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Faculty Status and Institutional Effectiveness

Deborah Maranville, Ruth Anne Robbins, and Kristen K. Tiscione

Legal education has expanded to incorporate practice-oriented topics and courses over the past several decades, and student academic support services have multiplied in response to changing student populations. As a consequence of these changes, law schools are overdue to address the issue of the status of the individuals they hire to fill the multiple and ever expanding needs and interests of students.

Should law schools hire new personnel as teachers, staff, or administrators? If hired as teachers, what titles and governance rights should they be given? Should they be eligible for tenure, presumptively renewable long-term contracts, or short-term contracts? What workloads are appropriate and what courses permitted?

Status and fairness issues for law teachers accompanied the rise of experiential programs, including clinical and legal research and writing programs. More recently, similar issues have arisen with academic support teachers, whose courses may be mandatory for certain students, and have intensified for externship teachers at many schools.

Best Practices for Legal Education identified as a “best practice to enhance the effectiveness of faculty in experiential courses” that “a school uses qualified faculty, provides professional development opportunities, and assigns reasonable workloads in its experiential education courses.”

Faculty status is a key dimension of enhancing the effectiveness of faculty, and this section provides an overview of the issues involved in debates over faculty status.
The Socratic Method

Elizabeth G. Porter

The Socratic method, one of Langdell’s most well-entrenched reforms to legal education, remains the law’s signature pedagogical technique. Although the term means different things to different people, its essence in the law school classroom is student analysis of cases led by a teacher, who calls on students to articulate gradually deeper understandings of a legal doctrine or theory.

Socratic learning requires students to think on the spot, answer precisely, and take intellectual risks. For over a decade now, the Socratic method has been out of fashion among those who write about legal pedagogy. In addition, the method’s critics describe what they view as the alienation and humiliation of students, an inattention to legal theory and professionalism, and a lack of clear learning outcomes.

Indeed, both Best Practices for Legal Education and Educating Lawyers: Preparation for the Profession of Law criticized or downplayed the value of the Socratic method. Best Practices concluded that the Socratic method should be “used sparingly.”

These critiques undervalue the Socratic method. As the Carnegie Report acknowledged, the Socratic method is an easily scalable, effective, deeply engaging way to achieve active student learning, particularly but not only in larger doctrinal classes. Similarly, Best Practices recognized that “[t]ailored and applied flexibly, the case method . . . can provide a logical, overall methodology for approaching and thinking about all sorts of situations.” Those positive findings remain true. The Socratic method gives students a strong incentive to prepare well for class every day, and during class it forces both students and the teacher to focus intensely, to listen to others, and to express their ideas in a cogent, persuasive, and professional manner.

These qualities—thorough preparation, focus, listening skills, cogent analysis, and good judgment—are fundamental to successful lawyering. Finally, contrary to its reputation, the Socratic method is also a wonderful way to create a sense of community and shared learning purpose among students, even in a large class. These attributes of Socratic teaching look even stronger in comparison with the most commonly used alternative—lectures, perhaps punctuated by text-heavy PowerPoint slides.

Indeed, while the method has fallen from favor in law schools, cutting-edge colleges are now seeking to expand Socratic-type interactive teaching in order to raise the level of engagement among students. In recognition of the continuing centrality and vitality of the Socratic method, this section therefore focuses on best practices for optimizing the effectiveness of this active learning style. The basics of the Socratic method are well described elsewhere (and will have been experienced by almost all readers of this volume).Therefore, this section will not describe the methodology in detail. Instead, it will situate the Socratic method within a framework describing the level of active learning of the most frequently used pedagogical techniques in the non-clinical law school classroom. Then it will focus on three fundamental tools for creating and maintaining a successful course that uses the Socratic method for active learning.
Magna Carta and Sovereign Immunity: Strained Bedfellows

Danieli Evans and Diane P. Wood
Post-Racial Proxy Battles over Immigration

Mary D. Fan

Amid economic and political turmoil, anti-immigrant legislation has flared again among a handful of fiercely determined states. To justify the intrusion into national immigration enforcement, the dissident states invoke imagery of invading hordes of “illegals”—though the unauthorized population actually fell by nearly two-thirds, decreasing by about a million people, between 2007 and 2009 as the recession reduced the lure of jobs.

Arizona’s Senate Bill 1070—recently invalidated in part by the U.S. Supreme Court in Arizona v. United States—led the charge. By preelection-year summer 2011, several states enacted laws patterned after Arizona’s controversial Senate Bill 1070, including Alabama’s even more aggressive HB 56. A host of lawsuits are pending against the new laws, which are at least partially invalid after Arizona v. United States. Other controversial proposals circulate, such as eliminating birthright citizenship or branding the birth certificates of alleged “anchor babies” implanted in the United States by foreigners.

