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Abstract:
This essay is based on the author's reflections as a member of the planning committee and a participant in the November 2005 conference co-sponsored by the American Bar Association (ABA) and the Law School Admissions Council (LSAC), entitled Embracing the Opportunities for Increasing Diversity into the Legal Profession: Collaborating to Expand the Pipeline. It discusses the future of diversity in legal education and the bar, focusing on the issue of diversity in the educational pipeline to college and law school. It argues that if the legal profession and law schools want a healthy flow into the law school end of the diversity pipeline, those working for law schools must take a long-term view and pay attention to the beginning of the pipeline. This essay suggests the need for lawyers, members of the law school community, and educators within K-12 and college educational institutions to collaborate in creating and implementing mentoring and other outreach programs for students throughout each major segment of the diversity pipeline to law schools, including ones that reach students as early as elementary school, while students still have time to make fundamental choices that may dictate which educational path they may take.

Legal education, diversity, education

Abstract:
This essay is based on a presentation made to the American Association of Educational Research and is designed to be accessible to non-law-trained staff in admissions offices throughout a university. It seeks to present the basic legal standards governing admissions and the policy choices that admissions committees must confront regarding diversity. It recommends admissions criteria that value diversity, while a companion essay urges renewed commitment to programs designed to increase the flow of diverse students through the kindergarten to high school (K-12) and college pipeline to higher education.

equal protection, education, race-conscious admissions

Abstract:
Legal academics are fond of saying that they teach doctrinal courses only partly to introduce students to fundamental principles of law. Particularly in the first year curriculum, they purport to use the legal subject matter largely as a vehicle for teaching various skills of analysis and for helping students gain familiarity with important legal institutions and their methods of legislation or adjudication. When an instructor introduces students to new legal rules as a means to teach analytic skills or other facets of legal method, however, the rules have a tendency to get in the way and capture an inordinate share of the students' attention and concern. Consequently, to keep students' attention squarely riveted on lessons of legal method, Professor Calleros advocates an occasional resort to exercises set in familiar nonlegal contexts that help students develop the same kinds of analytical skills they might apply to a legal problem.

In a series of exercises named Rules for Monica, Professor Calleros uses the familiar, nonlegal context of parental rule-making to provide novice students with an overview of skills they should master in the first semester. The incremental parental decision-making in the exercises mimics common law development, and students perform the same kinds of analyses they might when working with common law developed by courts. Rules for Monica also includes a statutory analysis component introducing students to the processes of making and interpreting a statute. This article discusses the pedagogic objectives and techniques of both the common law and legislative components.

legal education, legal method, first year curriculum

Abstract:
This article is based on the author’s presentation at the opening plenary session of the 1998 Conference of the Legal Writing Institute. The author’s unique presentation utilized the teaching of a music lesson (rhythms in flamenco music) to provide insights on teaching legal method and writing. The presentation is offered here in the form of a play, rather than as a traditional scholarly article. The author demonstrates a variety of teaching techniques in the music lesson, critiques the techniques, and discusses the application of such techniques in the context of teaching law and legal method. In teaching music or legal method and analysis, the article suggests using 'existing schema as a foundation on which to build new structures' as a way to make a lesson more concrete and accessible to students.

legal education, legal method, legal writing

Abstract:
In their first semester of law school, students are quickly immersed in a sea of appellate opinions, punctuated with scattered islands of statutory text. With guidance from their classroom instructors, and especially from their instructor in legal method and writing, they begin to see patterns emerging from the judicial opinions, and they eventually begin constructing a working knowledge of the elements of legal method and analysis. Students eventually come to realize that their assimilation of the current landscape of settled legal rules is secondary to their mastery of legal method. To help students understand their academic task, we can try to build on their schemata, their existing foundations of knowledge. By relating a new concept to a student's existing intellectual foundation, we can help the student to assimilate the new concept more quickly.

