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ChatGPT Exercise in the LRW Class

ChatGPT Exercise in the LRW Class

By Vicky Daniels

By Sandra Simpson, Professor Gonzaga University School of Law

Professor, Ashley B. Armstrong of the University of Connecticut School of Law has written a draft article examining artificial intelligence known as ChatGPT and exploring its implications for legal writing classrooms.  This draft is titled Who’s Afraid of ChatGPT? An Examination of ChatGPT’s Implications for Legal Writing can be found at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4336929.  This artificial intelligence is different because it creates content for the requester, including attorneys and law students.

After reading Ashley’s draft, I reached out to her to discuss this new resource.  She provided the assignment laid out below for me to use in my classroom. The power of this assignment is that it provides a way for LRW professors to have open discussions with our students about the ethical use of artificial intelligence as a student and as a professional.

Classroom Assignment

TO:              Associates
FROM:       Ashley Binetti Armstrong
DATE:        January 24, 2023
RE:              ChatGPT

On November 30, 2022, OpenAI launched ChatGPT (Chat Generative Pre-trained Transformer). ChatGPT is an Artificial Intelligence interface that can generate human-like text in response to user queries. I would like you to test and analyze how ChatGPT performs on a series of legal research and writing tasks. I also would like to know what concerns ChatGPT might raise related to attorney ethics. Please complete the activities described and respond to the questions below.

1. Insert the following prompt into ChatGPT:

Write a legal memo based on the following facts and questions: We have a new client, Priyanka Patel. Patel was recently involved in a swimming accident at the Ellenbosch estate in Blueridge, CT. This remote Estate is owned by Caroline Ellenbosch and features a large lake, trails, playground, and cliffs known to be great for rock climbing. I briefly interviewed Patel this afternoon. She has a lot of expenses related to the injuries she suffered, and we need to figure out if she has grounds to sue the landowner. I am not sure if this is possible, and I would like you to investigate whether Ellenbosch has landowner immunity. Limit your research to Connecticut law. You may use unreported cases. Use proper Bluebook citation form and office memo format. Facts: On September 4, 2022, around 12pm Patel drove to the Estate. She paid a $10 parking fee to park onsite. On her climb, Patel passed at least two signs that warned against use of the lake and against swimming/diving. When she reached the summit, she dove into the lake and landed in a shallow spot. She broke her right leg and fractured her tailbone. The parking lot is owned by Ellenbosch and considered part of the estate. She charges a $10 fee per car to park in the lot. There are some free parking spots on the street, “but they are too far away for it to be worth it. Parking on site is so much more convenient, obviously.” Patel estimates that the free street parking is about .5 miles from the site. Terrain is uneven, uphill, no crosswalks, no sidewalks that she recalls. There is a small bike rack on site. There is no public transportation to the property. It seems like almost all visitors pay the parking fee.

2. Insert this prompt, next:

Can you provide a list of 10 other cases I should review?

3. Insert this prompt, next:

Using the cases from the previous response, please write a legal argument for Patel’s case, following the CREAC structure.

4. Using Westlaw or Lexis, look up the cases that ChatGPT provided in its responses. More specifically, if ChatGPT provided the following case “Czepiga v. Town of Manchester, 884 A.2d 1202 (Conn. 2005),” please tell me a) whether any case by that name exists on Westlaw/Lexis; and b) what result you get when you search for “884 A.2d 1202.” Include the list of cases and answers to questions a and b, below.

5. If ChatGPT provided any statutes, or any other sources in its responses, please look those up on Westlaw or Lexis. List the source and what the source is about (e.g., title of the statute and a 1-2 sentence summary), below.

6. Describe any observations about ChatGPT’s response to question 1, above. Consider: the accuracy of the response (researching on Lexis or Westlaw), the structure of the response (compared to what you’ve learned about successful legal writing), and anything else you would like to note.

7. Describe any observations about ChatGPT’s response to question 3, above. Consider: the accuracy of the response (researching on Lexis or Westlaw), the structure of the response (compared to what you’ve learned about successful legal writing in this course), and anything else you would like to note.

8. Please provide a short (~2-4 sentence) summary of the following Model Rules of Professional Conduct: 1.1, 1.3, 2.1, 3.3, and 4.1. You should review the text of the rule and the comments to the rule.

9. What concerns about rules 1.1, 1.3, 2.1, 3.3, and 4.1 might be raised when attorneys use ChatGPT?

10. Please provide a short (~2-4 sentence) summary of Model Rule of Professional Conduct 1.6. You should review the text of the rule and the comments to the rule.

