HOUSING DISCRIMINATION: INTRODUCTION TO THE COURSE



PROPERTY II (SPRING 2021)

INFORMATION MEMO #1: COURSE OVERVIEW (1/26/21)

Table of Contents

A. COURSE OUTLINE & TENTATIVE SCHEDULE (IMO 1)

B. INFORMATION ABOUT THE COURSE (IMO 2-8)

C. INFORMATION ABOUT THE INSTRUCTOR (IMO 8-10)

D. WRITTEN SUBMISSIONS: INSTRUCTIONS & OTHER INFORMATION (IM 11-20)

A. COURSE OUTLINE & TENTATIVE SCHEDULE

I. Private & Public Nuisance Law

January 26-February 16

II. Actual and Desirable Limits on Homeowners’ Association Regulations

February 16-March 11

III. Selected Topics in Zoning Law

March 11-April 1

IV. Disability Accommodations in Housing & Buildings Open to the Public

April 1-22

B. INFORMATION ABOUT THE COURSE

1. Course Coverage & Goals

Welcome to Property II. Each of the four chapters listed on the previous page addresses one important type of limit on the ways landowners can use their own property. For each chapter, we will study relevant cases and other legal materials (e.g., federal and state statutes, restatement provisions, local ordinances, and legal scholarship). We also will work through several problems to increase your familiarity with the substantive material and to further hone your legal skills. Some of you have been introduced to one or more of our topics in Property or in other law school courses. However, I am confident none of you have been introduced to all of them nor studied any of them in the depth that we will employ here.

Importance of the Substantive Material: Each of our topics is a significant aspect of American land use law central to the representation of developers and municipal governments. Some of the material also is very helpful when representing homeowners’ associations and large landlords or if you engage in a more general practice that includes individual landowners or smaller landlords and businesses. The first three chapters include material tested on the MBE and in some or all state bar exams. The last chapter provides an introduction to disability accommodations law which can be an important type of compliance work for many businesses and is an important area of public interest practice.

Skills Development: One of the benefits of your taking a small upper-level law school class is the opportunity to work on your legal skills and to get substantial individualized feedback on your contributions to class discussions and on some written work. I intend to give you practice in each of the following (partially overlapping) categories:

• Better Understanding Legal Authorities: Reading effectively and understanding the significance and appropriate use of different kinds of authority. We will read cases in every chapter, and also work with Restatement Provisions (chapters 1 and 2); Federal Statutes & Regulations (chapter 4); State Statutes (chapters 1, 2 and 3); Local Regulations (chapter 3); and Legal Scholarship (chapters 2 and 3)

• Initial Investigation/Case Construction: When a lay client first brings you a problem, they are unlikely to understand how it fits into existing law or to have identified all the relevant facts/evidence that might eventually matter. We will do problems in class in which, based on a short client story, you need to identify relevant factual and legal investigation necessary to advise the client. You will submit and get feedback on two written examples of this and a problem of this type will be a third of your final.

• Argument Formation: Once you have identified the relevant legal standards and at least some of the relevant facts, you need to be able to formulate well-structured legal arguments. This incorporates a number of related skills, including understanding and applying the organizational structure created by the relevant legal test; identifying where in the structure particular facts are relevant and seeing the significance of missing facts; identifying which parts of the claim are relatively easy to resolve (and which are not); articulating your points in a way that works with the relevant legal standards; and deciding when policy arguments are appropriate and knowing how to use them. We will work on all of this in class and you will get feedback on several written submissions. Two thirds of your final will consist of 4 shorter problems of traditional legal analysis, although one or two of them will focus heavily on policy arguments.

• Written Presentation: Your written work needs to demonstrate the kinds of skills already listed, but also needs to be clear and concise, which means you need to edit well. Very few law students are naturally concise and very few have a lot of experience doing careful editing. We will do some editing exercises in class and I will give you explicit feedback on this aspect of your written submissions.

2. Mechanics of the Class

Relevant Materials (Posted on Course Page)

There is no book to purchase. All relevant materials are available in electronic form and will be posted on the (eventual) course page. These will include:

“Course Materials” are the equivalent of a casebook. For each chapter, the materials will include cases and other legal materials, some informational notes, questions for class discussion, and review problems. In class, I regularly refer to specific language in the cases and other legal materials, so you probably will find it helpful to put a hard copy of these materials (and of this memo) in a secure binder and have them available during class meetings. If you choose to rely solely on digital copies of these materials, I will expect you to be able to access them quickly if I ask you to look at a specific passage. The materials for the first part of Unit One are already posted. I will post the est of the materials in plenty of time for you to do the relevant reading.

“Syllabus” is the table of contents for the course, indicating which material falls within which parts of each chapter. I have posted the syllabus for the first part of Unit One. Subsequent sections will appear when the relevant course materials are posted.

Assignments: On the face of the course page under “Current Assignments,” I will post a coverage outline and the reading/preparation assignments for each class meeting at least a week in advance. After each class, I will adjust the assignment for the subsequent class to reflect any material that is carrying over. I then will record what we actually covered in a document called “Cumulative Assignments.”

PowerPoint Presentations: After each class, I will post the PowerPoint on the course page. When reviewing, you may find it helpful to go through the PowerPoint before or instead of replaying the entire class.

