Lessons in the Delicate Art of Confronting Offensive Speech

A New York Times article with that headline observes that we are “in a political season when ethnic, racist and sexual slurs, not to mention general insults, seem to have become part of everyday chatter.”

Dealing with offensive comments can be hard for people generally and there are particular challenges for lawyers.

The article states that listeners’ objections can curb the behavior, but listeners understandably fear damaging relationships and inviting retaliation.  On the other hand, when people are uncomfortable and don’t speak up, this can effectively encourage speakers to continue their offensive remarks.

“A body of psychological research shows that even mild pushback against offensive remarks can have an instant effect — as difficult as that can be, especially with a boss, a friend or a celebrity.”

One expert said that “sexual banter often takes place among men who are friends, and that ‘the function of it is to promote bonding.’”  She said that “[m]en may feel that if they challenge conversation they find tasteless, or simply don’t join in, ‘they’re spoiling the mood at a minimum and possibly putting their relationship to the group at risk,’ she said.  And sometimes they worry that ‘it will raise doubts about their masculinity or heterosexuality,’ or that they will become targets of bullying.”

Challenging others’ comments that feel inappropriate can trigger strong reactions about both people’s identities and whether they are good or bad human beings.

Experts quoted in the article suggest tactics such as changing the subject, engaging in diversionary behavior, and humor.  For example, one expert suggested a response, “I love satire. It’s so weird that people believe that for real and it’s so cool you called that out.”

The director of an LGBT project sends volunteers to go door to door to talk with people. He said, “We are seeking out people who are prejudiced, and they’re using offensive language.  And if you correct that language, just use different words yourself, and your tone and demeanor are kind, people are very responsive, and you don’t have to get into a screaming match.”

This approach seems to be based on deliberate use of empathy.  The volunteers’ kindness presumably conveys understanding and sympathy with people who use offensive language.  And it reciprocally invites the speakers to empathize with the volunteers and the people they seek to help.  The program director said that it “softens” the attitudes of about ten percent of people, so it is far from changing the attitudes of most people.  But perhaps even that ten percent is significant.

While it may be tempting to directly characterize others’ statements – such as saying, “That’s sexist! [racist, a lie, etc.]” – that approach risks stimulating escalation and defensiveness.  It may stop the immediate behavior but it may also lead to counterproductive arguments, cause resentment, and actually reinforce problematic attitudes.

Lawyers not only have to deal with their own personal reactions but also have to manage their professional responsibilities to be respectful.  This may be especially difficult when they encounter problematic attitudes from their own clients.  Lawyers often worry that clients will doubt that the lawyers will fight hard enough, so it can be particularly difficult for lawyers to challenge their clients.

While it may seem counter-intuitive to demonstrate empathy with people who express ideas that feel offensive, it may be an effective tactic.  And it may open people to be more empathetic with others.  This approach may also be helpful strategically by getting people to consider their situation more realistically, recognizing the other person’s perspective as well as that of potential third party decision-makers.

All that said, these interactions can be extremely difficult to navigate, and there is no guarantee of success.

This election can provide some teachable moments for law students about how they might handle problems when they are in practice.

Survivor: Law School Edition?

I admit, I haven’t watched the TV show Survivor for years, but I’m intrigued by this season’s version, Millennials v. Gen X, as I occasionally feel that very conflict playing itself out in my classroom.

There comes a time every fall semester, usually around the end of September, when the generational differences between me and my current crop of 1L’s become evident. It usually coincides with the due date of their first memorandum and the expectations crystalize in students’ brains. Their questions typically begin as “I have a question about citation” and end as “you really expect us to do this?” with an air of incredulity.  While I may remember my law school experience somewhat hazily at this point, I do know that if I had a question about something which was covered in class, I assumed that I had missed the information, not that my professor had either failed to convey it or had unreasonable expectations. I try to convey that it’s not me who expects something unrealistic from them, but, rather, that I am preparing them to meet the expectations of cadre of Gen X or even more seasoned attorneys who will have high expectations of their interns and associates.

Many experts have identified areas where the generations differ. Here are just a few. Gen X’ers want independence and to be given time to grapple with issues on their own, they respect authority, and do not like to be overly supervised. On the other hand Millennials crave constant communication and mostly positive feedback, do not believe that those in authority deserve respect due to rank alone, and they want supervision to the point that they collaborate with supervisors rather than producing something on their own in the first place. The conflicts are apparent. Yes, these are generalizations, but I see these conflicts play out in the classroom and anecdotally when those students first experience workplace expectations and report back to me.

Each generation has positive and less positive attributes (even my use of the term “less positive” is a nod to the Millennial to whom my comments usually go, and who would be unreasonably upset by reading that there was anything “negative” in their work). It has helped me to understand and appreciate that certain characteristics I may have viewed as laziness or lack of initiative are not individual characteristics, but simply a different mental approach to work and how it is produced. I have tried to adopt some of the positive attributes they bring to the classroom, such as embracing technology, engaging in more group work, and providing more opportunities for ungraded assessment. By doing so, I let go of a characteristic of my generation:  reluctance to change.