11. What concerns about rule 1.6 might be raised if attorneys use ChatGPT? Under what circumstances?

 

My Classroom Assignment Reflection

We spent all 70 minutes of class working our way through the ChatGPT exercise provided by Ashley Armstrong in her draft article and the assignment above.  I started by asking the class what AI they use regularly. I made it clear to the students that I was not judging them, but rather was curious about what they are using. This opened up an honest discussion about artificial intelligence.  The students were only using Grammarly, Spell Check, brief checkers, etc., but not using any product that is producing original work like ChatGPT. That conversation was really interesting.

Then we got into ChatGPT and the worksheet. I had them work in groups and report out. They were particularly shocked by how bad the AI writing was and how much better they felt about their emerging skills. I then had them do the original research that was assigned to the ChatGPT in the assignment. Many forgot how to come up with original search terms, limit their jurisdiction, etc. Thus, we backed up and reviewed the research process.  Though this was a bit of a surprise to me, it was good to get that feedback and good to help them review the research skills.  Once they finished the research, they were mortified at how wrong the AI was. Again, they felt pretty good about their research skills compared to the computer.

After that, I assigned one MRPC to each team to look up, review, and discuss how ChatGPT implicates the rules. (I had the groups read the rule and the comments). The students really engaged in this part of the discussion. They learned the MRPC while applying them to using AI in their practice.  Many of the rules were surprising to them, such as, most students had never considered that posting or entering client data into an internet resource would be a breach of confidentiality. (It’s a whole new world)

The last thing we did was discuss what our class would like to do with this type of tech going forward. They universally agreed that ChatGPT was so wrong that it is dangerous to use, and that it would take more time to check its work than just do the work themselves. They said they would like to see how ChatGPT does with the projects we work on this semester. I am not sure what that looks like going forward, but we are going to start by feeding their fall final research assignment prompt into the AI and see what ChatGPT comes up with. It should be noted that I read an article that Westlaw and Lexis are looking to partner with ChatGPT so it has access to the database. Oh boy. The students were interested to see where this goes.

At the end of the class, we agreed that their work must be their own. If they want to use their resources in tandem with other sources such as this (just like using a secondary source) that is up to them, but they are responsible for the end product and its accuracy.

I am pretending I know what this looks like in the end, but for now, it felt good to talk about it. The key here is getting ahead of it rather than reacting to it.

Moving Forward

If any of this listserv’s readers decide to use this assignment, please let Ashley Armstrong know what your class did and your reflections.  We are facing this new technology together!

Going Back to the Basics, Low-Tech Assessment Methods in Large Doctrinal Classes

Going Back to the Basics, Low-Tech Assessment Methods in Large Doctrinal Classes

By Vicky Daniels

Teaching Idea for February.

By Sandra Simpson, Professor, Gonzaga University School of Law.

While teaching large, doctrinal courses, it is possible to engage and assess the entire class with low-tech methods.  I teach a Real Estate Transactions course to 60 plus students every spring.  One effective method is using 3M posterboards for groups to “publish” their work.  I used this method this week when we were reviewing contract concepts.  In reviewing covenants versus conditions, I needed to know where my students were in terms of understanding these basic contract terms.  To accomplish this, I returned to a basic, low-tech method of large 3M posterboards (poster-sized sticky notes) for this assessment.

Once I found the 3M posterboard pad (in a lonely, dusty corner closet), I posted 23 pieces of paper around the room before the students arrived.  Once the students arrived[1], I had them form groups of three.[2]  I asked the groups to read the following clause: “Seller to provide the buyer with a certificate of occupancy prior to closing.”  The students were then asked to determine whether this clause creates a promise or a contingency.  After five minutes of group discussion, I asked random groups to support whether it is a promise or a contingency.  We discuss why the distinction matters.  Students soon realize the clause can be argued either way, which is not ideal for a real estate contract; it can lead to litigation, affecting the parties’ contract rights.

For the next step, I asked the students to redraft the clause creating a promise, and then redraft the clause creating a contingency.  The students wrote the two clauses on their 3M poster paper.  After every group was done with the drafting and had posted their paper on the wall, I asked them to walk around reading the other groups’ drafted clauses.  Each group marked the one they liked best (they could not vote for their own).

