. 1 (1948), involving the constitutionality of the judicial enforcement
of racially restrictive covenants, as well as zoning and takings law). This perspective emphasizes the resolution
of problems arising from real property disputes, including discrimination in access, conflicts in use and
issues of transfer. When property law is conceived of as defining relationships between private individuals, it becomes
a set of rules promoting order and stability. When that order breaks down, property rules serve as a means
of dispute resolution.
From this perspective, the role of the law is to mediate understandings between buyers and sellers, neighbors,
and even the subtle distinctions between “right” and “wrong,” including the legal limits of discrimination. For
example, public accommodation laws and civil rights legislation such as the Americans With Disabilities Act explore
the accepted times and places persons who assert property ownership can wield the power to discriminate.
If property law is viewed as defining relationships between private individuals and the government, the analysis
is transformed into a question of public interest — a calculus that includes the welfare of the entire community.
As one commentator noted on the subject of landlord-tenant law, “[l]egislative and judicial treatment of
leases of dwellings now make it plain that the movement in residential lease law has been not from one area of
private law to another, but from private ordering to public regulation. ... Underlying these ... changes is the idea
that shelter is a basic human necessity and that public regulation of the terms and conditions on which it is offered
and held is therefore appropriate.” (Mary Ann Glendon, The Transformation of American Landlord-Tenant
Law, 23 B.C. L. Rev. 503–505 (1982).) Even this interpretation of the property law dynamic conceives of it as the
relationship between the individual and the state.
The remedies afforded in disputes about private property are generally obtained through the court system,
further reducing property law questions to the relationship of claimants in a lawsuit. The important question becomes
“Which of the parties has the better claim?,” not “Who in the world has the absolute best claim?” This conceptualization
emphasizes the legal enforceability of property rights and implicitly suggests that the arbiter of
property rights effectively controls the property relationship.
Hohfeldian analysis provides a similar understanding of rights and duties as concepts embedded in a larger
construct of relationships. This analysis focuses on special types of relationships, not so much those oriented in
real property, but those revolving around correlatives, such as rights and duties. (A. Corbin, Jural Relations and
Their Classification, 30 Yale L.J. 226, 226–229 (1921) (describing Wesley Hohfeld’s analysis). Professor Joseph
William Singer’s book on property law, Property Law Cases and Materials (3rd ed., Aspen Pub.), offers a terrific
introduction to Hohfeldian analysis.
Property Law as a Bundle of Legal Rights and Limits
Property law also can be conceptualized as a bundle of legally enforceable rights and limits as a way to make
sense of the various components of the course. Possession, transfer, use, and exclusion comprise the four core
rights. Each of these rights is tempered by legally enforceable limits, including zoning, the Rule Against Perpetuities,
nuisance law, and environmental regulations. The “bundle of legal rights” concept is predicated in large
part on the state’s role in defining and enforcing these rights.
Conceiving of private property in this manner creates a basic strategic framework for understanding property
law, like a map anchored by landmarks. The description is intended to assist students in developing a larger understanding
of the subject matter, while simultaneously discarding the notion that property is merely a “thing”
and not a legal construction.
Other consequences flow from a “rights” approach. Describing private property as a positivist legal concept
that creates ownership interests in tangible and intangible things distinguishes it from inalienable or natural law
concepts of rights. Property rights thus become a choice by society about which interests it is willing to recognize
and enforce through legal rights and remedies. In addition, visualizing property as a bundle of legal rights
that can be unbundled and considered separately further distinguishes legal rights from a lay understanding of
real property as a holistic and singular notion of ownership.

Property 319
The description of property as legal rights alters the classroom discourse, emphasizing a court context to property
disputes. Recourse for violations of property rights occurs in the courts, excluding self-help generally, and
introduces students to a subject — remedies — that often stands on its own as a distinct course. The description
of property also enables the various limitations on those rights to be more compactly described. Some of the limits
are those that exist over time and are discussed in the area of estates in land and future interests.
The idea of distinct property rights further helps to explain the existence of intangible interests, such as “intellectual
property.” With the expansion of the Internet and evolving attitudes in society, the formerly bright-line
boundaries of what constitutes property have tended to blur. Using the right to exclude as an illustration, students
are able to compare a hunter’s possessory interests in a captured fox (see, e.g., Pierson v. Post, 3 Cal. R. 175,
2 Am. Dec. (N.Y. 1805)) with a songwriter’s possessory interests in a “captured” song (see, e.g., the continuing
controversy over downloading music from the Internet).
Property Law as the Recognition of Value
Property law also can be conceived of as a societal choice to provide legal protection to things of value. This
conception of property law includes the tangible, such as real and personal property, and the intangible, such as
intellectual property. The valuation approach sometimes provides a better way to understand the purposes of
property law, illustrating that while value is essentially an intrinsic and subjective term, it also is a process that
can be extrinsically derived from the capitalist marketplace and recognized and defined by the legal system.
While property law protects things of value, some things are beyond its reach. A friendship or sunset, for example,
while extremely valuable, cannot be quantified adequately. Judging the value of friendship or sincerity
would be insuperable, at best. Ralph Waldo Emerson aptly illustrated the point that property is not representative
of all things of value when he wrote in his essay “Nature,”
The charming landscape which I saw this morning is indubitably made up of some twenty or thirty
farms. Miller owns this field, Locke that, and Manning the woodland beyond. But none of them owns the
landscape. There is a property in the horizon which no man has but he whose eye can integrate all the parts,
that is, the poet. This is the best part of these men’s farms, yet to this their warranty-deeds give no title.
Public policy also pushes some things outside the realm of private property, in part because of the potential
for detrimental consequences. Reproductive technology, for example, provides but one area where public policy
concerns play a significant role in determining what is and what is not categorized as property. Advances in reproductive
technology raise numerous legal questions, such as how the law ought to treat the creation of frozen
pre-embryos. (See, e.g., Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), in vitro fertilization or stem cell research.
See also Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990)(providing an apt introduction
to how the law applies public policy to scientific research.))
Challenges in Teaching Property Law
Teaching Estates in Land and Future Interests
Steven Friedland, Nova Southeastern University Law Center
The biggest challenge is probably estates in land and future interests. Ours is a full-year, six-hour course, so
we cover the topic in some depth. I think it’s a challenge to which I’ve risen, though. I supply them with an online
review and problem set I developed several years ago (originally as two Windows Help files) and which they
seem to find useful.
A less specific challenge is making the course coherent — I tell them that the law of real property is like English
weather, “If you don’t like it this week, wait until next,” because there are several discrete topics covered in

320 Property
the course. (I also tell them that property law is about friendly neighbors and happy families, which actually does
tie the whole thing together, almost!)
Creating Relevance
Patrick Wiseman, Georgia State University College of Law
While property law is considered to be an important subject by students and law schools alike, many students
find property law initially difficult to embrace. A number of the rules appear to be arcane and to have little, if
any, relevance to the students’ everyday lives. Many of the students, for example, have not yet purchased or sold
real property and are unfamiliar with the laws relating to ownership. The questionable relevancy of the subject
matter is exacerbated by the property law vocabulary, particularly that dealing with the historical area of estates
in land and future interests. It is as if the students have been transported to a country where they do not speak
the language. The lack of relevancy can weigh heavily on student motivation; for many, it feels like entering a
foreign country with its own language and customs. Indeed, with estates in land and future interests, form counts
as much if not more than substance.
A second and related challenge posed by the basic property course is the appearance of too many disparate
threads within the course, creating a form of cognitive dissonance for the students. Property law, when compared
to most other basic law school courses, often defies an easy organizational framework. Unlike criminal law or
torts, there are few “popular culture” reference points from which students find their bearings. Basic property
courses may cover the law of finders of personal property, encumbrances, such as affirmative and negative easements,
real covenants and mortgages, estates in land and future interests, public and private nuisance, environmental
limitations, discrimination and real property, landlord-tenant law, zoning, regulatory takings and eminent
domain, real estate conveyancing, and more. These topics do not appear at first glance to have a central
compass with which to guide the students. This is particularly true when placing the property law course alongside
the criminal law or torts for comparison.
Steven Friedland, Nova Southeastern University Law Center
Multiple Challenges — Creating Interest in the Subject; Estates In Land and Future Interests; Communicating
Cohesiveness
There are multiple challenges in teaching property. Three of them are: creating interest in the course; teaching
estates in land and future interests; and communicating a cohesive overall structure.
• Make the course interesting. I explain it’s not real estate transactions, which some people expect it to be. I
try to pull current stories or situations out of newspapers to illustrate the relevance of the subject matter.
• Estates in land and future interests. This is an area in which students have no background and find foreign.
I try to emphasize that it is not as impossible as they have been told or believe, that a lot of this topic merely
involves learning the definitions and then learning by doing, much like riding a bicycle. I urge them to stick
with it and keep pumping and all of a sudden they don’t fall over, even though it may seem impossible when
they start. This is not an area that can be taught by cases, so I spend considerable time going over problems.
I assign supplemental problems as well and tell students to practice on their own, but I don’t specifically
cover this material in class.
• Tying the course together. Property law operates in discrete segments, and students tend to treat each segment
in isolation. Whenever I get a chance, I try to tie the different pieces together. I know the students do
this on their own, but as first-year law students they really can’t tie courses together yet.
Basil Mattingly, Georgia State University College of Law

Teaching Property through the Problem Method
Property 321
The problem method does not simply supplement cases with explanatory problems but, instead, uses problems
as a central mechanism for learning pertinent rules and principles. Problems become equal to if not more
important than cases in the teaching methodology hierarchy.
Why use the problem approach? The answer involves both culture and pedagogy. Children grow up in the new
millennium playing Game Boy and Play Station, effectively using competition and problem solving as entertainment.
But law school offers little in the way of competitive methods and problem solving outside of distinctive
non-classroom activities, such as moot court competitions, supplementary hypotheticals, and final examinations.
In addition, other areas of graduate education use the problem approach as a central educational catalyst. Medical
schools train students directly in hospitals with live patients and their problems. Business schools utilize a
case file approach, solving the problems of various companies.
The problem method is useful for an additional reason — it offers formative feedback. The majority of legal
education feedback is summative, consisting of a single final examination at the end of a semester. A problem
orientation allows students to improve on their performance while the course is in progress.
Problems are especially useful in the area of estates in land and future interests, but they assist the learning
process in each and every area. Problems can range in length and question type. Short-answer questions, for example,
offer one economical problem type. For example:
1. Theona and Latisha sign a lease permitting Latisha to occupy Theona’s summer cottage in
Lawrenceville from July 4 to July 27, 2004. What kind of non-freehold estate does Latisha have?
2. Elmo phoned Nemo and said, “I’ll lease you my house on the Oconee River for three years at $4,000
per year.” Nemo accepted on the spot.
a. What tenancy has been created by this phone call?
b. Does the conclusion change if Nemo immediately sends Elmo a check for $4,000 and Elmo accepts
it?
3. Bobbi, out for an afternoon of hunting in the lakes region of Maine, sees a giraffe walking by on unclaimed
land without a care in the world. Can Bobbi capture the giraffe and claim it as her own? (This
problem is a corollary to Pierson v. Post, 3 Cal. R. 175, 2 Am. Dec. (N.Y. 1805).)
Teaching Property Law with Problems and Role Plays
Steven Friedland, Nova Southeastern University Law Center
When I taught Property at the University of Cincinnati College of Law, I adopted a problem-oriented approach
(the course was taught as a spring semester only, four-hour credit course) because I did not think that conducting
Socratic-style class sessions was as likely to effectuate my objectives in this first-year class.
Although Jesse Dukeminier and James Krier’s Property is the most widely-used property law casebook and is
excellent in so many respects, I used the problem-oriented casebook Fundamentals of Modern Real Property Law
by Edward H. Rabin and Roberta Rosenthal Kwall. This casebook was better suited to what I wanted to accomplish
in the classroom. Each chapter begins with a hypothetical problem. The materials that follow each “Principal
Problem” are meant to be used by students to answer the hypothetical question.
I took Rabin and Kwall’s casebook and then layered on top of it a role-playing component. Before each class,
I assigned four students as lawyers to represent one side of the “Principal Problem” and four other students as
lawyers to represent the opposing side. Although Rabin and Kwall do not appear to have written the casebook
with such role-playing assignments in mind, their hypotheticals are well suited to these exercises, with only slight
adjustments sometimes being necessary. Depending on the particular issue, I also assigned students to roles as

322 Property
judges, arbitrators, partners in law firms, or, on a few occasions, witnesses who could be called to testify about
particular issues.
For instance, one of the subjects I covered was assignments and subleases as an aspect of landlord-tenant
law. Rather than using case materials with students and then asking them to consider such questions as “When
a tenant wrongfully abandons the leasehold estate, what remedies are available to the landlord?,” Rabin and
Kwall’s casebook first focuses on a vivid hypothetical. It is a fight between a pharmacist and his landlord,
after the former skips out on his lease obligations, leaving his landlord literally holding the keys. In my class,
I assigned four students to represent the landlord and four others to represent the druggist, and I guided the
discussion through the relevant legal issues in deciding the landlord’s rights and obligations under these circumstances.
I have found that students respond enthusiastically to the course organization and that they feel personally invested
in the learning process. Students sense that their thoughts, analysis, and even opinions are respected — indeed
solicited — by me. As a result, students are more likely to come prepared to class, be motivated to study the
materials closely, and gain more from the experience. One of the warmest pieces of feedback I have received is
that more and different student voices are heard in my class than in any other first-year course. It is one thing to
create an environment in which loquacious students speak even more; it is another — and, I would submit, a far
more rewarding — matter altogether to create an atmosphere in which otherwise silent students feel confident
enough to speak up voluntarily (some, perhaps, for the first time since entering law school).
In structuring this course, I also keep in mind that I want students to focus on the importance of organizing
their thoughts in a coherent, logical fashion. I seek to stress that it is not enough to understand individual cases
or rules of law. Students must be able to analyze the materials before them and construct legal arguments. This
demands that I teach organizing skills. It is also related to my goal of trying to lessen the gap between what is
taught in the classroom and what is tested at the end of the course. I evaluate students by using the familiar essay
exam format, but in this course I remind students that they have, in effect, been taking practice exams all semester
long. Each “principal problem” is similar to the kind of question I might ask on the final examination,
and many students have told me they find it extremely helpful to attempt to write out answers (either in narrative
or outline form) as part of their study preparation. Some do so before class; others find it more helpful to
wait until after the class discussion.
Finally, I seek to challenge students to question the ingrained notion that law is objectively certain and that
the study of law requires merely rote memorization of black-letter rules. I believe there are few better ways to illustrate
this lesson than to have students read the same materials and ask them to make opposing arguments.
Not every subject in property law is susceptible to this format, of course. Similarly, I suspect that not all classes
are as well suited to the problem-oriented, role-playing approach, though I have written elsewhere about the use
of the problem method to teach civil procedure, the field in which I principally teach and write. See Lonny S.
Hoffman, A Parting Reprise, 47 Saint Louis U. L. J. 43 (2003). Whatever the class, the right pedagogic decision
depends on carefully considering one’s course objectives. In my experience, the problem-method approach has
produced stimulating discussions and advanced, critical thinking by students.
Some Lessons from Lon Fuller for Teaching Property Law
(or Anything Else)
Lonny Hoffman, University of Houston Law Center
When I first began teaching property law, I happened across three articles published by Lon Fuller. (Lon L.
Fuller, Legal Education and Admissions to the Bar in Pennsylvania, 25 Temple L.Q. 249 (1952); Lon L. Fuller, On
Teaching Law, 3 Stanford L. Rev. 35 (1950); and Lon L. Fuller, What the Law Schools Can Contribute to the Making
of Lawyers, 1 J. of Leg. Educ. 189 (1948).) The articles held so much wisdom about good law teaching that I

Property 323
copied them. I re-read them from time to time and recommend them to every new teacher who joins our faculty.
Fuller had a very clear idea about what he wanted to accomplish in the classroom both as to techniques and
as to his ultimate aims. I try to practice those techniques and keep those aims in mind when I teach property.
Fuller felt a good classroom experience always began with a thorough understanding of the problem at hand.
Property casebooks are full of human stories that present challenging legal issues. I spend a major part of every
Property class exciting the students’ interest in those stories and the issues they present. In the end, most legal
problems are perennial, the solutions transitory. The problem of dead hand control of wealth will exist long after
the last jurisdiction has abolished or reformed the Rule Against Perpetuities. Sellers will never tell all they know
about the problems with the house they are selling. People will always be persuaded by fast talkers to part with
their property. Inevitably that property is quickly resold to an innocent purchaser and the law must decide
whether the defrauded seller should be able to get the property back. Unless the students appreciate the challenges
presented by problems like these, they will never get involved in their solution.
To Fuller, legal education must direct the students to develop the power of their own minds and to overcome
routines of thought and habits of prejudgment. To develop, the students must be challenged to solve the law’s
most intractable problems on their own. For this reason, Fuller thought the worst mistake in law teaching was to
jump to an authoritative solution to a problem found in the rule of a case, statute, or treatise. That mistake always
lets the steam out of a class. Worse, it provides a false picture of the law. It lends an air of certainty to the enterprise
that isn’t really there in practice. While the students often want the certainty of a rule or other authoritative
solution, the best law instructors should realize, as Fuller did, that the desire for security is an obstacle to the highest
educational aims. We are, in the end, educating problem solvers, not persons who have memorized rules.
Fuller recognized that the students will never apply their own minds to the challenges of the law unless the
teacher at least appears to be interested in his students’ own solutions to the problems he poses. He added that
the best way to appear to be interested in them is to be interested in them. Fuller, I think, had no better advice.
Over the years, I have been surprised by the common sense solutions the students often reach. Most property
casebooks, for example, have cases in which a person finds an item of personal property on real property owned
by another. The students are often dissatisfied with the results in those cases that award the property to either
the finder or the owner of the real property. The students often propose solutions that split the difference. For
example, the owner of the property gets the chattel but the finder gets a finder’s fee. Discussion of such a proposal
often helps the students appreciate the limits of adjudication as a social ordering mechanism. Courts must
fashion reasoned opinions from competing claims of right raised by interested parties. Inevitably, this process
tends toward “all or nothing” solutions like the results in the finder’s cases.
Because Fuller appreciated the limits of adjudication, he tried to direct his students to fashion solutions to
problems using legal processes other than litigation. It is still true, as it was in Fuller’s day, that the typical law
class unduly emphasizes litigation. In preparing for class, therefore, I always write some instrumental questions
that are not focused on adjudication. These can range from simple questions, such as asking the students to redraft
a lease or real estate sales contract to avoid the difficulty presented by a case, to far more complex problems.
The students can learn a great deal about the law of servitudes, for example, by thinking about the problems
attendant in creating a common interest community.
As his ultimate aim in any law class, Fuller wanted his students to consider what the law ought to be. He felt
legal education was a sham if it did not involve the student in a search for the right solution to controversies and
the right ordering of the rules by which humans are expected to live together.
I believe, as Fuller did, that we can arrive at the right solutions through reason. Very early in the course I
demonstrate that the effort can be worthwhile by using a hypothetical involving the rule of increase. A farmer’s
mare jumps a fence and takes up with the neighbor’s herd. The mare gives birth to a foal sired by the neighbor’s
stallion in the neighbor’s field. When the farmer seeks to reclaim the mare, who gets the foal? As Felix Cohen illustrated,
all legal systems everywhere have awarded the foal to the owner of the mare and they have done so for
the same reasons. (Felix Cohen, Dialogue on Private Property, 9 Rutgers L. Rev. 357, 365–69 (1954).) The mare

324 Property
will nurse and care for the foal and thus raise the animal at a lower cost to society as a whole. The result is consistent
with our ethical sense that we should avoid needless cruelty to animals. Finally, the rule is easier on the
judicial process because, without expensive DNA testing, it is much easier to determine the mother of an animal
than the father.
This simple example always gives the students a model for the “right ordering of rules.” It interests the students
in the search for what the law ought to be in the more complicated problems that follow in the course. Any
teacher who involves the students in such a search will inevitably have a lively and worthwhile law class.
Teaching Real Property Law as Real Estate Lawyering
Stephen C. Veltri, Ohio Northern University College of Law
This article offers an alternative way of teaching property that is designed to make students appreciate that the
rules covered in this course are relevant to the everyday practice of law. It concentrates on the use lawyers make
of rules, rather than treating rules as ends in themselves. The traditional case method makes students think about
what the cases hold, what the rules are, and what the policies underlying them are or should be, but it does little
to make students appreciate what this knowledge has to do with being a lawyer. Many of them conclude that rule
learning is an activity they must master before graduating law school and not one that is much connected with
the activity of lawyering, which they will do after graduating. What I seek to do here is to approach the rules to
be covered in the Property course from the position of an attorney who might have to deal with them in the ordinary
course of practice— not at the appellate level, but at the earlier, simpler stages of questioning clients, drafting
documents, negotiating with others, preparing for litigation and, when necessary, litigating. My purpose is to
have students not only learn the rule in issue, but to appreciate that it is a rule worth knowing by practicing lawyers
as well as by students preparing for the bar exam. Most teaching innovations that go beyond the pure case method
do so in a litigation context. But everyday real estate practice does not consist primarily of litigation. Clients with
real estate matters consult their attorneys in order to make things happen favorably more often than they consult
them because things have already happened unfavorably; the clients have not yet chosen to act, prepared their offers,
or commenced negotiating, much less started feeling antagonistic to the other side. Litigators and judges are
stuck with the set of facts that have already occurred and can only wish that matters had occurred differently, but
transactional attorneys have the extra function of creating the story: they tell clients what they can do and what
they cannot do, or that they can achieve their desires if they go at them one way rather than another; they insert
clauses in documents when they know that otherwise the consequences would be adverse, they strike clauses in
documents that will worsen their clients’ position, or they omit clauses they know only duplicate what the legal
system already gives their clients. These creative possibilities are denied to those who merely litigate.
Challenging coverage of the rules of property need not be limited to hypotheticals involving disputes over facts
that already exist and documents that have already been executed. Co-ownership issues can be raised in terms of
advising two clients how to take title to land they are acquiring rather than in terms of resolving a disagreement
as to the consequences of a deed they already have. Landlord-tenant coverage can revolve around consideration
of what provisions to include (or omit) in a lease rather than as argument over the effect of the provisions in an
already executed lease. Conveyancing is clearly better suited for asking what provisions to put in a listing, offer,
deed, or escrow instruction than for analyzing the provisions of an executed agreement in order to determine
whether to sue or not. Land use can be made significantly more realistic and believable to inexperienced students
by having them consider what regulations they might wish to enact rather than the effect of those already in
force. Adverse possession is less subject to such a planning approach, but even it has many aspects where legal
creativity about making use of the rules can play an important pedagogic role.
There are no substantive revelations here. I do not seek to revise the corpus of the Property course or to offer
major new insights into the cases, rules, or policies covered there; the teacher’s manuals and law review articles

Property 325
already do that. I address myself instead to the more mundane attempt to introduce property concepts to students
in more pragmatic ways. Professors may continue to address their favorite themes just as before, with only
the background context for the class discussion of these themes being altered.
A major characteristic of what follows is the absence of a systematic lawyering style or development of lawyering
styles. The teaching technique described here may appear almost random because the approach taken in each
class is driven by the subject matter rather than by the technique; the course taught is Property rather than Legal
Process. Desirable as it might be, for instance, to begin with drafting of simple documents rather than with litigation,
if the first topic covered is adverse possession most scenarios would have to be wildly unrealistic to support
drafting or planning questions. The approach taken for each topic has been developed by trial and error
rather than through a priori thinking.
A second feature is the omission of large, complex questions such as those the problem method of teaching
tends to emphasize. What is presented here is more disjointed. Each rule or doctrine is given its own set of questions,
best suited to get to the practical application of that rule or doctrine. Since the next rule to be covered
might require switching sides or changing facts or moving to a different setting, too much flexibility is lost if all
issues on the day’s agenda are attempted to be integrated into one single overarching problem. To the degree that
readers of this article do want more than the atomistic approach presented here, they will have to supply their
own interconnections. Most of this article consists of the actual questions put to the students. I think that it will
be more helpful to fellow instructors, especially those new to the teaching of Property, to provide the literal text
of questions to ask in class rather than with a conceptual but elusive theme for discussion, leaving them to figure
out how best to go at it. I have put all questions to be addressed to the class in italics as well as within quotation
marks in order to more clearly separate them from the pedagogical commentary accompanying them.
The questions are generally addressed to the students who are asked to be lawyers for the day, Laura and Larry
in this article. Other students are designated as the principals for the transaction and topic under examination.
By keeping their identities constant for the duration of the topic, one less variable is introduced and there is less
of a need for cumbersome labels in the discussion. It is easier and more realistic to say in class, “What about Sid,”
than to say, “What about finder #2?” But this is hardly essential if your style is otherwise.
[This article is excerpted and adapted from Teaching Real Property Law as Real Estate Lawyering, 23 Pepp. L.
Rev. 1099 (1966).]
A Preface to the Teaching of Common Law Estates
and Future Interests
Roger Bernhardt, Golden Gate University School of Law
At the University of Michigan in the early 1970s, my beloved Property professor, Richard Wellman, would introduce
the study of common law estates and future interests by distributing a handout which concluded with the
instruction, “Don’t panic.” In my own teaching, I have not perpetuated the injunction against panic, for fear of suggesting
an option that might not yet have occurred to the entire class. Nor do I predict that the study of estates will
be pleasant or easy, because students have heard otherwise and I would be jeopardizing whatever credibility I might
have earned during the first weeks of the semester. Rather, I tell my students that they are about to study an arcane
system, whose mysteries give the profession they are preparing to enter a monopoly on important information. Because
it would be in nobody’s interest to simplify or reform the system having once mastered it, I assure students
they will profit from the situation. This always seemed to resonate with classes in the 1980s and 1990s.
The best thing about teaching estates is that it appeals to an entirely different subgroup of students than were
attracted to the preceding topics. Symbolic logic mavens, silent during the law of finders and adverse possession,
emerge from the woodwork to participate in class discussion. Similarly, the law of estates operates like the onset

326 Property
of a hard freeze, chilling the participation of history and philosophy majors who may not be heard from again
until landlord and tenant, if ever.
Instructors with a background in legal history confirm their students’ worst nightmares by beginning the study
of estates with the Norman Conquest and proceeding through a mind-numbing dissertation on the organization
of feudal tenure. The alternative is simply to state that the elaborate system of classifications and distinctions
known as estates persists long after its relevance has been lost. Assuming that you have already established
yourself in the first weeks of the semester as someone conversant with history, economics, and public policy, students
should be willing to accept your decision to teach estates and future interests in modified bar review style.
I explain to my students that studying estates must resemble what ice skaters do when they master “compulsory
figures” as a precondition to freestyle performance. Common law estates and future interests comprise the essential
building blocks for more imaginative work in the upper-division study of estate planning.
Taught in modified bar review style, the study of estates is made manageable by exposing students to a series of
rules, illustrated by examples. Some students will remember the rules, just as some remember the formal rules of
English grammar. Other students will internalize the rules and be able to instinctively identify and classify estates on
sight, just as most people recognize and apply proper grammar without necessarily being able to describe its rules.
These are some examples of the rules I teach:
1. There is a finite category of estates. It is essential to remember the defeasible fee simple estates and their
future interests as paired sets. The following chart makes for a useful handout:
Present Future-Grantor Future-Grantee
Fee Simple _ _
Fee Tail Reversion Remainder
Life Estate
Fee Simple
Defeasible
Reversion Remainder
a) Fee Simple
Determinable
Possibility of Reverter _
b) Fee Simple
Subject to
Condition
Subsequent
Right of Entry
c) Fee Simple
Subject to
Executory Interest
Executory Interest
2. In classifying estates, it is necessary at all times to account for the entire fee simple absolute. For example,
in the conveyance, “To A for life, then to B for life,” one has not accounted for the entire fee simple absolute
without identifying a reversion in the grantor. One way to explain this concept is to ask students to
assume that Donald Trump wants to acquire the parcel for assemblage. Whose signatures must Trump obtain
on the deed in order to acquire title? This story helps explain another rule:
3. A future interest is property that is presently owned. Only the right of possession is in the future. Unless
the terms of the conveyance explicitly require it, the taker of a future interest does not have to survive to
the time of possession. For example, the vested remainder created in B by the conveyance, “To A for life,
then to B and his heirs,” is property that is presently owned by B and will pass to B’s heirs (or under the
terms of B’s will) if B predeceases A.
4. There are only two future interests that can be created in a transferee: remainders and executory interests.
If the student identifies a future interest in a transferee and knows it cannot be a remainder (be-

