Does classroom laptop use inhibit law school learning?

A few weeks ago, I wrote about whether it was a good idea for judges to read appellate briefs on iPads or other screens, pointing out studies regarding decreased comprehension and retention reading from a screen compared to reading from paper. Thus, it does not surprise me at all that use of laptops in classrooms (especially law school classrooms) has some serious implications for learning. Take a look at this abstract of The Dynamics of the Contemporary Law School Classroom: Looking at Laptops Through a Learning Style Lens, by Regent University law professor Eric A. DeGroff:

The Millennial Generation is at ease with modern technology and with juggling multiple tasks. Many of them, however, come to law school less prepared in other ways for the rigor of legal education. Their learning styles, visual orientation, short attention spans, and previous learning experiences make them less suited for the focused and reflective thinking that are critical to learning legal analysis and linear reasoning. Research strongly suggests that some learning styles are more compatible than others with the discipline of analytical thinking and the demands of legal education. Students with learning styles less compatible with law school expectations face significant challenges even under the best of circumstances. This article suggests that the use of laptops in the classroom may exacerbate the challenges these students already face.

The article addresses the laptop issue in the context of learning styles and the dynamics of the learning process. It briefly discusses the history of the laptop issue, traces a significant body of research over the last several decades documenting the distracting effect of laptops even when used in connection with classroom activities, and presents the results of the author’s experimentation with a no-laptop policy in his first-year Property course. The author does not suggest removing laptops from the law school experience entirely, but recommends that professors of first-year doctrinal courses consider the adoption of a no-laptop policy for their classes.

When I saw that abstract in my Social Science Research Network email update, I was reminded of a Washington Post article I read more than five years ago: “Wide Web of diversions gets laptops evicted from lecture halls.” The article noted that some professors (including law school professors) had banned laptops from their classrooms, mostly because of the diversions that WiFi access created:

Wireless Internet connections tempt students away from note-typing to e-mail, blogs, YouTube videos, sports scores, even online gaming — all the diversions of a home computer beamed into the classroom to compete with the professor for the student’s attention.

“This is like putting on every student’s desk, when you walk into class, five different magazines, several television shows, some shopping opportunities and a phone, and saying, ‘Look, if your mind wanders, feel free to pick any of these up and go with it,’ ” [Georgetown law professor David] Cole said.

As readers of my “iPad judges” post may suspect, though, I think the problem goes far beyond the diversions presented by a WiFi-enabled laptop. As the abstract to Professor DeGroff’s article points out, the technology generation may be arriving at law school with shorter attention spans, suggesting that the technology created problems long before the students ever arrived on campus. But where I think the WaPo article really hits the nail on the head is with this observation (my emphasis):

Cole has banned laptops from his classes, compelling students to take notes the way their parents did: on paper.

***

Cole surveyed one of his Georgetown classes anonymously after six weeks of laptop-free lectures. Four-fifths said they were more engaged in class discussion. Ninety-five percent admitted that they had used their laptops for “purposes other than taking notes.”

Even when used as glorified typewriters, laptops can turn students into witless stenographers, typing a lecture verbatim without listening or understanding.

I did quite well in law school, and I remember going minutes at a time in classes without writing anything down, because I realized the value of the class was in the give-and-take of the “Socratic Method” dialog that I so relished (yet so many of my classmates loathed and feared).* After some meaningful dialog, I was able to distill key points and limit my notes accordingly.

In other words, I actually thought during class. I hope students are still doing that.

_______________________________

*Not everyone is enamored of the Socratic Method.

Thoughts on publication of opinions imposing appellate sanctions for frivolousness

This recent Southern California Appellate News post by Ben Shatz led me to a case that got me thinking further about the utility of publishing opinions imposing appellate sanctions. More than six years ago, I posted in response to a law review article that Ben co-authored with another, which surveyed the cases imposing appellate sanctions. As I recall, the article limited the time frame of the survey to the period since unpublished decisions became available online, since so many of the decisions imposing sanctions are never published. That led me to write:

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.

My thinking at the time was that, as a rule of thumb, opinions imposing appellate sanctions should generally be published, but I hadn’t really taken into account the criteria for publication. The mere imposition of sanctions does not automatically fit within any of the established criteria for publication in rule 8.1105(c)(6), Cal. Rules of Court. I was thinking in the abstract that publication should be encouraged, even if it meant amending rule 8.1105.