Asynch Videos: I periodically will record some asynch videos to provide a general introduction to a new topic, to finish up material we don’t get to in as assigned class, or to discuss exam technique. In a designated section of the course page, for each video I will post the zoom link and password along with a summary of the contents. The PowerPoints accompanying the video will either be attached to the presentation for the relevant class or will be posted in the exam prep section.

Information Memos: One for each chapter = Additional materials to enhance your understanding of the chapter and help you prepare for the final exam. These will include lists of key concepts/questions I could plausibly test, comments and best student answers for review problems (where available), clarifications of some issues that arise in class, information on how particular jurisdictions have handled key issues and supplementary sources for clarification or for your own personal interest. I will continue to add to these memos as the semester progresses and will indicate new additions on the course page. You should treat anything in these memos as required reading unless marked as “Supplementary” or “NOTIO” (not on test; information only).

The World of Remote Classes & Quarantine

Class Meetings: Absent emergencies, classes will be synchronous on Tuesdays and Thursdays. I will try to start exactly at 8:00 and end promptly at 9:20. We will take a seven-minute break in each class at roughly 8:38. I won’t take attendance, but missing multiple classes can reduce your participation score (see below). Recordings of each class will be posted on Blackboard (not the course page).

• The Zoom invitation for the class is on the course page. I have set the Zoom meetings from 7:45-9:35 so I can be available for questions and conversation before and after each class.

• Because the class is small:

o Try to arrange your life so that you are ready to start at 8:00 and able to stay with us until 9:20. If several of you dribble online between 8:05 and 8:15, it will be hard for us to get through the assigned material.

o Try to leave your video camera on as much as possible. I understand that sometimes this won’t work for you given imperfect living situations or mornings where you wake up at 7:58. However, I’d like us to become comfortable enough with each other to discuss difficult issues and seeing faces helps. I also think you are more likely to try to say focused when the camera is on. Finally, one of the things that I find very disturbing in mask-world is that I cannot see people smile.

Keeping Focus (My End): I am experimenting with using lots of PowerPoint and multiple shorter segments, frequently switching between lecture, calling on individual students, and volunteer discussions. I would be delighted to get regular feedback on what is working well and what is not.

Keeping Focus (Your End): During much of the class time, on the screen, we will either have the whole class or have a large PowerPoint slide with a line of faces down the side. Try to be thoughtful about how many windows (and of what size) you can manage at a time. You may wish to keep beside you a hard copy of the cases and/or your notes on DQs for which you are responsible. You may also wish to consider taking notes on paper.

“Office Hours” & Other Remote Contact: I will hold “office hours” by remaining next to the computer able to answer e-mails quickly after our class meetings and prior to my 1L Elective which meets Wednesday ay 10:10. The exact times are listed on the course page. I will post a note next to those times if I am unable to be available on particular days. Otherwise, if you have questions about the class or law school generally, e-mail me. If you would like a more direct conversation (alone or in groups) let me know and we can set up a telephone meeting or a Zoom session. If I think a question you ask is worth sharing with the class, I may copy your question and my answer and circulate them to everyone in an Info Memo, deleting your name and other references to you.

Lunches with Students: When I teach first years, I traditionally have scheduled lunches with groups of the students to get to know them better and to give them a chance to ask any questions that are on their minds. Because this is a small class, I thought I would try doing the same with you (purely voluntary of course). I will schedule a series of Zoom meetings during March, probably on Fridays at Noon. More details to follow.

Faculty Assistant: As those of you who have had a class with me in the last three semesters, my assistant is the incredibly capable Marysabel Merino. Unfortunately, she is taking a new position on February 4. As soon as I know what the new arrangements will be (particularly regarding your written assignments and the grading contract (see below)), I will let you know.

3. Class Sessions: Operation & Preparation

Collective In-Class Work: Readings, Discussion Questions, Review Problems: I generally will expect everyone to have done the relevant readings carefully, but I will not ask you to brief cases in class or to be ready to answer random questions about the readings. I will expect you to have prepared all assigned discussion questions (DQs) thoroughly. In class, I may start by providing some background or explanation and I will answer some DQs myself. However, for most of the DQs, I will either ask for volunteers or call on individual students. As will become apparent, few DQs have simple answers, so you should try to get in the habit of pushing yourself to find more arguments or more evidence or more concerned parties (as the particular DQ requires). When I finish working through the DQs for a particular reading, I will try always to ask if you have other questions before we move on.

The Review Problems are mostly old Property exam questions. I will generally post supplementary instructions with the daily assignments providing specific questions to address and/or assigning particular students to address one aspect of the problem or to represent a particular party. These problems give you an opportunity to get used to my way of designing exam questions and to get feedback on your work. The more you put in, the more you’ll get out. On most days, I will assign both readings with DQs and one or more review problems. Look at the listings undr Current Assignments for the sequence in which I intend to go through the materials.

Individual Responsibility: In my 1L classes, like many profs I divide the class into panels and make each panel primarily responsible for particular material or particular class meetings. In a very small class, we cannot really do that for all the material without leaving too few people focused on any one set of readings. In this class, Iam going to try a kind of inverse version of the panel system.

I will expect everyone to be prepared for the first four classes (once you have committed to staying in the class). After that, I will assign some DQs and parts of Review Problems to particular students (who will be listed under Current Assignments) and the rest will be assigned to “ALL”, except everyone will have scheduled “off-days,” where I will not call on you. My current thinking is that you each will have six classes as off-days. I will create a system to get your preferences in advance so, e.g., if you are going to be away at a wedding one weekend, you can choose the fly away Thursday as an off-day. I will post your off-days on the course page, so that, if your schedule changes, you can trade with someone else and just tell me when you get to class.