Property 327
cause the student knows that a remainder does not cut short a prior estate but patiently awaits the prior
estate’s orderly expiration; and that a remainder must be capable of taking effect immediately on the expiration
of the prior interest) then it must be an executory interest. Of course, I also teach a series of
rules for identifying executory interests (e.g., if it divests a transferor; if it follows or divests a vested fee
simple estate).
5. Living persons have no heirs. In the conveyance, “To A for life, then to B’s heirs,” the future interest is a
contingent remainder.
6. For each estate in the conveyance, the student must first identify the taker and then classify the estate by
its nature and duration. It helps to classify the estates in a conveyance in order, clause by clause, and to
cover up subsequent clauses (with a piece of paper, if necessary) to prevent confusion. Each conveyance
must be classified precisely as the grantor drafted, not as the grantor might have drafted. Compare the
conveyance, “To A for life, then to B and his heirs if B survives A, and if B does not survive A, then to the
Red Cross,” with the conveyance, “To A for life, then to B and his heirs, but if B does not survive A, then to
the Red Cross.” The future interests in the first conveyance are alternative contingent remainders (and a reversion
— see Rule #2, above). The second conveyance creates a vested remainder and executory interest.
Why? Because the grantors drafted it that way.
On Saturday mornings in my synagogue, most congregants will have completed their silent devotion and sat
down before the cantor begins to chant his repetition. I am certain that, no matter how long the cantor waited
to begin, some worshipers would still not have finished praying. Similarly, students master the law of estates at
wildly different rates. No matter how long the instructor is prepared to devote to estates, some students will always
be clamoring for just one more problem set.
No matter how the instructor may warn against them, students will resort to flashcards and commercial outlines
unless offered an alternative. I tell my students about the proposal I received from a publisher to prepare a
commercial outline, under a deadline of two weeks. I assure them that, while I turned down the outrageous offer,
someone else surely accepted and a study guide prepared under these circumstances is in circulation.
For assistance with estates and future interests, I recommend with enthusiasm Cornelius J. Moynihan’s and
Sheldon F. Kurtz’s Introduction to the Law of Real Property (3d edition). For assistance with the Rule Against Perpetuities,
I recommend Jesse Dukeminier, A Modern Guide to Perpetuities, 74 Cal. L. Rev. 1867 (1986).
[This is excerpted and adapted from Johnson et al., Teacher’s Manual to Accompany Property Law (2d edition).]
Teaching the Rule Against Perpetuities in First-Year Property
Alan Weinberger, St. Louis University School of Law
It seems that we will have the Rule Against Perpetuities (“the Rule,” always capitalized) with us in some form
or re-form for the foreseeable future. Virtually every first-year property law book treats it, as do upper-division
trusts and estates courses. We have taught it for a long time, and yet it is still a challenge. Why is this so?
• The Rule is made mystical by faculty, student lore, and cases such as Lucas v. Hamm.
• The Rule is often taught by a different method from the rest of the course.
There are additional reasons but these will do to start.
What can we, as faculty, do to help students learn the Rule, at least in its basic form?
Over time, I have developed some approaches:
• Build to the Rule. As you teach estates and future interests, always make sure that your examples do not violate
the Rule. If a student’s hypothetical violates the Rule, tell the class that, explain what interests would

328 Property
be created but for the Rule, and then go on. When you begin to deal with contingent interests, get students
to focus on the determining event, the contingency that will cause the interest to vest.
• KISS — Keep It Simple Stupid! Unless you are teaching an upper-division class I think it’s best to avoid issues
of class gifts, openings and closings of classes, and other complex interests. When you get to the Rule,
at least in the beginning, don’t work with options, or double contingencies or interests where a valid interest
follows a bad one. The one exception is the child en ventre sa mere. A student will always bring it up, so
I wait until that happens.
• Shake Hands with the Unborn Widow. Though the cute names Leach gave to some situations have been
criticized, they have an advantage. I think they demystify the Rule (perhaps making it the “rule”) for some
students and make it less fearsome.
• My Method. There are many ways of approaching the Rule. I have developed this system and try to teach
my students to use it.
- Identify all the interests and pick out the contingent ones.
- For contingent interests, identify and state the contingency.
- If the contingency is personal, look for a determining life. A determining life is a life that affects the vesting
or failure of an interest. That is, the interest will vest or fail within that life and 21 years. For instance,
in a case of survival (to A if she survives B) both the survivor (A) and the survivee (the person to be survived,
B) are determining lives. A list of common events and determining lives is below. The determining
life may be one of a group.
- Check to see if your determining life is a life in being at the creation of the interest. If the life is one of a
group, all of the group must be there at the creation of the interest.
- If it is, the interest is valid. Next check for another determining life (you may have missed one) and go
back to see if it’s a life in being. If you can’t find any determining life, then see if the interest will vest or
fail within 21 years of the creation of the interest. If it does, then it is again valid.
• Clean Up the Area. Once your students have a fairly good command of simple problems you can introduce
them to slightly more complex questions. A conveyance to A on B’s death might be an executory interest
and subject to the Rule, but it sure looks like a vested remainder. You can also add the problems of options.
If the child en ventre sa mere hasn’t come up yet, this is the time to do it.
• Practice! Practice! Practice! (or, how do you get to Carnegie Hall). Give your students lots of examples to
work with. Make up sheets with problems and explanations. Put things on a website. Locate other websites
and refer the students to them.
• Test What You Teach. Make sure that the questions you give your students on the exams replicate the things
you’ve been doing in class. I try to get students to identify interests and lives, not just tell me if an interest
is valid or invalid. In fact, I may say an interest is valid and ask them to explain why. That’s what we did in
class, and it’s fair to ask them to do it on the test.
(The following chart is a synopsis of Fear and Loathing in Perpetuities, 48 Wash. & Lee L. Rev. 1393 (1991),
which may be consulted for citation to authorities and further discussion. I note with some chagrin that it was
relatively easy to reduce 15 pages of law review article to the present format. See also Teaching the Rule Against
Perpetuities in First Year Property, Robert J. Hopperton, 31 U. Tol. L. Rev. 55 (Fall 1999).)
John Weaver, Seattle University School of Law

Property 329
Table of Determining Lives
Contingency Determining Life/Lives
Birth Person Born
Parent
Survivorship Person
Those to Be Survived
Reaching Age 21 Person
Person’s Parents
Reaching Age Over 21 Person
Achievement or Status, Passing Bar, Marriage Person
Death in a Certain Status Person
Widow/Widower, Being Identified Person
Having a Child Person
How to Be a Good Property Law Teacher:
Some Suggestions
1. Do not confuse teaching and learning. Good teaching is ultimately about helping students to learn. The bestplanned
class — the lesson plan that wows your colleagues — may fall flat. The class that worked perfectly
one year may not work well the next. Keep it fresh. Use last year’s notes sparingly. Go back to the original
material first. Make sure to relate it to the concerns or comments of this year’s class and to what you are
thinking about now. That brings learning into the classroom. Don’t we really teach because we liked being
students so much that we didn’t want to give it up? Model being a good student, a good learner. Change casebooks.
Add recent, interesting cases.
2. Don’t be afraid to give overviews of a topic or issue, particularly once the first few weeks of teaching legal
method and case analysis are over. Despite your brilliant explication of legal method, students will sometimes
arrive without a clue about what they were supposed to get out of a case or cases. Can you blame
them? Some cases in a casebook are there because they are the best reasoned available on the subject. Others
are there because they are poorly reasoned. Still others may be well reasoned on one point and poorly
on another. An overview might help them actually learn to appreciate the difference between those cases
during the class. Were you really able to pay attention for an entire class if you were thoroughly confused
for most of it?
3. Don’t worry about old student outlines of your class. If you’re paying attention to No. 1, above, you won’t
embarrass yourself. The student who’s just read an answer off an old outline may get the answer right but
probably won’t know (or be able to articulate) the reason. What a great learning opportunity for her and the
entire class! If she can fully articulate the reasons for the answer, how great that your efforts are cumulative!
4. Fear of being called on can be a great motivator to do the work, even when the World Series is on television.
And you must challenge all students; don’t lie to them and say “That’s an interesting point” if it’s not. Nevertheless,
fear of being humiliated is counterproductive. Most students are motivated to do well and need to
feel that they learned something by doing the work. If you must humiliate someone, save it for the student
who didn’t try at all. Then again, why even humiliate him? It bums everyone else out, and who cares about
him? I bet you’ve got a curve that you need to fill out at the bottom as well as at the top.

330 Property
5. Don’t waste time having students state the facts after the first few weeks. Nobody can really do it succinctly
until they fully understand the case. If they fully understand the case when they come in, what are you there
for? I know how I prepared to try cases; I started with the law (jury instructions) and then figured out what
facts were important. Why expect them to be able to do something that, to do well, requires them to know
ahead of time what you’re about to teach?
6. Use approaches appropriate to the subject matter. One hundred twenty students voicing confusion about the
application of the Rule Against Perpetuities while generating nonsensical hypothetical conveyances on the
spot is not the best way to teach this material. Trust me. The same explanation that works for some will confuse
others who previously got it. Assign problem sets. Provide answers and full explanations. Initially, limit
questions to the assigned problems. Then, outside class, take their questions about conveyances. Electronic
class discussion lists are wonderful for this purpose and many others. When you require them to put their
questions in writing, they often answer them themselves or ask much better questions. How empowering for
them! They’ve learned that, with your help, they can teach themselves even the most difficult, convoluted
material.
7. Don’t be afraid to be wrong. Being wrong can provide the best learning opportunity. Discuss how you reasoned
your way to the wrong conclusion. Discuss where you went off track. Model how you learn from being
wrong which, after all, is what you ask them to do most of the time when you call on them. If it’s good for
them, why isn’t it good for you?
8. Pay attention to the examination. Let’s face it. We have to do it, and it’s the worst part of the job. Still, it’s the
most important thing to the students. So if we’ve got to do it, we should do it well. Consider their preparation
for the exam as the ultimate learning opportunity. So:
• Try to cover the course. If it’s important enough to cover in class, it’s important enough to test and reward
those students who struggled to learn it. Of course, you can’t cover everything. But there is nothing
more rewarding than being told that your exams are the hardest, but the fairest. Fair exams try to
cover the course, and not reward those who guessed right about what you would cover. Students hate to
feel deprived (and rightly so) of the opportunity to show off what they’ve learned.
• Be up front about what you expect, and then stick to those expectations. Tell them how you grade. Go
over an old exam. By going over an old exam, you can model what you expect as to style, breadth, and
depth. Tell them how to do well. Why hide the ball if you really want them to do well? Yet be careful to
warn them that you’ll grade them on how well they answer this year’s questions, not last year’s. You don’t
want them ensconced behind the Maginot Line when you launch the Blitzkrieg.
• Answer questions up to the last minute. Discussion lists are good for this. Nobody need get an unfair advantage
by happening to ask a question similar to one you picked for the exam. I’ve heard law teachers
say they never answer questions after the last day of class because students should have kept up. What a
waste of learning opportunity! When was the last time a lawyer handed in a brief before the end of the
day it was due?
9. Remind your students that there is no better way to learn something than to teach it. Suggest that they work
in groups to have the opportunity to teach and learn from each other’s errors and insights.
10. Have fun. If you find the class stimulating and challenging, chances are excellent they are learning. If students
are learning, it usually doesn’t take them too long to figure out that it may have something to do with
your teaching.
James Kainen, Fordham University School of Law

Negotiating a Lease
Property 331
One exercise that combines substantive law and lawyering skills is negotiation. Students are asked to negotiate
a lease with classmates, either in teams or one-on-one, depending on the number of students in the class. If
an agreement is reached, the teams are asked to reduce it to writing, providing a drafting component to the exercise
as well. The class is first divided up into tenants and landlords, with different information given to each
group in terms of facts, goals, and interests. That is, only those representing the landlords are shown what the
landlords want and only those representing the prospective tenants are shown what the prospective tenants want.
The facts, goals, and interests of the problem can be varied from year to year. One version of this negotiation exercise
follows.
Landlords and Prospective Tenants — negotiating a residential lease
[Instructions to Student-Attorneys: While the items listed below are what the party desires, attorneys
should have a strong willingness to negotiate terms in order to obtain a signed lease. Please negotiate
with an opposing student team and attempt to reach an agreement, using applicable legal rules and
principles. If you do reach an agreement, please memorialize the agreement in writing.]
Landlords and prospective tenants are negotiating the lease of a two-bedroom apartment in a rental
community near the students’ college. The students, age 19, are college sophomores. It is a popular
and well-maintained rental community, within the budget of most students. The development is surprisingly
quiet and restrained, with families, students and business people.
A. Landlords Want: a term of years for two years; first and last months’ rent paid in advance; a security
deposit; utilities to be paid by tenant; a covenant to repair and maintain; a provision that doubles
the rent if tenant holds over and landlord permits the same; a covenant to re-pave the front walkway;
a covenant for the tenant to repair and maintain the property; a covenant for the tenant to
forward and deliver any mail or other deliveries to the property for the landlord; a “no assignment”
clause.
B. Prospective Tenants Want: a periodic tenancy, month-to-month if possible; no security deposit
given; washer and dryer in the unit; the opportunity to replace old carpeting, repaint the walls, and
add a new heating duct without charge; the ability to assign or sublease the property (especially during
the summer when school is not in session); and the inclusion of all utilities.
Problems and Role Plays
Steven Friedland, Nova Southeastern University Law Center
I generally use the problem method. I divide an 80-person class into three large panels and give them assignments
to represent the plaintiff or defendant in particular cases. I make these assignments before the class so they
know this will happen in advance. We start class by discussing the cases, the doctrine, the policy, etc., then move
to the problem, which is a moot court type of thing. I address a conflict in law among the states or ask whether
an exception should be adopted, a case distinguished from another, or a new rule adopted, etc., and the students
make arguments on both sides while I play the judge. Sometimes I have the students in one panel act as judges
and call on them to ask questions of the lawyers in one of the other panels. At other times, I pretend the students
are my clerks and I want advice on how to decide a case and how to write the opinion; this allows them not just
to take a side I assign them but to say what they really think. I am able to react by letting them know what parts
of the opinion I would find hardest to write or justify.
At least once during the semester, I have our Dean of Students come in and pretend to be a client. I created a problem
where one tenant is sexually harassing another and the law is not clear whether this constitutes constructive evic-

332 Property
tion because it’s not clear if the landlord has a duty to remedy the situation under existing leasehold law. I have
the students interview the “client” in class, so they have to find out from her the facts they need to know to figure
out what legal advice to give her. The students seem to enjoy this because it gives them a sense of how the
material may play out in the representation of clients (giving advice) rather than focusing so much on oral argument
in court.
Simulated Pre-Trial Conferencing
Joseph William Singer, Harvard University Law School
An innovation that’s proved really useful in my classes is the use of a FRCP Rule 16 format to explore the
intricacies of legal analysis of complex fact situations. I tell students that the pre-trial conference resembles
what all good attorneys do in their heads, analyze and anticipate the contending elements of a case before giving
opinions or advice or predictions on outcomes. (It is also, I tell them, a pretty good way to scope out the
range of legal arguments most law professors would expect to see dealt with on an exam in Property and other
courses.)
Before a Rule 16 conferencing session I typically hand out an edited copy of the Rule along with a complex
fact pattern — often an actual past exam question, which reinforces the students’ motivation to dig into these exercises.
The fact patterns always involve multiple parties and issues. I assign roles in advance according to surname
initials or seating location. If it’s early in the semester, I’ll start with an intricate finders-type problem (with
a tortious twist added to remind them that the real world does not split tidily into 1L course categories). Later
in the course we do narrative problems involving concatenations of freehold estates, tenancies, mortgages,
covenants, zoning, and subdivision regs. (I’d be pleased to provide a variety of samples: plater@bc.edu.)
At the start of a Rule 16 pre-trial conference simulation session the teacher dons the role (and perhaps the robe)
of an ill-prepared federal magistrate judge charged with getting the case ready for trial in district court. You can
tell the students that given your limited familiarity with the case they must build for you an orderly understanding
of all the contending facts and issues so that you can prepare an effective, efficient pre-trial report to the judge.
“Who represents plaintiffs here? Can you give me a start on the facts of this case?”
Eventually you’ll want the uncontested facts stipulated and critical contested facts identified along with the
contesting legal arguments and counter-arguments they raise.
As to trivial or simple issues that can be settled before trial you can say, “Listen, Judge ____ (I typically invoke
my dean’s name as the fearsome judge) has a very low tolerance for trivialities. So as not to try his patience, what
issues and parties can you settle out of this here and now, besides factual stipulations?”
If it appears that a critical piece of information would be necessary for a party’s argument but has not yet been
developed in discovery (i.e., the student attorney doesn’t know the answer), the magistrate-teacher can say, “All
right, do you see how you’d need that to proceed on that issue at trial? Be sure you have it in admissible shape
when we hold our next pre-trial conference, or you’ll have to drop that argument” or “I think you’d be well advised
to prepare a trial brief on that point,” and move on.
As each major line of opposing interpretation and argument is sketched out you can say, “O.K., I believe that
issue is one that will have to go to trial. So then, what more follows from that issue?,” and ultimately move along
through the entire fabric of the problem’s analysis.
The tone in an initial pre-trial conference can generally be quite informal, with questions left open at every
turn as you march the parties through their theories and proof of the prima facie case and defenses thereto.
The Rule 16 exercises vividly show students how, before a complex fact situation goes to court, the full factual
sprawl of the case typically gets laid out on the table, and attorneys sound out an array of legal arguments on
these facts from the perspective of each involved party. It is an opportunity for students to see in practice what
we tell them from Day 1 of their legal educations, that they must think like lawyers, organizing the complexity,

Property 333
anticipating all relevant arguments and counter-arguments, and not merely seeing the case through their clients’
eyes. Exercises like this realistically illuminate multiple layers of doctrine and legal process. I’ve been told by graduating
students that “those Rule 16s” were an early eye-opener for them, carrying lessons that were useful for
them through their subsequent years of professional legal training.
Some Top Cases and Statutes
Material
Zygmunt Plater, Boston College Law School
State v. Shack (farm owner is not entitled to exclude a doctor and a lawyer from coming onto the farm to provide
services to workers; even core rights of property owners have exceptions).
Public accommodations and fair housing statutes (a major purpose of my course is to teach statutory interpretation
as well as common law analysis).
Friendswood Development Co. v. Smith-Southwest Industries, Inc. (subjacent support case showing the intersection
of two lines of precedent, i.e., lateral support of land and rights to withdraw groundwater, and what
happens when the water withdrawal harms subjacent support. I use this case because it addresses the precedent
issue as well as policy questions and because it addresses issues of retroactive changes in property law
and when this is appropriate).
Rase v. Castle Mountain Ranch (showing how informal facts on the ground can give rise to property rights in the
absence of title, reinforcing adverse possession materials).
Mount Laurel (because it shows how lifting a regulation on property — allowing developers to build projects that
are prohibited by zoning law — may be felt by others as deprivations of their property rights, and because
it shows how regulations of property may have externalities that reinforce racial and class segregation
whether or not they are intended to do so).
Joseph William Singer, Harvard University Law School
Pierson v. Post (the fox case), because it illustrates nicely that whether something is property is a conclusion of
law, not a matter of fact, and that the conclusion of law is reached on the basis of a multitude of policy considerations.
Jee v. Audley (the fertile septuagenarian case), which some think doesn’t even belong in first-year Property, but
which I think illustrates well the logical harshness of the common law Rule Against Perpetuities.
Sommer v. Kridel, a case in which a landlord sat on his hands running up damages against a defaulting tenant,
which, under New Jersey law at the time, he was entitled to do. In finding a duty to mitigate, the court found
the lack of such a duty unfair. I ask students how they would have advised the landlord, more to illustrate
the view that the counseling role of a lawyer includes expression of moral opinions. It’s really an unremarkable
case, but I like what I do with it!
Sanborn v. McLean (recognizing implied reciprocal negative covenants), because it illustrates how bizarre the law
can be sometimes. The owner in this case is held to a covenant restricting use to single-family residential
use because more than half the lots (not including his) were so restricted. The court finds that he had “inquiry
notice” of the restriction, but, had he inquired, he would have found that more than half the lots (not
including his) were restricted; he would not have found an implied reciprocal negative covenant, because
this court just invented it.
Pennsylvania Coal Co. v. Mahon (if I have to choose just one takings case), in part because it illustrates what a
disingenuous justice was Holmes (in my view, the most overrated justice ever to have sat on the court); and

334 Property
Keystone, in which the court effectively overrules Mahon, but can’t bring itself to say so because Holmes wrote
the opinion.
Symposium on Teaching Property
Patrick Wiseman, Georgia State University College of Law
An excellent resource for property teachers is the symposium issue of the Saint Louis University Law Review
(volume 46, number 3, Summer 2002) “Teaching Property.” The symposium contains articles and essays on pedagogy,
concepts, and leading cases from 17 experienced property teachers. It also includes four student perspectives.
SAINT LOUIS UNIVERSITY LAW JOURNAL (VOL. 46)
TEACHING PROPERTY
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sandra H. Johnson
APPROACHES TO TEACHING PROPERTY
561
Starting Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Joseph William Singer 565
Teaching Property Law: Some Lessons Learned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Steven Friedland 581
Reunifying Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Peter S. Menell and John P. Dwyer 599
Property Law Serves Human Society: A First-Year Course Agenda . . . . . . . . . . . . . . . . . . . .Peter W. Salsich, Jr.
TEACHING IMPORTANT PROPERTY CONCEPTS
Back to the Future: Intellectual Property and the Rediscovery of
617
Property Rights — and Wrongs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .June Carbone 629
Using the Pervasive Method of Teaching Legal Ethics in a Property Course . . . . . . . . . . . . . .Thomas L. Shaffer 655
Teaching About Inequality, Race, and Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Florence Wagman Roisman 665
Contemplating When Equitable Servitudes Run With the Land . . . . . . . . . . . . . . . . . . . . . . . . . .Alfred L. Brophy 691
The Phenomenon of Substitution and The Statute Quia Emptores . . . . . . . . . . . . . . . . .Ronald Benton Brown
GREAT PROPERTY CASES
Using Property to Teach Students How to “Think Like a Lawyer:”
699
Whetting Their Appetites and Aptitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Peter T. Wendel
Teaching Fundamental Learning Techniques With Moore v.
733
Regents of the University of California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Keith Sealing 755
Teaching the Amistad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Brant T. Lee 775
Johnson v. M’Intosh and the South Dakota Fossil Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Dana G. Jim
BOOK REVIEW
791
Suggested Reading for Pleasure and Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Alan M. Weinberger
STUDENT PERSPECTIVES
Theory and Praxis: Advice to Those Learning Property and
799
a Request to Those Who Teach It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Jay Zych
Can the Government Do That?! Teaching Takings and Eminent
807
Domain to Skeptical Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Kevin J. Reject 813

Property 335
Everything I Needed to Know About Being a Lawyer I Learned in Property . . . . . . . . . . .Amanda G. Altman 821
Who Owns America? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Kelly M. Plummer 829
First-Day Activities and Cases
Gerald Hess, Gonzaga University School of Law
I spend the first day of the course trying to get the students accustomed to what they can expect in law school
and my class and giving them my thoughts on how to prepare for class and the coming semester. I spend half the
class talking about general items and skills before even getting to the first case.
One thing I try to emphasize is that they need to give themselves a structure or framework. Just having a
case assigned to them does not provide a context in which to read it, unlike practice where you address a specific
problem. I explain that to a large extent the framework is there — a lot of students just don’t take advantage
of it.
Basically the framework is the table of contents and the index of the casebook. I tell them to think about
what course they’re in, i.e., Property, so they are reading the material for property issues, then what part (look
at the index — i.e., Adverse Possession) so they are reading for adverse possession issues), then look at the
headings for additional clues (i.e., “state of mind”) so that before they even start to read the case they know
the reason why. This gives them an idea where they are going and makes it much more likely they will actually
get there!
This is a simple concept I’m sure they’ve heard a million times, but most still don’t do it. I reinforce this idea
over the next several class periods by asking “Volunteer, why is this case here?” or “Volunteer, why are we reading
this case?” The majority of students will immediately want to start telling me the facts or holding of the case,
rather than the “guidepost” clues I referenced above.
I finish the first class by beginning a discussion of Pierson v. Post. I usually do not finish the case and carry it
over to the second class. One thing I try to get the students to do is focus on what’s important in the case. When
they tell me the facts I go through those with them and ask why they tell me that, why is that fact important, etc.
Students often get too bogged down in the facts. Having them say why each fact matters seems to bring home
my primary point that they are going to be so inundated with information they have to develop good skills at
distilling what is important in order to have a manageable amount of material. I continue this process for the
first several classes, but I decrease the amount of time spent.
Along the same lines, I try to stress the importance of the terminology and their need to learn it. I try to
explain that a lot of the law is merely definitional and seems complicated to them only because they don’t
know the definition. It would be like me moving to Atlanta and people giving me directions by saying
“spaghetti junction.” I’m not stupid, but I did not know the definition and could not find my way around Atlanta
until I learned it, something that was easy enough to do as soon as someone explained it to me or I looked
it up.
In my mind the law is much the same way: definitional or terminological. Many of the terms are very
straightforward and easy to look up, but students are not going to be able to find their way around the “law”
until they take a few moments to learn the definitions. I try to reinforce this in the first few class periods by
asking what different terms mean, what Black’s says about the term, etc. I am always amazed at how many of
the students do not bother to look up even the most basic terms and have no idea what they mean. I will ask
something like “How can you read or understand the case if you don’t know what ‘x’ is?” or “Why spend 30
minutes reading and trying to understand the case if you aren’t willing to spend 15 seconds to look up the
word and make it possible for you to understand the case? You’re just wasting 30 minutes.” I do this consis-

336 Property
tently for a few classes. Students catch on that I am going to do it, and by the second or third week most will
have taken the time at least to look up the terms before coming to class. I obviously do less of this as the semester
progresses, both because of time and because if I have not made the point to the students by then I
never will.
Basil Mattingly, Georgia State University College of Law
I spend at least the first half hour having students tell me what “property” is. This invariably generates a list
of lay and legal notions of property, which I write on the board, trying to segregate the lay (property as “things,”
mostly) from the legal (property as “rights”). As the discussion wraps up, I introduce the notion that whether
someone has that relationship to something and to other people which we call a “property” relationship is a conclusion
of law, not a matter of fact. We spend the rest of the class talking about M’Intosh v. Johnson, which confirms
that whether something is property or not is a conclusion of law, not a matter of fact (among other things).
My purpose in the first couple of weeks, beginning with the first class, is to unsettle their pre-existing notion of
“property.”
Patrick Wiseman, Georgia State University College of Law
I start with the topic of trespass and limitations to the right to exclude. I use the traditional case of State v.
Shack, which holds that ownership of property does not entitle a farm owner to exclude a doctor and a lawyer
from coming on the property to provide services to migrant farm workers. I then discuss the problem of investigative
journalism, focusing on the Food Lion and Desnick cases, where the television show Prime Time Live lied
in order to gain entrance to property. The question is whether the fraudulent statements mean that the consent
to enter the property was ineffective, making the entries trespassory. These issues focus on one of the core rights
property owners have (the right to exclude) and on situations in which the owner has opened the property to
others so that those others (visitors, tenants, customers of the business, or news agencies) might or might not
have rights to enter the property against the will of the owner. The cases are intended to show that every one of
the core rights has exceptions and that the use of the property may justify protecting either tenants or the public
by allowing access against the owner’s wishes.
This topic is also intended as part of an initial introduction to the legal system. I start with a criminal case,
then a common law case. The next day I move to other common law cases, then to state and federal public accommodations
statutes, and finally to state and federal constitutional rights of access to property under the First
Amendment. This demonstrates how one issue (right to exclude v. right of access) is regulated by various sources
of law: federal and state, statutory (civil and criminal), and common law. The public accommodations materials
and the free speech cases also show how property rights are related to fundamental rights and the basic structure
of social relations.
Not Knowing the Answer
Brief Gems
Joseph William Singer, Harvard University Law School
I have some standard advice I give to new teachers. The thing I think most new teachers worry about is not
knowing the answer to a question. I tell them not to worry about this problem. The students may think we know
the answer to everything but we don’t and lawyers in the real world don’t. Their questions are usually about situations
different from those in the cases they read in the book and the point is that it is never crystal clear that
courts will apply the cases the same way when a fact is different, or if they will distinguish the case. There may