After all the students sat down, we looked at the votes to ascertain the best clauses and debrief the exercise.  The voting showed two very different drafting techniques tied for the best clauses.  This highlighted some drafting issues and created a discussion of different methods to create a promise or a contingency.  The entire exercise took 30 minutes, but it engaged the entire class.  An additional bonus was that the posterboards remained on the walls for the entire class, allowing me to walk around (while students were working on another problem) and read all the students’ work, which created another opportunity to talk to the groups about their work and answer lingering questions.

[1] It was really fun to listen to their reactions to the paper being posted around the room.  They were very curious and excited.

[2] You can form the groups yourself, particularly if you want to pair strong and weak students.

Instructional Check-Ins To Surmount Trials And Tribulations Of The Pandemic In The Era Of Meta Connection

Instructional Check-Ins To Surmount Trials And Tribulations Of The Pandemic In The Era Of Meta Connection

By Vicky Daniels

By Lécia Vicente*, Henry Plauché Dart Endowed Assistant Professor of Law, LSU Paul M. Hebert Law Center

The Covid-19 pandemic threw us out of our game. It obligated us to change, readjust, compromise, quit, and reinvent ourselves in a new world where connection and communication are necessarily conducted at a meta level—online. However, there was one thing I maintained -regular and structured student check-ins. I ask my students to “check-in” by meeting with me at some point of their choosing during the semester. All students would plan to meet at least once during the semester, if only to let me know how things were going. These spaces for connection, reassurance, and validation became invaluable during the pandemic.

Connection is important. At a meta level, our relations are framed by dystopia and misconception of reality. Our relations are characterized by information overload. Very little sticks after the laptop is shut down and closed. Learning behind the screen makes it difficult to express our feelings or voice our questions.

Check-ins are an effective pedagogical tool which I have used for my doctrinal courses. I believe regular check-ins with built-in student group discussions can be useful in legal research and writing courses as well. These sessions allow me to meet students where they are and surmount some of the learning tribulations and challenges that they face behind the screen. I have been holding this format of office-hours in small groups. Students sign up for the meetings through a sign-up platform online where they can choose time slots of their preference. We meet via Zoom or in person, depending on the size of the group. During check-ins, students can interact not only with me but also with each other. It almost resembles a small discussion group to which I serve as a facilitator. I ask questions such as “What makes you learn better in this course?,” “What improvements would you like to see?,” and “How is law school going?”[†]

The conversational dynamic of the group creates an opportunity for my students to explore topics they are curious about. Some questions relate to the course materials and subject-matter. Others relate to their professor’s profile and choices she made when she was in their position, pursuing her law degree. Some of their common questions are: “How did you learn to speak six languages?” “What was it like to work with multinational companies with subsidiaries in Europe?,” and “Why did you want to become a law professor?” I facilitate dialogue that is deep, humane, and relatable. This conversation allows me to understand what helps my students learn better, what they are eager to learn, what is meaningful for them, and what is needed to build a relationship beyond the meta connection that the pandemic has imposed on us.

After each meeting, I process the students’ comments, questions, and instructional concerns. The results in my business law courses have been overwhelmingly positive, despite the pandemic and the challenges inherent to it for both students and professors. Regular, structured student check-ins have become a great source of feedback. Additionally, check-ins also provide a layout for meaningful connections which are essential for excellent learning outcomes.

[*] Henry Plauché Dart Endowed Assistant Professor of Law, Louisiana State University Paul M. Hebert Law Center. Research Fellow, Law & Economics Center at George Mason Antonin Scalia Law School.

[†] See Gregory S. Munro, Outcomes Assessment for Law Schools (2000). Available at: https://www.law.du.edu/documents/assessment-conference/munro-gregory-outcomesassessment2000.pdf (accessed on November 11, 2021).

Using the Local News as the Basis for an In-class Exercise

Using the Local News as the Basis for an In-class Exercise

By ILTL

By: Andrea Need, Indiana University O’Neill School of Public and Environmental Affairs

This semester I interrupted my planned class (lecture, case discussion, and hypotheticals) with a simple mini case study exercise “ripped from the headlines” in our midwestern town.