As noted, I will not take attendance so you can ignore the online check-in system, it. Nor will I keep track of late arrivals and early departures. However, you will obviously receive less total credit toward the participation portion of your grade if you are repeatedly missing at times I’d intended to call on you. On your off-days, you are welcome to attend or not and volunteer or not.

4. Evaluation

Grading Contract & Components: There will be three graded components of the course (each described in more detail below): a Take-Home Final Exam (50-90% of the grade); Five Mandatory Written Assignments (0-40%); and Class Participation (10-50%). You will be allowed to decide (within the ranges listed) what percentage of your grade will be attributed to each component. After you have submitted your first written assignments, have had a chance to ask questions about my expectations, and you have looked at the due dates for all the submissions (listed below), you will fill out a “grading contract,” setting the values for each component. Once submitted, the terms of the contract cannot be altered.

For example, if you only have one or two other exams, you don’t love talking in class, and you anticipate having a lot of work during the semester, you could put 90% of your grade on the final, 10% on participation, and do the written assignments pass-fail (= 0% in the contract). On the other hand, if you have four other exams, but not a lot of major projects during the semester, you could assign just 50% of your grade to the final exam and take 25% each on the assignments and participation.

Final Exam (50-90% of Grade). This will be a take-home exam available to you for the entireexam period. It will consist of one longer question worth a third of the available points (roughly equivalent to a one-hour question on an in-class exam) that will give you a short client statement and ask you to describe the factual and legal investigation you would need to do to advise the client. The rest of the test will consist of four shorter questions each worth a sixth of the total points (each roughly equivalent to a half hour question on an in-class exam). These will look like the short problems we will do in class. One will be essentially a pure policy question (discuss the pros and cons of adopting X legal standard). The others will primarily ask you to apply particular doctrine to a given set of facts, but may raise a narrow policy issue that you should identify and briefly discuss. You will be allowed seven pages for the longer question and three pages each for the shorter ones (using specified formatting). The 2018 exam is on the course page. Your exam will be in the same format and the instructions will mostly be the same (except they only had 48 hours to do the test).

Written Assignments (0-40% of Grade): You must turn in five written assignments, each consisting of your answers to one or two specified review problems formatted in the same way as the final exam answers. As noted, you can choose to do these assignments on a pass-fail basis but still must turn all of them in. The first two will each consist of one of the shorter questions and will constitute 10% each of the available points. The last three will each consist of either one longer question or two shorter ones and will each constitute 20% of the available points.

I will grade these submissions anonymously without knowing either the author or the amount of weight you’ve put on this part of your work. Thus, my assistant will provide you with a different alias for each assignment and she will forward my comments to you. I will try very hard to get the feedback out within a week of the submission date.

In my experience, group work often benefits students by showing them approaches and ideas outside their comfort zone. Thus, although you may choose to do all the assignments alone, you can chose to do up to three of them as a team of two or three so long as you don’t work more than once with any particular student.

Class Participation (10-50% of Grade): Because this is such a small class, participation is required and must make up at least 10% of your grade. In determining your score for participation, I aim to reward careful preparation of discussion questions and review problems, thoughtful engagement with the material and with the ideas of others, and bringing otherwise absent perspectives to discussions (whether or not the positions taken represent the student’s own opinion). Your score will be based only on contributions in class, not on out of class comments or on good attendance.

Penalties: I will assess small penalties for each failure to follow formatting instructions for the written assignments or for the final exam or for late submission of the assignments. See last section of this memo. Failure to turn in one or more of the assignments altogether will result in a substantial penalty. I will assess these penalties against your total score for the course, so that they will not vary with the terms of your grading contract. In other words, exam formatting penalties are the same whether the exam is 50% or 90% of your grade. And you cannot avoid penalties for formatting or lateness on the individual written assignments by choosing to do them pass-fail.

5. Spring 2021 Classroom Policies for Online Courses

(Required by the University or the School of Law)

Class Recordings: Students are expressly prohibited from recording any part of this course. Meetings of this course might be recorded by the University. Any recordings will be available to students registered for this class as they are intended to supplement the classroom experience. Students are expected to follow appropriate University policies and maintain the security of passwords used to access recorded lectures. Recordings may not be reproduced, shared with those not enrolled in the class, or uploaded to other online environments. If the instructor or a University of Miami office plans any other uses for the recordings beyond this class, students identifiable in the recordings will be notified to request consent prior to such use.

Disability & Accommodation: If a student has a disability, or suspects that he or she may have a disability, please contact Jessie Howell, Director of Accessibility, for information about available opportunities, resources, and services. Her phone number is 305-284-4551, and her email address is access@law.miami.edu.

Title IX: The University of Miami seeks to maintain a safe learning, living, and working environment free from all types of sexual misconduct including but not limited to: Dating Violence, Domestic Violence, Sex- or Gender-Based Discrimination, Sexual Assault (including Sexual Battery), Sexual Exploitation, Sexual Harassment, and Stalking. For additional information about the University’s efforts to prevent, stop, and address sexual misconduct, including resources and reporting options, please visit miami.edu/titleix or contact the University’s Title IX Office at titleixcoordinator@miami.edu.

