This page contains my policies and my general advice to students. For descriptions of my courses content and related links, follow the Teaching link.
My policies during the semester divide in class participation and office hours.
I take class participation into account for the final grade in every class. Class participation is about 15% of the grade. I use class participation mainly to help those who are shy. You must learn to become involved in the conversation, and becoming comfortable with this during school is better than having to do it at work. Moreover, becoming involved in the class conversation means that the discussion becomes customized to your thinking, improving your education and making learning easier for you. Taking class participation into account also erodes a disadvantage of second-career students, whose exam-taking skills have lost their sharpness. Class participation also makes grading more predictable, since it is not dependent on your performance on a single day.
Class participation does not mean only (or even mostly) answering questions. Questions can receive equal or more credit than "answers." "Answers" are a much smaller part of knowledge than students think.
For those who would like to think that class participation "only helps," I must say that you can maintain that belief by just reducing the thresholds for each grade by about 6% to 12%. I could post my grades with the regular grade thresholds or with thresholds adjusted to maintain the illusion that "class participation only helps." Think about it: Something others do in the class, such as class participation, helps their grade. Is it possible that by not doing it you are not hurt? You can only maintain this belief if you score consistently over 95% at every examination. The top total score, by the way, in my classes, is usually in the upper eighties, with rarely a score in the lower nineties.
If you do not go to your professors' office hours, you are wasting a large part of you education spending. Professors' office hours are part of our teaching obligations. Some professors, particularly in the first year, try and make sure they meet every student by arranging lunches with small groups of students. I allow you to improve on that model, and come to my office anytime and you will have my undivided attention.
Is it possible to "hog" office-hours time. Yes, but it is very rare. I do not place a time limit on students' first visit. If you find subsequent visits to stretch beyond 20 minutes, you might be overdoing it. If no other student is waiting, however, the time that you get is only time that they chose to waste!
Good time to ask follow-up questions and get explanations for material that you did not understand despite your efforts. You also get class-participation credit for the discussion!
My examinations are multiple choice. Before you celebrate, let me say they are reputed to be among the most difficult. I discuss the multiple-choice nature of the examination and the grading method.
I use multiple choice examinations because they are a more accurate reflection of student's learning and analysis. Essay answers allow the student to display creativity, but are limited in the range of topics that they cover. The likely narrow nature of essays means that students who have uneven grasp of the material are subject to a lottery, depending on whether the topic of the essay is among their strongest or weakest. Moreover, the grading of essays is very subjective, subject to influence from rhetorical skills, gramar, spelling, and vocabulary. Perhaps due to their subjectivity, or for other reasons, many classes that are graded in essays award a very large proportion of B grades and very small fraction of top and bottom grades. I find it hard to believe that a large fraction of the student population deserves the same grade.
My examinations have an application part and a theory part. The two are of approximately equal length, despite that theory is the permanent part of this education, while the laws that you are called to apply change. Also, even in the application part, very few questions are mechanical application of a rule. Most require some interpretation or some ability to recharactarize a relation or understand a setting that is not obvious. If law were about mechanical application of rules, computers would have displaced jurists, and lawyers would not be able to charge the hourly fees that they do. Your success depends on interpretation and argumentation, and that is what I examine.
Students occasionally wonder how interpretation or argumentation can be tested in a multiple choice question. Consider any "hot" disputed legal question, that is not subject to a clear rule, but can be subjected to "rule 1" according to "one" interpretation, but not according to "a different" interpretation. Now make up some facts that involve its application and choose: (1) the clear rule will apply; (2) the "rule 1" could apply according to "a different" interpretation; (3) the "rule 1" could apply according to an irrelevant interpretation; or (4) the "rule 1"should apply according to "one" interpretation. A similar example can be made up for theory questions. After we have studied the effects of casting a rule two different ways, the question posits two jurisdictions, often the states of Inlow and Daily, from two benefactors of the school, that have adopted the different versions, and will ask about the consequences. For my Teaching page, you can download sample questions about Business Associations.