Background:  By class time, most students had heard the news that the City of Bloomington, IN had conducted a controlled live burn of a two-story house in a neighborhood not far from campus.[1]  Such fire training burns are allowed, subject to conditions, as exceptions to state open burning prohibitions. Local news reported that immediately after the burn, neighbors complained of debris, including paint chips, on their houses and cars and in their yards and gardens.  A resident’s test showed lead in the debris, which was later confirmed by the city.[2]

Exercise:  Do we need to change the law after the controlled burn event? (25-30 minutes)

  1. (10 minutes) First, I asked the students to read a news report and a city press release, which I linked on our course page for easy access.[3] I picked these two documents because they covered the background, discussed relevant laws, and could be read quickly.
  • I told the students to assume whatever these documents stated was true. For example, the press release stated that the city sought proper approval and complied with the state open burning law, which does not require lead testing.[4]
  1. (5 minutes) I instructed students that once they were done reading, they were to break into small groups of three to five students each and discuss and write down any problems resulting from this event.
  2. (5 minutes) We discussed the problems as a class and I wrote them on the board. Some problems were as follows:
    • Is there lead contamination—particularly in gardens and where children play?
    • Should lead testing be required prior to burning? Is accurate lead testing possible? Should we assume all buildings older than a certain year have lead paint?
    • Even if no lead was present, the city caused ash to fall on people’s property.
    • Is the required notice adequate or equitable (i.e., accessible)? What could a person do if they got notice and were concerned?
    • Will the debris be removed and by whom? If so, how much will removing the debris cost?
    • Should these burns occur farther from homes?
    • Do firefighters need these opportunities to practice? Would too many testing or other requirements eliminate the training opportunities?
  3. (5 minutes) Next, I asked if, based on what we know, the law needs to be changed and if so, how? At what level of government should the law be changed (state vs. local)?  Or, I asked, was the law sufficient as-is, and was this an instance of a decision-making error? The class agreed the law needed to be amended because the burn was lawful but still problematic.  Students shared ideas on changes to the law, which I wrote on the board.  Some ideas were to:
    • require lead testing prior to burning;
    • prohibit burning structures built before lead paint was banned;
    • require individual notice to all property owners within [xx distance determined by data collected on the impacted zone;
    • prohibit burning within a certain distance of residences; and
    • require a study on, and publication of, the costs of potential remediation.
  4. (5 minutes) Finally, looking at the ideas on the board, I asked students to pick which one or two were the most important changes to the law and to explain why. Also, we discussed which problems that the students originally identified (in step 3) were addressed by the changes, and which remained.
  • As a result of our discussion, the students chose to require lead testing (if the building was built before a certain year, to be established based on the lead paint ban) and to require additional individual notice. The students rejected banning training burns altogether, or in certain areas because they did not know how important the training is for firefighters.
  • We acknowledged that actual legislative proposals would require research and much more detail.

Future Semesters:  I plan to use this sort of mini case study again because: 1) adding something new to my usual in-class exercises livened up class, particularly later in the semester when enthusiasm was waning; 2) using a local legal issue meant the situation was easily understood and relatable for students; and 3) students were encouraged to think about tradeoffs in policy-making through the law.  Several students approached me after class to tell me how much they enjoyed the exercise.

The next time I do this exercise, I will consider providing the open burning regulation and asking the students to markup amendments to the regulation.[5]  At the end of future exercises, I will share the city’s ultimate conclusion that “no similar live-fire training should be conducted in the future.”[6]  I will ask if this outcome satisfies the students.

You could expand this exercise by requiring research on other states’ open burning laws, the effectiveness of lead paint testing, firefighting training needs, etc., and then having groups of students present their proposals.

Applicability to Other Courses:  I used this exercise in a public law course for graduate students pursuing their Master of Public Affairs.  You could use this mini case study in a class on legislative drafting, environmental law or policy, or state and local government law.  You could also modify the idea by keeping an eye out for a local news story covering the subject matter of your course, providing a bit more reading material on the topic or the relevant law, and asking the students the same sorts of questions.

[1] The burn and its aftermath are described in a series of press releases issued in November and December 2021, which can be found at https://bloomington.in.gov/news/2021.  Only the first few press releases were available on class day.

[2] The contractor hired by the city determined that visible paint chips deposited were lead-based paint, but air samples exhibited no detection of lead, surface dust readings showed “non-excessive levels of lead dust contamination,” surface soil samples were below the lead action level, and leaf litter exhibited no lead detection. https://bloomington.in.gov/news/2021/12/13/5049.

[3] Press release: https://bloomington.in.gov/news/2021/11/10/5016; news story: https://fox59.com/news/residents-concerned-after-controlled-burn-exercise-in-bloomington-may-have-resulted-in-contaminated-ash-debris/.

[4] Here is the state approval: https://bloomington.in.gov/sites/default/files/2021-11/83218318.pdf.