Intellectual Property: The course professor is the copyright owner of the courseware. Specifically, pursuant to the University’s Policy on Inventions, Intellectual Property, and Technology Transfer, “courseware” includes: course syllabi, assignments, assessments, and/or other materials that are first created and made available to students as part of the educational curriculum at the U

6. Conclusion

For this course, I have tried to choose topics that will be especially interesting to discuss and that will highlight the relationships between the chapters (e.g., How does applicable zoning affect nuisance analysis? What problems arise trying to apply disability accommodations to land governed by homeowners’ associations?) I hope you enjoy both the subject matter and the opportunity for individualized feedback and I greatly look forward to working closely with you and getting to know you as the semester progresses.

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B. INFORMATION ABOUT THE INSTRUCTOR

EDUCATION A.B. History 1982, J.D. 1985, Stanford University

EMPLOYMENT University of Miami School of Law

Professor of Law (6/94- present)

Associate Professor of Law (6/88-5/94)

Santa Clara University, Santa Clara, California

Visiting Professor of Law (8/02-5/03)

University of Pennsylvania, Philadelphia, Pennsylvania

Visiting Professor of Law (8/99-5/00)

Cornell University, Ithaca, New York

Visiting Professor of Law (8/95-5/96)

Heller, Ehrman, White & McAuliffe, Seattle, Washington

Associate Attorney (9/86-4/88)

U.S. Ninth Circuit Court of Appeals, Seattle, Washington

Law Clerk for Hon. Betty Binns Fletcher (8/85-9/86)

BAR ADMISSIONS California (1985); Washington (1987); Florida (Associate 1997)

DOG Simon (13)

LAW SCHOOL TEACHING

Antitrust (upper-level course 1989-92, 1994, 1997, 1999-2000, 2002, 2004, 2007-08)

Constitutional Law (upper level course 1994, 1998, 2000-01, 2003;

first year course 1995)

Elements of Law (1L course 1994, 1996-98, 2000-01, 2003, 2005-09, 2012, 2014-17, 2019)

Fair Housing (mini-course for LL.M. candidates in Real Estate 1996-97)

The Galileo Project: Law, Science, Truth & Power (upper level elective 2012)

Housing Discrimination (first year elective 1995, 1998, 2002, 2005, 2008, 2011-12, 2021; seminar 1996-97; upper level elective 1996-97, 2000, 2002, 2006, 2008-09, 2011, 2015, 2020)

Identity Politics and Law (seminar 1993, 1995)

Property (introductory course: 1988-93, 1996, 1998-99, 2001-03, 2005, 2007, 2010, 2013-17, 2019)

Property II/Land Use (upper level elective 2018, 2021)

Religion & Antidiscrimination Law Workshop (upper level workshop 2009)

Religion & Law (upper level course 2011)

Religious Freedom & Same-Sex Marriage (upper level mini-course 2016)

Selected Topics in American Legal History (upper level course 1989, 1994)

Trusts & Estates Essentials (upper level course 2019)

SELECTED PUBLICATIONS

A Better Analogy: “Jews,” “Homosexuals,” and Prohibited Classifications in Anti-Discrimination Law, 12 Stanford J. L. & Policy 37 (2001)

Toward Respectful Representation: Thoughts on Selling Same-Sex Marriage, 15 Yale L. & Policy Rev. 599 (1997) (Review of Eskridge, The Case for Same Sex Marriage).

Bowers v. Hardwick, Romer v. Evans, and the Meaning of Anti-Discrimination Legislation, 2 Nat’l J. of Sexual Orientation & Law 208 (1996)

Taming the Wayward Children of Monsanto and Sylvania: Some Thoughts on Developmental Disorders in Vertical Restraints Doctrine, 68 Temple L. Rev. 1 (1995)

Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 Georgetown L.J. 1845 (1994)

Can Two Real Men Eat Quiche Together?: Story-Telling, Gender-Role Stereotypes & Legal Protection for Lesbians & Gay Men, 46 U. Miami L. Rev. 511-651 (1992)

SELECTED FAVORITE AUTHORS

Daniel Abraham; Anne Bishop; Marion Zimmer Bradley; David Brin; Lois McMaster BujoldOrson Scott Card; Jacqueline Carey; Robertson Davies; Charles Dickens; Dorothy Dunnett; Reginald Hill; Robert Jordan; Guy Gavriel Kay; Barbara Kingsolver; George R.R. Martin, Julian May; Ethan Mordden; Toni Morrison; Patrick O’Brian, Sharon Kaye Penman; Louise Penny; Patrick Rothfuss; J.R.R. Tolkien; Harry Turtledove; David Wingrove

SELECTED THEATRE EXPERIENCE

Director: “8”; As You Like It; The Comedy of Errors; Fires in the Mirror; For Colored Girls Who Have Considered Suicide …; Hot L Baltimore; The Last Flapper; A Little Night Music; Macbeth; The Merchant of Venice; A Midsummer Night's Dream; The Real Inspector Hound; Rosencrantz & Guildenstern Are Dead; Side By Side By Sondheim; A Streetcar Named Desire; Sweeney Todd; Troilus & Cressida; Twelfth Night

Stage Manager: A Funny Thing Happened On the Way To The Forum; Jesus Christ Superstar; The Mousetrap; The Recruiting Officer; The Silver Tassie

