Saturday morning, at the annual meeting of the Law and Society Association (LSA) in Washington, D.C., I served on a panel about "Teaching Law in the Trump Era." My thanks to panel chair
John Bliss, University of Denver Sturm College of Law,
Swethaa S. Ballakrishnen, UC Irvine School of Law, and other founders and leaders of the new LSA Collaborative Research Network #19 on legal education, for organizing this program. Here is the panel abstract:
The Trump presidency has reportedly attracted a new wave of law school applicants who are motivated by issues ranging from sexual assault, to racial justice, to the rights of immigrants, to the basic foundations of the rule of law. In this context, how do U.S. law teachers address legal and political headlines that many faculty and students find disconcerting? This session offers diverse perspectives on this question from accomplished law faculty who teach a wide range of legal curriculum.
For my bit, I focused on President Trump-related materials I used to teach defamation in Torts II in March 2019. In class, I assigned as reading the complaint in
Zervos v. Trump—before the New York Appellate Division at the time—alongside Justice
Thomas's opinion on cert. denial in
McKee v. Cosby. The pairing of a pleading and a scholarly judicial opinion allowed a study first of tort doctrine, and then of constitutional and policy dimensions, all the while with a running contemporary thread of "#MeToo," which ran back to our fall 2018 study of intentional torts. Outside of class, in review sessions, I used Melania Trump's 2017-settled complaint against blogger Webster Tarpley (
Variety). These "Trump cases" afford ample opportunity to explore skills and practice collateral to the law of torts, such as litigation strategy, legal professionalism, and client counseling.
Professor Bliss suggested that we fashion our presentations around student feedback and reactions to Trump-related materials. To that end, I solicited input from my class (and from colleagues in academic support). Five students generously took time from their after-exams pursuits to oblige with deeply thoughtful, sometimes moving, and thoroughly informative feedback. I am grateful to them. I extracted their words, anonymized, for use in my panel time. I won't reiterate them here as to further protect their anonymity. But I'll share four conclusions about "teaching Trump," drawn from this feedback.
(1) Plan well and stay on course. Because this content tends to evoke strong emotions, it is important for the teacher to map out an agenda about where the class discussion should go, in consonance with what the materials offer. Then the class must be kept on task. This might require more involved moderation of class discussion than is the norm for some teachers. Students will sometimes make observations driven by emotion and supposition, and that's OK. But those observations need to be responded to with channeling into constructive analysis. If for example a student says that the plaintiff is grubbing for money, that's a great springboard for legitimate questions, without having to challenge or verify the premise: How does tort doctrine safeguard, or not, against disingenuous claims? What are the incentives or impediments for plaintiffs and their lawyers, born of transaction costs? How does a lawyer counsel a client about uncertainty of recovery?
(2) Avoid assumptions and keep an open mind. The teacher should not suppose that she or he knows what the students are thinking, whether as a group or to an individual. Someone in the class is a Trump voter and believes he is America's only way forward. Someone else regards Trump as a source of post-traumatic stress. They're not always showing you these reactions, for various reasons. And they're not necessarily who you think they are. Take care not to make assumptions about where people stand. One student who wrote to me really forced me to turn over the immigration "wall" issue in my own mind, and I learned a great deal from her different perspective. Isn't the great thing about being a professor that continuing education is part of our job?
(3) Model professional skills. When a teacher leads a law school class, students are learning doctrine, but they're also "meta-learning" lawyering skills such as leadership and dispute resolution. How a teacher manages conflict in the class and moderates discussion will be as important and memorable a lesson for some students than the subject matter being taught. For this reason, teachers need to be deliberate in and thoughtful about pedagogical methodology.
(4) Lighten up. Yes, our content in law school can be heavy. We have to talk about things in the classroom that reveal the absurdity of "trigger warnings," because life doesn't come with a warning label, and law is about life. But it is possible—if hard—to engage with heavy issues and to do so with a light heart. Guidance can be drawn from some recent developments in comedy—think Hannah Gadsby and Ellen DeGeneres—to show that humor can be accomplished without it being at anyone's expense. Don't get me wrong; I love a good insult comic. Just not at the front of the classroom. One student who wrote surprised me with the observation that a light joke I made diffused tension over the fraught subject and made students feel comfortable participating. Now if only I could remember what I said.
These conclusions entail work for any teacher, no matter how experienced. I am far, far from excellent in realizing these lessons. But feedback from my students has given me goals.
Thanks also to excellent co-panelists at LSA, and to all the teachers and scholars who contributed to the roundtable discussion. I have appropriated many of their insights and ideas for further exploration and experimentation. Co-panelists were
Scott Cummings, University of California, Los Angeles;
Rashmi Goel, University of Denver Sturm College of Law; and
Gwendolyn Leachman, University of Wisconsin Law School.
Attention faculty!
Dean Peltz-Steele and I are collaborating to produce an open-source resource for faculty in law and related fields to teach law and policy through "Trump case" materials.
Stay tuned for more information about "Trump Law."