Property 337
be law on the subject and some teachers will know the answer, but often we will not and there is nothing to be
embarrassed about in that situation. You will not look embarrassed if you do not feel embarrassed, and you will
not feel embarrassed if you realize there is nothing to be embarrassed about. We are modeling for the student
what lawyers do, and a real lawyer would say to a question she knows nothing about, “Boy, that’s interesting; I’m
not sure what the answer is.”
At that point there are several things you can do: 1) You can guess the answer, saying, “Maybe the courts will
do such and such because of this case we read, but maybe they will think this is different because the parties are
married” (or whatever the fact is that makes the question hard); 2) You can make the students do that and say,
“Look, you’ve read the law, it’s in the book, we have a question about what is going to happen in this new situation.
What do you think? This is what you’ll be doing as a lawyer — looking up the law and often getting an answer
that is not completely on point. We have to guess based on what the courts have done in a similar case, so
let’s do that now”; or 3) You can say “I’ll look that up and get back to you tomorrow,” praising the student for
coming up with a good question.
Profit-A-Prendre in Action
Joseph William Singer, Harvard University Law School
In my Property course, I explain profit-a-prendre with a case I successfully litigated recently in southern Colorado,
Lobato v. Taylor (Colorado Supreme Court #00SC527, 2001). The case involves residents of a small mountain
village originally settled as a Mexican land grant in the early 1840s, prior to the acquisition of the area by
the United States in 1848. The villagers (my clients) wished to maintain their traditional rights to graze cattle,
fish, hunt, and gather firewood on their town’s former common lands, now owned by a private ski resort. My
clients’ position was supported by both the Anglo-American common law of profit-a-prendre and the Roman
and Spanish principle of usufruct (use of the product on another’s land).
Discussing this case serves three purposes:
1. It provides a concrete example of profit-a-prendre, the right to remove natural resources from another’s
land.
2. It shows how lawyers may need to use legal traditions other than common law (in this case Spanish
civil law) to advocate for their clients.
3. It’s a neat way of giving students insight into the relationship between often overly conceptual first-year
material and real-life practice.
The Price Is Right
Peter Reich, Whittier Law School
When I taught property law, I taught the marketable record title acts. The students were always puzzled by the
root-of-title concept and how to figure it out. What worked for me was an analogy to the game show The Price
is Right. Whoever comes closest to the actual retail price, without going over, wins. The students get that (even
the ones who won’t admit to ever having seen the show). By analogy, the root-of-title is the most recent recorded
title transaction that is at least 40 years old (without going over; i.e., being more recent than that 40-years-ago
mark). It seemed to work.
Judith Royster, University of Tulsa College of Law

338 Property
Difficulty Papers
Feedback and Evaluation
I have experimented with the use of “difficulty papers” as a means of helping students recognize, embrace, and
play with points of difficulty, and thus to emerge interested and strong rather than frustrated and fearful.
Addressing this dynamic straightforwardly is important for several reasons. Talented first-year students have
often found learning to be “easy” rather than “difficult” and may unconsciously have learned to avoid acknowledging
areas of uncertainty rather than to embrace them. They may also be unfamiliar with the notion of
“metacognition” (that is, being aware of what one does or doesn’t know as one learns). They can also be frustrated
in particular by property law, since they may have the impression (at least in my classes) that it is more
uncertain than some other subjects that seem to focus on clear rules. They may also be used to focusing exclusively
upon what happens in the classroom, rather than recognizing how much they themselves must construct
their knowledge as the course proceeds by experimenting with fact patterns, talking with friends, and reflecting
on possibilities as they prepare and review.
Assigning “difficulty papers” helps first-year students negotiate these challenges. The exercise allows students
to recognize and name points that they might otherwise overlook in responding to problems. It also provides a
means of collecting and listing difficulties identified by all members of the class, so that students appreciate the
role that others’ questions can contribute to their learning. It gives them practice in writing exam questions early
in the term so that they grapple with the need to study differently than they have in the past. It also gives the instructor
a read on what the students see (or fail to see) as they become more skilled legal analysts and allows the
instructor to gauge their learning compared to other classes in the past (since I generally use old exam questions
for this purpose). Finally, it helps break down the “fear factor” that can paralyze some students when taking exams,
since it allows the instructor to emphasize that “difficulty is your friend, and seeing difficulty means you’re doing
a good job, rather than bombing the exam.”
Judith Wegner, University of North Carolina School of Law

Property 339
Difficulty Paper
In order to help you learn better, and understand your process of learning, we will be experimenting with a new
form of reflection and writing called a “difficulty paper.” The notion of “difficulty papers” was developed by Professor
Mariolina Rizzi Salvatori, a professor of English at the University of Pittsburgh. For a thoughtful explanation of her
work, see her essay “Difficulty: The Great Educational Divide,” in Opening Lines: Approaches to the Scholarship of
Teaching and Learning, Carnegie Publications 2000 (for further information on the Carnegie Foundation’s work on
the scholarship of teaching and learning, see http://www.carnegiefoundation.org/publications/opening_lines.htm)
In brief, the idea is to write a short paper in which you identify and begin to hypothesize the reasons for any
possible difficulty you might be experiencing as you work with a text (or, as we will use it, with an instructional
unit or a problem). I will collect the papers and then select some to share with you (anonymously) so that we can
all, together, become more grounded in our understanding about where uncertainties and challenges exist in the
course of our studies. Ultimately, my goal is to help you domesticate doubt, that is, make doubt a counselor and
friend, an opportunity for creative lawyering rather than a source of paralyzing fear.
Our first difficulty paper will in fact involve a problem relating to domestication (of a cat). This problem pulls together
concepts from our initial unit on possession (including ideas about animals and finders). It also requires
you to have thought quite carefully about the unit on finders that we take up next week and to read the material
in the casebook closely. We will not necessarily have completed class discussion of all this at the time you write
your paper, but this approach is intentional, since I want you to work with the notion of difficulty as it relates to
your own reading of the casebook and your efforts to study, as well as our work together in class. The problem is a
revised version of an exam question I used some years ago. Getting familiar with this kind of problem solving will
help us as we go through the course (and as you continue to think about the law, approaches to studying, and
practice exams in the not too distant future).
Ultimately, we will simply focus on the difficulty aspect of each assignment. In this case, however, I think you’ll
find it easier if you proceed in two steps: a) first, write an answer to the problem presented, and then, b) write the
short difficulty paper describing where the difficulties lie in answering the problem. I think you can do the whole
thing (both parts (a) and (b)) in three to four pages maximum but I won’t put a formal page limit on you, so you’re
comfortable experimenting the first time out. I’d ask that you put these two parts of the paper on separate pages.
Please put your name on both sets, but bear in mind that I won’t divulge your name to your colleagues. Your completion
of the assignment is a requirement of the course, but your performance on the problem is not being
graded.
Problem
Olivia, a farmer, owned Blackacre (in fee simple absolute, as you will understand soon). One day, a rather
bedraggled Siamese cat, sporting a jeweled collar but no name tag, appeared on the land. Olivia gave the cat
some milk, took it into the house, and gave it a bath. She feared that she would damage the collar if she removed
it, so she proceeded carefully, intending to take the collar to a jeweler for removal the next day. Later that day the
cat disappeared. Olivia hunted high and low for the cat to no avail.
Visiting a neighbor, George, the following week, Olivia was surprised once again to see the cat, this time without
the collar. Upon questioning, George admitted that he had removed the collar. He told Olivia that he had recently
seen an advertisement about the cat in Cat Quarterly — The Magazine for Discriminating Cat Guardians, but
that he fully intended to keep the cat and the collar. When Olivia protested, George replied that he was sorry for
Olivia’s bad luck, but said he believed the old adage “finders keepers, losers weepers.”
Olivia comes to you for advice. Discuss the possible claims of all relevant parties to the cat and the collar, being
sure to touch on questions of available remedies, as well as possible causes of action.

340 Property
Comprehension Reviews
I have been teaching large and small sections of property law courses since 1974 and have tried to develop
techniques for meeting two major deficiencies that pose special difficulties for first-year students. One deficiency
is that students have little guidance in their preparation for each class session; another deficiency is that, until examination
grades are issued, they receive almost no feedback concerning the propriety or effectiveness of their
preparation.
I have tried to overcome these deficiencies by what I call comprehension reviews, carried out through the following
steps:
1) Before each class period I issue to the students a list of the major topics or issues we will address during
that class period.
2) After each class period I require the students to submit answers to a series of questions related to the material
covered in that session. The questions are designed to indicate whether they comprehended the basic concepts
from that material; hence, this is a “comprehension review.” Restrictions on certain types of collaboration
are in place.
3) I and my teaching assistants evaluate each student’s comprehension review and work with individual students
to overcome any areas not “comprehended.”
I have 40 separate comprehension reviews for a one-semester, four-credit-hour first-year property course. Examination
questions are drawn from subjects covered in the comprehension reviews. The topics and comprehension
review questions are all available, in advance, to the students on the course website, and almost all student
responses are submitted and responded to electronically. I am satisfied that this approach is helpful in
meeting the deficiencies of inadequate or misguided preparation and of insufficient feedback.
Because all students are required to answer all comprehension review questions satisfactorily, it helps me to
“certify” that all my students have a minimal, basic competence in all the major subject areas of our course. This
is something that I cannot do based on a final examination covering only some of those subjects and on parts of
which some students will not perform very well.
Reviews and Past Exams
David A. Thomas, Brigham Young University, J. Reuben Clark Law School
During the academic year we have four review sessions. In each one I go over the previous year’s exam question,
which tests the most recently covered material. So, in the fall, we have a review session on estates in land
and future interests (probably including some adverse possession) and another on landlord/tenant law; in the
spring, we’ll have one on nuisance, easements, covenants, and servitudes (i.e., private regulation of land use) and
another on public regulation of land use and takings.
Practice and Feedback in the Property (and on the Golf) Course
Patrick Wiseman, Georgia State University College of Law
For 10 years, I have taught Property I and II to first-year students. On several occasions, I have asked my new
students to pretend they have just matriculated, not at law school but at an academy for gifted golfers designed
to prepare them to join the PGA or LPGA tour in three years. While at the academy, they will choose how often
to engage in the following training methods: playing practice matches with their expert instructors (equivalent
to law class sessions); receiving individual lessons from the instructors (office appointments with the professor);
playing practice matches with fellow students (study groups, including asking and answering hypothetical questions);
playing practice rounds on various courses (outlining course material and doing practice test questions);

Property 341
hitting practice shots on the driving range and putting green (pre-class preparation, including case briefing);
watching current tour players both in person and on television or video (hornbooks); studying Power Golf, a
book by Ben Hogan (a study aid, such as a commercial outline); and receiving tips from each other (outlines
made by other students). Three times each year, they will play in a tournament against each other, and those who
do not make the “cut” will be dismissed from the academy and will not be eligible for the pro tour. At the end of
three years, all remaining students will play in a final tournament. Those competitors who shoot a certain score
will join the tour, and those who do not can join the tour only if they shoot a certain score at a later tournament.
I use this obvious analogy to help new students see the relative value of the study methods available to them.
It would be ridiculous for an aspiring pro golfer to rely solely, or even heavily, on watching professionals play,
reading Power Golf, and/or receiving tips from other aspirants. Yet, law students often take this substandard approach
to their studies, cutting corners by relying solely on study aids and outlines prepared by other students
without putting in the practice time necessary to develop their own skills. In short, just as a golf student will need
significant practice time both alone and with an instructor, law students must put in significant pre- and postclass
time studying, dissecting, applying, and reviewing the material. Otherwise, they will not be properly prepared
for the rigors of their exams, the bar exam and, most importantly, the practice of law.
A few years ago, I had an important revelation while imparting this lesson to my students. We give students
challenging material to read and learn. We have rigorous discussions in class, giving the students the opportunity
to develop and refine their legal analytical skills. We give challenging exams at the end of the semester, which
test, in writing and in a time-pressured environment, the students’ knowledge and ability to apply what they have
learned. Finally, we give students the grade they earned, which assesses the quality of their performance, principally,
if not exclusively, on the final exam. Although this traditional law school methodology is indispensable, it
includes two significant gaps: we wrongly assume that the class experience adequately prepares students to take
written exams and that students will learn the proper lessons from their exams despite receiving little or no substantive
feedback on them.
Regarding the first gap, the class experience alone does not adequately prepare students for exam taking. Both
experiences involve legal analysis, but analyzing material in a group setting is not the same as taking a written
exam. Some students excel in one context and struggle in the other. Moreover, in most classes, particularly large
ones, each student is called on perhaps no more than twice a semester and spends the rest of the time observing.
Although the students receive writing instruction in their legal writing course, that course typically does not
address or test exam taking, which is a skill related to but different from objective and persuasive writing. We
nevertheless throw all students into the exam fire with little direct preparation for the experience. This is akin to
forcing the golf academy students to play tournaments every three months after playing only one or two practice
rounds and receiving very little individual attention from the instructors. Law students, particularly those in
their first semester, need to be tested more often than in one final exam per course.
I have identified and implemented three possible solutions to this problem. The first option is to require firstyear
students to take at least one midterm exam that is graded and returned to them, with feedback, before the
end of the semester. The second option is to give first-year students a practice exam that the professor reviews in
class. These first two proposals will help new students learn the art of law exam taking. The third option involves
having the professors who teach first-year courses submit essay questions and answer keys to the legal writing
professors, who will require the students to submit answers for a grade in the legal writing course. These papers
should be graded on both style and substance. Although the papers will not be submitted in the substantive
course, the students can make appointments to discuss the papers with the professor who submitted the paper
to the legal writing program. (To avoid needless complaints, the school must implement a policy that the substantive
professor will not review or comment on the grade given by the legal writing instructor.)
Regarding the second gap, students often do not know the errors they committed on their exams or how they
could have improved their performance. Students who are unaware that they repeat correctable errors unwittingly
develop bad habits, such as frequently making assertions without adequate analysis. For such students, a

342 Property
minor correction could be the difference between mediocre and stellar grades. Yet too often these students fall
between the cracks because we do not give adequate feedback on the exams. There are two possible solutions to
this problem. First, in a two-semester course, the professor can review the exam with the entire class at the beginning
of the second semester. Second, to supplement comments made on the tests, the professor can draft a
detailed grading guide that explains how the exam should have been answered. Students should have access to
their exams and copies of the grading guide. The professor can give incentives for students to review these materials.
For example, in a continuing course, the professor can make the allocation of class participation points
for the second semester contingent on the student having fully reviewed the first-semester exam and grading
guide. Also, advisors can require their advisees to meet with them once a semester to report what they learned
from reviewing their exams from the previous semester.
Michael V. Hernandez, Regent University School of Law

chapter 14
Sales and Secured Transactions
Approach 345
We Are All Debtors and Creditors
Stephen L. Sepinuck 345
Teaching Students How to Read Statutes Critically
Carol L. Chomsky andChristina L. Kunz 345
Article 9 Transactions, Skills, Maps, and Fears
Karen M. Gebbia-Pinetti 347
Integrating Theory in Large, Upper-Level Commercial Law Classes
Curtis Nyquist 348
Parties, Problems, and Papers
John F. Dolan 350
Material 351
Adventures in PowerPoint
Alison Sulentic 351
Teaching Sales through History, Opera, Poetry, Literature, Art, and Baseball
Ann Lousin 353
Supplemental Readings and Props
Karen M. Gebbia-Pinetti 354
Parol Evidence Chart
Dan Keating 354
U.C.C. 2-207 Flow Chart
Dan Keating 356
Potential Recovery Theories in Sales Injury Cases
Dan Keating 358
Exercises 360
Collateral Conflict Role Play
Richard H. Nowka 360
Borrower/Lender Role Play to Begin Secured Transactions
Karen M. Gebbia-Pinetti 361
Repossessing Cars and Other Active-Learning Exercises
Stephen L. Sepinuck 361
Integrating Legal Research Skills into Commercial Law
Camille Broussard and Karen Gross 362
343

344 Sales and Secured Transactions
Interest Group Negotiations
Karen M. Gebbia-Pinetti 364
Sale/Lease Distinction
Stephen L. Sepinuck 364
Brief Gems 365
The Financing Statement as a Smoke Detector
Eric Gouvin 365
“The U.C.C. is Your Friend” and Other Gems
Karen M. Gebbia-Pinetti 365
Feedback and Evaluation 366
Ungraded Drafting Assignments
Karen M. Gebbia-Pinetti 366
Chattel Paper Extra Credit
Stephen L. Sepinuck 366
Rule Maps
Stephen L. Sepinuck 366
Secured Transactions Exam Format
Karen M. Gebbia-Pinetti 367

We Are All Debtors and Creditors
Sales and Secured Transactions 345
Approach
Most of the students who enroll in my Secured Transactions course begin the subject by identifying with
the debtor. After all, they are used to being in debt. This can cause some difficulty later because much of the
course is really about the relative rights of different creditors of the debtor, and the debtor’s perspective is often
not even relevant. If students cannot identify with the creditors, they may have trouble truly assimilating the
rules and policies. To deal with this, I begin the course by asking my students whether they are debtors. They
all raise their hands. Then I ask whether they are creditors. Usually, a few raise their hands and I get them to
describe how. Typically they have loaned money to a friend or run a small business. Then I start asking a series
of questions:
• How many of you have paid for goods that have not yet been delivered?
• How many of you have worked any time for an employer for which you have not yet been paid?
• How many of you have a bank account (really just the bank’s promise to pay, although it may be insured)?
• How many of you have paid tuition for courses you have not completed?
• How many of you have been exposed to a toxic substance of which you are unaware and which has not yet,
but will in several years, manifest itself in an illness (i.e., not every creditor is even aware that a debt exists)?
Through this very brief exercise, I get them to understand that creditor/debtor relationships are ubiquitous in
our society and that we all have a stake in making sure the debt collection processes work.
Teaching Students How to Read Statutes Critically
Stephen L. Sepinuck, Gonzaga University School of Law
Sales is a course that aims to teach a statute — Article 2 of the Uniform Commercial Code, supplemented by
forays into Articles 1 and 7 as well as related statutes such as the Magnuson-Moss Warranty Act. In this statutory
focus, it resembles Secured Transactions, Debtor and Creditor Law, Bankruptcy, Income Taxation, Employment
Discrimination, Immigration, Labor Law, Environmental Law, and other code-focused courses. Despite the
grounding in statutes, however, the method most often used to teach these courses is the same method used to
teach common law courses: reading and discussing cases to learn the rules and then applying them to hypothetical
problems. We may impress upon students that the statute, not the case law, governs, but we invite them to
ignore that point by filtering the statute through judicial opinions. Because the first year of law school teaches
students to rely upon judicial decisions for the rules of law, they tend to continue to do so if given the chance,
even in the presence of a governing statute or regulation. And upper-level courses rarely make explicit to students
that statutory reading skills differ from the case-reading skills they learned in the first year.
Recognizing this problem, we began to teach portions of our Sales courses without reference to cases, asking
students simply to read the statute and then apply the statute to hypothetical facts. We hoped thereby to accomplish
two critical objectives: to ensure that they truly learned Article 2 (not simply what various judges said about
Article 2) and to sharpen in them the vital skill of being able to read and understand any statute.
But we found the students did not know how to read the statute in the absence of cases translating it. When
we asked students to justify solutions to statutory issues, they sometimes stared upward, seeking philosophical
inspiration, instead of downward at the statute to recite the controlling language. Students floundered in recognizing
defined terms, separating highly segmented sentences into multiple clauses, locating cross-referenced provisions,
resolving ambiguities by discerning statutory purpose, and applying the statute with the needed precision.
They also could not fit together the analytical building blocks to glean the “big picture” of Article 2. As a

346 Sales and Secured Transactions
result, although we began with a focus on resolving complex application problems, we spent much classroom
time repairing student lapses in understanding the statutory text.
In response, we began showing them how we had read the language — what we found important, where we
ran into difficulties, how we paraphrased language in order to force ourselves to pay attention to detail and to
see the structure of the statute, how we reorganized the language into charts and other helpful depictions, and
how flow charts were helpful in seeing the relationships among related sections. By sharing these heuristics —
tricks of the trade — with our students, we enabled our students to progress more quickly past the learning stage
of being “novices to the discourse” to being able to translate the statute accurately.
For instance, in teaching the parol evidence rule, we watched our students ineptly apply U.C.C. § 2-202 to fact
situations. To rescue the class, we clarified the rule by drawing a flow chart or chart on the board based on the
question “If the document is of type x and the evidence offered is from source y for purpose z, is the evidence
admissible?” Light bulbs turned on, glazed expressions disappeared, and students gratefully transcribed the “answer
chart” into their notes. But students still did not truly understand the rule or how the chart was derived.
So we took the next step: handing out the blank chart before they read § 2-202 and asking them to fill it in.
Here is the first part of the chart:
Evidence is from prior agreement,
contemporaneous oral agreement,
offered to contradict
Evidence is from prior agreement,
contemporaneous oral agreement,
offered to supplement with additional term
Evidence is from usage of trade,
course of dealing, course of performance
offered to explain or supplement
Is the Evidence Offered Admissible?
Document is
Document is not Document is complete and
final expression final expression exclusive statement
Once students filled in the blanks, they knew the rule, and they knew where it came from in the statute. This
kind of active learning is nearly always more effective than passive learning (getting an answer from the teacher).
Even more importantly, students learned something about how to take a complex rule and break it down into
component parts in order to see how it works, so they had a tool they could use in other contexts to understand
other statutes.
Then we went one step further. We realized that to fill in the chart most effectively, students needed to be
helped step by step through the careful reading of § 2-202 — a difficult provision packed with multiple layers of
meaning — to see for themselves how each rule could be found or derived from the statutory language. So we
asked a series of questions leading them to identify, one rule at a time, what § 2-202 says (and doesn’t say) about
using various kinds of evidence to affect the meaning of a confirmation, then of a “final expression” and a “complete
and exclusive statement.” By helping them to parse the language themselves with guided questions, we made
our statutory analysis transparent to the students, showing them how we read the statute, while they derived the
answer themselves. After completing those reading questions, students could fill in the 2-202 chart, and they could
solve fact-based problems more readily and accurately. The result was that our students soon began to ask very

Sales and Secured Transactions 347
sophisticated questions about the language of the Code and began to progress through new Code provisions with
increasing speed and analytical soundness.
This approach is consistent with the existing literature on developing students’ critical reading skills. (Brook
K. Baker, Transcending Legacies of Literacy and Transforming the Traditional Repertoire: Critical Discourse Strategies
of Practice, 23 Wm. Mitchell L. Rev. 491 (1997); Scott Burnham, Critical Reading of Contracts, 23 L. Studies
Forum 391 (1999); Peter Dewitz, Legal Education: A Problem of Learning from Text, 23 N.Y.U. Rev. L. & Soc.
Change 225 (1997); Peter Dewitz, Reading Law: Three Suggestions for Legal Education, 27 U. Tol. L. Rev. 657 (1996);
Elizabeth Fajans and Mary Falk, Against the Tyranny of Paraphrase: Talking Back to Texts, 78 Cornell L. Rev. 163
(1993); Mary A. Lundberg, Metacognitive Aspects of Reading Comprehension: Studying Understanding in Legal Case
Analysis, 22 Reading Res. Q. 407 (1987); Laurel Currie Oates, Beating the Odds: Reading Strategies of Law Students
Admitted Through Alternative Admissions Programs, 83 Iowa L. Rev. 139 (1997); James Stratman, The Emergence
of Legal Composition as a Field of Inquiry: Evaluating the Prospects, 60 Rev. Educ. Res. 153 (1990).)
More examples of our methodology appear in Chomsky and Kunz, Sale of Goods: Reading and Applying the
Code, published by West Group. We now teach our whole course with this approach, but you can apply it to portions
of any statute-based class by identifying your own reading heuristics and sharing them with students to
help them read the statute critically. In this decade in which states might or might not enact the amendments to
Article 2, helping students to read and understand statutory language themselves is the best way we can prepare
them for handling issues grounded in Article 2 or any other statutes they will have to analyze as lawyers.
Article 9 Transactions, Skills, Maps, and Fears
Carol L. Chomsky, University of Minnesota Law School
Christina L. Kunz, William Mitchell College of Law
A transactional, problem method works well for transactional courses. It is necessary to “teach the transaction”
before you can teach the law.
Some of the primary skills students take from the course in secured transactions are a basic understanding of
a variety of financing devices, statutory interpretation skills, U.C.C. interpretation skills, substantive black letter
and practical application of Article 9, preventive practice and drafting, critical analysis of commercial law, and
some case analysis skills.
In Secured Transactions, start the semester with a simple “map” of the course, and refer to it almost daily so
students always know where they are. My map looks like this:
debt (assumed)
|
scope of Article 9
|
creation/attachment
|
perfection
|
priority
|
enforcement
I cover the map in the following order: (1) creation/attachment, (2) perfection, (3) scope (students understand
the scope issues much better after they have a basic understanding of attachment and perfection), (4) priority,
(5) enforcement. Caveat: Introduce some basic enforcement concepts during the first week so that students

348 Sales and Secured Transactions
begin the semester with a firm understanding of the different enforcement rights of secured and unsecured creditors.
This context allows students to understand why anyone ought to care about securing a transaction. Separate
attachment and perfection even if your text combines them — there are simply too many U.C.C. sections for
students to juggle at once if you try to cover attachment and perfection together.
Perhaps the greatest challenge in Secured Transactions is to overcome students’ fear of alien territory. Acknowledge
at the outset that the course is challenging, but assure students that you will walk through the transactions
and the U.C.C. together, step by step, and that they can and will learn it. Periodically throughout the semester take
a moment to point out to students how far they have come. For example: a few weeks into the semester a student
recites the elements of attachment as a precursor to analyzing perfection, you ask the class to cite the attachment
section in unison from memory, they do, and you say something like “Did you hear that? Do you know what just
happened? You have started to memorize the U.C.C.! Article 9 is becoming as familiar to you as your best friend!”
Karen M. Gebbia-Pinetti, University of Hawaii William S. Richardson School of Law
Integrating Theory in Large, Upper-Level Commercial Law Classes
It is comparatively easy to integrate theory in first-year courses and upper-level seminars. With first-year students,
if you stress the importance of theory early and often they write it down and believe it. Course descriptions of upperlevel
seminars attract students with a bent toward theory. In my Perspectives: Readings in Contract Law seminar, students
uncomplainingly spend the entire semester reading theoretical articles and books. The challenge is incorporating
theory in one-semester, upper-level, high-enrollment courses. I teach three such courses (Secured Transactions,
Negotiable Instruments, and Consumer Protection). The fact that these subjects are typically tested on the bar only
widens the gap between what the students think the course should be about and what I think. After several years of
trial and error, I have settled on a method of integrating theory in these courses that seems to work well.
First, I choose one or more law review articles that are of general theoretical interest and can also be directly
connected to the subject matter of the course. I rotate several articles through the courses (contact me for a list),
and a student taking all three courses would read four or five different articles. For the purposes of this essay I
will use Duncan Kennedy’s Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976) (hereinafter
F&S), as an example.
My approach has three phases, and every class meeting has some theoretical component. The article is read
and discussed during one of the middle weeks of the semester. The approach, then, divides the course into the
first section, a middle week, and the final section.
First Phase
In the very first meeting of the course as a part of the general introduction I emphasize the importance of theory,
introduce the article to be read, explain how theory will be incorporated in the course, and promise that theory
will be tested on the final exam. In every subsequent meeting during the first phase I devote a few minutes
of class time to a lecture about the article followed by time for questions. I label these mini-lectures “Five Minutes
for Theory” and link the mini-lecture to a case, problem, or statutory provision assigned for that day. For
example, F&S distinguishes “rules,” which are bright-line statements of law that appear to give the court little discretion
(e.g., for the purposes of contract liability the age of majority is 18), and “standards,” which are openended
statements of some goal or policy that give the court wide discretion (e.g., the obligation of good faith in
§ 1-203 of the Uniform Commercial Code). In Secured Transactions, the rules/standards mini-lecture could be
linked to the U.C.C. provisions for the effectiveness of a financing statement. Subsection 9-402(1) establishes a
list of rule-based requirements (names of the parties, addresses, description of the collateral, etc.) while 9-402(8)
creates a standards exception (a financing statement “substantially complying” with the requirements is effective
as long as the error is “minor” and “not seriously misleading”). It might take a few class meetings and several