This essay gives two examples of classroom demonstrations designed to introduce first-semester law students to concepts of legal method that tend to cause difficulty for some of them if expressed only in abstract terms. These demonstrations illustrate: (1) the inherent uncertainty or indeterminacy in most legal questions, particularly in the problems that we are likely to assign as vehicles for developing skills of analysis and advocacy; and (2) the process of deriving a larger legal picture from a series of cases by synthesizing the cases, each of which may build on previous ones in the process of incremental judicial decision-making.

legal education, legal writing, legal method

Abstract:
Although American common law allows punitive damages for reckless or intentional torts, it will neither allow a jury to assess punitive damages for breach of contract nor permit enforcement of a contractual damages clause that is deemed to be punitive. This approach is rooted in an early Chancery practice of granting equitable relief from oppressive penal bonds and has been more recently justified as a means of facilitating efficient breach. Economic efficiency, however, can be accomplished even if punitive damages could be assessed for intentional breach, because the parties would have an incentive to negotiate a release from the first contract to enable both to share in the surplus offered by an intervening contractual opportunity. Moreover, negotiation of an enforceable penalty clause would allow some parties to maximize their utility by exchanging a signal of assurance of performance for a premium fee. Additionally, the French experience invites a fresh look, because - although it generally disallows punitive damages of a judicial origin for any civil wrong, tort or breach of contract - it honors freedom of contract and the autonomy of the parties by enforcing a contractual penalty clause (although the court may reduce an excessive contractual penalty). Taking a cue from the French approach, American courts and legislatures should reconsider their refusal to sanction freely negotiated penalty clauses and enforce them to the extent that they permit the parties to maximize their collective utility.

punitive damages, contracts, comparative law

Abstract:
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 imposes liability on employers who engage in sex discrimination that adversely affects an employee's terms or conditions of employment. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court unanimously held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court's opinion in Oncale may not end all facets of the current debate regarding same- sex harassment. For example, it may leave room for argument that liability for sex discrimination is based on the sexual content of harassment. When carefully analyzed with other Supreme Court precedent, however, Oncale points to a simple, coherent theory of sexual harassment that rests on proving that the harasser targeted the victim for harassment on the basis of the victim's status as male or female.

Such a theory has several virtues. It is relatively easy to apply, and it applies broadly to discriminatory harassment in a wide variety of contexts. Perhaps most significantly, it lays the groundwork for a future decision in which the Supreme Court squarely addresses First Amendment limitations on Title VII's imposition of harassment liability when an employer or its agent maintains a discriminatory work environment through abusive speech. By strengthening the evidence that the Supreme Court will embrace a content-neutral theory of liability, Oncale enhances the likelihood that objections to Title VII based on First Amendment values will be minimized. This article discusses Oncale and its implications for First Amendment challenges to Title VII liability for verbal harassment.

sexual harassment, civil rights, First Amendment

Abstract:
In Aguilar v. Avis Rent A Car System, Inc., a badly fractured California Supreme Court upheld a remedial injunction against harassing speech in the workplace on the condition that the trial court modify the injunction to state its prohibitions more narrowly and specifically. The court failed to dispel the notion that the California Fair Employment and Housing Act ('FEHA') imposes liability for harassing speech based largely on the content of the speech. This result is not compelled by the FEHA and is bound to maintain a high level of tension between interests of equality and freedom of speech in California jurisprudence. The United States Supreme Court, in contrast, has laid the groundwork for a largely content-neutral theory of liability for harassing speech under Title VII of the Civil Rights Act of 1964, thus greatly reducing the potential conflict between Title VII and the First Amendment without sacrificing interests in equality.

This article develops that theme in several parts. Parts I and II summarize the multiple opinions of the California Court of Appeal and the California Supreme Court in Aguilar. Part III summarizes the author's theory of content-neutral regulation of discriminatorily-directed harassing speech under Title VII, and explains how the theory can apply to the FEHA. Part IV examines Professor Cass Sunstein's theory of judicial minimalism, and uses that theory as a framework within which to critique the Aguilar decision and to apply a content-neutral approach to Aguilar and similar cases in the future.

First Amendment, speech, civil rights

Abstract:
In Professor Regina Austin’s article, Bad for Business: Contextual Analysis, Race Discrimination, and Fast Food,” 34 J. Marshall L. Rev. 207 (2000-2001), the central thesis is that many legal issues can be fully appreciated only in their social context, and specifically, in their racial context. Thus, data about an ethnic group's distinctive experiences in, or relationship to, a larger community-perhaps through formal ethnographic studies, or perhaps through other means-often can inform teaching, scholarship, and representation of clients in a meaningful way.

Professor Austin's thesis is supported by the teaching and scholarship of teachers of legal method of writing. This essay shares some examples from that field to illustrate both the benefits and the minefields of exploring issues of difference, of "otherness," in the classroom and particularly in legal writing courses or in seminars with writing components. This essay also suggests different ways that race or other facets of "otherness" can be acknowledged and confronted, rather than ignored, in the law school classroom.

legal education, race, diversity