[5] The regulations implementing the open burning exemptions are found at 326 IAC 4-1-3.  Live fire training is addressed at 326 IAC 4-1-3(c)(9). Note that the press release cited in endnote 3 includes a map of affected properties.  The affected properties’ distance from the burn site is particularly interesting in light of the notice requirements in 326 IAC 4-1-3(c)(9)(B).

[6] https://bloomington.in.gov/news/2021/12/13/5049.

Writing Case Briefs

Writing Case Briefs

By Vicky Daniels

By Professor Andrew Henderson, Australian National University.

Writing case briefs (or case notes as they are called in Australia) is a common form of assessment in law school, especially with first-year law students, as a way of exposing them to basic legal research, writing, and thinking skills before moving on to substantive subjects.  More importantly, the preparation of a case brief is usually the first taste first-year law students have of reading case law and identifying the holding (something that’s called the ratio decidendi in Australian law schools). It is also a common piece of legal research writing both in legal practice and in academia.

But my experience of teaching and marking case note writing, and informal discussions with students, indicate that they have consistently struggled with the case brief assessment – particularly with the identification and explanation of the holding.

A few years ago, I decided to go back to fundamentals in planning how to teach case brief writing. But rather than starting with the activity itself, I started with some basic principles of lesson design and planning.

Establishing the playing field

Unlike the United States, an LLB is the most common method of entry to the legal profession in Australia.  There are prescribed learning outcomes associated with the degree as a whole, and individual units within the degree, that are determined nationally by the Council of Australian Law Deans (the Teaching and Learning Outcomes (TLOs) for LLB students) and the Law Admissions Consultative Committee.  However, like American law schools, each unit also has learning outcomes approved by the Dean of each faculty. Some universities also have a set of graduate attributes applicable to all units offered on campus.

Good curriculum and instructional design mean that each of these sets of requirements should be aligned within a unit or course and reflected in assessment as a way of demonstrating that an individual law student has been assessed against accepted expectations.

If we had to picture that hierarchy in an Australian law school for a case brief assessment, it might look something like this:

Identifying the players

But just identifying the requirements isn’t enough. We also need to think about the law students that we will be working with. That is going to include things like the size of the group, their age, their educational experience so far, and their current level of confidence.

Each of these things is going to be critically important to the design of the lessons. For example, the majority of first-year law students in Australia tend to fall within what identify as a period in social and cognitive growth associated with ‘young adulthood’.  Studies of learning at this stage suggest that students at this stage struggle with ambiguity and assume that there is one right answer according to what lecturers or tutors tell them.

In writing a case brief, that’s important. There is rarely one correct version of the holding and one correct way to set out a case brief.  Explaining that there may be different ways of expressing the holding, and in fact that an important part of advocacy is to argue for a particular interpretation, is difficult and at this stage, ambiguity needs to be de-emphasized until the basic skills are established.

Planning the play

Despite case briefs being endemic to legal study, surprisingly there is no consistent or single method in how to teach or write one.  Frustratingly for students, there is no pro forma or precedent for presenting it.

However, where the skill being introduced is entirely new to the learners, there is a need to provide more active support and direction initially before providing opportunities for practice.  That means providing very structured explanations initially as a means of building – scaffolding – students to take an increasingly independent role.  Rather than just explaining what a case brief looks like, I write one in class, explaining what I am doing as I work through the decision. In a series of planned steps, I begin to hand over responsibility for the task to students, moving ultimately to getting students to work independently.

So what does it look like? My planning for the series of lessons looks like this:

Does it work?

Law students I have worked with, after stepping through this series of lessons, have generally expressed more confidence and performed well in case brief writing. Just as importantly, they have demonstrated much more confidence at the end of the process in tackling the process of reading cases.

What do you think? Is it worth a try in your law school classroom? Could it be improved?

 

Looking Beyond Headnotes: Distinguishing Cases (Exercise)

Looking Beyond Headnotes: Distinguishing Cases (Exercise)

By Vicky Daniels

By Matthew Boles,

Background

According to the ABA Student Lawyer magazine, unpaid internships, primarily in the summer between the first and second year, consists of research and writing.[1] More than 80 percent of the top 200 law schools indicate that legal research is a mandatory course for first-year students.[2] A 2013 Insights Report states associates spend nearly one-third of their time on legal research.[3] As students and lawyers research issues, headnotes can be a useful tool to read summaries of cases and find other similar cases.[4]

This exercise helps students look past the headnotes when reading cases and making arguments that courts should follow precedent or whether the case is distinguishable.  I practice immigration law and use a four-page decision from the Board of Immigration Appeals (BIA) as an example case. Students will read facts from a hypothetical scenario I created, read the decision and headnotes, and determine whether the headnote about a conviction for Driving Under the Influence (DUI) is sufficient.