However, I think my initial concerns were probably misplaced. Educating attorneys on what is and is not sanctionable was the intent behind my initial thought that sanctions decisions should be published, but is that really needed? Consider the standard for frivolousness:  “whether any reasonable person would agree that the point is totally and completely devoid of merit.” In other words, no reasonable person would agree that the point is not frivolous. Do we need guidance on that?

That standard for frivolousness is at odds with the idea that any sanctions decision would be a close call. Publication of an opinion imposing sanctions for frivolousness might frequently undermine the very basis for the imposition of sanctions, because it would suggest that the imposition of sanctions was a close enough call that it requires an explanation justifying publication under rule 8.1105. Those should be rare occasions, indeed.

If you have thoughts on this, feel free to leave them in the comments.

The “underground body of law” – the influence of unpublished opinions

There’s nothing quite so frustrating as finding the perfect case — factually and legally on “all fours” with yours, with a “slam dunk” holding — that has been depublished (or was never published). California Rules of Court, rule 8.1115(a), prohibits citation to opinions “not certified for publication or ordered published.” That “perfect” case might as well not exist if it’s not published.

Well, not quite. Such cases can be well worth finding because, in the absence of published cases, they can still be quite helpful in formulating argument and working logically through the issues. It is such influence in the absence of publication that leads presiding justice Kline, dissenting in People v. Moret, case no. A123591 (1st Dist. Dec. 28, 2009. modified on denial of rehearing Jan. 22, 2010), to cite the existence of an “underground body of law” as his principle justification for publication of Moret:

[Health and Safety Code section 11362.795] has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions. (Cal. Rules of Court, rule 8.1115.) Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts. The existence for a long period of time of an underground body of law on the meaning of [Health and Safety Code] section 11362.795 (to which some members of this panel have admittedly contributed) is injudicious.

The cited code section concerns use of medical marijuana. I can’t be the only one who finds it a little ironic that the body of case law on it would be underground.

Citations of the future

Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority:

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel

When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v. Orozco, case no. F056712, (5th Dist. Ja. 8, 2010), the court of appeal joins several federal courts in reaching the only sensible answer: of course not.

To hold such a waiver enforceable “would deprive a defendant of the ‘opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.’ ” [Citation.]

We agree with the federal authorities and find justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness.

“Octa-Mom” wins one in court

“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010).

Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss, and petitioned for a writ of mandate after the trial court denied her motion. As unsympathetic a person as Suleman may have been in the press, Peterson looks pretty bad, too:

This is an unprecedented, meritless effort by a stranger to a family to seek appointment of a guardian of the estates of the minor children. The petition‟s allegations are insufficient to infringe on a parent‟s civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children. There is nothing in the petition that shows that the best interests of the children in the management of their finances are not being served by Suleman.

I always liked the joke “It’s on the internet, so it must be true!” Peterson learns that a court petition is not the time to try to take that whimsical expression seriously:

What information do we have before us? Petersen is not a relative under section 1510, subdivision (a). Petersen has never met and never had any contact with Suleman, her children, or any member of her family. All of the information presented in the petition for appointment of a guardian has come from television or the Internet. Petersen has provided no documentary evidence (much less admissible evidence) that raises a reasonable inference of wrongdoing. The information provided can be summed up as follows: Suleman and her children have appeared on television and the Internet, presumably in exchange for money. No evidence of financial mismanagement on the part of Suleman is offered. Petersen admits he does not know whether Suleman has taken the appropriate steps to ensure that 15 percent of each child‟s portion of any earnings has been placed into a [statutorily mandated] Coogan Trust Account.

(My emphasis, footnote omitted.) Not only does Suleman get the guardianship petition dismissed, she also succeeds in stopping an investigation ordered by the trial court into her family’s finances.

The average person following this on the news probably wrote off Suleman’s chances of prevailing. Lawyers not paying close attention may also have rolled their eyes, in light of the overwhelming odds against having a writ petition heard on the merits, let alone winning. However, Suleman presented a statutory interpretation issue of first impression of great importance — who has standing as “another person on behalf of the minor” under Probate Code section 1510, subdivision (a) to bring a guardianship petition — that not only caught the court’s eye, but actually resulted in a win.

Supreme Court announces court closure schedule

The California Supreme Court has announced the statewide court closure schedule made necessary, according to the announcement, by “California’s current fiscal crisis.” “The Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009”.

Those of you who prefer not to risk miscounting your Wednesdays can find a list of closure dates through June 2010 on the Supreme Court’s home page. In case that list is no longer there when you look, Kimberly Kralowek has posted the same chart at The UCL Practitioner.