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Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Thursday, April 30, 2015

Siloing: The Next Unneeded Import from Undergraduate Education

Silos
Silos, by Scott Davis

I don't know if this is a thing yet, and I hope it doesn't become one, but I have been hearing, here and there, from people involved in legal education reform, that we need to combat "siloing" in the law school curriculum.   You can find denunciations of siloing at lower levels of education here and here and here (for example), and a lot of the anti-silo rhetoric seems to be coming form the U.S. Department of Education.

To the extent that the war on siloing means that undergraduate education (or secondary school education) should be interdisciplinary and that academics should also build bridges across disciplines, I am all for it.  But what is its application to legal education?

The standard anti-siloing spiel in legal education goes something like this:

We teach our students in silos.  They learn contracts in one course and torts in another, property in a third, and civil procedure in a fourth.  But when the client walks into your office, she just has a story, and you have to recognize that all of the different doctrinal areas that you studied in law school could be relevant to that story.  You can't just compartmentalize legal scenarios into one doctrinal silo or another.

 That is obviously true, but it doesn't mean that we should just teach one amorphous course in the first year called Everything that Could Possibly Go Wrong and What to Do About It.  Doctrinal siloing is, in my view, the right approach, certainly in the first year.  Otherwise, students don't learn, for example, that the logic of contractual liability is very different from that of tort liability or that certain doctrines that have the same names work differently in different doctrinal areas.  There is, again in my view, plenty of time in the second and third years to make certain that students understand that one fact pattern can generate issues across the doctrines, but students should never lose sight of doctrinal boundaries and their importance.

A few examples:

  • The other day, I was teaching a bar prep course and going over assignments.  One of my students arrived at the wrong conclusion because he treated assignments according to agency rules.  I was impressed that the student remembered agency rules, but his answer was just wrong.  There was nothing to say except, "Sorry, assignment is different from agency."  
  • I have written here and (more pithily) here about how the state secrets privilege has gotten messed up because courts have applied a doctrine that arises in the contractual context (Totten) to cases that involve torts allegations against the U.S. government and its contractors.  A party to a contract may agree that the content of that contract is secret and therefore non-justiciable; a tort victim makes no such agreement.
  • Many of the craziest moments in the notorious OLC memos from the Bush Administration occur when very smart lawyers, eager to justify outrageous government conduct, draw on inappropriate analogies from other doctrinal areas.  So for example, they got their definition of "severe pain" from a statute that determines what constitutes an emergency medical condition for the purposes of entitlement to certain health benefits, and they consulted criminal law concepts of "necessity" and "self-defense," seemingly unaware of how limited those defenses are in the appropriate doctrinal context. 

So, if somebody starts denouncing "siloing" in the context of discussions of curricular reform, please consider the dangers of eliminating doctrinal silos.

Links to Related Posts:

The Current Series 

IX: Legal Education in the News and on the Blogosphere
VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself? 

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

April 30, 2015 in Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2015

New in Print

KuttyI am happy to see a publication by my colleague Faisal Kutty (pictured) gracing this list of recent publications.  Way to go, Faisal!

Hiro N. Aragaki, The Federal Arbitration Act as Procedural Reform. 89 N.Y.U. L. Rev. 1939 (2014)

Robert Bejesky, The Economics of the Will to Fight: Public Choice in the Use of Private Contractors in Iraq, 45 Cumb. L. Rev. 1 (2014-2015)

Ann Laquer Estin, Foreign and Religious Family Law: Comity, Contract, and the Constitution. 41 Pepp. L. Rev. 1029 (2014)

Michelle Greenberg-Kobrin, Religious Tribunals and Secular Courts: Navigating Power and Powerlessness 41 Pepp. L. Rev. 997 (2014)

Faisal Kutty, "Islamic law" in U.S. Courts: Judicial Jihad or Constitutional Imperative? 41 Pepp. L. Rev. 1059 (2014)

Daphne Richemond-Barak, Can Self-Regulation Work? Lessons from the Private Security and Military Industry. 35 Mich. J. Int'l L. 773 (2014)

April 29, 2015 in Government Contracting, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, April 28, 2015

Legal Education in the News and on the Blogosphere

I began this series with the question: Why Is the Legal Academy Incapable of Standing Up for Itself?  Paul Campos thinks we are doing far too much of that, going so far as to compare those of us who think legal education is worth defending with Holocaust deniers.   Fortunately for us, I suppose, this blog isn't on anybody's radar, but in any case I think it bears noting that I value the contributions of people who have shed critical light on legal education, although I don't agree that it is anything approaching a scam.  I have gained valuable insights from the work of Law School Transparency, Brian Tamanaha, Deborah Merritt, and Bill Henderson on our sister blog, The Legal Whiteboard, among others.

That said, there is another side of the story.  Legal education is constantly re-forming itself in fundamental ways.  Clinical education has only been with us since the 70s; legal writing programs took off in a major way in the 80s and 90s.  Both represent fundamental shifts in pedagogy in response to perceived deficits in the legal education model.  Those programs continue to develop and expand, now supplemented with robust ASP programs.  All of these things jack up the costs of legal education and all in the name of better preparing students for the profession.  Nobody is fiddling while our students burn.  In fact, at this point, it is clear that everybody in the debate passionately believes that they have the best interests of our students at heart, and I do not doubt their sincerity.  