Directions:

  1. Have students read the “Overview of Client’s Case” section
  2. Next, students will read the headnotes of the decision, Matter of Siniauskas,[5] take notes, and make a conclusion as to whether the case applies to our hypothetical situation, and if so, how. [Click here to access Matter of Siniauska (pdf)]
  3. Read the case and determine whether the headnote about a DUI addressed the issue. I highlighted portions of the decision. I provide some information below as to why we do not cite headnotes in decisions.

Overview of Client’s Case

The attorney is an immigration lawyer and works at a small firm. She handles many types of immigration matters, from submitting petitions to United States Citizenship and Immigration Services (USCIS) on a wide variety of matters, to representing immigrants who have court at the Executive Office for Immigration Review (“immigration court”). Up to this point, her work has been for immigrants who are not detained. As the firm grows, however, she begins taking cases where clients are detained by Immigration and Customs Enforcement (ICE). The firm is contacted by a family whose family member is in an ICE facility about two hours from your office. The facts are below, but ICE files a Notice to Appear (form I-862) with the immigration court. The client’s family retains the firm to represent him in immigration court. The attorney files the Notice of Entry of Appearance as Attorney or Representative Before Immigration Court (form E-28) and completes the proof of service. She is prepared for his Master Calendar hearings, preliminary type of hearings, but understandably she wants to request a custody redetermination hearing (bond hearing) in hopes that her client will be released from ICE custody and have his case transferred to a non-detained docket.

Here are the facts of the client’s case. He is an immigrant whose sole entry to the United States was in 2005. He entered without inspection and has never applied for nor received any type of visa or lawful immigration status. In 2007, he meets a woman who he marries in 2010. His wife is a United States citizen. In 2012, she gives birth to their first child, a healthy baby boy. Three years later, they have their second child. This time they have a girl, and she has some health issues. He has a full-time job, working six days a week to support his family. He is the main source of financial support for his family. In addition to working, he and his family attend church every Sunday, and he is well-respected in the community.

One day after work, he and a couple of colleagues had a couple of drinks. He was driving home alone in his car when the police arrested him for a DUI. The DUI did not result in injuries or property damage. He pleaded guilty, received credit for time served, and paid the fine. A couple of days before he was scheduled for release, ICE placed an immigration detainer (immigration hold), and he was transferred to ICE custody. The DUI is his only criminal history (remember that immigration is civil, and not criminal. ICE is alleging he violated the Immigration and Nationality Act).

Since he has been detained, his family has struggled. His children, ages 9 and 6, are having trouble focusing at school. His wife had to find a second job and is constantly worried what will happen to her husband. The attorney has already collected letters of support from friends, family members, the church, and other relevant documents she will include as exhibits in the motion. She also obtains the criminal disposition for the DUI and arrest report. She also obtained a letter from Alcoholics Anonymous, stating his client would be able to attend meetings if he is released from the ICE facility.  In her notarized letter, the client’s wife states she will drive him so that he will not have to drive, and she provides her driver’s license, proof she owns a car and car insurance.

Since the attorney is new to detained work, she begins to research relevant BIA case law. She feels confident that her client would not be considered a flight risk given his family and community ties, but she is worried that the client may be considered a danger to the community based on the DUI conviction. As she researches cases, she finds a 2018 BIA case that addresses DUI in the custody redetermination context. That case is Matter of Siniauskas.[6]

Headnotes from Siniauskas

Below are the two headnotes from the case:

(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.

Looking at these headnotes, what thoughts comes to mind as it applies to our hypothetical scenario and the client? Just by reading the headnotes, it does not seem promising for the client. The first headnote essentially makes two points: the IJ should consider more than just arrests and convictions, and family and community ties that go to flight risk will not generally address whether a respondent is a danger to the community. The second headnote, however, specifically addresses DUIs and provides the “significant adverse consideration” language.

Next, read the case. I have highlighted parts of the decision. The BIA decision is four pages long, and there was no dissent. Discuss whether students believe the headnotes sufficiently summarize the decision.