Sales and Secured Transactions 349
more illustrations before the distinction sinks in, but once it does, rules and standards become part of the vocabulary
of the course.
I discuss each of the major themes of the article in turn. In F&S there are seven major themes: rules/standards
(1687–89); legal argument based on the rules/standards dichotomy (1710–13); individualism/altruism as contradictory
ways of organizing society (1713–22); individualistic/altruistic substantive legal arguments (1710–13,
1722–24, 1737–40); general/particular (1689–90); formalities/deterrence (1690–94); and the history of conflict
between individualism and altruism in American law (1725–37). In each mini-lecture I am careful to illustrate
the theme with one or more examples from a problem, case, or statute.
Although the full article is not read until the middle week, I distribute it in the first class meeting, and the
Phase One syllabus assigns those sections of the article covered in the mini-lectures. The goals of the first phase
are to introduce the major themes of the article, relate the themes to each other, prepare the class to read the article
in full (many law students have forgotten that they know how to read theory), and connect the themes to
the subject matter of the course.
Second Phase
During the middle week the students read and discuss the article in full. The major goals here are to ensure
that they are able to relate the themes to each other and connect them to the substance of the course. For example,
a case in Secured Transactions, in re Keefer, 26 B.R. 597 (Bankr. D. Idaho 1983), illustrates the connection between
rules/standards, legal arguments, and individualistic/altruistic legal arguments. In the case a secured party
filed a financing statement that did not give the debtor’s address. When the debtor filed for bankruptcy, the trustee
challenged the filing for failing to comply with the requirements of 9-402(1). The secured party argued that under
9-402(8) it had substantially complied. The court rejected this “liberal construction” argument and held the financing
statement ineffective. It scolded the secured party in language that illustrates how a lawyer arguing for
a rules result will make individualistic substantive arguments (and, conversely, her opponent will make standards/altruistic
arguments): “[T]he requirements ... are not onerous”; “Here, there was not a failed attempt ...
but rather no attempt”; and “The petitioner’s difficulties at this time stem from their won failures.”
During this middle week (and during the third phase), I try to keep the discussion moving from a theoretical
level, to the nuts and bolts of the course, and then back to theory. In a discussion of in re Keefer, for example, I might
ask why a lawyer urging the court to choose the rules alternative would be making individualistic arguments. I would
then move to a close examination of the text of the case to find illustrations of the rules/individualism connection.
Finally, I would return to a theoretical discussion. This persistent sliding back and forth between theory and application
reinforces the connections between the article and the substance of the course. (Incidentally, F&S is a wonderful
tool for skills training in statutory argument, particularly when combined with Karl Llewellyn’s taxonomy of
statutory argument, Canons on Statutes Found in the Common Law Tradition: Deciding Appeals 521–35 [1960].)
In addition, during this week I broaden the discussion by including issues from other parts of the curriculum
that reverberate with the themes of the article. For example, the issue in Charles Thomas Dickerson v. United States,
120 S.Ct. 2326 (2000), can be seen as a choice between maintaining the rule of Miranda v. Arizona, 384 U.S. 436
(1966), or adopting the standard of the federal voluntariness statute, 18 U.S.C. § 3501 (1994). In Conflict of Laws,
Restatement (Second) summarizes the change in judicial philosophy from the era of Restatement (First), “[t]he
essence of that change has been the jettisoning of a multiplicity of rigid rules in favor of standards of greater flexibility.”
See Restatement (Second) of Conflict of Laws, vii (1971). The goals here are to multiply examples of the
themes and to encourage thinking across the artificial boundaries of the curriculum.
Third Phase
In the final phase, I encourage the class continually to search for connections between the theoretical themes
and the substance, with the goal of fully integrating the article and the course. When a student raises a connection,
whether the comment comes from a practical or a theoretical perspective, I affirm and discuss the point

350 Sales and Secured Transactions
and then move the discussion to the opposite perspective. My hope is that by the end of the course the class will
demonstrate equal facility at either end of the theory/application spectrum.
I also encourage the class to probe other courses for illustrations of the themes of the article. A student in Secured
Transactions, for example, saw a relationship between the proposed new Article 9 choice-of-law rule for
nonpossessory security interests and Llewellyn’s approach to title in Article 2 (sale of goods). The proposed Article
9 rule is more “general” than current law because it replaces three rules with two. Llewellyn’s approach was
exactly the opposite. He took the pre-U.C.C. idea of title, which he called a “lump concept,” and broke it into
specific issues. The ensuing discussion both helped the class understand the general/particular concept and gave
me an opportunity to elaborate on Llewellyn’s role in the history of American legal thought.
In the final phase I also review the major themes of the article and gather up students who may have strayed
along the way. I have, on occasion, offered an extra review session focused primarily on theory. Finally, I emphasize
that good lawyering in any field of law demands that practitioners stay current and that following both
the practical and the theoretical literature is essential.
Incorporating a theoretical perspective in these courses presents an intriguing challenge for faculty. My method
allows theory to be first introduced and studied separately and then folded into the course. Enlisting student energy
in searching for connections enlivens the classroom and, when combined with rotation of the theoretical
articles, helps keep these courses new. Most significantly, however, incorporating theory in these courses communicates
to students the important message that theory is everywhere.
(This idea appeared in The Law Teacher, Fall 2000, pp. 1–2.)
Parties, Problems, and Papers
Curtis Nyquist, New England School of Law
Students have a natural inclination to learn, to satisfy an intellectual appetite. One of the keys to successful
teaching of an upper-level course such as this one is to convince the students that they are learning something
new and not simply applying old learning from the first year (case analysis) to a new subject. For that reason, it
is important in any upper-level course to avoid case analysis and to introduce new pedagogy and new learning.
Secured Transactions
I use two departures from my first-year teaching (Contracts) in Secured Transactions. The first is to emphasize
not what the law does but what the parties do. Initially the classroom exercises relate to what buyers, sellers, and
financers do in various transactions: sales of consumer goods, open account selling, financing accounts, automobile
dealer floor plans and financing with chattel paper, sales subject to payment against documents, and sales under
commercial letters of credit. The second departure is to present the cases as problems, rather than as vehicles for
inductive legal inquiry. In my text (with Ponoroff) we present the cases with factual summaries and use the cases
not so much as vehicles for analyzing the law that the case announces, but as illustrations of the tensions in commercial
activity the commercial law and the U.C.C. attempt to resolve. I also use a set of problems, and I give the
students the answers to the problems before class. I use the problems in a fashion similar to the way I use the cases.
Advanced Study of Commercial Law
This is a two-year course for one or two students I select from my Contracts section and, in concert with my
colleagues, from the other Contracts sections. I invite the student to study with me for two years for one semester
hour’s credit (pass/no credit) per semester. With the notion that it is essential to differentiate study in the second
year from the first year’s experience and in the third year from the second year’s experience, I use the first
two semesters to acquaint the student with commercial literature, primarily the leading treatises and articles by
leading scholars. Each week I meet in my office with the student and we discuss the readings for that week. Usu-

Sales and Secured Transactions 351
ally I require a written summary and a critique of the material I have assigned. During the second year of this
course, the student’s last year in law school, I supervise a paper that is in the nature of an LL.M. dissertation,
though not quite as long. The object of this writing requirement is to produce a paper that can be published, not
in-house, but in a commercial journal or a university journal. I find that after the first year’s introduction to commercial
law sources, the students are in a much better position to write a serious paper on a commercial law subject
than I usually find in my commercial law seminar.
Adventures in PowerPoint
Material
John F. Dolan, Wayne State University Law School
I decided to use PowerPoint slides in my three-credit Sales course for several reasons. First, Sales is a course
that requires constant in-class attention to statutory language. A visual aid, such as PowerPoint, enables the class
to examine the statutory language on a common visual field, rather than look exclusively at individual Code books
(a practice, by the way, that I had no intention of discouraging and indeed hoped to actively encourage). Second,
I prefer to teach Sales through the detailed analysis of hypotheticals. I planned to project the basic elements of
the hypotheticals on the PowerPoint screen in order to help my students (and me) remember the basic fact patterns
I set out. In addition, the PowerPoint projector would enable me to highlight changes in the hypothetical
fact patterns as the class progressed, something I thought would be helpful. Finally, I hoped PowerPoint would
help me add a little pizzaz to what can be a hypertechnical subject.
I have emerged from my adventure with PowerPoint with an increased enthusiasm for the medium. I also have
a few words to share with those who might be considering the pros and cons of using this new technology in the
classroom.
PowerPoint and Class Participation
Many professors fear, with good reason, that the use of PowerPoint will dull class participation. Students who
are equipped with PowerPoint printouts will simply gaze at the screen and forego note taking, thinking, legal
analysis, etc. This is a realistic concern, and professors who opt to use PowerPoint must consider both their expectations
of class participation and the means they use to stimulate class discussion.
Class participation is a necessary component of any course that utilizes the problem method. The point, after
all, is to get the students to do the problems. I found the effect that PowerPoint had on class discussion depended
on the way I structured the slides. If I presented a slide that flashed the solution to a problem on the screen, students
had little incentive to discuss the problem. On the other hand, if I used the slides to state the facts of a hypothetical
or to project a portion of the statute, I found that I could continue to question the students in much
the same manner I would have employed had I been working without visual aids.
Using PowerPoint may indeed cause a professor to subordinate the desire for classroom spontaneity to the
need for advance preparation of a slideshow that follows a particular lesson plan. My own approach to a class
like Sales is very methodical, and I keep a tight rein on the class’s progress in order to cover all of the necessary
doctrinal material. This approach slotted in easily with the kind of preparation necessary for a successful PowerPoint
class. In other classes, where I am interested in probing a subject in a more open-ended manner or in soliciting
student input concerning the direction the class is taking, I would find it harder to prepare and use PowerPoint
slides effectively. While it is possible to back up or go forward in the slide show to reach a slide that
addresses a point raised unexpectedly, I found that in practical terms it was cumbersome to do so.
In the post-Langdellian world, it is perhaps a heresy to suggest that some professors may find that class participation
is not of critical importance. In this case, PowerPoint slides will pose no threat. A class that is taught

352 Sales and Secured Transactions
on a lecture basis can effectively use PowerPoint slides to break up the pace of the lecture and to emphasize key
points. A word to the wise is pertinent here — hatred would not be too strong a word to describe the emotion
inspired by someone who reads slides aloud. If you are going to use PowerPoint to supplement your lectures, it
is best to use the slides to highlight rather than to replicate the spoken word.
PowerPoint and the Power Nap
“As soon as the lights go down and the PowerPoint slides go up, eyes start to droop.” “You’ll be sorry.” Power-
Point skeptics were not shy about their misgivings. Forewarned is forearmed, so I went in to my first PowerPoint
session prepared to see the students drift off into the land of Nod. After a few classes, I determined there are two
tricks to ensuring a nap-free PowerPoint class.
First, resist the temptation to turn the PowerPoint slides into the focus of the classroom. After hours of preparing
and refining slides, I was often so enamored of my creation that I wanted to flash it on the screen and invite
the students to admire my handiwork. The temptation was even greater when one of my colleagues showed me
how to animate the slides. Even with the modest graphics and sound effects available in the standard PowerPoint
software, I was entranced. As I cut and pasted my clip arts and colored my fonts, I was having the best time I had
had doing arts and crafts since kindergarten.
For better or worse, having fun with arts and crafts is not the way to run a successful PowerPoint class. PowerPoint
is only a tool. The subject matter itself must remain the focus of the classroom experience, and the voices
of the teacher and the students must remain the central focus of the dialogue. PowerPoint should never become
anything other than the means of delivering, communicating, and teaching a message. Through clip art and sound
effects, PowerPoint can actually compete with the professor for the students’ attention.
In order to counteract this tendency, teachers who use PowerPoint need to make sure that they take all steps
necessary to overpower PowerPoint. I gradually learned to use PowerPoint as a prop to illustrate a point or to
provide a way of focusing the students’ attention on the statutory text. In some cases, I changed my own position
in the classroom to draw the students’ attention away from the slides so I could emphasize a new point. Ironically,
PowerPoint itself gave me the means of walking away from the podium, where my carefully worded notes
and drafts of hypotheticals rested in peace. Knowing that the PowerPoint slides would prompt me with the facts
of the hypotheticals I had planned, I could walk around the classroom with confidence. In this way, I was able to
help the students focus on my words and on my efforts to draw them into class discussion in a way that would
have been impossible had I stayed with my notes at the podium.
Constant attention must also be given to the students’ visual experience. While it is tempting to transform your
classroom into something akin to a darkened cineplex, it simply is not necessary. I found (with no scientific analysis
other than polling my students) that I could conduct a class with almost all of the classroom lights blazing if I
colored my slides with a dark background (usually blue) and a light, bright lettering (usually white or yellow). The
contrast was sufficient to ensure that the students could easily read the screens without sitting in a darkened room.
PowerPoint and Class Preparation
My own greatest reservation about PowerPoint was its capacity to print out the slides in a handout format. I
initially resisted the students’ request for me to do so, because I feared they would substitute the handout for a
deeply analytical approach to class. Yet I knew that some PowerPoint aficionados reported a successful integration
of the handouts into their management of the classroom experience. After some time, I came to agree. Without
handouts, students often struggle to transcribe the material on the slides into their notebooks, leaving little room
for attention to class discussion. I now post the PowerPoint slides on a password-protected website. Students who
wish to have handouts may download them and print them. In general, I think this has enabled students to focus
on class discussion and on taking notes of important analytical concepts, rather than copying down slides.
PowerPoint is not for everyone, nor is it for every class. I plan to continue using PowerPoint in Sales, because I
have found the ability to project statutory provisions and hypotheticals to be helpful in my effort to encourage stu-

Sales and Secured Transactions 353
dents to engage in a detailed reading of the statute. I do not plan to use it on a regular basis, however, in my classes
on health law, where I encourage students to engage in a lively discussion of policy concerns. As the saying goes, it
takes the right tool to do the job right. Like most tools, PowerPoint does a great job when it is the right tool.
Sad to say, it doesn’t add pizzaz. That’s still up to you.
(This idea appeared in The Law Teacher, Fall 1999, pp. 1–2.)
Teaching Sales through History, Opera, Poetry,
Literature, Art, and Baseball
Alison Sulentic, Duquesne University School of Law
In my 28 years of teaching Sales Transactions I have found it difficult to get students interested in issues of Article
2 of the Uniform Commercial Code. Sellers, buyers, and widgets are not an easy sell. My solution is to abandon
casebooks and, for the most part, cases. Instead, I use problems taken from “problem books” and hypotheticals
based on real-life stories.
I also insert references to my interests — history, opera, poetry, literature, and art — in the duplicated course
materials I prepare. I also include a problem on the 1983 World Series, which is familiar to the many baseball
fans in my class.
HISTORY: One of the issues in the battle of the forms, U.C.C. 2-207, is whether an offeror who has kept silent regarding
a conditional acceptance has “assented” to that condition. In illustrating how any issue of “silence” must be
seen in its context, I refer to the colloquy between Sir Thomas More and Thomas Cromwell in the trial scene of Robert
Bolt’s play, A Man for All Seasons. Bolt gives three examples of silence, each in a different context. We discuss those
contexts. This discussion segues into a short homily on the two lawyer patron saints, Sir Thomas More and St. Ives.
In the materials I ask the students to fill in Sir Thomas’s last words from the scaffold: “The king has commanded me
to be brief and brief I shall be; ____________.” Many students know the missing part is, “I die the king’s good servant,
but God’s first.” This illustrates, however briefly, the tension a religious person can face in the legal profession.
OPERA: In introducing the concept of breach of contract, I have reprinted my own translation of Fasolt’s
warning to Wotan in Wagner’s opera Das Rheingold. Wotan is thinking of failing to pay the price for Fasolt and
Fafner’s construction of Valhalla. Fasolt intones menacingly: “Fulfill your contracts!” I tell them that the Ring
cycle is really a 16-hour breach of contract lawsuit gone awry.
POETRY: In introducing risk of loss, I point out that unforeseen and perhaps unavoidable accidents do happen.
In the materials I quote Robert Burns’s To a Mouse on Turning Up Her Nest With the Plough: “The best laid
schemes o’ mice an men/Gang aft a-gley.”
SHAKESPEARE: The bard’s plays offer a wealth of apt quotations. I use two. In discussing whether to insert
a clause preventing either party from using course of performance (U.C.C. 2-208) in interpreting a contract, I
point out that you, the drafter, cannot know whether you will want to use this interpretive device before the other
side does — and that the performance will not occur until after the clause becomes effective. MacBeth, Act 1,
Scene 7 contains Macbeth’s soliloquy on whether to murder King Duncan; lines 8–11 are a famous warning: “ ...
this even-handed justice/Commends the ingredients of our poison’d chalice/To our own lips.”
The second quotation comes from Hamlet, Act 2, Scene 2, lines 100–103: “ ... and now remains/That we find
out the cause of this effect, or rather say, the cause of this defect,/For this effect defective comes by cause.” That
quote introduces the causation aspect of consequential damages in U.C.C. 2-715(2)(a).
THE BIBLE: I am sure the Bible has many quotations that pertain to sales. I use only two. In reference to the
course of performance issue mentioned above, I also ask the students to look up Matthew 26:52, in which Jesus
says to Peter, “Put your sword back into its place; for all who take the sword will perish by the sword.” In intro-

354 Sales and Secured Transactions
ducing the seller’s obligation to deliver conforming goods, I refer to a quote from Amos, Chapter 8, verse 5: “Making
the ephah small, and the shekel great,/and falsifying the balances of deceit ...”, a translation provided by my
colleague Professor Ralph Ruebner.
ART: In teaching the passage of title in U.C.C. 2-403 and the warranty of title in U.C.C. 2-312, I have found
the stolen art cases much more useful than the stolen car cases, because the latter frequently also entail security
interest issues, which cloud the Article 2 issues more than necessary. Many of my students read O’Keeffe v. Snyder
in their first-year Property course and are familiar with the decision remanding for findings of fact as to
whether O’Keeffe intended to part with good title. We discuss the case again, this time from the viewpoint of Article
2. That leads us into many recent stolen art cases arising out of World War II, notably Menzel v. List (do you
believe the Gestapo left a receipt?) and Goodman v. Searle, concerning a Degas now hanging in the Art Institute
of Chicago, just three blocks from the law school. The hide-and-seek aspects intrigue students, and the currency
of many of the cases — hardly a year goes by without a newspaper account of someone’s buying a stolen painting
— makes the issue of stolen art very real to them.
BASEBALL: Anything beats another dull widget example. However, at one point I specifically bring up the
World Series of 1983, in which the Chicago White Sox almost won the American League pennant. The problem
arises in relation to the seller’s right to resell in U.C.C. 2-706, where my example is color televisions. The dates
that summer and fall are important in discerning why the market price near Philadelphia (Phillies); Arlington,
VA (Baltimore Orioles); and the south suburbs of Chicago (the White Sox!) fluctuated. Even non-baseball fans
get caught up in Chicago sports teams. During the 1990s I used to feature the Chicago Bulls, then frequently
world champions, on my examination, but that is another story.
Supplemental Readings and Props
Ann Lousin, The John Marshall Law School (Chicago, Illinois)
Whether you use a “systems” approach or not, use a book that has a strong transactional foundation. Consider
supplementing your book with optional readings from John Dolan’s Commercial Transactions.
Secured Transactions cries out for visual depiction. Whether you draw transactions on the board, use transparencies,
or create a slick PowerPoint slideshow, use visuals liberally. I supplement my slides with “props” — a
fleet of toy cars illustrates floor plan financing, toy construction equipment serves as equipment, toy piggy banks
are the lenders, a stuffed animal is the borrower. The props are especially helpful for spatial learners and to illustrate
complex transactions in which collateral is moving.
Parol Evidence Chart
Karen M. Gebbia-Pinetti, University of Hawaii William S. Richardson School of Law
Section 2-202 is certainly not as perplexing to students as 2-207, but it does seem that students often make the
U.C.C.’s parol evidence provision more difficult than it needs to be. In my teaching of the problems that accompany
2-202, I try to emphasize to students the importance of filling in two variables: the status of the writing in
question and the nature of the extrinsic evidence sought to be introduced. I also attempt to convey that these
variables have a finite set of possible outcomes. As the chart demonstrates, once the two key variables are plugged
in, the question of whether a particular piece of extrinsic evidence is admissible under 2-202 more or less answers
itself. As with my other charts, I do not introduce this to the students until after our more traditional coverage
of the casebook problems that accompany section 2-202.
Dan Keating, Washington University School of Law

Which Intrinsic Evidence Is Admissible per §2-202?
Status of Writing
Not even final as
to terms therein Final only as Complete & Exclusive
(or no writing at all) to terms therein statement of all terms
Sales and Secured Transactions 355
PRIOR agreement
(or contemporary
oral agreement) YES NO NO
that contradicts
writing
A LATER agreement
(even contradictory) YES YES YES
but see §2-209(3)
COD, UOT COP YES YES
to explain or supplement YES (unless carefully (unless carefully
writing* negated, Comment 2) negated, Comment 2)
Nature of Extrinsic
Evidence
(Question of law
according to cases)
Prior consistent YES, unless
additonal terms** YES NO
if agreed upon,
would certainly
have been included
(Comment 3)
* Broad construction by Columbia court & see §1-205(4).
** Even if oral, no §2-201 problem as long as primary writing satisfies §2-201(1) and additional term does not constitute separate K.

356 Sales and Secured Transactions
U.C.C. 2-207 Flow Chart
As all teachers of U.C.C. Article 2 are well aware, Section 2-207 presents one of the most daunting statutory
challenges for the uninitiated. Nevertheless, I have always contended to my students that the section can be managed
as long as they know the right questions to ask and in what order to ask them. Typically, I will not introduce
this chart to the students until the end of our coverage of 2-207, at which point we will have endured two
or three classes working our way through some of the infinite hypotheticals that are possible under 2-207. By
that time, the students tend to have a greater understanding and appreciation of the individual issues the flow
chart poses for them. I will often hand this chart out to the students at the end of class and request that they rework
a few of our earlier hypotheticals by using this approach. At the start of the next class, I will entertain any
lingering questions about either 2-207 or the chart. The majority of questions I do get concerning the chart, however,
tend to come about 36 hours before the final exam.
Dan Keating, Washington University School of Law

No K
No
Performance?
No K by
writing:
§2-207 Flowchart
K, Terms via
§2-207(3)
Yes
Yes
Additional term is
part of K unless
§2-207(2)(a), (b), (c)
Yes
Acceptance
wildly divergent
or
expressly made
conditional
§2-207(1)
True
Acceptance
Between
merchants?
Additional
No
Yes
Written
acceptance
or
confirmation
of oral K.
Sales and Secured Transactions 357
Additional term
“mere proposal”
No
Terms
K by
writing:
Confirmation
No
1. K.O. Rule
2. Additional =
Different
3. Mere proposal
Yes
Between
merchants?
Different
1. K.O. Rule?
2. Additional =
Different
3. Mere proposal?
No
Confirmation
Enforceable K,
but no §2-207,
not even §2-207(3)
Yes
Two confirmations
One confirmation
No Enforceable K
No
SOF
substitute?
(Performance,
Special
Manufacture,
Promissory
Estoppel)
K.O. Rule
Comment 6
Additional = Different
Mere proposal
No K.O. Rule

358 Sales and Secured Transactions
Potential Recovery Theories in Sales Injury Cases
One of the things that has always troubled me about teaching the warranty provisions of Article 2 is all the
tort law lurking behind many of the warranty problems. It is not that I do not appreciate or enjoy tort law; it is
rather that I am very insecure about my relative knowledge in the area. I developed this chart with the help of a
sympathetic torts teacher in my first or second year of teaching sales. It attempts to demonstrate how the underlying
theory of recovery will dictate the rule for various facets of a lawsuit. Students have found this to be a
helpful way to bring together the various strands of 2-314, negligence, and strict liability rules that we cover during
the course of our warranty material.
Dan Keating, Washington University School of Law

Potential Recovery Theories in Sales Injury Cases
Affirmative
Defense
Notice
Required
S.O.L.
Disclaimer
Damages
Proof
Plaintiff
Defendant
Contribution
Negligence
(Comparative);
Assumption of
risk
No
State tort runs
from point of
injury (actual or
manifestation)
Can’t disclaim
Personal injury
and property
damage
Lack of due
care &
proximate
cause,
damages
(tough, but res
ipsa vs. manufacturer
at
least)
“Foreseeable
class” probably
includes
bystanders
Manufacturer
or seller (no
privity requirement)
Negligence
Sales and Secured Transactions 359
No
Contributory
Negligence
Assumption of
risk, YES
No
State tort runs
from point of
injury (actual or
manifestation)
Can’t disclaim
Personal injury
and property
damage
Product defective
condition
unreasonably
dangerous;
reaches consumer
without
change;
proximate
cause damages
“User or consumer”
under
§402A but
judicial
expansion to
bystanders
Manufacturer
or seller (no
privity requirement)
Strict Liability
§402A
No
Contributory
Negligence
Assumption of
risk
(Goes to causation)
Yes §2-607(3)(a)
But see official
comment 4
§2-725 Four
years from
breach, even if
breach is
unknown
Can disclaim
implied
warranty subject
to §§2-316
& 2-302
(§2-719(3) no
factor)
W/§2-318 case,
either personal
injury only (Alt.
A) or any injury
(B and C)
Warranty,
Breach,
Proximate
Cause,
Damages
§2-318 B & C
(solves privity
for bystanders)
Manufacturer
or seller
(But note
possible privity
problems)
§2-314

360 Sales and Secured Transactions
Collateral Conflict Role Play
Exercises
In my Secured Transactions course, when we study the conflict between a secured creditor and a buyer over collateral,
I use a role-playing exercise that is educational and entertaining. The result is that the students learn to
apply U.C.C. §9-320(a) and to work with a layperson client, all in a format enjoyable for them and me. In the previous
class, I assign §§1-201(9) and 9-320(a) and its Official Comment, and I distribute the following problem:
On the first Friday in October, you have an 8:00 a.m. appointment with Jon Kean, a new
client. As he sits in your office, he relates the following incident: “I bought an electro-magnetic
drill from Lawrence Company. Yesterday, Avco Finance contacted me and said it has a
security interest in the drill and if I don’t give them the drill, they will bring a replevin action
against me. Am I protected?”
In class I will be Mr. Kean. You will be the attorney. Be prepared to respond to his problem.
At the beginning of class, without any discussion of §9-320, I ask for a volunteer “attorney.” The volunteer comes
to the front of the class where she and I sit across a table as though we were in an attorney’s office. Having the student
come to the front always produces surprise (positive, it seems) because although the students are prepared to
respond to U.C.C. problems I assign, they usually do so from their seats. The change injects a bit of realism into the
exercise. I introduce myself as Jon Kean, owner of Kean Construction Co., and then I am silent until the “attorney”
begins. Since the students do not have sufficient facts to allow them to determine whether Kean satisfies §1-201(9)
or is protected by §9-320(a), I expect them to ask “Kean” questions. (An electro-magnetic drill is construction equipment
and Lawrence Company is in the business of selling construction equipment.) Sometimes, however, the “attorney”
will tell me either “Yes, you are protected” or “No, you are not.” In that event, I ask her to confer with one
of her “partners” (allowing her to choose the next volunteer, who also comes to the front table) until one of them
starts asking me questions relevant to the application of the U.C.C. sections. After each question I step back into
the professor’s role and ask her to explain why she asked the question. I am looking for the student to explain the
connection between the question and one of the statutory requirements for protection of the buyer. Invariably, usually
early in the hour, someone asks “Kean” if he knows whether Lawrence Company has granted a security interest
in the drill to Avco. Although the “attorney” is trying properly to apply the knowledge requirement of §1-201(9),
I’m waiting for that question. My immediate response, along with a confused look, is: “What is a security interest?”
The purpose of my response is for the students to realize that many layperson clients have no idea of the meaning
of terms of art that attorneys use. They need to understand that to elicit pertinent information, they may need to
educate the client or use words familiar to the client. Their tendency to do that improves as the exercise progresses.
Because I want broad participation, I do not allow one student to ask all the relevant questions. But, it is extremely
rare for one student to have all the statutory requirements in hand. Most will cover the obvious requisites
and pronounce Kean safe from Avco. At that point, I change attorneys. The class can work the problem
through all the many requirements of §§ 1-201(9) and 9-320(a) (which is what I do typically) or until the teacher
believes that the class understands the material. I usually incorporate a fact that prevents Kean from satisfying all
the requirements of § 1-201(9) — for example, Kean bought the drill at Lawrence’s “going-out-of-business sale,”
thus possibly preventing him from being a buyer in ordinary course of business and disqualifying him from the
protection of § 9-320(a) — and I change attorneys until someone asks the question uncovering that fact. By the
end of the class we have achieved a variety of accomplishments: a panel of students has participated, the class
understands § 9-320(a), the class gains some insight into interviewing a client (a change from my typical “problem
method” class), and — I hope — some entertainment.
Richard H. Nowka, University of Louisville School of Law