Actor: Malcolm (Macbeth); Toby Belch (Twelfth Night); Senex (A Funny Thing Happened on the Way to the Forum); Silver/Officer (Defining Code Red)

Critic: Stanford Daily (1982-1985)

HONORS AND AWARDS

University Faculty Senate Outstanding Teaching Award (2*004)

Hausler Golden Apple Award (Teaching/Service to Students) (1991, 2002, 2013)

Outstanding Advocate Award, Gay and Lesbian Lawyers Ass’n of South Florida (1995)

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D. WRITTEN SUBMISSIONS:

INSTRUCTIONS & OTHER INFORMATION

* = Sources of Possible Penalties

1. Submission Schedule

Assignment 1: Short Problem (Aliases = Asian Countries)

In-Class Introduction: Tue 2/9

Submission Due: Mon 2/15 @ 8 pm

Assignment 2: Short Problem (Aliases = Flowers)

In-Class Introduction: Tue 3.2

Submission Due Mon 3/8 @ 8 pm

Assignment 3: Long Problem or 2 Short Problems (Aliases = Generals)

In-Class Introduction: Tue 3/16

Submission Due: Mon 3/22 @ 8 pm

Assignment 4: Long Problem or 2 Short Problems (Aliases = Dog Breeds)

In-Class Introduction: Thu 4/1

Submission Due: Wed 4/7 @ 8 pm

Assignment 5: Long Problem or 2 Short Problems (Aliases = College Towns)

In-Class Introduction: Tue 4/20

Submission Due: Mon 4/26 @ 8 pm

2. Anonymous Grading & Logistics

(a) I use anonymous grading for several reasons:

• I want to judge written submissions solely based on what I see on the paper in front of me uninfluenced by any opinions—good or bad—that I might form about a student based on class participation or other interactions.

• In this class, you will use a different alias for each assignment so that I am not influenced by your performance on the earlier submissions. Otherwise, in a very small class, if “Lambchop” performs very well and “Hysterical” performs poorly on the first two assignments, I am likely to start to assume (perhaps subconsciously) that subsequent submissions will follow the pattern.

• My experience is that students find it easier to accept constructive criticism when they are certain that I am commenting based only on their work and not on any personal feelings about them. Sometimes students say they don’t really care if I know who they are, but I care a great deal for the reasons listed here. Please help maintain the system by adhering to the rules below/

(b) My new assistant (whoever he or she be ☹) will help you to get one alias for each submission. Between the end of class on Tuesday 2/9 and noon on Friday 2/12, you should either

i) Go see my assistant in person and choose the alias you want for each submission; or

ii) Send my abssistant an e-mail asking him/her to randomly choose for you and s/he will do so.

*(c) You will identify yourself on each submission only by using your alias for that submission as a header. To avoid confusion, the submission schedule includes the type of alias we are using for each assignment. Thus, for assignmen 2t, you will know to use, e.g., Iris rather than Nepal or Sherman. If you lose or forget aliases, you can retrieve them from my assistant.

*(d) Do not put any your name (or social security number or C number) anywhere on your submissions. Do not put your alias anywhere besides the header.

*(e) When discussing pending or submitted assignments with me, please frame questions and comments in a way that does not undermine the anonymity of the grading. Questions like “Was it OK that I combined the discussions of utility and harm into one long paragraph?” are likely to give you away. Similarly, be careful not to mention your aliases when I might hear them. For emergencies, I’ve put extra aliases in each set, but that doesn’t help if you’ve already submitted your work. Before or after submission, I will penalize for compromising anonymity.

(f) After I have returned your submission with comments, you can set up a Zoom meeting with me if you have questions. Because of the way we are processing the grades, my knowing at that point that you were “Dalmatian” and got 8/10 on the assignment will not affect the anonymity of the determination of your overall grade.

*(g) Each submission is due on the time and date indicated on the schedule above. You should submit the assignment electronically to my assistant by e-mail (address TBA). Your assignment should be in the form of a Word document attached to your e-mail. To be treated as “on time,” your e-mail must be sent (not necessarily received) by the time and date indicated. Please do not include your name in the name of the document. One easy possibility is to simply use your alias as the document’s name.

*(h) If you submit an assignment late without suitable excuse, you will receive a penalty that will increase the later you send it (see below). If you need to get an extension due to illness or emergency, please contact Tina rather than speaking directly to me, and do so before the submission is due if at all possible. This way, we can try to accommodate you without undermining grading anonymity.

(j) Working in Teams of Two or Three (Note there is no (i) in team)

*(i) You may work with one or two partners on up to three submissions. However, you may not work with any particular student more than once.

*(ii) Your team should submit just one copy of your joint submission and include the aliases of all the team members in the header.

*(iii) Please be careful not to let me know that you are working together or it will be a little too easy to figure out who you are.

(iv) All team members will get the same grade on your joint submission. You all will get the same penalties as well unless:

• The person finalizing and submitting the joint work identifies themselves by putting as asterisk next to their alias in the header (thus taking responsibility for formatting and lateness issues); -OR-

• One team member tells my assistant after the fact tells my assistant they will take responsibility for particular penalties. E.g., suppose all team members proof read for formatting, so should share responsibility for any of those errors. Hwever, one team member was responsible for submission and was late. S/he could tell my assistant that the others should not receive the lateness penalty.

3. Formatting Instructions

*(a) Basic Page Set Up

• Use only 12-point Times New Roman font, double spaced.