Discussion/Information about Headnotes

The BIA precedent chart compiles headnotes.[7] The chart specifically states, “This document is provided for informational purposes only as a convenience to the public.  It is not intended as a comprehensive source for preparing an appeal, or for citation in legal briefs, and does not represent an official publication of EOIR.”[8] Headnotes should not be cited.[9] In Supreme Court cases where there is a syllabus (headnote), there is a disclaimer to make clear the headnote is not part of the opinion.[10] The note specifically cites a 1906 Supreme Court case.[11] That case, United States v. Detroit Timber & Lumber Co.,[12] is about a property dispute, but counsel relied on the headnotes of a previous case. The Supreme Court noted, “In the first place, the headnote is not the work of the court, nor does it state its decision…It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports. . .. .”[13]

Returning to the client’s case, reading the case is important to not only understand the BIA’s reasoning but also the specific facts. As the Siniauskas court explained, “[i]n bond proceedings, it is proper for the Immigration Judge to consider not only the nature of a criminal offense but also the specific circumstances surrounding the alien’s conduct.”[14] This is where the facts come into play to distinguish the case from the one in Siniauskas. In that case, the respondent had three DUI convictions, a pending DUI charge, and three out of the four involved accidents.[15] In at least one subsequent unpublished decision, the BIA agreed with an I.J. who found a respondent was not a danger to the community when the respondent’s DUI conviction was his only offense in nine years of living in the United States and his DUI did not result in injury or property damage.[16] Even though BIA unpublished decisions are not binding,[17] they are helpful when conducting research and advocating for clients and their release from ICE custody. In our scenario, our client is closer to the respondent in the unpublished decision. In drafting the bond motion for her client, the attorney should cite both cases and explain why the I.J. should find our client is not a danger to the community. As a practical matter, I often include unpublished BIA cases as exhibits.

Headnotes, no doubt, are a helpful tool that students and practitioners can use when researching and drafting. But encourage students to go beyond the headnotes and delve into the details of the case, rather than exclusively looking at headnotes. This exercise will make students better prepared and ready for internships and eventually when they practice.

[1] Bill Chamberlain, What to Know about Your First Summer Internship, ABA Student Lawyer Magazine, December 1, 2016, available at https://abaforlawstudents.com/2016/12/01/what-to-know-about-your-first-summer-internship/ (last visited Oct. 11, 2021).

[2] Caroline L. Osborne, The State of Legal Research Education: A Survey of First-Year Legal Research

Programs, or “Why Johnny and Jane Cannot Research”, 108 Law Libr. J. 403, 408 (2016).

[3] Steven A. Lastres, “Rebooting Legal Research in a Digital Age,” Insights Paper, 2013, available at https://www.lexisnexis.com/documents/pdf/20130806061418_large.pdf (last visited October 11, 2021).

[4] Case Finding and Advanced Searching Strategies, Robert Crown Law Library, Stanford Law School, available at https://guides.law.stanford.edu/cases/headnotes (last visited October 11, 2021).

[5] 27 I&N Dec. 207, 209 (BIA 2018).

[6] 27 I&N Dec. 207 (BIA 2018).

[7] BIA Precedent Chart, available at https://www.justice.gov/eoir/bia-precedent-chart (last accessed October 11, 2021).

[8] Id.

[9] Id.

[10] See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

[11] Id.

[12] 200 U.S. 321, 337.

[13] Id.

[14] 27 I&N Dec. at 208 (citing Matter of Guerra, 24 I&N Dec. 37 (BIA 2006)).

[15] Id.

[16] N-P-N-, AXXX XXX 692 (BIA Oct. 29, 2018).

[17] See Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011).

Using Silent Signals to Assess and Engage the Students

Using Silent Signals to Assess and Engage the Students

By Vicky Daniels

By Emily Grant, Washburn University School of Law and Sandra Simpson, Gonzaga University School of Law

In a large classroom or in a zoom setting, sometimes it’s difficult to encourage two-way communication so that students can share thoughts with the professor.  Use of “silent signals” can facilitate real-time feedback and communication from students so that the professor can accurately assess the classroom climate.

First, what kind of silent signals?  You can ask for simple gestures like a thumbs up or thumbs down.  When I use this method, I have the students hold their signal close to their chests so I can see the signal but most of their colleagues can’t.  This may help the students feel more anonymous.   The same hand gestures work on zoom, or you can use the options under “reactions”—thumbs up, thumbs down, arrows, stop sign.