Multiple-choice examinations are subject to a bias that involves guessing. In an exam where one of each four answers is correct, a random choice of an answer will tend to be correct once in four, producing a score near 25%. When different students have a different tolerance for guessing, the result is a systematic bias against those who dislike guessing. Suppose two students have just enough time to answer three questions, and neither knows the answer to question 2, while both can only answer question 3 if they take a little more than its proportional time, say 3 minutes and 20 seconds instead of three minutes. Both students know after spending 2'35" that they cannot answer question 2. The student who does not like guessing, spends a little extra 10" on question 2 just in case, and does not have enough time to answer question 3. The student who guesses in question 2 without further vacillating, will be able to answer question 3. Research suggests that this bias of multiple-choice exams operates systematically against women, but no specific research on law students exists.
The advantage of guessing is also antithetical to the thoughtful nature of lawyering. If our exams rewarded thoughtlessness, we would have failed as educators of jurists.
Accordingly, I have adopted the adjustment that the SAT uses to neutralize guessers' advantage. The SAT would do it by subtracting a third credit for each incorrect answer (actually, because the SAT uses 5 alternatives, they actually subtract a quarter). The scale that results from this is confusing, because it spans from -33% to 100%. Suppose an exam has 100 questions, each getting 1%. An exam with every answer correct scores, of course, 100%. The other two extreme cases are the interesting ones. A blank exam gets zero, but an exam with every answer wrong, gets -33%. An exam with blind guessing throughout has, on average, 25 correct answers (+1 x 25) and 75 wrong ones (-1/3 x 75 = -25 ). The two cancel out, making blind guessing as attractive as a question unanswered.
I use a scheme that produces the same result, but produces scores from 25% to 100%. A correct answer is awarded the same percentage credit that it would anyway. In the example of an exam with 100 questions, that would be 1%. A false answer does not lose credit and a blank answer receives one quarter credit. That the effect is the same with the SAT's scheme becomes obvious if you compare the blank exam with the exam full of blind guesses. The blank exam has 25% ( = 1/4 x 100 ) and the exam full of blind guesses has, on average, 25 correct answers ( = 1 x 25 ) and 75 false ones ( = 0 x 75 ) resulting in the same 25% score. Again, blind guessing is not superior to leaving an answer blank.
The result for the student is that you need not guess if you cannot eliminate any answers. If you can eliminate one or two answers, guessing offers a small advantage.
My desire to induce thoughtfulness would argue that the scoring system should reward blank answers (or equivalently, penalize false answers) more than enough to achieve neutrality. Perhaps I will switch to a system where guessing after eliminating a single answer is made equivalent to a blank answer. This could be implemented by awarding a third credit for blanks within my scheme; the SAT scheme would reach this result by subtracting a half credit for false answers. As identifying errors is desirable, I hesitate to make this step.
Writing papers is a great learning opportunity, and I try to supervise as many as can and I have incentives in favor of writing papers. I discuss here the option of writing a paper instead of taking the final, and the process I use to supervise papers.
In every one of my classes, I give the option to write a paper instead of taking the final. However, I require a paper of about 40 pages. Since the ordinary length the school requires is about 25 pages (subject to change) I suggest you write a 50 page paper, which I will try to count as double. To the extent the rules allow me, such a paper will relieve you from the final and also earn you credit for independent writing. This also allows
I see four steps in writing a paper. Selecting a topic, producing an outline, submitting a first draft, and submitting a final draft.
To select a topic, you should follow your heart. The paper will take a lot of your time, so you should enjoy it. You are likely to enjoy the final part, when you reach the analysis and proposals. As it will take quite a bit of research before you get there, try to pick a topic that will keep you happy along the way. Start reading the business section of the New York Times or the Wall Street Journal. What stories capture your fancy? Look over the contents of the materials and books of the courses, the syllabi. If you start getting a feeling of what you enjoy, let us talk about it. We are likely to find a topic you might enjoy.
Research must start at two points. For the law, research starts at a hornbook. Only a hornbook can give you the broad, bird's eye view of the area of the law you have chosen. For the theory, research starts at Posner's encyclopedic book Economic Analysis of Law. The book will introduce you to the analysis of this area of law. After these two first steps, the next are chaotic. Recent caselaw will refine the hornbook's description of the interpretations that the courts follow. This is easily one in LEXIS or Westlaw. Recent articles and books analyze further the issues that the law raises. Lexis and Westlaw is inadequate because they do not contain onlder articles (but hopefully, you have references to them) and do not yet have the most recent ones. You can search the older articles on Hein-on-line, older non-law articles on J-STOR (accessible through the central library page with login), and you can search for recent postings of research at the Social Sciences Resource Network. Also read below. This research will give you a more clear idea of how the law has developed and what arguments have dominated. You sort them out and produce an outline. Then starts your analysis. Can you make a better argument than the dominant ones? Can you reject one of the dominant arguments? How do you evaluate them, and why? How does this analysis suggest the law should be interpreted or evolve or be changed? Now you have a thesis! Write all this in the form of headings and it is your outline. We should discuss your outline together.
