In searching for a line on controversial or emotionally charged exam questions, it may help to think about three distinct ways those contexts can tie into and affect a question:
1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the “what about this” examples that Eugene and I (in comments to my earlier post) offered–testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.
2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson’s widow also would fall here.
3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.
So where does this framework leave us? Category # 1 presents the easiest case–students must be able to grapple with and analyze these questions and we have to be able to test on them. And that does not change if we put the question into a real-world factual context or not. So, for example, if I want to test on hate speech regulation, I should be able to put it in the context of nooses displayed on a a real college campus.
Category # 3 presents the hardest case, because the controversial context can seem most like a provocation. It thus is especially susceptible to the arguments that either a) it is unfair, unnecessary, and too hard for some students to fight through the offense or distraction to get at the legal question or b) if you insist on using Salaita, you can bowdlerize his “crime” to somethinions are beneficial in g other than tweets and views that may be seen as anti-Semitic or that may anger people on one side or the other of the Israel/Palestine question. I would suggest that Category # 3 questions are important to showing the legal side to current events and in making a subject relevant to the real world. But this category also leaves us the most flexibility, as we can give a Salaita question without quoting his texts or detailing his viewpoints (which, again, have nothing to do with the estoppel claim).
Category # 2 is obviously somewhere in the middle, coming closer to # 1 or # 3 depending on the question, the subject, and the circumstances. For example, the Salaita case may demand a different answer in an Education Law or First Amendment class testing on academic freedom.
I still believe all three should be fair game for both class discussion and for exams/essays. Lawyers must not only “get their lawyer on” (as a commenter on a prior post put it) as to the topic, but also as to its application. But for those who want to try to draw some distinctions and workable lines, this may be a place to start the conversation.
Posted by Howard Wasserman on December 14, 2014 at 09:31 AM
Comments
The underlying technical contract issue in the Salaita case (at least as reported) is spot on for a contracts exam if you want to test the relationship of classical offer and acceptance rules to the pre-acceptance reliance formula in R2K §87(2) – i.e. somebody quits a job before there’s been a contract formed under the classical O and A under the impression that the A is ministerial.
But throwing in the controversial, emotional parts of the case strikes me as unwise. Then again, my whole approach in first year contracts is largely to leave policy aside and to teach the technical lawyering skill of translating narratives into legal outcomes (my current metaphor is that a lawyer uses the rules to paint a legal picture of a narrative as a painter uses her palette to translate a scene onto a canvas). That’s hard enough to teach, test, and grade as it is. The students are already freaked when they walked into the exam, and the last thing I want to do is freak them out even more.
To your point, Howard, the aspects of the case that are emotionally charged aren’t really relevant, and it’s pretty easy to write them out.
Posted by: Jeff Lipshaw | Dec 14, 2014 11:12:32 AM