Borrower/Lender Role Play to Begin Secured Transactions
Sales and Secured Transactions 361
I ease students into Secured Transactions with an exercise (one full class period) in which students role-play
first a consumer borrower and lender (will you lend $20 to a classmate?) and then a commercial borrower and
lender (will you lend $100 million to XYZ Corp.?). In this exercise, students identify the lenders’ and borrowers’
concerns and considerations in determining whether to lend/borrow, determine the costs to each party (personally
and institutionally) and to society if the loan is not re-paid, and identify ways to reduce the risks of nonpayment.
They come to understand these issues, as well as: (1) the relationship between due diligence, ability to
pay, and collateral security and (2) the role of fees and interest.
This exercise breaks down some of the students’ fear of Secured Transactions by starting with a simple loan
they easily understand ($20 to a classmate) and identifying parallel considerations (diligence, risk of non-payment,
knowledge of the borrower, etc.) in a large commercial loan.
Karen M. Gebbia-Pinetti, University of Hawaii William S. Richardson School of Law
Repossessing Cars and Other Active-Learning Exercises
• When covering repossession and breach of the peace in my Secured Transactions course, I usually conduct a roleplaying
exercise with one student as a debtor who has defaulted on a car loan and another, sitting next to the first,
as the creditor seeking to repossess the car. I put a toy car on the desk of the debtor. I then ask the creditor student
what he or she will do to get the car. In the process of this exercise, we review all the reading on what is and what
is not permissible, but I also have a little surprise in store. I usually arrange in advance for a diversion. Sometimes
this is the dean’s assistant coming in and asking to speak with the debtor. Other times it’s a student in the back of
the room who has agreed to scream when I give the signal. I advise the creditor in advance of the diversion and
suggest that when it occurs the creditor simply take the car. When things calm down, I then get the rest of the class
to notice who now has the car. We then talk about the propriety of deceit in repossession. The exercise is fun and
students do not forget it. Sometimes I follow it up with a five-second excerpt from the “Mister Plow” episode of
The Simpsons, in which Homer answers a telephone only to hear the person on the other end say, “Mr. Simpson,
we’re calling to distract you while we repossess your plow.” Homer responds with his characteristic, “Duh!”
• Early on in my Secured Transactions course, I give my students a list of monthly expenses (mortgage loan, car
loan, credit card payments, utility bills, etc.) and explain that they have insufficient income to pay them all. I
then give them three minutes and ask them, working in pairs, to agree on which debts they will pay and which
they will put off. Invariably they prioritize the creditors who have collateral and those other creditors with
whom they have a relationship that they wish to continue (utility companies, physicians treating a long-term
illness). This leads to what I refer to as the first moral of the course: obtaining collateral makes voluntary payment
more likely; it moves the creditor up on the debtor’s payment list. I then suggest that this is in fact its
primary intended benefit. After all, the goal is not to foreclose on the collateral, it’s to get paid.
• When covering how the proceeds of an Article 9 foreclosure sale are distributed, my students never seem to
understand why junior lienors, but not senior lienors, are entitled to demand a share. Even if I point out that
the senior lien survives the sale, many simply do not fully understand why. To illustrate it better, I use a roleplaying
exercise with three students as lienors (each with a different priority), one as the debtor and one as an
interested buyer. We then go through various scenarios of what the buyer might pay and what would happen
after that. The exercise takes about 20 minutes and students definitely understand the rules and the reasons
for them when we’re done. Not only that, they usually ask really perceptive questions, which frequently lead
me into concepts such as subrogation.
• When we start to cover attachment in my Secured Transactions course, I engage my students in a very simple
drafting exercise. I describe a very simple deal in which I am borrowing $2,000 from the associate dean and

362 Sales and Secured Transactions
using my car or some piece of art as collateral. I ask some students, working in pairs, to draft the promissory
note and others, also working in pairs, to draft the security agreement. I give them only five minutes. The goal
is not to write a complete security agreement, but the minimum that would suffice. This brief exercise does
several useful things. First, it really brings home the different function of the security agreement and the note.
Second, it helps them appreciate how minimal the requirements of a valid security agreement are. Third, it
prompts a discussion of whether the security agreement needs to identify the secured obligation, even though
the Code is silent on that point. Fourth, it helps them understand the composite document rule. Finally, it
leads into a useful, albeit brief, discussion about whether a security agreement more closely resembles a contract
or a deed.
• Another very useful technique for understanding complex statutory text is to redraft the provision using your
own language. The act of doing this often aids comprehension to a significantly greater degree than almost
anything else the reader could do. In dealing with Article 9’s priority rules, one of the simplest ways to do this
is to “flip” the provision: if the statute as written indicates when the secured party wins, rewrite it to explain
when the competing creditor wins; conversely, if the statute as written indicates when the competing creditor
wins, redraft it to explain when the secured party wins. I assign my students the task of “flipping” the first priority
rule we discuss: the one expressed in § 9-317(a)(2). I have them prepare their version in advance of class
and turn it in for review. Later, I have my students “flip” the rules of § 9-323(b) and (d). This helps them compare
the two rules much more easily because the difference ends up being, mostly, simply the difference between
“and” and “or.”
Integrating Legal Research Skills into Commercial Law
Stephen L. Sepinuck, Gonzaga University School of Law
Teachers of substantive law (and employers) often lament the disjuncture between what is learned in the law
school classroom and what happens in real-life law practice. Those who specialize in legal research lament that
their teaching sometimes strikes students as acontextual. Students often comment that it is hard to engage fully
in and appreciate the importance of hypothetical legal research exercises. We believe that law students who see
the contextual connection between the theory and the practice of law will be more prepared to engage completely
in the practice of law. It is out of these experiences that we have crafted both an in-class research discussion and
a graded research exercise (“scavenger hunt”). Taken together, these exercises enable students to improve their
legal research skills in the context of a substantive law course. (While we are using Commercial Law, the basic
four-credit course that covers the U.C.C., as our exemplar, our faculty has conducted similar exercises in Contracts,
Bankruptcy, Property, Wills, Tax, Corporations, and Securities Law, in classes with 25 to 100 students.)
The research experience we propose requires that the substantive law professor give up valuable class time for
“non-substantive” material for several reasons. Many students tell us that the class discussion and the accompanying
scavenger hunt were the first time they actually saw the need for legal research and perceived their own research
shortcomings. Further, since the material is directly related to the course, it is not a matter of foregoing
material; rather, it is addressing substance differently. Even if we shortchange substance for a day, the benefits of
learning to do contextualized research outweigh the substance that goes uncovered.
The exercise requires collaboration between the librarians and the substantive law professor. A librarian joins
the professor in the classroom for the in-class discussion. We think it is useful and important for students to see
two professionals communicating and sharing insights (particularly when they disagree), as a good deal of lawyering
is collaborative. Moreover, it shows students that librarians care about substance and that substantive professors
and practicing lawyers respect and need quality research. The library’s reference staff also provides a critical
teaching component by providing assistance to students as they complete the assignment. The librarians
reinforce the important elements discussed in class. One final note: the experience requires a willingness to be

Sales and Secured Transactions 363
flexible; computers do not always work, websites do not always function, and the best-designed scavenger hunt
can have glitches. All said, this type of teaching experience is certainly worthwhile and a recommended complement
to the syllabus.
To provide a structure to the in-class component, students are given a legal research guide and a bibliography
tailored to Commercial Transactions. (Feel free to email us; we can send samples of any of the materials discussed
in this article.) The research strategy outline covers the basic steps of a research project: (1) finding and updating
statutory/administrative law, (2) finding and updating case law, and (3) finding and using secondary sources. In
addition, sections are included on (a) building a research bibliography and (b) contacts and networks. Both of the
handouts are useful for the scavenger hunt and serve as reference guides for future projects. In addition to the handouts,
we compile a chart of relevant primary and secondary paper sources and provide online access during class.
Using the research strategies outline to help structure our discussion, we lead the class through a review of important
research steps. We start with finding relevant laws and the importance of updating them. We comment
on methods of approaching particular tasks and on what we find using different sources. We banter back and
forth about not just HOW to find something, but the VALUE of what we find. We talk about which case reporting
services are best and most complete, which classification system is most useful and why, which hornbooks/secondary
sources are most current and provide the best overview when someone is completely at a loss
for where to begin, which looseleaf service is most beneficial, which commercial research database — Lexis or
Westlaw — works best for a particular kind of question, which listserv is the best, and which organization produces
the most thoughtful Web presence. Students actually see the books and watch us using the online services.
The students learn how to join a listserv, they trace a piece of pending commercial legislation, they find a U.C.C. 1
that is filed, and they search for liens (using students’ names). The goal is to teach Commercial Law research in such
a way as to alert students to the richness of legal research.
After the class session students are given a scavenger hunt comprised of six questions that will take about three
hours of research and one hour of writing. Students are given several days to complete the scavenger hunt. They
can work in groups of two or three, but every student must turn in his or her individual results. Times are
arranged when librarians are available to work with students in the library. Computer labs are reserved at this
time for class use. The librarians can demonstrate the use of paper sources and indexes, as well as work with the
students on online search techniques.
Each item on the scavenger hunt is selected to illustrate a particular research point. Some questions cannot be
answered using online sources (at least not easily). Students need to look at paper sources and sometimes make
phone calls. Another question (or two) asks the students to find material that relates directly to what is covered in
class. Then, there is something practical to find— similar to what a partner in a firm would be looking for in a hurry.
A few examples from recent scavenger hunts are:
• Your client is in the business of breeding and selling race horses. The client has heard of a recent case from
somewhere in the mid-western USA in which a buyer brought a cause of action against the seller of a race
horse for breach of both an express warranty and an implied warranty of fitness for a particular purpose.
Apparently the horse had some defect. According to rumors in the horse business, the buyer lost on both
counts (which would be nice for your client). Find the case to which the client is referring and assess whether
the rumor mill correctly described the outcome of the case.
• I recently heard that the Supreme Court granted certiorari in a case called Russell v. Capital One, which involves
credit cards, breach of promise, and due process. Is this accurate and, if so, when is oral argument scheduled?
• You represent a bank in New York that is considering a loan to Alice and Ben Greene, who live in New York.
You heard that another bank has taken a security interest (perfected under Article 9) in some of their property
located in Vermont. Please determine whether any lender has taken a security interest in any property
of the Greene’s and, if they have, identify the lender by name, describe the collateral in which they have
taken an interest, and when the interest was obtained.

364 Sales and Secured Transactions
• Freddie Mac recently completed a controversial study on credit use and credit ratings. Apparently the study
found that different borrowers (depending on gender, age, ethnicity, income levels) had different repayment
behavior and different credit problems. I want to see the complete study. Is it available and how can I get a
copy of same?
The student papers are then “graded” by research assistants or librarians. The grading process is not intended
to be an onerous one. It is more a matter of finding the better papers so that they can be reviewed by the substantive
law professor to determine the prize winners. We usually award a first prize (bottle of wine, book) and
several lesser prizes (commonly items donated by Lexis and Westlaw). The “awards” day is usually fun too. It takes
only a few minutes, but the students like seeing who won and applauding their good efforts.
We have found the experience to be remarkably worthwhile. Students learn more about what lawyers do —
and the value of legal research in that enterprise — and we, as teachers, enjoy sharing a different type of knowledge
and skill with our students. To top it off, we enjoy the pleasure of working in the classroom with a colleague,
itself an uncommon but exhilarating experience.
Interest Group Negotiations
Camille Broussard and Karen Gross, New York Law School
In Secured Transactions, a mid-semester, large-group exercise allows students to integrate the materials and
review and critique the current system. This exercise occurs after we learn attachment, perfection, and scope,
but before priority. Students must sign up for an interest group a few weeks before the exercise. Interest groups
may include large institutional lenders, small and specialized lenders such as factors, large borrowers, small
borrowers, state filing system officials, unsecured lenders such as trade creditors, neutral academics and law
reformers, and secondary markets such as asset-backed securitization. The groups you use will depend upon
your objectives. Sign-up is first come, first served. Limit the number of students in each group so that each
group has approximately the same number of students. Groups of more than eight are difficult to coordinate.
For example, if your class has 80 students you can use 10 interest groups (if you find that many that serve your
purposes), or you can use eight interest groups, with two teams of five students each representing each interest
group. Students work in these interest groups outside of class and hand in a short report answering a series
of questions about the current law and proposed reforms. Review these reports the day before the in-class
exercise, identify areas of accord and discord, and prepare a simple “issues list” that notes the areas of discord.
In class, the interest groups send delegates to negotiating sessions with students from the other groups to see
if they can reach accord on the areas of discord. Each negotiating group has a few blank transparencies and
pens, which they use to present their conclusions. Devote about half the class to the negotiation and half to
the presentations.
Sale/Lease Distinction
Karen M. Gebbia-Pinetti, University of Hawaii William S. Richardson School of Law
Article 9 applies to any transaction regardless of its form, which creates a security interest. § 9-109(a)(1). To
explore this rule, I give students several problems involving the sale/lease distinction and requiring detailed analysis
of the rules of sections 1-201(35) and 1-203 (formerly 1-201(37)). Unfortunately, over the years it has become
apparent that students then try to use these rules to analyze all § 9-109(a)(1) issues. In other words, they try to
force these rules into answering whether other transactions — not in the form of a secured transaction — should
nevertheless be recharacterized as such. To deal with this, I now give students another problem immediately after
tackling the sale/lease distinction. I ask them when is a sale with an option to repurchase really a security device

Sales and Secured Transactions 365
and when is it merely what it purports to be. I give them a few minutes to work this out with the classmate sitting
next to them and then have the class as a whole discuss it.
I like this exercise very much because the problem has significant similarities to and differences from the
sale/lease problems. For example, the sale/lease rules tell us that a person is a seller (and not a lessor) if the person
will predictably not get anything of value back at the end of the transaction. The option problems yield an
analogous rule: a seller with an option to repurchase is really not a seller if we can reliably predict that the option
will be exercised and the property will be returned. On the other hand, in the sale/lease problems it is the
sellers who are secured parties. In contrast, if we recharacterize a sale with a repurchase option as a security device,
it is the buyer who is the secured party. Although a few students get a bit confused by all this, most are disabused
of their tendency to view all form/substance problems through the lens of §§ 1-201(35) and 1-203.
Brief Gems
The Financing Statement as a Smoke Detector
Stephen L. Sepinuck, Gonzaga University School of Law
A financing statement is like a smoke detector. When a smoke detector goes off, the homeowner needs to investigate
to figure out what is going on — the house could be in flames or it could be just burnt toast. Similarly,
when a potential creditor encounters a financing statement he or she ought to investigate a little bit more — the
debtor could be in hock up to his neck, or it could be merely an old filing that should have been terminated, or
an early pre-loan filing that never ended up perfecting an actual loan.
“The U.C.C. is Your Friend” and Other Gems
Eric Gouvin, Western New England College School of Law
“During this semester, you will learn that the U.C.C. is ... (pause) ... your friend. It is your friend because, if
you treat it nicely and respect it, it will give you the answers.”
Write a large “9” on a blank transparency slide. Tell the students that Article 9 boils down to a single letter, “P”.
Flip the transparency over. The “9” has become a “P”.
The three “P’s” of Secured Transactions: “When you make a loan, you want the first Priority interest in specific
Property to secure Payment.” If you want to use humor, you can call these the “three little Pigs,” but students
may think you are calling lenders “pigs,” so consider what political message you will be sending.
Nothing captures the students’ interest more than a guest speaker from practice who will tell them that 50%
of them will need to know something about Secured Transactions in their law practice. Have the students write
questions on index cards and send these cards to the guest speaker about two weeks before his or her talk.
Chattel paper: take a “chattel” (a toy car), tape it to the “paper.” The “paper” (a promise to pay combined with
an interesting specific property) says: “I, borrower, promise to pay you, lender, on certain terms. If I do not pay,
you can take the car.”
Demonstrate the implications of entrusting goods to a merchant who deals in goods of the kind by telling the
story of how you (your spouse, your friend) gave your (her) diamond engagement ring to Tiffany’s to be sized.
Hand a student (who role-plays Tiffany’s) the ring as you tell the story. Have the student (or the next student
who role-plays Tiffany’s creditor) explain the consequences.
Karen M. Gebbia-Pinetti, University of Hawaii William S. Richardson School of Law

366 Sales and Secured Transactions
Ungraded Drafting Assignments
Feedback and Evaluation
In Secured Transactions, weekly (or bi-weekly) drafting assignments and other practical exercises allow students
to apply the law and test their skills. They also allow me to gauge where the students may be having problems.
I do not grade these assignments, but students will receive a grade reduction if they do not participate. I
review the assignments, make simple notations, and hand them back with general comments to the class (in writing,
if I do not want to use class time) on strengths and weaknesses. You can direct the students to prepare these
in teams of two, if team learning is part of your objective. Some examples:
• Interview a secured transaction lender or borrower to determine the basic terms of the transaction, the factors
the lender/borrower considered to be important, and what, if anything, the lender/borrower would do
differently in a future transaction (be prepared for a lot of automobile purchases and a few gems from students
who interview lending officers).
• Draft the granting clause of a security agreement for a hypothetical transaction.
• Prepare a proper financing statement for a case (I use a case we read for class) in which the security interest
was held to be unperfected due to an error in the financing statement.
• Take a photograph of a consignment, bailment for processing, or leased equipment in the real world
around you.
Chattel Paper Extra Credit
Karen M. Gebbia-Pinetti, University of Hawaii William S. Richardson School of Law
Over the years, I have done just about everything I can think of to get my students to understand what chattel
paper is. I have described it, diagrammed it, provided examples of it, explained how it is functionally different
from accounts and instruments, and even had students act it out. Although I remain convinced that the concept
is not that complicated, the reality is that many students for whatever reason simply do not understand it.
In recent years, I have begun offering extra credit to students who choose to create some artistic depiction — such
as a picture, a flow chart, a story, a poem, or a song — that illustrates or explains chattel paper. Although the students’
creations are only occasionally helpful to classmates, the students who do them definitely come to understand
what chattel paper is and how it functions. They also get an opportunity to tap their creativity, which I find
helps retain their enthusiasm for the course and the subject.
Rule Maps
Stephen L. Sepinuck, Gonzaga University School of Law
One very useful technique for understanding related statutory provisions is to map out their rules. The act of
doing this often aids comprehension to a significantly greater degree than almost anything else the reader could
do. A prime candidate for this is Article 9’s collection of rules on the efficacy of financing statements, which is
divided among several different sections (§§ 9-338, 9-502, 9-506, 9-516, and 9-520). I advise students to map out
these rules, by which I mean not merely what provision of the Code applies but the applicable standard or standards
that govern the efficacy of a financing statement for each type of error that a financing statement may contain.
To give students the incentive to do this, I review and comment upon the effort of each student who submits
a chart to me. I also distribute my own chart to those students (and to those students only).
Stephen L. Sepinuck, Gonzaga University School of Law

Secured Transactions Exam Format
Sales and Secured Transactions 367
For Secured Transactions, my exam begins with a traditional long essay. I use the long-essay format because I
want students to be able to apply the law to complex, real-life transactions and because students soon will be
writing a closed-book bar exam essay. I do not believe that multiple-choice questions accomplish this goal. I also
include a short-answer, policy/reform question because a critical analysis of the law is important. My exams are
open-book because I want students to look at the exact language of the U.C.C. when they write the exam and I
have not found that obsessive memorization serves any of my pedagogic objectives.
Karen M. Gebbia-Pinetti, University of Hawaii William S. Richardson School of Law

chapter 15
Torts
Approach 371
Negligence and Duty First
Alan Calnan 371
Setting Out My Approach to Teaching and Making Students Experts
Kim Brooks 372
Exercise for First Day of Torts
Kathryn Kelly 373
Don’t Start with Vosburg
Greg Sergienko 375
Starting with Moore v. Regents of the University of California
Keith Sealing 376
Symposium on Teaching Torts
Gerald Hess 377
Material 378
Five Great Torts Cases
Andrew R. Klein 378
New York Times v. Sullivan — Ad
Judith D. Fischer 380
Hustler Magazine v. Falwell — Film and Ad
Judith D. Fischer 381
Using Star Trek to Introduce Privacy Law
Okianer Christian Dark 381
Exercises 382
Teaching Torts with Puzzles, Props, and Productions
Nancy Wright 382
A Little Variety Goes a Long Way
Christopher Guthrie 384
Teaching Palsgraf
Alan Calnan 386
Constructive Notice and Sufficiency of Evidence
Alison Grey Anderson 386
Demystifying Causation
Alan Calnan 387
369

370 Torts
Brainstorming Technique to Initiate a Torts Seminar
Okianer Christian Dark 388
Brief Gems 389
Res Ipsa Loquitur
Alison Grey Anderson 389
Visualizing Foreseeability
Alan Calnan 390
Ask Your Students
Louis J. Sirico, Jr. 391
Feedback and Evaluation 391
Students Writing Their Own Exam Question
Mark Weisberg 391

Negligence and Duty First
Torts 371
Approach
Many torts casebooks start with intentional torts and then move on to negligence. In their negligence chapters,
they typically cover the standard of care first. Duty appears much later, often tucked between chapters on
causation and damages.
My six-hour, two-semester torts course is structured differently in two material respects. First, I begin with
negligence. In fact, I devote the entire fall semester to this topic. I open the spring semester with intentional torts
and cover a number of additional topics after that. Second, in my coverage of negligence I start with the concept
of duty. I then move on to breach (including the standard of care), causation, damages, and defenses. My duty
coverage lasts at least a month and a half. I have chosen this format for a number of reasons.
Negligence First: The Negligence-First structure is realistic.
Negligence is by far the most prominent theory in modern tort litigation. By teaching negligence first — and
discussing it for a full semester — I hope to emphasize its real-world importance.
Negligence First is practical.
In the fall semester, I must spend a lot of time on non-substantive matters, like trial and appellate procedure,
legal nomenclature, and case briefing, to name a few. This invariably slows the coverage of doctrine and policy.
If the class is going to crawl, I prefer that it crawl through negligence and not intentional torts. Reversing the
order of coverage is less efficient. Even when taught at a slow pace, intentional torts do not consume (and do not
warrant the consumption of) an entire semester. If the teacher proceeds to negligence, he faces a dilemma: he
may cram the material into the remaining weeks of the fall semester or he must split the material into two parts,
covering the first part in the fall and the second in the spring after a significant break. Beginning the spring semester
with intentional torts has advantages of its own. Most notably, it eases the transition from the fall to the
spring by providing a discrete and relatively easy body of information at a time when students may be unfocused
or distracted.
Negligence First is good pedagogy.
Every tort involves conduct that breaches a duty and causes some sort of harmful consequence. Negligence
not only makes these elements plain, it facilitates an in-depth analysis of each concept. Even more importantly,
negligence provides a theoretical benchmark for understanding the other bases of liability. Negligence is the midpoint
of the liability spectrum. It is grounded in the universal standard of reasonableness. Violation of that standard
represents ordinary fault. Intentional torts and strict liability fall at opposite ends of this continuum. Intentional
torts are both extremely faulty and presumptively unreasonable. Strict liability, by contrast, means
liability in the absence of fault or reasonableness. Each theory, however, is defined in relation to the reasonableness
concept of negligence.
Duty First: Like Negligence First, Duty First is realistic.
In my opinion, duty is the most important element of negligence. Putting duty first — and discussing it for six
weeks — makes this apparent. Duty First is realistic in another respect as well. Since duty is a legal issue, courts
often resolve it in a pre-trial motion. Thus, duty usually appears first in the chronology of tort litigation.
Duty First is logical.
As a matter of logic, duty always is listed as the first element of proof. Unless there is a duty, there is nothing
to breach.

372 Torts
Duty First is comprehensive.
On the one hand, duty provides a broad overview of a negligence cause of action. Because the determination
of duty often involves consideration of the other elements of negligence (for example, the moral blameworthiness
of the defendant’s breach, the closeness of the causal connection between the defendant’s act and the plaintiff’s
injury, and the certainty of plaintiff’s damage), Duty First serves as a preview of and a gradual introduction
to, the rest of the semester. On the other hand, Duty First facilitates a thorough analysis of issues intrinsic
to all of tort law. Duty issues are decided by judges as a matter of public policy. To understand these decisions,
students must think about the goals of tort law, the respective roles of judge and jury, and the delicate balance
between judicial and legislative authority.
Finally, Duty First is fundamental and formative.
As noted above, every tort involves the breach of some duty. Certain duties are broad; others are narrow. To
know how duties are framed, a student must consider the law’s history, values, and goals. This duty analysis, in
turn, affects the analysis of other elements of proof. Depending on his duty, a defendant may have a higher or
lower standard of care or may be held causally responsible for a greater or lesser ambit of risk. Doing Duty First
allows students to see the symmetries and continuities running throughout the law of torts.
Alan Calnan, Southwestern University School of Law
Setting Out My Approach to Teaching and Making Students Experts
This is how I start my Torts course. I think it sets the stage for the kind of learning environment I want to create.
I want to tell you a little bit about what I’m doing up here. I see myself as having three roles:
1. I see myself as championing your law school experience and, in particular, your tort law experience. By
that I mean I am here to be your biggest fan. I want all of you to love your law school experience and your
experience in this classroom. That doesn’t mean that I want you to be happy all the time — it means I
want you to learn a lot and to feel comfortable expressing yourself.
2. Bell Hooks has this terrific book, Teaching to Transgress: Education as the Practice of Freedom (what a title!).
She says, “[t]he classroom, with all its limitations, remains a location of possibility. In that field of possibility
we have the opportunity to labor for freedom, to demand of ourselves and our comrades an openness
of mind and heart that allows us to face reality even as we collectively imagine ways to move beyond
boundaries, to transgress. This is education as the practice of freedom.” I just love that. So, part of my mission
here is to ensure that your education at law school leaves you as critical thinkers and people who are
“practicing freedom.”
3. You should have fun here. If I am not having fun when I’m teaching then I know something is wrong. If
you are having fun, it is because as a class, collectively, you are making this place fun. If you are not having
fun, it’s because I’m not doing my job well. That’s a high standard for me. And I won’t live up to it all
the time, but we’re going to try.
So in light of that approach, the first thing I’m going to do is deem you all to be experts in tort law. I can do
that because I know that it’s true. You maybe have some holes to fill in your knowledge, but you’d be amazed by
what you already know.
Let me give you an example. Don’t take notes on this: just hang out with me.
Who thinks that they know absolutely nothing about torts? [response]
Let me ask you something.

