NYU Law School Section On Its Third Professor Of The Semester, Sparks Calls For Pass/Fail

This situation is exactly why we invented Pass/Fail in the first place.

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When I went to the NYU School of Law, my Contracts professor had to take a leave of absence mid-semester and was replaced by another faculty member. We continued with the same material, but with the subtle differences in emphasis professors are bound to have and confusion over who would grade the exams, the school decided to give everyone a Pass/Fail mark for that semester. And you know what? Nothing dire came from that move. We all moved on and all got our jobs and everything was fine because Biglaw interviewers are capable of understanding “we had two professors, so it was a mess.”

Which is why I feel a sense of deja vu when I learn that NYU has a Civ Pro section with three professors right now and the school is playing coy about whether or not it’s going to call the game and issue a Pass/Fail grade.

It all started when Arthur Miller fell and suffered a spinal injury. Professor Miller is thankfully on the mend, but the school’s approach to covering his class created an epic patchwork involving joining John Sexton’s section for class, but having Harold Koh teach a separate part of the class, and then Professor Miller grading everything at the end? I guess? Look at this schedule:

First, you will be provided remote access to Professor Sexton’s Civil Procedure class.

Second, on Mondays and Wednesdays, you will attend Professor Sexton’s class synchronously and remotely (8:40-10:20).

Third, on Tuesday and Thursday, you are conflicted by other classes from attending the hybrid elements of Professor Sexton’s class; so, you will be responsible for attending class asynchronously through the video of the class, with the Thursday/Friday option that is described below.

Fourth, on Tuesdays you must use the asynchronous video; but, on Thursday you may choose either to watch the video of Professor Sexton’s treatment of the material or to attend a remote class on Friday on the same material (In the slot regularly scheduled for your Civil Procedure class) taught by Professor Harold Koh.

That reads like one of those terrible take-home exams that says, “You must answer three of these questions, but if you answer 1 you cannot answer question 4 and if you answer 3 you must also answer question 8….” You’re already in law school, you don’t need to do another LSAT game just to answer the exam.

Anyway, the zany arrangement outlined above was the original best-case scenario. The schedule has actually changed multiple times since, including the announcement of the emergency addition of three more lectures because the calendar they came up with left students short of ABA minimum requirements.

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And this is just the “How it started” of this meme. How’s it going, you ask?

We have no coherent syllabus, and it is unclear which cases and concepts we are expected to have covered. This is exacerbated by TA review sessions that cover material we have not addressed in class. There have also been multiple times where our professors contradict each other: Professor Miller referencing material that we did not cover in his absence; similar but different explanations of the Byrd test from Professors Koh and Sexton; in-class disagreement between Professors Sexton and Miller about federal statutes; etc. This is perhaps best illustrated by the fact that we were given three separate descriptions of the applicability of the Erie doctrine, a topic that is confusing enough on its own. It is still unclear which nuanced interpretation of the doctrine we will be expected to apply on the exam. To make up for the ambiguity and confusion, we often have to resort to rewatching multiple Panopto class recordings in order to figure out what exactly we are supposed to take away from each class block. The net effect is akin to a game of connect-the-dots – but one where each “dot” is always in flux.

That’s from a letter signed by the majority of the section seeking a Pass/Fail option under these circumstances. In a lot of ways, these students are getting the best Civ Pro education around — they’re not only covering the material but watching how top scholars can quibble about the margins. That said, what’s good for actual learning is not always a great recipe for grading.

After a whole semester of Spring 2020 Pass/Fails, maybe law schools are gun shy about heaping on more, but these 1Ls weren’t privy to any of that and shouldn’t be penalized for it. There’s a long-standing precedent at NYU of issuing Pass/Fail when the professor hands off the class to other professors. In 2017, the school did it for an elective course, the school definitely did it for my 1L course, and it’s time to do it for this course.

It’s always unfortunate to remove a data point and all, but trust me that everyone turns out alright.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.