• Number the pages at the bottom.

• Set the margins at 1.25 inches on the sides and 1 inch at the top and bottom (what Microsoft calls “Office 2003 Default”)

*(b) Maximum Length of Submission.

• For the first two submissions, 3 pages each.

• For the later submissions:

o If I assign one long problem, 7 pages.

o If I assign two short problems, each should be no more than 3 pages, but submit them as a single consecutively numbered document. Start the second problem at the top of a page even if the first one does not fill up its last page. You need not put any indicator as to which problem is which or where the second one starts. That should be clear from the text.

(c) Showing the Structure of Your Work

• * Start each new paragraph with either a heading or a small but noticeable indent. E.g.

Public: Unclear how many people harmed here. If many of those are concentrated near D’s mine, …

OR

However, D says no reason to think folks susceptible to this problem would be concentrated randomly throughout the area …

• If you use bullet points, you can set the bullets directly against the left margin.

• Help me to understand your argument by making visible in some fashion when one idea or heading is a subset of another. E.g.,

Balancing Test

Gravity of Harm (827 Factors)

Character/Extent of Harm:

*OR*

I. BALANCING TEST

A. Gravity of Harm (827 Factors)

1. Character/extent of harm:

• * Important: Please do not use Microsoft’s automatic outlining. Do any outline numbering/lettering and indentation by hand. Otherwise, I will have trouble manipulating your documents for grading and comments.

(d) Citations

• *Cases: You only need one word citations (e.g., Jones or Beckman). Where appropriate, you can add a number (e.g., Carpenter II). Do not include reporter citations or page numbers.

• Statutes, Regulations, Restatement Provisions: You should give me enough information to know what you are citing, but not worry about elaborate details like dates. I will let you know in comments to your written submissions if I am having trouble understanding or if I think you are unnecessarily detailed. E.g.

• Ariz. Pest Breeding Statute

• 2d Restmt 826

• Gravity of Harm (827 Factors)

• Scholarly Pieces: Use the author’s last name or the crux of the title. E.g., “French” or “Rule of Law in HOA”

*(e) Do not include in your submissions:

• A cover sheet;

• The date or “Property II” or my name;

• The chapter or submission number or the identifier (e.g., 1A) for the review problem(s);

• Footnotes or block quotes. Put brief citations into the text as needed. Long quotes are generally unhelpful in this context; paraphrase concisely.

4. Writing & Editing to Optimize Your Work-Product

(a) The Writer’s Corollary to the Golden Rule is Proofread and Edit Your Work. Undoubtedly, you greatly prefer that someone trying to give you information does so clearly and concisely. So “Do unto others….” You should try to develop a writing style for yourself that is inherently clear and concise. This will help you generally, most especially on in-class law school exams (and the bar exam) where your time is very limited. Whether or not you fully adopt this style, you still need to make time to proofread your writing if at all possible. Most people find it helpful to put aside their writing for at least a few hours before proofreading. This makes it easier to see what you actually wrote (as opposed to what you intended). In any event, before finalizing your work, reread and edit in order to be

• Clear: Ensure that your individual sentences and paragraphs, as well as the overall flow of your argument, are easy to understand. If you are uncertain, ask someone else to look at the relevant passage. If you want your writing to be effective, take time to do this right.

• Concise: Actively look for and delete unnecessary words and passages. Your readers often will be pressed for time. Like you, they will appreciate careful editing that eliminates redundancy and generally shortens your work-product.

(b) Goal #1: Clear Presentation. You cannot achieve your goals as a lawyer if your presentation isn’t clear, whether you are advocating a position to a court, describing legal authorities to your boss, or explaining options to a client. Similarly, I can’t give you credit for ideas you present in your written work in this course if I don’t understand them. Some tips to increase clarity:

(i) Simplify Your Writing: Some students arrive at Law School already in the habit of using lengthy uncommon words, legalistic phrases and complex sentence structure. Historically, many other students develop this habit by imitating some of the judicial opinions you read. As a result, much student writing is difficult to understand. A small hint: Most judicial opinions are not written especially clearly. Aim higher (or at least simpler). You are much more likely to impress me with the clarity of your writing than with the sophistication of your vocabulary or the complexity of your sentences.

• Favor short simple sentences. Readers of your written work can easily get lost in multi-clause multi-line sentences and you may not get an opportunity to clarify things for them. E.g., when grading, I spend only a limited time puzzling over obscure sentences before I move on without giving you credit for what might have been a very good idea. Try breaking long sentences down into their component parts.

• Use active voice where possible. Passive constructions (“It was held that …” “The trial court’s decision was affirmed.”) are less clear and less powerful than active ones. (“The court held that …” “The Superior Court affirmed the trial court’s decision.”) Tell the reader who did something. Inquiring minds want to know! When I edit my own workm I search for “it” to locate passive voice,

• Unless employing a technical legal term or otherwise directly quoting from relevant authority, don’t use an eleven-letter word if a five-letter word will do.

• Make sure you understand the language you use. When students use phrases from the readings out of context, they often reveal that they don’t understand what they are saying.

(ii) Make the Structure of Your Presentation Evident to Your Reader: The reader needs to understand the overall thrust of your work, not just individual sentences and paragraphs. You need to be clear about, e.g.:

• When you are beginning a new topic or subtopic

• Which points are subtopics of a larger topic.