Torts 373
I come up to you. I am looking really grouchy about something, and I punch you. Have I committed a tort? [response
and discussion]
What if I go to punch you, you duck, and I hit the person beside you? Have I committed a tort? [response and
discussion]
What if it turns out that we’re in the boxing ring, we’re professional boxers, and I hit you. Have I committed a
tort? [response and discussion]
What if we’re boxing and I hit you, and I intended that you be just injured, but instead of you being just injured,
I knock you out and you die? Ignore that there might be criminal law consequences. Have I committed a tort? [response
and discussion]
Let’s try another example. Who else doesn’t know anything about torts? [response]
Assume that you grab me and lock me in a broom closet because you really just don’t want to come to Torts
class. Have you committed a tort? [response and discussion]
What if you’re a little less-violent a soul, and you just stand in the door of the classroom and don’t let me in?
Have you committed a tort? [response and discussion]
I find this introduction works really well. These examples involve intentional torts, but it is easy to adjust the
exercise to use negligence or different intentional torts. As students answer each question, I give them the “short”
answer — whether it is a tort or not — and some elaboration where it’s not clear. In an amazing number of cases
they are right. They are guessing, of course, and they do not really know what a tort is. But we have fun. And
they are participating right at the outset. They also get to see that I am not going to be upset when answers are
wrong, as long as we’re trying to uncover something about the law.
Exercise for First Day of Torts
Kim Brooks, Queen’s University Faculty of Law
On the first day of Torts, especially if it is taught in the first semester of law school, I find it helpful to give students
assistance in seeing the big picture, in placing into context the bits and pieces about tort law that they have
picked up before law school, and in appreciating the continuing validity of all the old cases in the intentional
torts chapters with which most casebooks begin. This exercise takes a contemporary lawsuit (facts taken from
the opinion on the defendant’s motion to dismiss for failure to state a claim) based on old precedent. It is designed
for the purposes mentioned, to serve as an ice breaker (since the class works together in smaller groups
and then comes back together to share information), and to underline two of the themes of my course: lawyering
is a problem-solving process and a process that benefits from collaborative work styles.
I allocate the entire first class to this exercise. The posted assignment for the first class is “Read pages 1–16 (of
Prosser, Wade, & Schwartz’s Torts 10th ed. Foundation Press 2000) for background and historical development
and to prepare for an in-class exercise on Monday. We will not go over these cases in class.” That chapter gives
some background on intentional torts, negligence, and strict liability but, frankly, I think the exercise can be done
without any background reading. On the first day, after a brief introduction of myself, I distribute the problem
that follows, which fits on one side of a piece of paper, and give the students 10 minutes to read it and make notes
in response to it. Then, I break them into groups of from five to eight and ask them to work together for 15 minutes
to answer the questions. After that, we spend 20 minutes getting reports from the groups about the issues
they focused on. I write the issues on the board, making some comments and adding coherence as I go along.
Then I spend about 10 minutes filling in the gaps, explaining how each of the issues they raised will fit into our
course of study during the semester, and making my point about collaboration. (This is done by asking them to

374 Torts
look back at the notes they made, compare their list of issues to the issues that emerged from their own group,
and then compare that to the issues the whole class raised.)
DOE v. JOHNSON
817 F. Supp. 1382 (W.D. Mich. 1993)
Plaintiff, Jane Doe, alleges that defendant, Earvin Johnson, Jr., wrongfully transmitted the human immunodeficiency
virus (“HIV virus”) to her through consensual sexual contact. Ms. Doe’s complaint alleges that the wrongful
transmission of the HIV virus occurred on or about the evening of June 22, 1990, or the morning of June 23, 1990,
or both, at her home in Ingham County, Michigan. Complaint at 3–4. Ms. Doe further alleges that immediately
prior to the encounter she asked Mr. Johnson to use a condom and that Mr. Johnson refused to do so. Nonetheless,
Ms. Doe engaged in consensual sexual contact with Mr. Johnson. Id. at 4. Ms. Doe argues that Mr. Johnson
should have (1) warned her about his past lifestyle because it placed him in a high-risk category; (2) informed her
that he “may have HIV”; (3) informed her that he did in fact “have HIV”; (4) refrained from sexual contact with her;
or (5) used a condom or other method to protect her from the HIV virus.
As a result of this wrongful transmission, Ms. Doe states that she suffers, and will continue to suffer, many consequences
including physical illness, severe emotional distress, loss of enjoyment of life, extreme embarrassment,
humiliation, shame, medical expenses, and lost wages and benefits. Id. at 5. Moreover, Ms. Doe notes that she will
eventually develop acquired immunodeficiency syndrome (“AIDS”) and “suffer a slow, certain, and painful death.”
Id. Ms. Doe, who is a single parent, is concerned about the future of her four-year-old daughter.
(1) What do you think that Plaintiff Doe should have to prove in court in order to recover from Defendant Johnson?
Are there others whom Doe may want to consider adding to her suit? What should she have to prove against them?
(2) Should Doe’s own conduct affect whether she can recover?
(3) If Doe is able to recover anything, how much should it be? Should there be any restrictions on how the money is
spent? Does she have to spend it on medical treatment? What if she wants to use it for a trip around the world? Or put it
in a trust fund for her daughter?
As they offer points from their groups, I try to organize the comments by
1. Possible causes of action for plaintiff, including elements of each (e.g., necessity of knowledge for intent
for battery, but only “should have known” for negligence);
2. Proof problems that will arise (symptoms, expert witness testimony, he said/she said);
3. Other possible defendants (doctor, Johnson’s employer/team, person who infected Johnson);
4. Causation issues, including other risk factors (cause in fact) and the daughter’s own case (proximate
cause);
5. Damages available (compensatory and punitive, one time award with no restrictions on use);
6. Joint tortfeasor issues (contribution, effect of settlement);
7. Wrongful death and survival issues (what if Doe dies before trial? What if Johnson does? What if daughter
dies?);
8. Burden of proof;
9. Vicarious liability (Johnson’s employer/team?);
10. Possible defenses (consent, comparative fault, assumption of risk, statute of limitations, denial of duty
(whose responsibility is it to begin conversation about sexually transmitted diseases?)).
During my wrap-up, I talk about how the purposes of tort law (to provide a peaceful means for adjusting the
rights of parties, to deter wrongful conduct, to encourage socially responsible behavior, and to restore injured
parties to their original position) are reflected in the scenario and the other ways in which the circumstances
might be handled by society (health insurance, criminal law, contract law, governmental regulation). I also try to
make a list as we go along of concepts other than the substantive law that they should keep in mind during the
semester: how to prove a case, the client’s concerns (note the use of Doe to preserve anonymity), ethical issues,

Torts 375
strategy issues, public policy issues. Finally, it is always the case that there are splits of opinion on some of the issues
that break down along gender lines. Sometimes the students comment on this and sometimes I surface it.
Also, there are always some students who have no idea who Earvin Johnson is and some students who have detailed
knowledge of what he knew when and what has happened to him since then. This allows me to make the
point about the importance of not making assumptions about what is common knowledge and about the advantage
of pooled knowledge.
After the class, I post on the class web page a link to a newspaper article reporting that the lawsuit was voluntarily
dismissed at the request of the parties, with no information about a settlement. See, for example, “Magic
Settles AIDS Lawsuit,” Chicago Sun-Times, December 11, 1993, at 84.
Don’t Start with Vosburg
Kathryn Kelly, Columbus School of Law, The Catholic University of America
Some day, perhaps, there will be a 12-step program for torts professors. Each member’s statement in the 12step
program’s meetings will begin, “My name is so-and-so. I am a Vosburg-aholic.”
At the moment, I am a recovering Vosburg-aholic. I have started the Torts course with Vosburg multiple times,
and at different schools. Each time, my students never seemed to get it. Then, I took a fresh look at the case, and
I decided I was the one who wasn’t getting it.
What’s the opinion like? If I described it myself, I might be thought to have mis-described the opinion in favor
of my proposed conclusion. Instead, I’ll quote James Henderson, one of the many distinguished advocates of beginning
with Vosburg, as Vosburg v. Putney, 50 N.W. 403 (Wis. 1891), is known among aficionados.
It is fair to say that Professor Henderson believes that the attraction of Vosburg is its defects, not its virtues.
Professor Henderson describes the opinion as “terse and murky, with several examples of what could pass for circular
reasoning” (James A. Henderson, Jr., Why Vosburg Comes First, 1992 Wisc. L. Rev. 852, 859) and as “intriguing
almost to the point of being mysterious.” Id. at 861. Moreover, the procedural context is difficult; Professor
Henderson assigns a “13-page introduction to the procedural steps of the trial and appeal.” Id. at 855.
Professor Henderson concludes that “[d]iscussing the court’s reasoning in class is a torts teacher’s dream” and
that “reasonable minds cannot differ: Vosburg comes first.” Id. at 861.
Unfortunately, the same characteristics that make the case a dream to Professor Henderson make it a nightmare
to a torts student. A merely difficult opinion might simply encourage students to work harder, but starting
off students with an opinion that is “murky” and “circular,” whether in torts or elsewhere, will only demonstrate
to students the inadequacy of their own reasoning.
This has unfortunate pedagogical consequences. It teaches students that their own efforts to extract a rule from
a judicial opinion are futile. Indeed, they are likely to conclude that anyone’s attempt to analyze judicial reasoning
is a waste of time, because such reasoning is mostly circular anyway. They may even conclude that Vosburg’s
circularity and murkiness are appropriate models for their own legal memoranda.
Students whom Vosburg has caused to doubt their own ability will conclude that they must rely on professors
or on other “expert” sources. The “successful” students in a Socratic dialogue based on Vosburg will probably have
relied on commercial briefs. Other students will learn from their example.
The long-term apathy that Vosburg risks may be hidden from the professor by a short-term ego boost. Students
will be impressed that the professor was able to identify many issues that the students missed. Unfortunately,
that praise for the professor comes at the cost of sacrificing a major goal of the first-year courses, to develop
the students’ analytical skills and the confidence to tackle opinions on their own.
The true lesson of Vosburg is for professors. All law schools aspire to teach skills as well as doctrine, but research
shows that even highly regarded schools do little to improve students’ reasoning skills. David P. Bryden,
What Do Law Students Learn? A Pilot Study, 34 J. Legal Ed. 479 (1984).

376 Torts
The wise selection and arrangement of course materials can lead to better results. In torts, as in other areas,
course materials should be ordered in a way that provides not only a logical progression of doctrinal ideas, but
also a logical progression of skills. To promote students’ ability and self-confidence in analysis, one should begin
a course with opinions that are susceptible to analysis. Vosburg is not such an opinion.
Starting with Moore v. Regents of the University of California
Greg Sergienko, Western State University College of Law
I use Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990), as the first case in Torts and
as an introductory case during the first week in Property. I find it to be a very useful tool for introducing a
number of concepts that are revisited throughout the semester, as well as contrasting the more dynamic body
of tort law with the slow-moving world of property. I had used Moore for a number of years in teaching Property
but, because of the editing in the text I was using, I focused exclusively on the property issue presented
(see Cribbet, Johnson, Findley, and Smith, Cases and Materials on Property (Foundation, 7th ed., 1996), 66).
Later, when I began teaching Torts, I found that the text had edited Moore to include only the breach of fiduciary
duty and lack of informed consent issues (see Schwartz, Kelly and Partlett, Prosser, Wade and Schwartz’s
Torts Cases and Materials (Foundation, 10th ed., 2000), 188). Most casebooks, whether in torts or property,
abridge Moore too much for what I wish to accomplish, but the full text is too long, printing out at about 50
pages. I make my own version available on the course web page at about 35 pages. This includes all of the written
opinions.
The plaintiff, Moore, contracted hairy cell leukemia. Victims of the disease produce excessive amounts of certain
lymphokines in their T-lymphocyte cells, making their blood valuable in research. Defendant Dr. Golde removed
blood and other body parts and fluids — including Moore’s spleen (removal of the spleen is a normal procedure
for this disease) — without ever telling him that they were valuable or that he was using them in research
projects. Moore had to fly from Seattle to U.C.L.A. between 1976 and 1983 for “treatments” which Dr. Golde said
were necessary but were actually to provide Golde with additional blood samples. Ultimately, the market value
of products derived from Moore was predicted to exceed $3 billion at the time of the trial; Moore received nothing.
From a torts perspective we explore the concept of breach of fiduciary duty and the idea that surgery without
informed consent is battery. From a property perspective we first define conversion as the taking of chattels belonging
to another. This, of course, leads to the issue of whether or not excised body parts are chattels.
At this point the students are still struggling with learning how to state the issues. They generally produce
something like this: (1) Has a doctor breached a fiduciary duty to a patient if she performs an operation on him
or removes body parts from him without telling him that she will derive an economic interest from the results;
(2) Has a patient given informed consent to a medical procedure if she agrees to the procedure without being
informed that the doctor has a financial interest in performing it; and (3) Is a doctor liable for conversion if he
uses body parts taken from a patient for commercial gain without her knowledge and consent?
The court held for Moore on the breach of fiduciary duty and lack of informed consent claims, but for the
defendants on the conversion claim. I use this split result to develop the idea that the body of property law has
been slow to change and is often not suited to the emerging problems presented by “the new property,” i.e.,
things — such as professional degrees (see, e.g., Hoak v. Hoak, 370 S.E. 2d 473 (1988), holding that a wife obtains
a cognizable interest in her husband’s professional degree earned during the marriage and based, in part, on her
efforts), welfare entitlements (see, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970), individual acquires a property right
in continued receipt of state public interest payments, once awarded, that is entitled to Due Process protection),
and frozen sperm (see, e.g., Hecht v. Superior Court, 59 Cal.Rptr. 222 (Court of Appeal), decedent’s frozen sperm
in a sperm bank not property subject to property settlement purporting to distribute all assets of estate), — that

Torts 377
weren’t issues when the law of property emerged in early common law England. By contrast, torts law at least appears
to find an answer to Mr. Moore’s problem.
The case also serves as a springboard to the countervailing concepts of judicial activism and deference to the
legislature. (Should the court enact a common law change in the law of conversion by redefining “property” or
should the legislature enact a solution to the problem presented? (The court stated that it should “[b]e hesitant
to ‘impose [new tort duties] when to do so would involve complex policy decisions,’ especially when such decisions
are more appropriately the subject of legislative deliberation and resolution” (citations omitted)).)
Next, the case serves to introduce the concept of the courts’ use of precedent or lack thereof. The court
cites to Venner v. State (Venner v. State, 354 A.2d 483 (1976)(seizure of defendant’s feces from bedpan did not
violate Fourth Amendment prohibition on unlawful searches and seizures)), which can be distinguished in
a number of ways: it is a criminal case, it is a privacy rights case, it is from Maryland, and the court’s statement
that a person may assert continuing rights to ownership of “blood, organs, or other parts of the body”
is dicta.
Next, the case allows for a discussion about the use of public policy arguments. Justice Panelli argues that allowing
conversion to lie would hinder important biomedical research, since conversion is a strict liability tort
and any researcher acquiring the tissues might be liable for conversion.
Justice Arabian’s concurring opinion allows for the exploration of the ethical issue of whether one should be
allowed to sell her own body parts for a profit. He also provides the counter to the lack of precedent cited by the
majority, if the students have not yet developed it: although there are no cases finding conversion, there are no
cases denying conversion. This is a case of first impression and that’s how the common law grows.
Justice Mosk counters the majority’s deference to the legislature, calling failure to find conversion an abdication
of the court’s responsibility in the area of torts to develop the common law.
Finally, Justice Broussard concludes the case with a practical note, arguing that the remedies allowed — breach
of fiduciary duty and lack of informed consent — [are] “largely illusory.” In fact, Professor Chused reports that
Moore was entitled to actual damages plus $250,000 under California law and settled for much less than he would
have stood to receive had he been allowed to pursue the conversion theory (see Richard Chused, Cases, Materials,
and Problems in Property (2nd ed. 1999) 1187, citing Judith Areen, Patricia King, Steven Goldberg, Larry
Gostin, and Alexander Capron, Law, Science and Medicine 911 (2nd ed. 1996)).
Although I end up spending several days on Moore, I find the time to be well spent. By the time we are finished,
Moore will have introduced the students to a number of themes that will carry forward throughout the
entire semester, and students will also have learned how I expect them to brief a complex case.
Symposium on Teaching Torts
Keith Sealing, Syracuse University College of Law
An excellent resource for torts teachers is the symposium issue of the Saint Louis University Law Journal (Volume
45, Number 3, Summer 2001), “Teaching Torts.”
The symposium contains articles and essays from eleven experienced torts teachers and five torts students. The
symposium helps teachers enhance their understanding of torts and improve their pedagogy.
SAINT LOUIS UNIVERSITY LAW JOURNAL (VOL. 45)
TEACHING TORTS
Introduction to the Law of Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Joseph W. Little 715
Law School Teaching . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Jerry J. Phillips 725
The Carroll Towing Company Case and the Teaching of Tort Law . . . . . . . . . . . . . . . . . . . . . . . . . .Patrick J. Kelley 731

378 Torts
The Moral Perversity of the Hand Calculus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .William E. Nelson 759
Gender matters: Teaching a Reasonable Woman Standard in
Personal Injury Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Margo Schlanger 769
Teaching Torts Through Exercises on Drafting Verdict Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . .Robert E. Keeton 779
Cases in Context: Lake Champlain Wars, Gentrification and Ploof v. Putnam . . . . . . . . . . . . . . . . . . .Joan Vogel 791
The Challenge of Teaching Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Ellen S. Pryor 817
Eschewing Ersatz Percentages: A Simplified Vocabulary of
Comparative Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .David W. Robertson 831
Teaching Torts Without Insurance: A Second-Best Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . .David A. Fischer &
Robert H. Jerry, II 857
TEACHING TORTS — STUDENTS’ PERSPECTIVES
Learning to Swim: A Law Student’s
Introduction to Functional
Thinking in Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Nathanael R. Berneking 897
Visualizing Foreseeability . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Patricia K. Fitzsimmons and Bridget Genteman Hoy 907
Policy-Driven Tort Analysis: Peeling the
Onion from the Inside Out! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Quinn Murphy 913
Whom to Blame? A Lack of Defendants and Personal Responsibility . . . . . . . . . . . . . . . . . . . . .Aaron L. Pawlitz 919
Five Great Torts Cases
Material
Bradley v. American Smelting and Refining Co., 709 P.2d 782 (Wash. 1984)
Gerald Hess, Gonzaga University School of Law
Despite Professor Calnan’s sound arguments for beginning a torts course with negligence, I continue to start
with intentional torts. (See “Negligence and Duty First” in the Approach section.) One reason I do so is because
many intentional tort cases provide excellent vehicles for teaching case-reading and analytical skills. Bradley is a
prime example. In Bradley, a smelting plant emitted microscopic particulates that landed on neighboring property.
The Washington Supreme Court held that the particulates would constitute a trespassory invasion if the
neighbors proved substantial damages. The opinion frustrates some students because it seems to conflict with
two principles from older trespass cases: First, that trespass requires a tangible invasion; and, second, that trespass
does not require proof of damages. “What is the rule!?” a student inevitably asks. The point, of course, is
that common law reasoning requires more than knowledge of “the rule.” Bradley helps students learn to focus on
the fact setting of each case. It also allows students to consider systemic limitations, such as the possibility that a
flood of litigation might ensue if courts adhered to the no damages principle in a modern case involving industrial
activity.
From there, I ask my students to think about the breadth of Bradley’s holding. Does it mean that plaintiffs
need to prove damages in every trespass case? If not, what circumstances are important for a future application
of the court’s holding? A case in which the invasion is intangible? A case where the activity cannot easily be relocated?
A case where the activity benefits the economy? Through hypotheticals and discussion, I often spend
more than a full class hour on this case alone.

Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910)
Torts 379
Vincent introduces students to the privilege of private necessity. The rule is simple enough: A person has a
qualified privilege to interfere with another person’s property if she reasonably believes that doing so is necessary
to protect herself or her property (or that of a small group of others). The fact setting of Vincent, however,
is different from many other intentional tort cases, in that students do not instinctively view either party as a
wrongdoer from a moral perspective. Instead, the boat owner damaged the dock only because of unforeseen circumstances
presented by a storm.
I ask my students to think broadly about who should pay for the dock’s damage. The answer, I suggest, might
depend on one’s perspective about tort law’s primary purpose. This set-up allows me to introduce the two major
theories that scholars view as underpinning much of tort law — corrective justice and deterrence. From a corrective
justice standpoint, the boat owner should compensate the dock owner, as Vincent requires. After all, the
boat owner’s volitional act caused the damage. Others, however, might ask whether having the dock owner bear
the loss would encourage future behavior that could reduce the amount of damage throughout society. For an
excellent discussion of how these theories might apply in the boat-dock fact setting, see Kenneth S. Abraham,
The Forms and Functions of Tort Law 37–45 (Foundation Press 1997).
At this point, I like to add the question of whether tort law should consider a person’s ability to bear and distribute
loss. I do this by providing hypotheticals in which one of the parties is “Rockefeller” and the other is living
at the edge of his means. Even when Rockefeller is the dock owner, many students react with corrective justice
instincts — Rockefeller should receive compensation because of the boat owner’s decision to damage his
property. Others, however, think about Rockefeller’s ability to spread the cost among his customers as relevant
to determining liability. In discussing the problem, I give students wide latitude to express opinions about what
is morally just, or best for society from an efficiency perspective. During the course of the year, I find that my
class frequently returns to the “boat-dock” hypo in thinking about tort law theory.
Summers v. Tice, 199 P.2d 1 (1948)
Summers is an excellent case to use toward the end of a unit on actual causation. It represents a subset of decisions
that present the so-called “defendant indeterminancy” problem — situations where a plaintiff knows that
one member of a group caused her injury, but cannot identify the precise defendant that caused the harm. Courts
frequently resolve these cases by simply ruling that the plaintiff has failed to prove actual causation (i.e., the plaintiff
cannot show that her injury would not have occurred but for the conduct of any single defendant). In some
circumstances, however, courts have held that public policy dictates a different result. Summers is one of these
cases. In particular, Summers sets forth the rule of alternative liability, which shifts the burden of proof on causation
to the defendants.
Summers itself is easy to defend. But it is a wonderful vehicle for demonstrating how a narrow exception to a
bedrock torts principle can lead one down the proverbial slippery slope. I demonstrate this by first asking whether
alternative liability should apply in cases with more than two defendants. Consider a hypothetical with facts similar
to Summers: One hundred first-year law students embark on a hunting trip, carrying identical shotguns with
identical shot. The students stand in a circle, with their dean in the middle, when a quail flutters above the group.
All 100 students fire their guns, and one piece of shot lodges in the dean’s eye. Should each of the students be
jointly and severally liable for the dean’s injuries, as Summers might suggest? Or do the smaller odds that any individual
student caused the harm necessitate a different rule? This hypothetical provides a nice transition to the
market share liability cases, which show an even greater expansion of the alternative liability principle. See Hymowitz
v. Eli Lilly & Co., 539 N.E.2d 1069 (1989); Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980); Andrew
R. Klein, Beyond DES: Rejecting the Application of Market Share Liability in Blood Products Litigation, 68 Tul.
L. Rev. 883, 895–99 (1994).

380 Torts
Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976)
Tarasoff is another case that stretches the limits of traditional doctrine. As most torts teachers know, the Tarasoff
court held that a psychologist owed a duty of care to the foreseeable victim of a crime committed by the psychologist’s
patient, even though the doctor had no relationship with the victim. Teaching the case works well on
at least two levels. First, it usually leads to spirited classroom discussion. In particular, the case leads students to
talk about whether tort law should interfere with the confidentiality of doctor-patient relationships. Students also
like to debate Justice Mosk’s suggestion, in dissent, that the majority is asking psychologists be clairvoyant in predicting
what their patients might do.
Second, the case provides another example of how hard it is to limit the expansion of traditional doctrine once
a court makes an exception to a long-standing principle. As with Summers, I use hypotheticals to make this point.
In particular, I use fact patterns that gradually weaken the link between doctor and victim, and I ask the students
at what point they would draw the line. For example, what if the patient in Tarasoff went to the actual victim’s
home but killed her sister who was visiting for the day? What if the patient found the actual victim’s home empty
and decided to attack another person down the street? What if the patient simply killed the first person he saw
as he left the doctor’s office? Working through this series of hypotheticals allows students not only to hone their
analytical skills, but also to think about the broader purpose of duty as a mechanism for limiting liability in the
tort system.
New York Times v. Sullivan, 376 U.S. 254 (1964)
Not every professor has the time to cover defamation in first-year torts. But, if you do, New York Times v. Sullivan
is a wonderful case to teach. From an historical perspective, it is fascinating to see tort law (i.e., common
law defamation) being used by Southern government officials as a weapon in the civil rights struggle of the early
1960s. For an outstanding discussion of the circumstances surrounding the case, I recommend Anthony Lewis’s
book, Make No Law: The Sullivan Case and the First Amendment (Random House 1991). I also concur with Professor
Fischer’s suggestion (below) that a teacher should provide students with the actual advertisement that led
to the litigation.
In class, I walk students through the basic elements of defamation to evaluate the strength (or lack thereof)
of Sullivan’s case against the Times. It quickly becomes apparent that something beyond tort law drove the
jury’s decision, as well as the Alabama Supreme Court’s affirmance. Justice Brennan, of course, overturned the
Alabama court’s decision for violating the First Amendment to the United States constitution. Discussing his
opinion provides a relatively rare opportunity in torts class to see the federal constitution trumping state common
law. If a teacher is so inclined, this can lead to a good discussion about federalism — a topic that certainly
is relevant to torts in light of Supreme Court opinions that limit states’ ability to award punitive damages, not
to mention proposals in Congress that would restrict damages in products liability and medical malpractice
cases.
New York Times v. Sullivan — Ad
Andrew R. Klein, Indiana University School of Law-Indianapolis
When we cover the defamation case New York Times v. Sullivan, 376 U.S. 254 (1964), I show the students a
copy of the ad at issue. With its references to the civil rights movement and its signature by prominent figures,
the ad helps put the case in historical context, highlighting the bases for the arguments of both the Alabama officials
and the newspaper. The ad appears in an appendix to the opinion at 84 S. Ct. 710, 740.
Judith D. Fischer, Louis D. Brandeis School of Law, University of Louisville

Hustler Magazine v. Falwell — Film and Ad
Torts 381
When we cover the privacy case Hustler Magazine v. Falwell, 485 U.S. 46 (1988), I assign the students to watch
the film People v. Larry Flint, which contains a dramatization of the case and highlights the First Amendment issues.
I also show the students a copy of the ad at issue, which parodied religious leader Jerry Falwell. The ad promotes
a lively discussion about whether it is offensive and what considerations the court had to balance in deciding
the case. A copy of the ad is at http://www.hfac.uh.edu/comm/media_libel/cases-conflicts/print/falwell.
html.
Using Star Trek to Introduce Privacy Law
Judith D. Fischer, Louis D. Brandeis School of Law, University of Louisville
As I was in the process of developing a seminar on privacy law one year, I saw an episode on Star Trek: The
Next Generation that provoked me to think about the meaning of privacy and its role or function in maintaining
important values in the society. After the episode, I restructured my course so that the first class period (which
was two hours) would be an examination of the notion of privacy from a variety of perspectives. The casebook
I had selected provided students with readings from philosophers, economists, social scientists, and legal scholars
on the meaning and importance of privacy. The students were assigned this material as background for our
discussion.
In the first class, I showed the students an excerpt from the Star Trek episode titled “Violations.” In this episode,
the Enterprise is carrying a delegation of Ullians. The Ullians are “an alien race of telepathic historians who conduct
research by probing their subjects’ long-forgotten memories.” Two members of the Enterprise command
crew fall into comas that cannot be explained. While they are in comas, both of them re-live experiences that are
very painful for them. It turns out that one of the Ullians had invaded the thoughts of the command crewmembers
and actually altered them.
You have to make sure you don’t misinterpret what this guy was doing ... he was basically going into
people’s memories and playing in them for his own amusement, pleasure, and fulfillment. He was
not going in and exploring any character’s greatest fear. He might go in and feel that today he wants
to see Troi’s sexual secrets and tomorrow he may want to see Riker’s unhappiest memory and see him
suffer.
The Ullians explained to the captain of the Enterprise that this type of harm, which they termed “mind rape,”
was done away with on their planet (so they thought). In our time period, this type of invasion might be viewed
as the equivalent of prying into or intruding in plaintiff’s private affairs.
At the end of the episode, I asked students to describe what they thought was the 24th-century understanding
of privacy and, with regard to this particular episode, what would be the appropriate remedy given
the type of invasion. The answer was (as they say) not as important as the discussion. Students began to talk
about the nature of privacy and their perception of the outward attributes of a society that protects and honors
privacy. We also explored how the notion of privacy is important to our conception of a respectful, ordered,
and civilized society. My initial goal in having this kind of discussion was to free the students from
the complicated set of rules we currently have about privacy and instead have them consider what it is we
are trying to protect and why. In this way, as we examine the particular rules, the students may be more prepared
to step back and critique the efficacy and impact of these rules in promoting and/or protecting privacy
as we understand it in this century.
What better way to have this kind of discussion but to go to the 24th century and look back?

382 Torts
(Star Trek, Star Trek: The Next Generation, and U.S.S. Enterprise are Registered Trademarks of Paramount Pictures
Corporation. There are many assumptions about the 24th-century legal system, the role of law, and the
kind of civil and criminal liability that exist at that time reflected in the various episodes of Star Trek: The Next
Generation. For a good discussion about some of these assumptions, see Paul Joseph and Sharon Carton, The
Law of the Federation: Images of Law, Lawyers and the Legal System in “Star Trek: The Next Generation”, 24 U.
Toledo L.Rev. 43, 83 (1992).)
Okianer Christian Dark, Howard University School of Law
Exercises
Teaching Torts with Puzzles, Props, and Productions
I teach first-year Torts. Although many students find torts inherently interesting, I try to increase their enjoyment
— and enhance their learning — by adding some innovative class exercises throughout the year.
I start the course in the fall by having the students do a crossword puzzle encompassing some of the new vocabulary
they encounter in their first assignment in the textbook (Marc A. Franklin and Robert L. Rabin, Tort
Law and Alternatives (Foundation Press (2001)). At the beginning of the first class I give a prize to the first student
who has turned in a crossword puzzle that contains all the correct answers. The students always applaud
loudly for the winning student and it seems to start the year off on a high note.
At the start of each class, I pass out what I call “board notes,” which are summaries of the key points I would
like the students to learn from the reading and from my lecture. I believe that this approach enables the students
to participate more fully in the class discussion without worrying as much about missing something if they are
not typing every word verbatim into their computers. I frequently attach additional pertinent information to the
board notes, such as sections of the Restatement that correspond with their reading or other related material.
Since Torts is what I call a “newspaper class,” I often include very recent newspaper and magazine articles to update
their material. I encourage the students to bring print or email articles to me so I can share them with the
class.
I also make extensive use of skits and props throughout the year. This process starts with the case of Brown v.
Kendall, 6 Cush. (60 Mass.) 292, involving a dog fight and a plaintiff who was accused of being contributorily
negligent in trying to separate two dogs with a four-foot-long stick. I bring two stuffed animal dogs to class, along
with a four-foot stick, and we reenact the case. Not only do the students seem to enjoy the exercise (I have actually
had students pleading to be cast as one of the dogs) but watching the reenactment allows the students to visualize
why the plaintiff was not acting unreasonably.
About a week later, the students read two slip-and-fall cases regarding constructive notice of a dangerous condition
(Negri v. Stop and Shop, Inc., 65 N.Y. 2d 625, 480 N.E. 2d 740, 491 N.Y.S. 2d 151 (1985), and Gordon v.
American Museum of Natural History, 67 N.Y. 2d 836. 492 N.E. 2d 774, 501 N.Y.S. 2d 646 (1986)). I help the students
understand how circumstantial evidence can aid in establishing constructive notice by taking two brown
paper bags to class. I tell the class that the bags contain evidence regarding two slip-and-fall cases. I ask the students
to determine which case they would prefer to handle if they represented the plaintiff. The first bag contains
a very clean banana peel. The second bag contains a very dirty, scuffed up banana peel. (This class exercise
was originated by my husband, Santa Clara University Law Professor Eric Wright.)
When we discuss joint and several liability, I distribute varying amounts of fake money to several student-defendants.
Other students act as plaintiffs and very quickly understand the economic advantage to a plaintiff of
joint and several liability and the problems faced by a plaintiff if one of the defendants is insolvent and several
liability is imposed.