Just as sure as the fall brings the conflict, I can also say that by the spring semester and beyond, the conflict subsides and we co-exist. Everyone survives, and my students generally report being very well prepared for their work. Unfortunately, though, none of us wins a million dollars!



Albany Law’s New Two-Year JD

In recent years, the late Antonin Scalia questioned whether the traditional law school education has to take three years, with the justice griping that too many upper-level classes explore fluff and are not focused on educating students in the law.  Similarly, law school critic Brian Tamanaha has also said there should be a two-tiered system of law schools: one elite track that promotes legal scholarship, and another, non-elite track, that has a program of study that transfers basic legal skills to its students and takes just two years to complete.

President Obama, highlighting ways to make law school more affordable and lower student debt burdens, joined in the chorus, opining that perhaps law school could be completed in two years.  Obama’s concerns are shared by Tamanaha: i.e., that law school is too pricey at current tuition rates and one way to provide value to students while keeping costs down is to eliminate one year of training.

At the same time that these critics from without and within the academy have argued that law schools spend too much time with their students, the practicing bar has long lamented that when law students graduate, they are not “practice ready”: their law school training was not sufficient for them to engage fully in the practice of law when they leave law school.  Moreover, going back at least over twenty years, to the American Bar Association’s MacCrate Report, law schools have been told they are not instilling in law students the skills and values essential to the practice of law.  Echoing such concerns, and weighing in on the law-school-in-two-years debate, Justice Ruth Bader Ginsburg said that two years would be fine for a law degree, but it would not teach students the craft of lawyering nor would it instill in them the values of the profession.  Similarly, I have argued elsewhere that so-called “Law and…” courses, which Scalia decried, help round out the law school education and expose students to new ways of looking at the law and their place within the legal profession.

Indeed, it is hard to square the “law schools are doing too much” argument with the “law schools are doing too little” one.  Responding to the latter argument, schools have expanded their offerings to include more experiential components and more values-based training in an effort to prepare students to serve clients and participate fully in the profession immediately  upon graduation.

In an effort to respond to the first argument, though, a number of law schools have begun to offer two-year juris doctor degrees, including all of the credits one would earn in three years into a two-year course of study.  One would think that this would mean schools are offering students a bargain, lopping off one year of tuition for the ability to graduate a year early.  Surprisingly, most schools offering a two-year JD are not reducing tuition; they are charging students three years of tuition for a two-year course of study.

Recently, however, my institution, Albany Law School, responding to the critics, like the President, who argue that law school is too expensive, has announced it will offer a two-year JD, at the cost of two years of tuition.  Like other two-year JD programs, the academic program of study is the same in terms of how many credits students must complete to earn their degree, whether they do it in two or three years, but the cost of the program is one-third less than the traditional JD.

We believe the program will appeal to prospective students who are interested in pursuing a degree on an accelerated track so that they can get back to work sooner after starting their studies and save some money while they are doing it.  We anticipate that this will attract students who are already in the working world, who are cost conscious, sensitive to losing the three years in their professional development that a traditional three-year program would cost, and hope to enhance their credentials and earning potential in as short a time as possible.

The program is being launched with a January 2017 start date.  Time will tell whether such an approach will attract students and offer them real value, both in the short and long run.

Expanding the Curriculum to Build Better Lawyers

Just finished reading a fascinating piece in the Journal of Legal Education by Pamela Bucy Pierson, Bainbridge Mims Professor of Law at the University of Alabama School of Law.  Her article, Economics, EQ, and Finance: The Next Frontier in Legal Education,  describes the results of her survey of how law schools are covering the topics of: (1) economic trends in the legal profession; (2) emotional intelligence in issues such as managing stress, building resilience in the practice of law; and (3) personal financial planning for tomorrow’s lawyers.  The article outlines why each of these topics is essential to preparation of tomorrow’s lawyers.  Ninety-one law schools responded to the author’s survey on this topic, and the results are encouraging. piersonchart  The descriptions of courses and ancillary programs addressing these topics provides a rich source of ideas for approaches to building these topics into the curriculum. So grab that copy of the Journal that is likely piled in your mailroom or read the article on SSRN

The Cost of Traditional Legal Textbooks . . . and Alternatives

As the semester starts, 1Ls face a shock as their basic required textbooks cost over $200 apiece. Publishers have realized how the used textbook market cuts into profits and have decreased the number of years between editions.

These prices are not sustainable, especially for those law students who are already squeezed to the limit.  As a librarian, I have seen more and more students relying on the textbooks on Course Reserve, even going so far as to using them in open book exams.  We fear the day when we have 5 students who want the text for their open book exam and we only have 3 copies.

At the same time, as a library, becoming a textbook supplier helps our students, but it also means there are other materials that we cannot acquire or license.  With this bundle of challenges, there should be an easy solution, but most faculty who assign textbooks are removed from the cost of the assigned text.

Intellectual property textbook authors are at the forefront of this wave of change with several free and low cost alternatives. For examples, see Semaphore Press and Clause 8 Publishing, but there is also quite a bit going on beyond IP, notably e-Langdell (CALI). At that site, you can find texts on torts, sales, contracts, etc. It is no longer an excuse that there are no alternatives to traditional legal textbooks.