• How the major pints you make relate to one another (e.g., A + B proves C, opponent’s objection D does not undercut C)

You expose your structure in many ways, including summarizing it in your introduction and/or conclusion; explanations in the text along the way, creating separate paragraphs or sections for different topics, using headings and subheadings, and using different levels of outline form. The structure/format of this memo is an (quite detailed) example of how to do some of this.

(iii) Lawyerly Presentation: Be Accurate and Precise: Although you generally should favor simplicity and ease of understanding, your job as a lawyer requires you to ensure that your reader truly understands the legal significance of the points you are making. Thus, to be clear in a lawyerly way, you sometimes need to sacrifice simplicity for accuracy and precision.

(A) Accuracy means that your statements must be literally true or clearly supported by the authority or record you are discussing. Some specifics:

• When describing cases, don’t characterize something as a “holding” unless you are sure it was part of the court’s decision. You can usefully distinguish among verbs like, “held.” “stated,” and “suggested.” Use direct quotes when actually using the text of the case and don’t put anything in quotes that the court didn’t say. Edit quotes and paraphrase statements in ways that correctly convey what the court said.

• When describing facts, evidence or a factual record, overstating the strengths or ignoring the weaknesses in your position is a recipe for trouble and will not help you on an exam or in court. Initially, describe facts neutrally rather than characterizing them. When you are drawing a conclusion from specific facts or evidence, don’t state the conclusion as “fact.” Instead, list what you are relying on then make clear where you are making a logical jump. E.g., “A reasonable inference from all this is …” or “The evidence strongly suggests that ….”

• Often to explain legal concepts accurately, you will need to use technical legal jargon. If so, make sure you define it clearly the first time you use it unless you are sure your intended reader will know what it means. Be especially careful when the same term has a different use in ordinary English.

(B) Precision means that, if possible, you should not use vague or general terms to describe facts, evidence, or legal authorities. In particular, avoid words that have different meanings in different contexts (hot and cold, big and small, few and many). Thus,

• The day of the accident was very cold. (

o On the day of the accident, the temperature was below 20° F.

• Smith contacted the Board many times to complain. (

o Smith contacted the Board at least 7 times to complain. (

o Smith e-mailed or phoned the Board Chair …

• Ghost was a very big dog (

o Ghost weighed 130 lbs. and measured almost five feet from his nose to the base of his tail.

(iv) Pay Attention to Grammar and Spelling: I will not penalize you for grammar or spelling errors per se but remember that they can make your writing less clear. Errors in grammar can change the meaning of sentences. You can confuse the reader if pronouns or explanatory clauses don’t properly refer back to their subjects. Spelling errors that create different existing words can change the meanings but won’t get flagged by spell check programs. (E.g., the Easter Distract of Taxes).

(b) Goal #2: Concise Presentation: In this class, with regard to making your work more concise, I will refer to two “phases” of the writing/editing process (you need to keep clarity in mind during both phases). The first phase consists of the moves you make to tighten up any writing you do. The second phase adds additional moves you can use for informal documents if your reader is very familiar with the subject matter (e.g., memos to yourself or law school exam answers). Ideally, you eventually will be able to do these phases as you are writing, and to do them simultaneously where appropriate. We will do multiple examples of both phases in class.

(i) Phase I: Writing/Editing to Streamline Any Written Document: A Senior Circuit Judge in the courthouse where I clerked repeatedly told is to assume one-third of the words in a first draft are unnecessary. I think this is good advice. In addition to the specifics tips below, try to identify and eliminate wordy habits in your own writing. Asking others to look at your work can help.

(A) Passive Voice/Adverbs: In addition to making your work less clear, passive constructions tend to be wordy. You frequently can replace them with adverbs.

• It is arguable that the court meant that it was very likely plaintiff would win. (

o Arguably, the court meant that plaintiff probably would win.

(B) Unnecessary Words and Phrases: You can delete many words and phrases and rarely lose anything substantive. Some common examples:

• “the fact that”

• “as such”

• “Clearly” “it is clear that” and their many synonyms (evident, obvioys, apparent, etc.) If your point really is “clear,” you don’t need to say so. If it isn’t clear, using these words won’t make it clearer.

(C) Headings and Subheadings: Especially if you already have laid out the structure of your argument, you often can replace topic sentences with headings and subheadings. Thus, after listing, e.g, the elements of adverse possession in your state and provided a cite:

• The first element of adverse possession is Actual Use. (

o 1. Actual Use:

(D) Abbreviations/Short Forms for Repeated Words and Phrases: In your writing, if you introduce a person as Dr. Theresa A. Calhoun, you can subsequently refer to her simply as “Calhoun.” Similarly, you can tighten up even a formal document by replacing long frequently used words and phrases with abbreviations or short forms. Unless the abbreviation is well-known ((e.g., U.N. or F.B.I.) you should put the short form in a parenthetical the first time you use the word or phrase:

• Arlington County Board of Supervisors (“Board”)

• Episcopalian Church Rehabilitation Center (“Center”)

(ii) Phase II: Writing/Editing for Exam Answers and Memos for Yourself: You use this more extreme version of editing for non-formal documents (e.g., drafts, internal memos) where the reader is sufficiently familiar with the subject matter that you don’t need formal presentation, proper English, or careful use of introductions, conclusions and transitions. You can use the resulting style for your written submissions and exam answers in my class so long as what you are saying remains clear.. Some Professors are comfortable with this approach, but others are not, so check with them individually. You can find a detailed layout of suggestions and examples for using this approach in Slides 85-99 of the Power Point Presentation for my Exam-Taking Workshop on the Course Page. Here are some of the most important components:

(A) Use Telegraph English: Western Union charged people who sent telegrams by the word, so clever money-conscious people would delete words unnecessary for the recipient to follow the message. “Arrive six Grand Central. Bring Frieda, Mom, money, dinner plans.”