Torts 383
I use instant-replay skits to demonstrate whether a defendant’s negligence is the actual “but for” cause of a
plaintiff ’s harm. For example, one skit involves a defendant who negligently fails to have a required life preserver
on board his boat. In the first scene, a student falls overboard, there is no life preserver on board, and
the student drowns. In the instant replay, where there is a life preserver on board, the student falls overboard,
the defendant throws him the life preserver, and the student is saved. The instant replay thus shows that, “but
for” the defendant not having a life preserver, the plaintiff would not have drowned. In scene two, the student
falls overboard, another student, playing a shark, attacks the first student. There is no life preserver on board
and the first student drowns. When an instant replay is done this time, the student falls overboard, the shark
attacks the student, the defendant throws the student a life preserver, and the student drowns anyway since
the life preserver cannot save the student from the shark attack (in fact, the student playing the shark usually
pretends to eat the life preserver). In this case, the defendant’s negligence in not having a life preserver on
board is not the “but for” cause since the plaintiff would have drowned even if the defendant had had a life
preserver on board.
My most elaborate production involves proximate cause. This skit is a take-off on the vaudeville “Perils of
Pauline” where the curtain came down on each scene just as Pauline was about to fall into the clutches of the
consummately evil villain. In the “Perils of Pauline Plaintiff,” the students who are not actors in the skit become
directors, determining what foreseeably might happen to Pauline as she faces one peril after another. The students
in the skit are given appropriate props (including a doctor’s kit and a toy ambulance with a realistic-sounding
siren). By the time the skit is through, the class has directed Pauline through most of the foreseeable intervening
forces in proximate cause. For example, Pauline tries unsuccessfully to jump out of the way of one car
(“escape force”), she is pulled out of the way of another car by a bystander (“rescue force”), and she is injured
on the way to the hospital by a negligent ambulance driver (“checking force”).
In the spring semester, we start a section on strict liability by discussing animals. I have a number of stuffed
animals that visit the class to help the students analyze the various rules. For example, I let a student pet my
stuffed animal dog, after assuring the class of my dog’s gentle nature. The dog then bites the student, leading
to a discussion of whether every dog should be allowed “one free bite.” My lion puppet also bites a student,
leading to an analysis of whether I am liable for the misconduct of my wild animal. Then the lion lies
on the floor when a student (who has been instructed beforehand), trips over the lion to illustrate the “lazy
lion rule”.
For Products Liability, I take in several products with manufacturing and design defects. For example, I show
the students a children’s chair with a latent manufacturing defect in the plastic between the seat and one of the
legs, which caused the chair to collapse, and a roasting pan designed with aluminum that was not strong enough
to support the 25-pound turkey it was advertised as being able to hold. I also pass around numerous products
that contain potential warning or instruction defects, calling on the student who is holding the item to analyze
any problems with the warnings. For example, I pass around several perfumes that contain warnings regarding
flammability only on the outside container but not on the perfume bottle itself (see Moran v. Faberge, Inc., 332
A.2d 11 (Md. 1975)) and a bag of marshmallows that contains no warnings regarding the dangers of a young
child’s aspirating a marshmallow fragment and choking (see Emery v. Federated Foods, Inc., 864 P.2d 426 (Mont.
1993)). (This, of course, does not stop the hungry law students from eating the marshmallows.) The students
also examine an anti-roach fogger that has no warning about the danger of not shutting off the pilot light, despite
a label specifying that the product can be used in the kitchen (see Johnson v. Johnson Chemical Co., 588 N.Y.S.
2d 607 (App. 1992)). I also pass around three different brands of disposable cigarette lighters so the students can
compare the designs and warnings to determine if they are dangerous because young children might be able to
get them to work (compare Bean v. BIC Corp., 597 So. 2d 1350 (Ala. 1992), with Kirk v. Hanes Corp., 16 F.2d 705
(6th Cir. 1994)). What becomes apparent is that the cigarette lighters that are designed with safeguards to make
it difficult for children to light them have less-adequate warnings and vice versa. Most of these cigarette lighters

384 Torts
also are designed so the height of the flame can be controlled. The students are amazed by the huge flame that
results if the control is moved to the highest level.
Intentional torts are a treasure-trove of opportunities for skits. I use a variety of mini-skits to illustrate
the concepts of assault (threatening to stab a student with my “sword”), battery (shooting a student with my
“gun”) and transferred intent (threatening to shoot one student but missing that student and hitting another).
The students seem to enjoy the productions, and most of them readily volunteer to participate. I have also
gotten many favorable comments on the skits and props, the board notes, and the newspaper articles in my evaluations.
In addition, I am convinced that the class exercises help me. I feel the board notes help make my teaching
more precise, the newspaper articles help make my teaching more current, and the skits and props help make
my teaching more fun.
A Little Variety Goes a Long Way
Nancy Wright, Santa Clara University School of Law
Variety may or may not be the spice of life, but it is the spice of my Torts class. Although I teach most of my
class sessions in what I would call a “soft-Socratic” style, I depart from this rather conventional format once or
twice every two or three weeks to do something different. There are three primary reasons why I occasionally deviate
from my soft-Socratic norm.
First, I think it takes an extremely gifted teacher to keep law students engaged for a full semester (let alone an
academic year) using conventional Socratic teaching methods. I am not that talented in the classroom, so I feel
the need to vary my teaching as a way of keeping as many students engaged as I can. If they aren’t engaged, they
aren’t going to get much out of the class.
Second, students learn differently, and I want to reach as many students as I can. Most of the non-traditional
activities and exercises I do in class are designed to teach the same material I have already tried to teach (or will
teach) in more conventional fashion. Some students will learn the material better through conventional teaching;
others will find the material more accessible through a non-traditional activity or exercise. Most, I hope, will
learn the material through one approach and then have that learning reinforced by the other. (One of my own
law school professors, Barbara Babcock, used to say that “repetition is the soul of pedagogy.” I’m not sure it’s the
soul, but it’s certainly an important part.)
Third, I want the course to be fun (within the inherent limits imposed by law and law school). “Real” Socratic
teaching seems to assume that students learn best when they are afraid. Perhaps this is true for some students,
but I suspect most students learn better when they are enjoying the classroom experience. In every course I teach,
one of my implicit goals is for us to have fun. This is not always (or even often?) possible, but I have come to believe
that students (and their professor) are more likely to have fun if the course includes a variety of activities.
Here are three of the non-traditional activities I use.
Small-Group Exercises
I find that most students enjoy working together in small groups, so I use a number of small-group exercises.
In one class session I do an exercise designed to illuminate a potential problem with one common form of direct
evidence. My casebook (the popular Prosser, Wade and Schwartz book) introduces students to direct evidence,
circumstantial evidence, and res ipsa loquitor in a section devoted to proving negligence. Like the legal
system itself, I find that students generally assume direct evidence to be more reliable than circumstantial evidence.
Although I am agnostic in the classroom on this point, I want students to examine this assumption critically.
Thus, on the day when I am scheduled to teach this material, I make arrangements with my research assistant
(or some other person with whom I assume my 1Ls are unfamiliar) to wander into my classroom

Torts 385
unexpectedly about five minutes into the class, do something seemingly outrageous (e.g., throw a nerf ball at me
while saying something arguably inappropriate), and then exit. At that point, the students are usually in shock.
Before the shock abates, I divide the students into small groups (usually by asking them to count off). Once they
are in their groups, I give them 10 to 15 minutes to answer a series of simple questions about what just happened
(e.g., height of the intruder, hair color, clothes, what did s/he say, what did s/he do). Thereafter, I solicit each
group’s response to each question. This is always amusing and enlightening (and often disconcerting) because
the groups generally come up with wildly different answers. Following this exercise, the students seem more interested
in the conventional materials on direct and circumstantial evidence, and they are in a better position to
think critically about the probative value of eyewitness evidence.
Oral Argument Exercises
In a first-year class like Torts, I am trying to teach lawyering concepts as much as doctrine. To that end, I like
to conduct formal oral argument exercises every now and then. Sometimes I do rather modest exercises. For example,
I have developed argument exercises based on videotaped excerpts (e.g., a duty-to-rescue problem based
loosely on the final episode of Seinfeld). Unannounced, I’ll show a videotape excerpt, divide students into groups,
assign them roles, ask the students to work with the other members of their groups to develop arguments, and
instruct each group to select a student to deliver the group’s argument in front of the class. Then, after giving the
groups 15 minutes or so to prepare their arguments, I hold oral argument. Typically, I will follow up by critiquing
the arguments and offering my own (either by delivering them orally myself or by providing this feedback in
writing). I have also done more elaborate group argument exercises (including one based on Russell Banks’s The
Sweet Hereafter) in which I ask students to work together in assigned groups to research an issue, write a brief
on one side or the other of that issue, and then deliver formal arguments in my presence.
Hypothetical Scenario Exercises
I use survey exercises to introduce students to assumptions underlying various tort doctrines. When teaching
compensatory damages, for example, I assign the relevant casebook reading and also ask my students to complete
surveys taken from Edward J. McCaffery, Daniel J. Kahneman, and Matthew L. Spitzer, Framing the Jury:
Cognitive Perspectives on Pain and Suffering Awards, 81 Va. L. Rev. 1341 (1995). This article reports the results of
studies comparing the traditional method of measuring compensatory damages — an ex post approach that asks
for the amount of money that will restore the victim to her pre-accident position — with another method of
measuring those damages — an ex ante approach that asks for the amount of money one would demand to incur
the injury in the first place. Not surprisingly, the subjects who participated in these studies awarded dramatically
more in damages when presented with the latter instruction than with the former. Prior to the next class, I record
my students’ responses on a spreadsheet and calculate their mean and median awards. In the next class, I share
the results with them. This generally leads to a lively discussion about the appropriate rubric to use when assessing
pain and suffering damages (and illustrates the relative arbitrariness of the conventional “make whole”
approach). More generally, I find that the students seem more vested in the subject matter if they have responded
to survey items like these before discussing the material.
Each law professor should teach according to her own personality. Regardless of personality, however, I believe
that all torts teachers can enliven their courses by varying their in-class routines and incorporating non-traditional
activities and exercises like those described above.
Christopher Guthrie, Vanderbilt University School of Law

386 Torts
Teaching Palsgraf
Most torts casebooks place the Palsgraf case in a chapter on proximate cause. Most torts teachers do not get
to proximate cause until midway through their coverage of negligence. After a brief introduction, I begin my
Torts class with negligence. The first topic I address is duty. Palsgraf is the first case I assign on this topic.
Here is how I teach Palsgraf. Because the judges do not clearly define the issues and because my students have
never read or analyzed a court opinion, I frame the issues for the class. In my opinion, Palsgraf presents four
questions:
1. Is tort liability limited or unlimited (i.e., does the responsibility for an act extend to anyone who eventually
is injured by it)?
2. If limited, which element of negligence imposes these limits?
3. How are these limits determined?
4. Who should determine these limits?
I present these questions one by one. As I raise each question, I write it on the dry erase board. I ask students to
determine how that question was answered, first by Chief Judge Cardozo, who wrote the majority opinion, and
second by Judge Andrews, who wrote a lengthy dissent. I write the names of the judges horizontally at the top of
the board, forming a grid with the questions which are vertically arranged to the left. I track the students’ responses
by writing their answers in the grid. At the end of our discussion, the following chart emerges:
Cardozo Andrews
Is liability limited or unlimited? Limited Limited
Which element imposes limits? Duty Proximate Cause (Duty Unlimited)
How are limits determined? Foreseeability Foreseeability + Public Policy + Common Sense
Who determines limits? Judge Jury
This technique accomplishes several goals. It identifies the two competing philosophical approaches to duty.
It demonstrates the nexus between duty and other elements like proximate cause. It highlights the difficulties in
defining negligence duties. It suggests some of the factors used to delimit them. It introduces the respective roles
of judge and jury in the determination of tort cases. It offers a methodical way to work through a complex case.
And it provides a handy matrix for organizing some of the most important and difficult issues in all of tort law.
Constructive Notice and Sufficiency of Evidence
Alan Calnan, Southwestern University School of Law
I use two slip-and-fall cases in the Franklin and Rabin casebook (Negri v. Stop and Shop and Gordon v. American
Museum of Natural History) to explore the meaning of constructive notice of dangerous conditions and to
get the students thinking about how evidence is developed in the real world. I hand out the hypothetical the day
before and ask them to hand in a list of evidence the next day after class (they can do it individually or in groups,
and just make the list and not hand it in, or hand it in in groups). We discuss it in class.
Class Exercise
Your client, Carrie Snodgrass, has told you the following story. She was shopping in her local Safeway a month
or so ago, buying produce to make a salad for dinner. As she was selecting lettuce, a produce clerk came by pushing
a cart loaded with boxes of melons. She moved aside to get out of his way, and she slipped and fell, straining
her back. She is still wearing a brace, and it is unclear whether she will have any permanent injury to her back.

Torts 387
After Carrie fell, she looked at the floor where she had been standing, and she noticed that it was “very messy,
with lettuce and string beans scattered all over the floor and mashed up and really a mess.”
Can you show that Safeway engaged in negligent conduct in this case? (Don’t worry about the other elements
of the negligence cause of action.) What do you have to show and what are the arguments you would make based
on the existing evidence? What additional evidence would strengthen your case? Make sure you understand exactly
what you have to show to establish negligence in these circumstances, based on the relevant case law, and
think imaginatively about the kinds of evidence that would help your case. Remember, your goal is first to have
enough evidence to survive a directed verdict for the defendant and then to have enough evidence to persuade
the jury that your client’s story is more persuasive than Safeway’s story, whatever it may be.
You should consider these questions assuming that you are in New York and that Negri and Gordon (on page 76
of the casebook) represent the only decided cases that apply to your situation.
We will discuss the problem in class. As you think about the problem, make a list of additional evidence that
would help establish your case. The evidence may be physical (photographs, actual physical objects), it may be
testimony by a witness or party, or it may be expert testimony. Please describe the evidence as specifically as possible
— if it is testimony, indicate what witness or what kind of witness would provide the testimony.
Demystifying Causation
Alison Grey Anderson, University of California, Los Angeles School of Law
For many students, causation is one of the most confusing topics in the first-year curriculum, and for good
reason. The law’s lexicon on causation is itself confused. No one seems to agree on what causation is or how to
describe it. Many jurisdictions break the causation question into two parts: factual cause and proximate cause.
Others search only for “legal” causation. In implementing these approaches, courts apply myriad analytical tests,
including the “but for” test, the “substantial factor” test and the test of “reasonable foreseeability.” Throw in phrases
like “intervening and superseding cause,” “unexpected consequence,” and “highly extraordinary occurrence,” and
it is no wonder that students are left scratching their heads.
I attack the causation problem head on. When I begin causation, I acknowledge the law’s terminological inconsistencies.
I then provide an analytical framework to help students penetrate the confusion. In my view, causation
is always about connection and control. Thus, no matter what the jurisdiction and no matter what the verbiage,
causation always requires a three-step inquiry:
1. Was there any connection between the plaintiff’s loss and the defendant’s negligent behavior?
2. Was this connection strong enough to demonstrate the defendant’s control over the plaintiff’s loss?
3. Was the defendant’s control overpowered and negated by some other causal agency?
Step one establishes the defendant’s connection, step two presumes the defendant’s control, and step three confirms
the defendant’s control in the face of other causes.
After framing the analysis in this way, I demonstrate how these questions are resolved under current approaches
to causation. I teach only two approaches: the traditional approach and the Restatement approach. Both approaches
appear to have only two steps. However, closer scrutiny reveals their adherence to my three-step litany.
The traditional approach requires proof of factual and proximate cause. Factual cause satisfies the first inquiry
in my litany. Using the “but for” test, it determines whether the defendant’s negligence had any impact on (or
connection to) the plaintiff’s loss. Proximate cause addresses the remaining two inquiries. The first step of proximate
cause determines whether the plaintiff’s harm was reasonably foreseeable. If so, the defendant is presumed
to have exercised control over the plaintiff’s fate. The thinking here is that a defendant who knows (or should
know) that harm is likely has the power (and the responsibility) to stop it. The last step determines whether there
were any superseding, intervening causes that severed the defendant’s causal link to the plaintiff’s injury.

388 Torts
The Restatement approach attempts to establish legal causation. In the first stage of this approach, the plaintiff
must prove that the defendant’s negligence was a substantial factor in producing his harm. The substantial
factor test actually addresses the first two questions in my litany. The defendant’s negligence must have been “a”
factor in the result (thus establishing a connection under inquiry one), and its impact on the outcome must have
been substantial (thus establishing control under inquiry two). In the second stage, the plaintiff must prove that
there were no superseding causes (thus establishing continuity in the defendant’s control under inquiry three).
I illustrate my three-step analysis and its application to the traditional and Restatement approaches by drawing
the following diagram on the dry erase board:
Traditional Three-Step Inquiry Restatement
1. Factual Cause: “But For” Test 1. Any connection? 1(a). “A” Factor
2(a). Proximate Cause: 2. Strength of connection = 1(b). Substantial Factor
Foreseeable Harm Test control?
2(b). Proximate Cause: 3. Break in connection and 2. Superseding Causes?
Superseding Causes? control?
Brainstorming Technique to Initiate a Torts Seminar
Alan Calnan, Southwestern University School of Law
My seminar was “Selected Topics in Torts,” which allowed me complete freedom in the organization and focus
of my course so long as it involved torts. I decided to use a brainstorming process known as the nominal group
process (NGP) as a way to begin the course for the students. The NGP allows each participant to make contributions
to the finished product; to have a positive, supportive discussion about each contribution; and to reach
consensus within the group. This approach is especially important when you have a group in which the skill and
knowledge levels are different. (This course was also known as the George E. Allen Chair course. The funds used
to endow a chair in honor of the Allen, Allen, Allen & Allen law firm, a highly respected plaintiff personal litigation
firm in Richmond, Virginia, provided the basis for me to bring in four nationally known scholars and/or jurists
to co-teach the course with me. The course, its design, and the results of this unique effort are discussed in
my article, Cosmic Consciousness: Teaching on the Frontiers, 1992 Loyola L. Rev. 101.)
The objectives I hoped to accomplish by using this particular brainstorming technique were:
• For the students to identify some of the most complex issues in tort law;
• For the students to develop a list of potential topics for their research papers, which was the principal basis
for their grade in the course;
• To affirm students by helping them realize they already had information and viewpoints that could enrich
the discussion;
• To help students early on to become invested in the course;
• To set the tone and standard for an expectation of quality participation by each student in the class; and
• To help students begin to bond as a class engaged in a new learning enterprise at the law school.
On the day of the exercise, I divided the students into groups of about four students with a facilitator (reference
librarians at the University of Richmond School of Law). In preparation for this class, I put some materials
on reserve in the library. These materials raised a variety of tort issues (substantive, procedural, and ethical) for
the students to review. I encouraged them to take a look at some of the material in preparation for an exercise
that we would be doing in the first class.
NGP has four steps. The first step involves a quiet activity during which students generate ideas, in writing,
on their own. I gave each student a sheet of paper with the following question typed at the top of the page: “What

Torts 389
are the challenges facing the tort compensation system in the twenty-first century? Your response(s) may include
substantive, procedural, and ethical considerations.” Each student had approximately 10 minutes to write down
his or her response(s) to the question. There was absolute silence during this period while the students were generating
ideas and/or responses to the question.
The second step is to share the results of the silent activity. Each participant shared his or her list of responses
in a round-robin fashion. To begin, everyone stated the first item on their list. The facilitator recorded these items
on large sheets of newsprint or paper. Then, every participant shared the next item or response on the lists and
so on until each participant exhausted his or her list of responses. At the end of this step, there were long lists of
items or responses that represented the total product of the group. The facilitators posted each sheet of newsprint
so that everyone in the group could review it.
The third step is the opportunity to seek clarification of the items on the posted lists. This step is not a critique
of the worthiness of the item or a discussion about whether one agrees with the item that has been listed
on the newsprint. There were only two questions for the group at this point: (1) Did each of the participants in
the group understand the point or item listed on the newsprint, and (2) Were there any items that were essentially
the same and, therefore, needed to be combined?
The final step allows each participant to vote for the five most important items or ideas expressed on the
newsprint. Each participant was given five index cards so that they could put one item on each of the index cards.
The cards were collected by the facilitators and tallied. The items receiving the most votes indicated the group
judgment or consensus on the most important items, in response to the original question posed to the group.
At the end of this process, students told me that they immediately felt engaged by the course. They had already
begun a conversation about some of the critical issues in torts, which came from them and not the professor.
Since this course was a seminar and students were expected to write a research paper, the NGP had helped
students to generate ideas for topics for research papers. The paper topics I received from the students were better
developed and more focused than is the usual case in courses where I did not use this process.
The process levels the “talking field” because every student automatically has something to contribute, given
the first stage of the process, and each student is expected to contribute because the round-robin process requires
each student to share his or her responses. The process does not permit critiques that comment on the value or
worthiness of the idea or item. Rather, the process encourages more discussion or development of the item for
the purpose of improving understanding within the group. The voting process is anonymous and the end product
belongs to the group rather than to any one individual. In this way, NGP can help all students in the class to
make and feel that he or she has made useful and productive contributions to the discussion.
Res Ipsa Loquitur
Okianer Christian Dark, Howard University School of Law
Brief Gems
When teaching res ispa loquitur in torts, I begin, as do many casebooks, with the case of Byrne v. Boadle. We
briefly discuss the facts of the case, and then I ask the students what it means to say that “the accident alone would
be prima facie evidence of negligence.” We spend a few minutes clearing up the meaning of “prima facie” (which
we relate back to a discussion we have already had on burdens of proof (production and persuasion)). Then I
ask the class to take a few minutes to talk among themselves and speculate about all the ways in which the barrel
in Byrne could have rolled out of the defendant’s shop. I encourage them to be creative, “think little green
men if you want.” I give them several minutes to talk among themselves and then I go around the class asking
for their stories (they usually range from the obvious careless employees and broken ropes to the more imagi-

390 Torts
native — earthquakes, loose gorillas, homicidal maniacs, etc.). I list them all on the board, and when the stories
start repeating themselves I stop.
I then ask them to assign a probability to each story (with the total probabilities adding up to 100%). We don’t
talk about each one, but select representative stories. For example, how likely is it that an earthquake could have
occurred without anyone noticing it?
Finally, we take each story and ask whether it involves negligence on the part of the defendant. For example,
if a homicidal maniac pushed the barrel out, was the defendant negligent in allowing the guy upstairs in his shop?
(This allows a nice review of the reasonable person standard.)
We then add up those percentages attributable to the defendant’s negligence — invariably it accounts for about
85% of the total.
I then simply point out that that’s all that res ipsa is: circumstantial evidence based on common knowledge
about how certain accidents usually happen. In each case, if you think of all the possible ways it could have happened,
and most of them are attributable to some kind of negligence by the defendant or his/its employees, then
you have a solid res ipsa case.
Visualizing Foreseeability
Alison Grey Anderson, University of California, Los Angeles School of Law
Foreseeability is the most ubiquitous and conspicuous concept in the law of negligence. It comes up in the elements
of duty, breach, and causation. If students are to understand tort law, they simply must understand foreseeability.
One of foreseeability’s great strengths is its flexibility to adjust to changing circumstances. However, this is also
one of its drawbacks. Because of its indeterminacy, foreseeability may appear to be both a vacuous and an unbounded
concept. I believe this criticism is overstated. When I teach foreseeability, I emphasize its moral content
and suggest a fun methodology for determining its scope.
In my view, control is one of the moral foundations of tort law. A person generally is responsible only for consequences
that he can or does control. Foreseeability delimits what a person can control. In this way, foreseeability
provides a simple device for defining the scope of a person’s moral responsibility for conduct that has a
harmful effect on others.
They say that hindsight is 20/20. In some cases, however, hindsight may cloud more than it clarifies. In fact,
it explains why many students have trouble applying the concept of foreseeability. After reading a court opinion
that describes how a defendant’s act led to a plaintiff’s injury, students tend to look back from the accident to
explain what came before. Under this perspective, even bizarre and inconceivable events can appear ordinary and
expectable. Foreseeability does not work this way. Foreseeability means looking at things before they occur and
projecting into the future to assess their potential impact.
Because students today are accustomed and receptive to visual mediums, I use a visual technique to help them
assume this perspective. I call it the “stop the tape” technique. I ask students to imagine that the case under discussion
is a movie on VHS cassette that they have rented from their local video store. I tell them to press play
and, using the facts of the case, watch the movie unfold. Just before the defendant commits his allegedly negligent
act, they must press “pause” to stop the tape. They then must remove the defendant from the frame and
drop “the reasonable person” into his shoes. Next, they must ask the reasonable person, “If you were to perform
the impending act, what do you think might happen?” Students are told to compile a comprehensive list of possible
outcomes. When finished, they may release the pause button and continue watching the tape. If the climax
of the movie appears on their list of outcomes, the event is foreseeable. If it is not, the event and its consequences
may properly be deemed beyond the defendant’s control.
Alan Calnan, Southwestern University School of Law

Ask Your Students
Torts 391
Several years ago, as I prepared to teach my Torts class, I decided to include some recent cases on the deprogramming
of converts to controversial religions. In these cases, the courts generally find no false imprisonment
on the part of individuals who capture the converts and attempt to change their newly formed convictions. I expected
to conclude that the converts had the right to make their own decisions about their lives, even if most
people considered those decisions to be foolish.
In class, it occurred to me to ask my students if any of them had been involved with new religions. One student
immediately volunteered that her family had arranged to have her brother deprogrammed. The class sat
perfectly silent as she told the story of how her brother’s personality had radically changed after joining a religious
group and how her family’s anguish had led it to take such dramatic action. Needless to say, my class took
an unexpected turn that day as we heard a personal perspective on a controversial issue.
My Torts class would have learned less that day if I had not asked the students to contribute their experiences.
Although this teaching technique is an obvious one, I have wondered why it took me so long to discover it. Perhaps
because we see ourselves as teachers who both impart knowledge and control the class, we hesitate to invite
students to share these roles with us. Yet, by taking a fairly small risk, we can add immeasurably to the classroom
experience.
Feedback and Evaluation
Students Writing Their Own Exam Question
Louis J. Sirico, Jr., Villanova University School of Law
For years I’ve been saying to students that the best way of examining students would be to let them set their
own exam and write it. This year it happened. Toward the end of this year’s Torts course I made my usual pronouncement,
and suddenly my students were clamoring to be allowed to do it. Heart in my mouth, I said yes.
Here’s what I decided.
The original exam, which I’d already drafted, consisted of three questions: a problem arising out of a complex
fact situation, a series of short-answer questions, and an essay. Students had to answer two of the three questions.
After I’d agreed to permit them to write their own question, I added the following instruction:
You may substitute for one question on this exam your answer to the following question, prepared in
advance. Draft an examination question appropriate for this course, and explain why you have drafted
it as you have. Anyone wishing to use this option must notify me by noon, Tuesday, April 22, and must
submit their completed question to the examination proctor at the beginning of the examination. If you
choose this option, you will have two hours for the exam (instead of four), and you must answer either
Question One or Question Two, not Question Three (the essay). If you choose this option and notify me
by noon on Tuesday, you must follow through on it and cannot change your mind. No exceptions.
Three students of 30 chose this option: two had consistently done good work during the year, but the third
was someone whose performance I was concerned about. Her first language was not English, she came from a
country with a different approach to education, and she had been living in Canada for only six years. I could see
that, although conscientious, she was struggling with the material and assignments, not always understanding
what the task was or what my expectations were for completing it. I feared the worst from her answer, and I feared
the others might not do much better, settling for generalities, or focusing on only one area of the course or on
rote learning rather testing judgment.