This chapter examines how the spurt of state legislation is a proxy way to vent resurgent racialized anxieties and engage in friend-enemy politics founded on conflict with the “Other”—the foreign enemy within—in a time of economic and political turmoil. Despite the ostensibly a-racial construct of the illegal alien used to legitimize the lashing out, it is suffused with racialized perception. Current tactics parallel the overtly racialized hostility of past episodes of states enacting out anti-immigrant legislation. The oft-raised concern in such a fiercely polarized time is racial discrimination. Antidiscrimination law, however, does not offer the remedy for this concern.

Part 1 analyzes two hot-button forms of resurgent state and local anti-“alien” laws of our times—laws patterned on the Arizona template and the anti–birthright citizenship movement. It explores the dominance of racialized anxieties behind the seemingly race-neutral construct of the vilified alien. Part 2 contrasts the friend-enemy politics and legislation of our contemporary scene with the state and local legislation and furor against the Chinese during the turbulent politics of the last quarter of the nineteenth century. Part 3 examines the polarization-ameliorating bases for decisions to cut back on overreaching state and local laws in order to make shared interests, rather than racial difference, salient while protecting underlying antidiscrimination values. The approach helps build bridges between dissonant worldviews to navigate the profoundly polarized politics and legislation of our times.
Cause Lawyering in Japan: Reflections on the Case Studies and Justice Reform

Daniel H. Foote

Each of the case studies presented in this volume is an important and fascinating story in its own right. Taken together, the case studies enrich our understanding of cause lawyering and the relationship between law and social change in Japan. Despite their rather disparate subjects, the studies dovetail exceptionally well. They show numerous commonalities in the use of law to further social causes, as well as some important differences. They reveal a truly impressive level of creativity in the use of law, and they disclose several common barriers to successful litigation to promote social causes in Japan. As discussed below, a number of recently introduced reforms seek to ameliorate some of those barriers. As these case studies so eloquently show, however, the goal of socially oriented litigation at times is not victory in the court battle itself, but rather victory in the court of public opinion. In short, although this book is entitled Going to Court to Change Japan, the courts are only one locus in a much broader battle.
Aboriginal Title in the Canadian Legal System: The Story of Delgamuukw v. British Columbia

Robert T. Anderson

Canada is grappling with legal issues surrounding indigenous property rights on a scale not seen in the United States since the mid-nineteenth century. Fundamental questions of fairness and justice related to indigenous peoples’ property rights are in flux in the province of British Columbia–an area the size of the states of California, Oregon, and Washington combined. The recognition of aboriginal rights in the Canadian Constitution in 1982 and recent judicial developments made it clear to the provincial government that nearly the entire province may be subject to aboriginal title claims. Consequently, the aboriginal nations and B.C. government have embarked on a treaty process to resolve conflicting interests, but not in the fashion utilized in the United States.

In the U.S., treaties and agreements with Indian tribes generally resulted in the extinguishment of all indigenous property rights in sweeping terms. In addition, payment of compensation pursuant to the Indian Claims Commission process extinguished legal claims to lands taken previously without payment of compensation. To be sure, most of the roughly three hundred tribes in the contiguous forty-eight states reserved homelands, or were moved to other areas set aside for their use and occupancy, and some retained extensive rights to access off-reservation wildlife resources.

In British Columbia, however, no earlier treaties ceded aboriginal lands, and the provincial government has recognized that the “extinguishment” of aboriginal title is unacceptable to aboriginal nations. There are over sixty aboriginal nations engaged in forty-nine sets of negotiations with a stated goal of reconciling aboriginal rights and title with the fact the non-aboriginal people and governments are in Canada to stay. This chapter explores the foundation beneath the current negotiations.
Preface

William H. Rodgers Jr.

In the 2006-07 term, the U.S. Supreme Court gave us a flood of new thought on the topic of environmental law.

Too bad.

[Addresses cases interpreting the Clean Water Act, the Superfund law, the Clean Air Act, and the Endangered Species Act. In the Summer 2008 Pocket Part for Volume 1.]
Washington: The Past and Present Populist State

Hugh D. Spitzer

Describes the impact of the late-nineteenth century populist movement on the structure and content of Washington’s constitution and the consequential impact on the state’s political and legal life. Suggests that the anti-business attitudes and skepticism about government prevalent among Washington State residents in the 1880s and 1890s, continues to influence that state's constitution, laws and politics today.
Configuration of the Law Library of the Future

Penny Hazelton
Banking Law

Penny A. Hazelton
- Introduction
- Federal Law
- State Law
- Federal Regulatory Framework
- Office of the Comptroller of the Currency
- Office of Thrift Supervision
- Board of Governors of the Federal Reserve System
- Federal Deposit Insurance Corporation
- Resolution Trust Corporation
- Federal Housing Finance Board
- Federal Home Loan Bank System
- State Regulatory Framework
- Additional Research Sources
- Appendices
Keiken, tayōsei, soshite hō [Experience, Diversity, and the Law]