Next, signals in response to what?  Anything you might need feedback on.  Comprehension of the topic or the sample problem.  Pacing of the conversation.  Voting on how a hypothetical case will come out.  Expressing opinions on whether you agree with the dissent’s position. I use the thumbs up or thumbs down method to measure students’ comprehension of a concept we just covered.  The same method is a quick way to poll the students as well.

As with many teaching techniques, be careful not to overuse signals.  But in limited doses, they can be an effective way to take the temperature of a classroom.

Adapted from Elizabeth F. Barkley & Claire Howell Major, Interaction Lecturing: A Handbook for College Faculty 156-57 (2018).

Review: Strategies & Techniques for Integrating DEI into the Core Law Curriculum…

Review: Strategies & Techniques for Integrating DEI into the Core Law Curriculum…

By Vicky Daniels

Review by Emily Grant, Washburn University School of Law.

Professor Teri McMurtry-Chubb once again steps into a gap to provide much-needed information, suggestions, and resources for the law teaching community.  This time, she has written a book about incorporating diversity, equity, and inclusion (DEI) into all of our classrooms.

Strategies & Techniques for Integrating DEI into the Core Law Curriculum: A Comprehensive Guide to DEI Pedagogy, Course Planning, and Classroom Practice by Teri McMurtry-Chubb is available for free download here:  https://www.wklegaledu.com/resources/law-school-faculty/law-school-faculty

The book features DEI learning outcomes and assessments, course planning templates for each course in the core law curriculum, and racial trauma-informed teaching approaches. It also includes FAQs and discussion questions by chapter to work through as you and your colleagues plan and implement DEI curricular initiatives at your law school. The book is organized in three main parts, as described in the Introduction:

Part I, Chapter 1, The Scope of DEI Education & Pedagogy details the evolution of teaching with a DEI lens. DEI education and pedagogy work to make the greatest positive change within the core structures of legal education by strategically employing critical pedagogies and curricula. Chapter 2, The First Amendment, Academic Freedom, and the DEI Curricular Lens, examines the pushback students, faculty, and administration have encountered when advocating for DEI pedagogical and curricular interventions. This pushback has been cast as a conflict around academic freedom. This chapter discusses the current conflicts in the battle between DEI and academic freedom, and provides strategies for how to navigate these issues on law school campuses. Chapter 3, Assessing the Institutional Climate for DEI Curricula, explores the varied considerations professors of all ranks and statuses (e.g., Assistant, Associate, and Full Professors, non-tenure-track full-time faculty; adjunct faculty, etc.) should make when implementing DEI issues into the classroom and curriculum. This chapter explores how rank, status, and campus climate influence which pedagogical and curricular choices are available to faculty. It also examines professor positionality and teaching, or how a professor “presents” to the class impacts available DEI curricular choices and pedagogical strategies.

Part II, Chapter 4, Racial Trauma Informed Approaches to DEI Pedagogy, discusses how microaggressions, macroaggressions, and other discriminatory practices leave an indelible mark on those who have survived them. The psychological and social science communities have examined these phenomena as trauma, and have detailed the emotional, psychological, and physical effects they have on minoritized groups. It is imperative that professors have an understanding of racial trauma and racial trauma informed pedagogies as they prepare to discuss DEI issues in the classroom and design DEI curricula. Chapter 5, Course Planning and Assessment for the DEI Classroom & Curriculum, provides instruction on how to build a course that integrates a DEI curricular lens. It offers course planning templates that link skills and knowledge to learning outcomes, performance criteria, and learning activities – both for traditional and online classroom environments. It also connects the information in Chapter 4: Racial Trauma Informed Approaches to DEI Pedagogy to the course planning and assessment processes. Chapter 6, Developing Instructional Materials for DEI Pedagogy & Practice, lays out the processes for developing classroom DEI instructional materials that serve as learning activities to advance and measure learning outcomes. The chapter surveys multimedia resources, traditional learning techniques, microlearning techniques, and the like that are appropriate for traditional and online learning environments. It also provides levels of difficulty (easy, intermediate, difficult, and advanced) at which professors can access this work.

Answers to a list of frequently asked questions (FAQs) is located in Chapter 7. If you are working through this book with a committee, faculty, or other group, Chapter 7 also provides discussion questions for Chapters 1-6 to facilitate group dialogue. Lastly, Part III, Chapters 8-14, provides examples of course planning, instructional materials, and assessment for core curriculum courses at the easy, intermediate, and difficult levels. The courses included are Contracts, Civil Procedure, Criminal Law, Property, Constitutional Law, Legal Writing, and Torts.

Institute for Law Teaching and Learning