392 Torts
I needn’t have worried. All three answers were in the “A” range: interesting, challenging questions, testing a full
range of skills. The explanations for the question showed these students had a sophisticated understanding of the
course and of the course goals. Having returned to torts after 16 years — and having taught in an unorthodox
manner, with most conversation occurring in groups of five sitting around a table responding to my prompts or
to their own concerns — I was aware that some students were frustrated in the course and wondered if people
were learning anything. Well, whether these three students, each radically different from the other, learned anything
from me or on their own, they certainly had learned as much about torts and about reasoning skills as I
had hoped.
Buoyed by these results, I’ll certainly offer this alternative again this year.
Mark Weisberg, Queen’s University Faculty of Law

Business Associations:
Index for Books
The Circus Fire: A True Story (O’Nan), 9
Corporations (Hamilton), 8, 11
Corporations Law and Policy: Materials and Problems (Bauman, Weiss, & Palmiter), 12
The Great Hartford Circus Fire (Cohn & Bollier), 9
Klein & Coffee, 11
Civil Procedure:
The Buffalo Creek Disaster (Stern), 19, 178
Civil Procedure (Yeasel), 19
Pleading and Procedure (Hazard, Tait, & Fletcher), 41
Subrin, Minnow, Brodin, & Main, 19
Clinical Law:
The Counselor-at-Law: A Cooperative Approach to Client Interviewing and Counseling (Cochran,
DiPippa, & Peters), 55, 70
A Handbook of Structured Experiences for Human Relations Training (Pfeiffer), 60
The Intellectual Consequences of Writing: Writing as a Tool for Learning (Goodkin), 76
Interviewing, Counseling and Negotiating (Bastress & Harbaugh), 69
Lawyers as Counselors (Binder, Bergman, & Price), 54, 70
Lawyers, Clients and Moral Responsibility (Cochran & Shaffer), 54, 70
Learning from Practice: A Professional Development Text for Legal Externs (Ogilvy, Wortham, & Lerman),
70, 77
The Murder of Heracles and Other Trials from the Athenian Law Courts (Freeman), 72
Six Thinking Hats (DeBono), 65
Constitutional Law:
The Aims of Interpretation (Hirsch), 94
The American Constitutional Order—History, Cases and Philosophy (Kmiec & Presser), 114
The American Supreme Court (McCloskey), 101
The Anti-Federalist Papers and the Constitutional Convention Debates (Ketcham), 96
Bible, 91, 92, 94, 353
The Concepts and Methods of Constitutional Law (Kaplin), 114
Constitutional Law: Principles and Policies (Chemerinsky), 117
Constitutional Law Stories (Dorf), 114
Constitutional Law: Themes for the Constitution’s Third Century (Farber, Eskridge, & Frickey), 114, 115
Constitutional Stupidities, Constitutional Tragedies, 89
Contexts of the Constitution (Cogan), 96
393

394 Index for Books
The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court
(Irons), 121
The Creation of the American Republic 1776-1787 (Wood), 96
A Dictionary of Law (Black), 92
Equal Employment Opportunity and the AT&T Case, 116
The Federalist Papers (Rossiter), 96
The Five Types of Legal Arguments, 85
The Founders’ Constituion (Kurland & Lerner), 119
Founding the Republic: A Documentary History (Patrick), 96
Freedom: Volume 1: Freedom in the Making of Western Culture (Patterson), 104
Grapes of Wrath, 115
A History of the American Constitution (Farber & Sherry), 96, 114
Jewish Encyclopedia, 91
A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution (Lobel), 96
Major Problems in American Constitutional History (Hall), 96
Modern Constitutional Law (Rotunda), 95, 114
A New Dictionary of Quotations (Mencken), 93
Novus Ordo Seclorum (McDonald), 96
Poetry and Prose (Whitman), 94
Political Dynamics (Fisher & Devins), 114
Processes of Constitutional Decisionmaking-Cases and Materials (Brest, Levinson, Balkin, & Amar), 114
Quarrels That Have Shaped the Constitution (Garatty), 96, 114
Storm Center—The Supreme Court in American Politics (O’Brien), 114
The Supreme Court and the Powers of the American Government (Biskupic & Witt), 116, 117
Thomas Hobbes, Leviathon (Oakeshott), 94
The Underside of History (Boulding), 97
Violence as Obscenity: Limiting the Media’s First Amendment Protection (Saunders), 112
The Way of Chuang Tzu (Merton), 115
Contracts:
Consideration and Form (Fuller), 137
Contracts: Cases and Materials (Farnsworth, Young & Sanger), 140, 145, 150
Contracts: Law in Action (Macaulary, Kidwell, Whitford, & Galanter), 149
Doctor & Student (St. Germain), 137
A Historical Introduction to the Law of Obligations (Ibbetson), 137
A History of the Common Law of Contract: The Rise of Assumpsit (Simpson), 138
The Legal Profession and the Common Law (Baker), 137
Legal Theory and Legal History (Simpson), 138
No Access to Law: Alternatives to the American Judicial System (Nader), 149
Restatement (Second) of Contracts, 131
Towards a General Law of Contracts (Barton), 138
Criminal Law:
Criminal Law (Samaha), 157
Criminal Law Case Studies (Robinson), 157
The Official Lawyer’s Handbook (Goodman & White), 159
Understanding Criminal Law (Dressler), 161, 167

Criminal Procedure:
Evidence:
Comparative Criminal Procedure: Germany (Langbein), 179
Constitutional Criminal Procedure (Taslitz & Paris), 180
Is There No Place on Earth For Me? (Sheehan), 178
The Buffalo Creek Disaster (Stern), 19, 178
No Heroes, No Villains (Phillips), 178
Prosecution and Adjudication (Miller), 179
Evidence Law and Practice (Friedland, Bergman, & Taslitz), 200
Evidence: The Objection Method (Prater, Arguello), 193
Making the Record (Waltz & Kaplan), 203
Reel Justice (Bergman), 200
A Theory of the Trial (Burns), 192
Problems and Materials in Evidence and Trial Advocacy, 193
Family Law:
Family Law: Problems and Documents (Smithburn), 213
Index for Books 395
Federal Income Tax:
Fundamentals of Federal Income Taxation (Freeland, Lind, & Stephens), 243
Tax Stories: An In-Depth Look at Ten Leading Federal Income Tax Cases (Caron), 231, 237
Taxation of Individual Income (Burke & Friel), 233
Legal Research and Writing:
Bird by Bird (Lamott), 285
Federal Practice Digest, 265
Legal Research: A Practical Guide and Self-Instructional Workbook (McKinney), 287
The True Story of the 3 Little Pigs (Scieszka), 262
Professional Responsibility:
American Legal Ethics (Shaffer), 304, 305
Arthur Miller’s Adaptation of An Enemy of the People (Ibsen), 305
A Civil Action, 304, 309
The Collected Stories of Katherine Anne Porter (Porter), 306
Down from Troy (Selzer), 306
Embracing Contraries: Explorations in Learning and Teaching (Elbow), 308
Faith and the Professions (Shaffer), 305
Flannery O’Connor: The Complete Stories (O’Connor), 306
Heracles’ Box (White), 303
Intoxicated by My Illness (Broyard), 308
Lawyers and Justice, 305, 309
The Legal Imagination (White), 308
Love’s Executioner (Yalom), 305, 306
A Man for All Seasons (Bolt), 305, 353
Moral Compass (Zitrin & Langford), 303
Narcissa and Other Fables (Auchincloss), 305
A Not Entirely Benign Procedure (Klass), 306

396 Index for Books
The Peaceable Classroom (O’Reilley), 296
Plays (Glaspell), 305
Professional Responsibility (Rotunda), 292
Professional Responsibility: Problems of Practice and the Profession (Crystal), 297
Professional Virtue and Self-Regulation (May), 305
Remains of the Day (Ishiguro), 304
Rules of Professional Conduct (Canadian Bar Association), 296
The Spirit Catches You and You Fall Down (Fadiman), 305
The Tennis Partner (Verghese), 306
To Kill A Mockingbird (Lee), 304
The Vocation of a Teacher: Rhetorical Occasions (Booth), 297
Wild Mind (Goldberg), 296
Women Lawyers: Rewriting the Rules (Harrington), 305
Property:
Cases and Materials on Property (Johnson, Findley, & Smith), 376
Cases, Materials, and Problems in Property (Chused), 377
Fundamentals of Modern Real Property Law (Rabin & Kwall), 321
Introduction to the Law of Real Property (Moynihan & Kurtz), 327
Opening Lines: Approaches to the Scholarship of Teaching and Learning, 339
Property (Dukeminier & Krier), 321
Property Law Cases and Materials (Singer), 318
Teacher’s Manual to Accompany Property Law (Johnson), 327
Sales and Secured Transactions:
Bible, 91, 92, 94, 353
Canons on Statutes Found in the Common Law Tradition: Deciding Appeals, 349
Commercial Transactions (Dolan), 354
A Man for All Seasons (Bolt), 305, 353
Restatement (Second) of Conflict of Laws, 349
Sale of Goods: Reading and Applying the Code (Chomsky & Kunz), 347
Torts:
Cases and Materials on Property (Johnson, Findley, & Smith), 376
Cases, Materials, and Problems in Property (Chused), 377
The Forms and Functions of Tort Law (Abraham), 379
Make No Law: The Sullivan Case and the First Amendment (Lewis), 380
Prosser, Wade and Schwartz’s Torts Cases and Materials (Schwartz, Kelly, & Partlett), 376, 384
The Sweet Hereafter (Banks), 385
Teaching to Transgress: Education as the Practice of Freedom (Hooks), 372
Tort Law and Alternatives (Franklin & Rabin), 382
Torts (Prosser, Wade, & Schwartz), 373

Business Associations:
Donahue v. Rodd, 9
Meinhard v. Salmon, 9
Ringling Bros. v. Ringling, 8, 9
Smith v. Gross, 9
Zapata v. Maldonado, 9
Index for Cases
Civil Procedure:
Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 25
Erie, 19, 20, 21, 24, 32, 37
Exxon-Valdez Cases, 25
Gasperini v. Center for Humanities, Inc., 25
Gomez v. Toledo, 41, 42
Guaranty Trust Co. v. York, 25
Hanna v. Plumer, 25, 32
Harris v. Balk, 45
Hickman v. Taylor, 35
International Shoe, 20, 30, 32
Malinski v. New York, 36
Mitchell v. Neff, 30
Neff v. Pennoyer, 30
Owen Equipment v. Kroger, 22
Pennoyer v. Neff, 20, 26, 30, 32, 215
Reeves, 26
Trierweiler v. Coston and Trench Holding Corp., 32
United Mine Workers v. Gibbs, 22, 32
United States ex rel. Mayo v. Satan and His Staff, 45
U.S. v. Finley, 22
Walker v. Armco Steel Co., 25
Wisconsin v. Constantineau, 37
Constitutional Law:
American Amusement Mach. Ass’n v. Kendrick, 112
AT&T, 116
Baker v. Carr, 111
Bakke, 121
Brown v. Board of Education, 110, 115, 119
Buck v. Bell, 122
Bush v. Gore, 103, 111
397

398 Index for Cases
Casey, 111
Cohen, 113
Cruzan v. Director, Missouri Department of Health, 115
Dred Scott v. Sandford, 103-107, 110
Edwards v. California, 115
Employment Division, Department of Human Resources v. Smith, 123
Eisenstadt v. Baird, 122
Ex parte McCardle, 87
Ex parte Quirin, 111
Gibbons v. Ogden, 87, 110
Giles v. Harris, 111
Ginsberg, 111, 112, 113
Gordon Hirabayashi v. United States, 118
Gratz, 121
Griswold v. Connecticut, 122
Grutter, 121
Home Building and Loan Ass’n v. Blaisdell, 111
Hopwood, 121
Hudnut, 113
Hunt v. Washington Apple Advertising Commission, 110
Korematsu, 103, 111, 118
Lochner, 103
Loving v. Virginia, 115, 122
Marbury v. Madison, 85, 87, 95, 100, 101, 102, 103, 110
McCulloch v. Maryland, 87, 110, 111, 119, 123
Meyer v. Nebraska, 122
Miller, 111, 113
Osborne, 113
Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Ry. Co., 94
Planned Parenthood of Southeastern Pennsylvania v. Casey, 110
Prigg v. Pennsylvania, 111
Roe v. Wade, 110, 122, 123
Simon & Schuster v. NY State Crime Victims Board, 107
Skinner v. Oklahoma, 122
Stanley v. Illinois, 122
Strauder v. West Virginia, 111, 123
Stroder v. Graham, 104
Stuart v. Laird, 102
United States v. Lopez, 84, 109
United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 112
Youngstown v. Sawyer, 110
Contracts:
Adams v. Lindsell, 138
Baby M, 136
Bloor v. Falstaff, 136
Borelli v. Brusseau, 137

Foakes v. Beer, 138
Frigaliment Importing Co. v. B.N.S. International Sales Corp., 139
Game v. Harvie, 138
Golding’s Case, 137
Hadley v. Baxendale, 133, 137
Hunt v. Bate, 137
Hurst v. W.J. Lake & Co., 150, 151
Keyme v. Goulston, 138
Kirksey v. Kirksey, 145, 146
Leonard v. Pepsico, 139
Mills v. Wyman, 138, 139
Neri v. Retail Marine Corp., 136
Nicholas v. Raynbred, 138
Parker v. Twentieth Century-Fox Film Corp., 139
Pepsico, 138
Reynolds v. Pinhowe, 138
Riches v. Bridges, 138
Sharington v. Strotton, 137
Specht v. Netscape Communications Corp., 139
Storer’s Case, 138
Strangborough v. Warner, 138
Ticketmaster Corp. v. Tickets.com Inc., 139
Vian v. Mariah Carey, 137
Webbs Case, 138
West v. Stowell, 138
Williams v. American Online, Inc., 139
Williams v. Walker-Thomas, 149
Wood v. Lucy, Lady Duff-Gordon, 138
Criminal Law:
Kansas v. Hendricks, 172
New Hampshire v. Daoud, 170
People v. Arzon, 170
People v. Hernandez, 170
People v. Romero, 170
Queen v. Dudley & Stephens, 162, 172
United States v. Willis, 170
Criminal Procedure:
Brewer v. Williams, 182
Chadwick, 185
Goetz, 178
Mapp, 179
Miranda v. Arizona, 179, 182, 349
New York v. Belton, 182
Rakas v. Illinois, 182
Terry v. Ohio, 182
Index for Cases 399

400 Index for Cases
Evidence:
Dallas County v. Commercial Union Assur. Co., 190
Daubert v. Merrell Dow Pharmaceuticals, Inc., 194, 198
Frye v. United States, 189
Hillmon, 200
Idaho v. Wright, 198
In re Anthony P., 198, 199
Knapp v. State, 189
Lilly v. Virginia, 198
Maryland v. Craig, 198
Michelson v. United States, 189, 190
Ohler v. U.S., 198
People v. Collins, 189
People v. Zackowitz, 189
Rex v. Smith, 189
Rock v. Arkansas, 198
Shepard, 200
Simpson, 198
Tome v. United States, 198
United States v. Abel, 198, 199
United States v. Begay, 198
United States v. Rick O’Ruben, 205
UpJohn Co. v. United States, 198, 303
Williamson v. United States, 198
Wright v. Doe D. Tatham, House of Lords & AD. & E. 313, 189, 200, 201
Family Law:
Pennoyer v. Neff, 20, 26, 30, 32, 215
Federal Income Tax:
Alexander v. Commissioner, 236
Cesarini, 249
Crane v. Commissioner, 236
Farid-es-Sultaneh v. Commissioner, 236
Gitlitz v. Commissioner, 236
Olk v. United States, 236
Philadelphia Park Amusement Co. v. United States, 236
Legal Research and Writing:
Black v. Kroger, 263
Morales v. Lee, 263
Noble v. Bradford Marine, Inc., 265
Randall’s v. Johnson, 263
Smith v. Ethell, 281
Texas v. Johnson, 268
Professional Responsibility:
Cinema 5, Ltd. v. Cinerama, Inc., 303

Property:
Florida Bar v. Went-For-It, 303
Nix v. Whiteside, 303
In re James H. Himmel, 303
Palsgraf, 309, 386
People v. Belge, 293
UpJohn Co. v. United States, 198, 303
Davis v. Davis, 319
Desnick, 336
Food Lion, 336
Friendswood Development Co. v. Smith-Southwest Industries, inc., 333
Jee v. Audley, 333
Johnson v. M’Intosh, 335
Keystone, 333
Lobato v. Taylor, 337
Lucas v. Hamm, 327
Mahon, 333
M’Intosh v. Johnson, 336
Moore v. Regents of the University of California, 319, 334, 376
Mount Laurel, 333
Pennsylvania Coal Co. v. Mahon, 333
Pierson v. Post, 319, 321, 333, 335
Rase v. Castle Mountain Ranch, 333
Sanborn v. McLean, 333
Shelley v. Kraemer, 318
Sommer v. Kridel, 333
State v. Shack, 333, 336
Sales and Secured Transactions:
Charles Thomas Dickerson v. United States, 349
Goodman v. Searle, 354
In re Keefer, 349
Menzel v. List, 354
Miranda v. Arizona, 179, 182
O’Keeffe v. Snyder, 354
Russell v. Capital One, 363
Torts:
Bean v. BIC Corp., 383
Bradley v. American Smelting and Refining Co., 378, 379
Brown v. Kendall, 382
Byrne v. Boadle, 389
Carroll Towing Company, 377
Doe v. Johnson, 374
Emery v. Federated Foods, Inc., 383
Goldberg v. Kelly, 376
Gordon v. American Museum of Natural History, 382, 386
Index for Cases 401

402 Index for Cases
Hecht v. Superior Court, 376
Hoak v. Hoak, 376
Hustler Magazine v. Falwell, 381
Hymowitz v. Eli Lilly & Co., 380
Johnson v. Johnson Chemical Co., 383
Kirk v. Hanes Corp., 383
Moore v. Regents of the University of California, 319, 334, 376
Moran v. Faberge, Inc., 383
Negri v. Stop and Shop, Inc., 382, 386
New York Times v. Sullivan, 380, 381
Palsgraf, 309, 386
Ploof v. Putnam, 378
Sindell v. Abbott Laboratories, 380
Summers v. Tice, 379, 380
Tarasoff v. Regents of University of California, 380
Venner v. State, 377
Vincent v. Lake Erie Transportation Co., 379
Vosburg v. Putney, 375

Business Associations:
Bigger Than Enron, 8
Index for Films and TV Shows
Civil Procedure:
Alice in Wonderland, 31
Chinatown, 31
Take the Money and Run, 31
The Verdict, 31, 32
Willy Wonka and the Chocolate Factory, 31
The Wizard of Oz, 31
Clinical Law:
Class Action, 71
Cops, 57
The Good Mother, 71
Nuts, 71
Philadelphia, 71
Primal Fear, 71
Secrets and Lies, 71
Constitutional Law:
Deep Throat, 112, 113
Eyes on the Prize: America’s Civil Rights Years, 1954-1965, 119
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, 119
A Personal Matter: Gordon Hirabayashi vs. the United States, 118
The Sopranos, 118
Sun City, 118
Who Can Ever Get Used To This?, 119
Contracts:
Anatomy of a Murder, 141
Hercules, 141
Legal Heroes, 152
The Little Mermaid, 141
One Hundred and One Dalmations, 141
Rules for Monica, 152
The Verdict, 141, 307
Criminal Law:
403

404 Index for Films and TV Shows
The Apostle, 160
The Confession of Bernhard Goetz, 161
The Grifters, 160
A Lifeboat Survivor, 161
Midnight in the Garden of Good and Evil, 161
The Paper Chase, 159
Pulp Fiction, 161
Raiders of the Lost Ark, 160
Thelma and Louise, 160
Criminal Procedure:
Homicide, 178
Law and Order, 178
The Practice, 178
Evidence:
Anatomy of a Murder, 200
My Cousin Vinny, 200, 201, 307
Family Law:
Dick VanDyke, 224
Legal Research and Writing:
All in the Family, 272, 273
Friends, 274
The Mary Tyler Moore Show, 272, 273
Monty Python’s Life of Brian, 270
Philadelphia, 283
Three’s Company, 272, 273
Will & Grace, 274
Professional Responsibility:
60 Minutes, 307
Ethics in America, 305
Ethics on Trial, 294
The Indictment, 307
My Cousin Vinny, 200, 201, 307
I Am Sam, 307
The Verdict, 141, 307
Torts:
People v. Larry Flint, 381
Seinfeld, 385
Star Trek: The Next Generation, 381

Advocacy, 43, 88, 203–4, 213, 271–72, 332–33
Alternative dispute resolution, 13, 45, 54, 60, 73, 74,
133
Analytical skills, 22–23, 24–25, 78, 85–86, 97, 100,
109–10, 114, 131–32, 155–56, 190, 263–65, 272–74,
274–76, 322, 375, 387–88
Art, 68, 353–54
Assessment, see Assignments; Examinations; Feedback
to students; Feedback to teachers; Grading; In-class
techniques; Practice exams; Quizzes; Self-evaluation
Books, see separate Index for Books
Cartoons, 209, 249
Casebooks, see separate Index for Books
Case briefing, 85
Chalkboards/whiteboards, 8, 37, 70, 199, 220
Charts, 37–39, 202, 238–44, 263–65, 267, 273, 329, 346,
354–59
CIRAC, see IRAC
Class participation, 14, 23–24, 44, 126, 224, 233–34,
298, 322, 351–53; see also Discussion; Student interest/motivation
Classroom environment, see Learning environment
Client counseling, 53, 70–71, 71–72
Collaborative/cooperative learning
• Exercises, 37–39, 41, 44, 59–60, 60–61, 62, 97–98,
162–63, 163–64, 168–71, 172–73, 183–85, 193–94,
203–4, 218–20, 272–74, 292–93
• Small groups, 12, 62, 97–98, 162–63, 163–64,
168–71, 171, 172–73, 183–85, 193, 203–4, 219, 222,
234, 268, 272–74, 292–93, 297, 299–301, 309, 364,
373–75, 384–85, 388–89
Communication skills, 68–70, 74, 78–79
Computers
• Casebooks-electronic, 180
• Course websites, 23, 216, 237, 288, 375
• Email, 134, 216
• Internet, 117–18, 119–20, 139–40, 182
• Listservs, 178, 235–36, 262
• PowerPoint, 10, 35, 136, 237, 351–53
Subject Index
405
• Smartboard, 10
Concept mapping, 30, 94
Cooperative learning, see Collaborative/cooperative
learning
CRAC, see IRAC
Critical and creative thinking, 61–66, 67, 78, 157, 347
Crossword puzzles, 382
Current events, 8, 14, 86, 169–70, 178, 199, 218
Discovery, 35
Discussion, 59, 61, 70, 107–8, 123, 135, 139, 157, 159,
167, 170, 173, 219, 234, 268, 279, 309–10, 378–80,
385, 389
• Threaded discussion group, see Computers
• See also Class participation; Student interest/motivation
Documents, 32–34, 35, 95–96, 199, 255
Educational theory, 53, 113
Electronic, see Computers
Evaluation and assessment of students, see Examinations;
Feedback to students; Grading; In-class techniques;
Practice exams; Quizzes; Self-evaluation
Examinations, 230
• Bank, 251
• Electronic, see Computers
• Essay examinations, 15, 86–87, 172–73, 208, 367,
391–92
• Multiple-choice examinations, 15, 208, 287–88, 308
• Oral, 287
• Performance, 208
• Practice, 35, 47–48, 152, 173, 208, 341
Experiential learning, 42–43, 43–44, 214, 391
Externships, 53, 55–57, 61, 69, 75
Extra credit, 142, 299, 366
Feedback to students, 43, 44, 46, 47–48, 75–77, 126,
171, 193, 207, 251, 257–58, 271, 278–80, 284–87,
310–13, 321, 341–42, 366
Feedback to teachers, 152, 209–10
Field trips, 157, 204, 206, 214, 220–21

406 SUBJECT INDEX
Films, see separate Index for Films and TV Shows
Games, 13, 41–42, 60–61, 162–63, 163–64, 287–88
Grading, 46–47, 48–49, 53, 86–87, 224–25, 225–27,
234, 250–51, 252, 256, 261, 284–85, 287–88, 291–92,
308, 311, 312–13, 364
Graphics, 111–13
Group projects, group work, etc.; see Collaborative/cooperative
learning
Guest lecturers, 282, 302, 307, 365
Handouts, 10, 35, 36, 215, 218, 243–47, 352, 382
Humor, 13, 159, 160, 164
Hypotheticals, 11, 19, 21, 33, 114, 122, 164, 191–92,
294, 351–53
In-class techniques to assess students, 7
Instructional media, see separate Index for Books; Art;
Chalkboards/whiteboards; Charts; Computers; Documents;
Graphics; Overhead projector
Interdisciplinary instruction, 136
Internet, see Computers
Interpersonal environment in class, see Learning environment
IRAC/CIRAC/CRAC, 265, 275, 281–82
Interviewing, 45, 53, 55, 67, 169–70, 218, 222–23, 224,
256, 268–70, 302, 332
Journals, 74–77, 171, 297, 310–12; see also Reflection
Jurisdiction, 20, 21, 22, 39, 45
Law school assessment, see Assessment
Lawyering skills, 25, 53, 60, 97, 110, 190, 324–25
Learning environment, 133–34, 159–60, 219, 322
Learning theory, see Educational theory
Lecture, 157, 351–52
Legal research, 261–62, 265–67, 276–77, 362–64
Listservs, see Computers
MacCrate Report, 54
Mediation, see Alternative dispute resolution
Mock trials, see Simulation
Movies, see separate Index for Films and TV Shows
Multiple-choice questions, see Examinations; Quizzes
Music, 200, 248
Negotiating, 142–43, 166, 185, 225–27, 270–72, 331,
364
Newspaper articles, 7, 8, 86, 169–70, 178, 199, 382
Online courses, see Computers
Oral advocacy, 43, 72–73, 120, 385
Oral history, 310
Overhead projector, 9, 237
Papers, see Writing
Peer assessment and peer editing, see Collaborative/cooperative
learning
Poetry, 216–17, 236, 353
Practice exams, see Examinations
PowerPoint, see Computers
Problem method, 5, 19, 97–98, 114, 134–35, 145–48,
162, 180–81, 183–85, 190, 196, 197, 201–2, 213, 214,
233, 234, 237, 298–301, 321–22, 328, 330, 331, 350,
351–53, 373–75, 386–87
Problem-solving skills, 54, 55, 60–66, 67, 77–78, 110,
136, 164, 231, 255–56, 323
Props, 10, 11, 13, 354, 361, 382–84
Questioning techniques, 325
Quotes, 36–37, 93–94
Quizzes, 120, 125–26, 173–74, 185–86, 207, 312–13
• Electronic mail, 185–86
• Multiple-choice, 207
Reading, 280–81, 308, 347
Reflection, 44, 53, 67–68, 68–70, 74–77, 171, 297, 307,
310–12
Respect, 159
Review sessions, 15, 33, 41–42, 45–46, 48–49, 126–27,
288, 340
Role playing, see Simulation
Self-evaluation (by students), 48–49, 67
Simulation, 10, 12, 26–29, 35, 45, 53, 57–59, 121–22,
140, 144–45, 148–49, 149–50, 162, 164–66, 166–67,
168–171, 172–73, 180, 181, 200, 203, 205–6, 207,
213, 222, 223, 224–25, 248, 298–300, 306, 307–9,
321–22, 331–33, 360, 361, 365, 382–84
Skills, see specific skill: Advocacy; Case briefing; Critical
thinking; Lawyering; Interviewing; Negotiating;
Problem solving
Skits, see Simulation

Small group, see Collaborative/cooperative learning
Social justice, 54
Socratic method, 105–7, 108–10, 216, 231, 258–59,
375, 384
Statutory analysis, 22–23, 24–25, 36, 155–56, 166, 173,
189, 194–95, 198, 233, 234, 248, 344–46
Storytelling, 97–98, 115, 181, 203, 205, 237, 292, 296
Student conferences, 257–58, 299, 350
Student interest/motivation, 21, 24, 41, 44, 141, 158,
164, 168, 183, 193, 220, 223, 258, 291–92, 293–94,
298, 320, 323, 325, 329–30, 345, 348, 350, 351,
372–73, 384, 388–89
Student names, 133, 159, 193
Student participation, see Class participation
Students as teachers, 48–49, 151
Student-teacher relationship, 158–59, 216; see also
Learning environment; Student names
Syllabus, 88–90, 94–95, 134, 197, 232–33, 262
Teacher-student relationship; see Learning environment;
Student names
Teaching assistants, 168–71
SUBJECT INDEX 407
Team teaching, 43, 192–93
Television, see separate Index for Films and TV Shows
Trial advocacy, 53, 72, 190, 192
Videotapes, see separate Index for Films and TV Shows
Visual aids, see Art; Chalkboards/whiteboards; Charts;
Computers; Documents; Graphics; PowerPoint;
Overhead projector
Writing
• Assignments, 12, 13, 41–42, 42–43, 69, 75, 76, 121,
122, 127, 136, 142, 142–44, 145–46, 204, 206, 219,
220–21, 222–23, 250–51, 255–57, 270–71, 292,
295–96, 302, 307, 308–9, 338–39, 351, 366
• In class, 70, 107, 120, 121, 123, 133–34, 168, 170,
171, 268, 272–74, 278–80, 292, 297, 362, 388–89
• Out of class, 13, 41, 43, 69, 74–77, 121, 122, 127,
142, 142–44, 145–46, 157, 166, 170, 198, 204, 206,
219, 220–22, 222–23, 250–51, 255–57, 270–71, 292,
295–96, 297, 307, 308–9, 338–39, 351, 366
• Pedagogical justification, 12, 43, 76, 278–80
• Planning, 259–61