Daniel H. Foote

This essay was published in 2003, in Japanese, as my contribution to a tribute volume honoring Nozaki Ayako, a Ph.D. candidate at The University of Tokyo who passed away suddenly earlier that year. In an article she published in 1999, Nozaki had offered a thoughtful, perceptive critique of an article I had published four years before, dealing with the resolution of traffic accident disputes in Japan. Her article led me to reflect on the reasons for the difference in our views; and that in turn led to this essay. As indicated in the title, two key themes of this essay are experience and diversity. The underlying impetus for both Nozaki’s work and mine was first and foremost our respective life experiences, and those experiences deeply affected the perspectives from which we approached the same basic topic. In turn, the contrasting perspectives presented in our two works reflect the vital importance of diversity – in this case, diversity in life experiences, in backgrounds, and in gender – to legal education and to development of the law. The traffic accident example serves as a testament to the indispensable nature of experience and diversity for the law. Differing perspectives – shaped by many factors, including gender, race and status, as well as work and other life experiences – lead to differing views and new insights into the workings of the legal system, and these insights in turn inform the process of legal development and legal change.

As raised directly in the final section, this essay also constituted an effort to influence teaching methods at Japan’s new law schools, which began operations in 2004, the year after this essay appeared. In its final set of Recommendations of June 2001, the Justice System Reform Council had listed diversity, along with openness and fairness, as the three central tenets for the new system of legal training. I viewed the heightened attention to diversity as one of the most important aspects of the Japanese reforms; and this essay represented one of my efforts to highlight the value of diversity to legal education and the legal profession. Looking back over fifteen years later, I’m sorry to report that, so far as I can tell, those efforts had virtually no impact.
The Leader as Teacher

Penny Hazelton
Indian Law Research in Washington

Penny A. Hazelton
1. Introduction
2. Federal Indian Policy
3. Indian Law Terminology
4. Scope of Federal, Tribal, and State Power over Indians
5. Practitioner's Checklist
6. Research Tools
7. Conclusion
8. Washington State Tribal Directory
9. Basic Rules of Jurisdiction in Indian Country (Criminal)
The Leader as Teacher

Penny A. Hazelton
The Process of Legal Research

Penny A. Hazelton
1. Introduction
2. Formats of Legal Materials
3. Integrating the Use of Print and Electronic Tools in Legal Research
4. Strategies for Effective Legal Research
5. Managing Your Legal Research
6. Comparison of Major Legal Research Texts
7. "'Here There Be Dragons': How to Do Research in an Ara You Know Nothing About"
8. "Develop the Habit: Note-Taking in Legal Research"
Banking Law

Penny A. Hazelton
- Introduction
- Federal Law
- State Law
- Federal Regulatory Framework
- Office of the Comptroller of the Currency
- Office of Thrift Supervision
- Board of Governors of the Federal Reserve System
- Federal Deposit Insurance Corporation
- Resolution Trust Corporation
- Federal Housing Finance Board
- Federal Home Loan Bank System
- State Regulatory Framework
- Additional Research Sources
- Appendices
Academic Freedom and Proprietary Information

Sallie Sanford and Lisa A. Vincler
Banking Law

Penny A. Hazelton
- Introduction
- Federal Law
- State Law
- Federal Law Framework
- Office of the Comptroller of the Currency
- Office of Thrift Supervision
- Board of Governors of the Federal Reserve System
- Federal Deposit Insurance Corporation
- Resolution Trust Corporation
- Federal Housing Finance Board
- Federal Home Loan Bank Board
- State Regulatory Framework
- Additional Research Sources
- Appendices
The Process of Legal Research

Penny A. Hazelton
1. Introduction
2. Strategies for Effective Legal Research
3. Integrating Manual and Computerized Legal Research Tools
4. Managing Your Legal Research
How to Use a Law Library

Penny A. Hazelton and Peggy Roebuck Jarrett
1. Getting Acquainted
2. People in Libraries
3. Collection Organization
4. Access to the Collection
5. Access to the Contents of the Library Collections
6. Access to Legal Information Without Leaving the Comfort of Your Home or Office
7. Appendix 1, Law Libraries in Washington State
8. Appendix 2, Free or Low Cost Advocacy, Information, and Referral fr King County Residents
The Process of Legal Research

Penny Hazelton
Computer-Assisted Legal Research

Peggy Roebuck Jarrett, Mary Whisner, and Penny Hazelton
Integrating Manual and Computer Legal Research

Penny Hazelton
Banking Law

Penny A. Hazelton
- Introduction
- Federal Law
- State Law
- Federal Regulatory Framework
- Office of the Comptroller of the Currency
- Board of Governors of the Federal Reserve System
- Federal Deposit Insurance Corporation
- Federal Home Loan Bank Board
- Office of Thrift Supervision
- State Regulatory Framework
- Additional Research Sources
- Appendices
Banking Law

Penny A. Hazelton
- Introduction
- Federal Law
- State Law
- Federal Regulatory Framework
- Office of the Comptroller of the Currency
- Board of Governors of the Federal Reserve System
- Federal Deposit Insurance Corporation
- Federal Home Loan Bank Board
- State Regulatory Framework
- Additional Research Sources
- Appendices and index