(B) Eliminate or Minimize Introductions, Transitions, Conclusions:

• Traditional introductions just tell what you are planning to do. Ski[ the introduction and start with a heading for the first topic you will discuss.

• Eliminate transition words and sentences and show the reader what you are doing by using different levels of headings and subheadings.

• Don’t use conclusions for sections of your work or the work as a whole merely to recap points you’ve already made. Instead, if you use them at all, add new points assessing the relative strength of earlier points. E.g., “Tho hard to know who wins on 1st and 2d factors, D’s likely wins on 3d and 4th, so probably wins overall.”

(C) Headings and Subheadings (Advanced Use): Use these regularly to replace topic sentences and transitions and to make the structure of your presentation easily visible. E.g.,

1 Public? No Statute so Armory Park tests

a. “considerable # of people” …

b. “entire community or neighborhood” …

c. sugnif intfrnce w pub comfort or convenience …

2. Utility (828 Factors) …

3. Gravity of Harm (827 Factors) …

4. Balance

(D) Abbreviations/Short Forms (Advanced Use): Use abbreviations freely to save time and space. If you think the reader won’t know, explain them with a parenthetical on first use. Those safe to use without explanation include:

• Initials for parties’ names or P/D for ptff/dfdt.

• Ct Govt Jdn OTOH b/c Pvt Pub

• 2 letter post office abbreviations for states (AZ ID FL NY)

• Any abbreviation I use in slides

• # for number, $$ for money, = for means or is the same as. ~ for approximately

5. Grading & Penalties

(a) Terminology I Use Regularly: I characterize every significant component of each assignment using some key terminology I have standardized over the years. The two most important terms are

• Solid, which means that you understood your task, you’ve showed me you basically know what you are doing, and there are not a lot of sloppy mistakes; and

• Uneven, which means there are significant problems, but there is enough useful work so that your submission is minimally acceptable.

Here is the usual range of terms I usually employ, from best to worst:

very nice (very rarely used)

very good (rarely used)

very solid

quite solid

quite solid overall

solid

pretty solid

pretty good

pretty good overall

a little uneven

pretty uneven

uneven

quite uneven

very uneven

weak

quite weak (rarely used)

very weak (very rarely used)

poor (very rarely used)

(b) Scoring Your Work: I will score each graded aspect of the course on a ten-point scale using the following rough signposts:

8 = Quite Solid 6 = Pretty Good 4 = Uneven 2 = Very Weak

Thus a “solid” submission will receive a 7 and a “quite uneven” submission will receive a 3.5. Although I do not use a formal curve and have no pre-existing notion of what the range of grades for the five of you should be, inevitably the relative quality of your work will affect your scores. For example, if nobody does particularly well on a particular exam question or written submission, I will tend to raise all the scores on the assumption that the task was very difficult. Similarly, if I get two or three excellent submissions, I might view the others a bit more critically.

I will double the scores for the longest exam question and for the last 3 written submissions to reflect their greater weight. I will multiply your total scores for each aspect of the course by a multiplier to get a score based on 100 points: as follows

Participation Score (Max 10) x 10 = Max 100

Written Submissions Total (Max 80) x 1.25 = Max 100

Exam Answers Total (Max 60) x 1.67 = Max 100

I then will multiply these numbers by the percentages in your grading contracts to arrive at a total score (max 100). Note that unlike the traditional hundred-point scale, a score of 85 is roughly “very solid” (much better than a middling B) and a minimal C is (roughly) a score of 40, not 70. I then will subtract any relevant penalties and use the results to determine letter grades.

(c) Penalties. All possible penalties are easily avoidable if you read directions carefully and are mindful of the need to preserve anonymity. Each individual penalty probably has little effect on your final grade; multiple errors are more likely to make an impact. Penalties include:

• Each incidence of compromising anonymity = -2

• Unexcused late submissions: -0.1 per hour for written submissions; -0.2 per hour for the final exam.

• If you choose to do the written submissions for less than 10% of your grade and your average score is below minimally acceptable = At least -2.5 (penalty increases with greater disparity). I think this is very unlikely, particularly since you can use my comments on earlier submissions to improve later work.

• Each failure to follow formatting and other key instructions:

• Mistakes that affect the ability to process your work (e.g., failure to include your alias) and those that would give you an advantage over other students by allowing you to fit more characters into your answers than students following the rules (e.g., using font narrower or smaller than 12-point Times New Roman or using 1.5 line spacing instead of double-spacing): -1 for written submissions; -2 for the final exam.

• Other mistakes: -0.5 for written submissions; -1 for the final exam.

(d) Stickers Finally, by tradition, I have placed stickers on some (or all!) of your papers to recognize good work on individual sections of your submissions and for the submission as a whole. As we will be communicating solely electronically, I will try to find small pictures to insert in the appropriate places in your work. These small rewards are intended basically for your own amusement.

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