Some faculty have started creating their own textbooks, and many of those have matured and are now distributed, but some live primarily on Canvas or TWEN pages.  For those of you who have done this, why not make your materials more widely available?  Yes, they might not be as perfect as you would like, but what is?  Help students around the country by freeing your course materials.  If you are not sure how to do it, contact your AALS section or contribute to H2O, a legal crowdsourcing site associated with top names in the field.  If you are looking for edited cases and course structures, it should be a first stop if you would rather not edit a new case when someone else already has.

In short, the time to embrace alternatives to traditional textbooks, even for traditional subjects has arrived.  Imagine if you could give each of your students $200 . . . well, you can.

For more on this topic, see James Grimmelman, Alternative Publishing Models for Cost-Conscious Professors, and Ben Trachtenberg,  Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books

Fall and Spring Reading Group Suggestions


As we ready ourselves to begin a new academic year, I wanted to offer some suggestions for inspiring reading.  Perhaps you will even consider, as I am, starting a faculty reading group to grapple with related issues.


Implicit Bias and its Consequences.    I suspect that many of you have continued to reflect about how “black lives matter” and how we might encourage our law students to grapple with related issues.  I strongly recommend a new book, out in paperback just last week, from one of the principal researchers on implicit bias.  The authors are Mahzarin R. Banaji and Anthony G. Greenwald, and the title is Blind Spot:  Hidden Biases of Good People (Bantam Books, 2016, $17.00, available from Amazon.com and elsewhere).  The authors are experts on the ”implicit association test”  (available at https://implicit.harvard.edu/implicit/takeatest.html ), a tool used to explore the relationship between visual stimuli and perceptions.  For more background, see https://www.projectimplicit.net/index.html .  The test involves responding to various sets of paired visual stimuli, such as black and white or Asian and non-Asian faces.  https://www.projectimplicit.net/stimuli.html This highly accessible book explores the sources and nature of hidden biases, the dynamics of stereotyping, and the social implications of widespread implicit bias.  The book is highly accessible, and its research is also well-documented in footnotes.  I’m working with a former student to develop a continuing legal education program on cultural competence and implicit bias, which we hope to roll out in February.  I’m also thinking of inviting faculty and staff colleagues (and perhaps some students) to come together for lunch time reading group using this text.  I’ll keep you posted on how these efforts proceed.  I’d also encourage others to post about ways that they may be working to engage similar issues.


A Culture of Assessment.  Culture plays an important but potentially negative role in shaping implicit biases and stereotypes.  Culture can also be shaped in positive ways to improve institutions.  I recently read Professor Andrea Funk’s manuscript for “The Art of Assessment,”  forthcoming in January 2017 from Carolina Academic Press (http://www.cap-press.com/books/isbn/9781611637359/The-Art-of-Assessment).  This book, too, would be a wonderful choice for a faculty/staff reading group.  As most readers know, the American Bar Association now requires law schools to set “learning outcomes” for students, adopt more comprehensive forms of assessment and develop plans for “ongoing evaluation” of their “program[s] of legal education, learning outcomes, and assessment methods.”  Many in legal education fear that these new standards will result in intensified bureaucratic burdens.  Professor Funk, on the other hand, sees them as offering a new arena of creative activity, a space for engaged inquiry, a means of helping students learn more effectively, and a framework for building institutional pride.


Professor Funk’s book focuses on how individual faculty members and their schools can create a culture of assessment, perhaps the most crucial but often invisible element in achieving an energizing and constructive assessment process.  She is very effective in deconstructing opaque language and concepts, suggesting methods for getting started, and creating a sustainable assessment cycle.  She offers important tips on building on existing practices, gathering and using information, grappling with doubts about why and how assessment can work, and building institution-wide interest and commitment.  This is a book that gives readers important tools, but goes further, by illuminating the real potential of assessment for teachers, learners, and educational institutions.  It puts me in mind of Parker Palmer’s wonderful The Courage to Teach, with its uplifting willingness to confront fears but build on hopes that are dear to the hearts of the best law teachers:  helping students learn, working with colleagues, and “teaching from the heart of hope.”


I hope your coming year will be a fruitful one.  Important conversations with colleagues, spurred by books like these, can help make it so.  Please share your own suggests with others on the Best Practices Blog!

Experiential Learning Resources

Looking to add experiential learning to your law school course but not sure where to start or what to add? There’s a list for that!

As we start another school year, let me take this chance to mention the list of experiential learning resources that I maintain and update on an ongoing basis. You can access it here:


In the list, you’ll find experiential learning resources sorted by topic, including books, articles, simulation ideas and examples, and links to numerous databases that host even more materials.

Don’t see a resources that you are familiar with? Or have an idea that isn’t on the list? Send it to me! I update the list regularly, and I’d love to add your materials so the international community benefits from your ingenuity.

I should highlight especially that the list includes the ABA Guidance Memo on experiential learning. As we enter a year of site visits that will address, among other topics, the revised 303(a)(3) and 304 standards on experiential learning requirements and simulation courses, you’ll want to be familiar with that memo’s recommendations.

Hope to receive your list suggestions soon!

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