Writing all this down (the evolution of the law by the courts and the legislatures, the dominant arguments and suggestions by theory, and your analysis and proposal) produces the first draft. You bring it to my office and wait while I read it, ask you questions, and give you my suggestions. You improve the first draft according to our conversation and submit it as your final draft.
I grade the last two steps, the first draft and the final draft. In each I grade two aspects, the descriptive appeal, and the normative thrust.
I am most willing to supervise papers in business law and bankruptcy. I am also willing to supervise papers that analyze the law assuming that individuals react to rules and the environment that the rules create so as to promote their own welfare (some call this method economic analysis of law, or rational choice, or even consequentialism). The ultimate objective is to establish that shape of the law that would produce the most social welfare. Such an approach to legal analysis must be distinguished from analysis based on morality and political philosophy, to use two arbitrary examples. A moral analysis would start with a preconceived premise of what promotes the ultimate goal, morality. Similarly, analysis on the basis of political philosophy would start from a premise of a form of "polity" that is ideal, such as "civic republicanism" or "libertarianism". In both cases, the law is studied on the basis of the chosen metric and improvements are proposed to better achieve it. The problem with such approaches is that they offer no means for making compromises and the difficult choices. Also, it stands to reason that following such a principle as superior to social welfare implies that social welfare would be sacrificed to achieve this alternative principle. Recalling that the alternative principle was accepted unquestioningly as a premise of the analysis, I reach the conclusion that alternative methods would sacrifice social welfare arbitrarily.
The above was only scratching the surface, dealing with procedural matters. The substantive advice I offer starts here.
Many students seem to select courses to help them with passing the bar. This is an error from multiple points. Professors do not teach the material that the bar examiners examine and students would get more value by learning in courses that they enjoy. If you take family law for the bar, you might find spending your time in class talking about alternative families and adoption issues in unusual setting and when you go take the bar exam you will find that the examiners ask you about the division of marital property. Taking courses you enjoy will lead you to develop your legal thinking, so that when you write an essay on the bar you can--AFTER stating the rule and outcome--explore critiques and alternative interpretations or directions that the law light take and get some credit without having taken the course.
You might want to study business law or environmental law. Your principal strategy in selecting courses should be to arrange your schedule so as to take all the courses on your topic and as many seminars or small courses as possible. Find a professor in the field that you like, under whom to write your paper(s).
Law school is a school of applied philosophy. Learn the philosophy of each one of your professors. Juxtapose it with the philosophy of other professors. If you like one or more go to the professors office hours and talk about it. What other professors use the same method. Should you take their courses? Which ones? Should you write your upperclass paper with this professor? Many professors will agree to supervise a topic that is outside their exercise if the method you will follow falls within it.
Simple. Make an outline. After keeping good notes, start making an outline about a month before classes end. The process raises questions? Great! Go to the professor's office hours and talk about them.
Missed class? Get the notes. You cannot make up from the book. The professor might disagree with the book's conclusions. Set up a note-trading ring early in the semester. Trade notes even without missing classes.
Courses have a theme. Try to find it early and it will be the key that will unlock the course. Ask GOOD students who have taken the course with the same professor what they thought its theme was. Different professors put different spin on courses.
It is more important to read the notes and questions about the opinion (usually after the opinion in casebooks). Think critically. Will the professor consider that the court made an error? Why? How does the case fit with the theme of the course? Is it consistent with the theme or is it an example of a different approach? How do you evaluate this different approach?
Use other directories. In addition to the Journal of Legal Periodicals, use the economic databases, such as EconLit (which is here if you are accessing from an IU computer) and J-STOR (link), and the web-based working-paper archive SSRN.COM of the Social Sciences Research Network. There are thousands of statisticians and one might have produced actual evidence about your topic. Use it.
Describing the law is too easy to be interesting. The question is how the law is changing and how it should change. Hence, any description of the law is also bound to become outdated.
A court might make a mistake. Point it out, but be constructive about it. How can the mistake be remedied? How can it be avoided?