Meanwhile, just when you thought it was safe to read what the New York Times has to say about legal education, we get another one-sided piece based on a few anecdotes and one piece of scholarship.  I thought I had a lot to say in response, but others have beaten me to it, so I will just provide the links:

Simkovic on Leiter

Stephen Diamond on his own blog

Brian Galle on Prawfsblawg

Deborah Merritt, on whose scholarship the piece relies, on The Law School Cafe 

Links to Related Posts:

The Current Series 

VIII: Myanna Dellinger, Caveat Emptor and Law School Transparency
VII: Myanna Dellinger, On Issue-Spotting and Hiding the Ball
VI: Issue Spotting: A Response to a Comment
V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?
IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?
III: My Advice to Law School Transparency: Declare Victory and Move On
II: SLOs and Why I Hide the Ball (and Why You Don't Have To)
I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice
Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom
Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy
Thoughts On Curricular Reform III: The Costs of Change
Thoughts on Curricular Reform II: Teaching Materials
Thoughts on Curricular Reform I: The Problem

April 28, 2015 in About this Blog, Commentary, In the News, Law Schools, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Caveat Emptor and Law School Transparency

In this blog series, we recently raised the issue of whether there is sufficient transparency in relation to law schools via, for example, third-party “watchdog” websites and the law schools’ required ABA disclosures.

In my opinion, transparency is a boon to potential law students in this context.  Granted, much information is publicly available to anyone considering law school nowadays.  But for now, choosing a law degree still remains a surprisingly popular choice despite so many warning signs.  Caveat emptor is still a quasi-viable doctrine, that’s true, and some potential incoming students should, as potential future lawyers, learn to discern hope and belief from facts.  But do they?  Not so much, it appears.

Unfortunately, statistics still show that nationwide, only 51% of law graduates are employed in law firm jobs, well below the trend over the past 25 years.   I know, I know, not everyone wants to work for a law firm, but still; only half of our graduates getting a typical job is astonishingly shocking, I think.  An ABA website function lets the general public find out the number of “bar passage required” jobs held by 2013 graduates – not impressive unless the school is highly ranked or in a relatively remote area of the nation.  See another list of the best and worst performers here.

To put this in perspective: the average debt taken on by law school graduates is $84,000 (for public law schools) and $122,580 (for private law schools); a 37% increase over eight years.  Another source found the 2012 median debt to be $140,616.   So, a ballpark figure shows that an “average” student may well be more than $100,000 in debt for a – certainly in some states such as California – less than 50/50% chance of getting a “real” law job. 

Of course, hope springs eternal, and many students beat the odds and end up, over time at least, in good and hopefully mentally rewarding jobs.  For now, though, the more pressure that’s exerted on keeping law schools honest in relation to job prospects, debt, etc., the better, in my opinion.

April 28, 2015 in Commentary | Permalink | Comments (0) | TrackBack (0)

Weekly Top Tens from the Social Science Research Network

SSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 361 Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly. 
Irina D. Manta and David S. Olson 
Hofstra University - Maurice A. Deane School of Law and Boston College Law School 
2 260 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
3 179 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
4 174 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
5 141 Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche 
Damien Geradin 
George Mason University School of LawTilburg University - Tilburg Law and Economics Center (TILEC) 
6 116 Insider Trading in Commodities Markets 
Andrew Verstein 
Wake Forest University School of Law 
7 114 M&A Contracts: Purposes, Types, Regulation, and Patterns of Practice 
John C. Coates, IV 
Harvard Law School 
8 101 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
9 99 A Fuller Understanding of Contractual Commitment 
Zev J. Eigen and David A. Hoffman 
Northwestern University School of Law and Temple University - James E. Beasley School of Law 
10 94 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 260 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
2 179 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
3 174 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
4 101 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
5 99 A Fuller Understanding of Contractual Commitment 
Zev J. Eigen and David A. Hoffman 
Northwestern University School of Law and Temple University - James E. Beasley School of Law 
6 94 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 
7 92 Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws 
Ann M Lipton 
Duke University School of Law 
8 90 Private Lenders’ Demand for Audit 
Richard BaylisPete BurnapMark ClatworthyMahmoud Gad and Christopher K. M. Pong 
Cardiff Business School, University of Wales System - Cardiff University, University of Bristol, Department of Accounting and Finance, University of Bristol, Department of Accounting and Finance and Heriot-Watt University - School of Management and Languages 
9 76 Other People's Contracts 
Aditi Bagchi 
Fordham University School of Law 
10 70 Social Justice, Social Norms and the Governance of Social Media 
Tal Zarsky 
University of Haifa - Faculty of Law 

April 28, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, April 27, 2015

Fixing Your Car Yourself Maybe a Violation of Contractual Rights in the Future

If it were up to General Motors, it may soon be illegal for you to tinker with your own car.  That’s because the Digital Millennium Copyright Act (“DMCA”), an Act that started as anti-piracy legislation about a decade ago, now also protects coding and software in a range of products more broadly.  Your car is one such product if it, as many cars do nowadays, it has an onboard computer.  Vehicle makers promotes two arguments in their favor: first, that it could be dangerous and even malicious to alter a car’s software programming.  Second, per the tractor maker John Deere, that “letting people modify car computer systems will result in them pirating music through the on-board entertainment system.”  “Will”?!  As the Yahoo article mentioning this story smartly pointed out, “[t]hat’s right— pirating music. Through a tractor.” 

Isn’t that an example of a company getting a little too excited over its own products?  Or am I just an incurable city girl (although one that occasionally likes country music)?  Judging from the lyrics to a recent Kenny Chesney hit (“She Thinks My Tractor’s Sexy"), I see that opinions differ in this respect.  To each her own.

Hat tip to Professor Daniel D. Barnhizer of the AALS listserve for sharing this story.

April 27, 2015 in Contract Profs, Current Affairs, Legislation, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Weekly News Roundup

In yet another government outsourcing scheme gone wrong, KOLO TV news is reporting that Nevada is alleging breach of contract against the companies it hired to administer Common Core testing in the state's schools.  Apparently, when thousands of students attempted to log on so that they could take their exams, they received an error message and could not proceed.  Educators across the state are aggrieved, but students across the state are generally fine with it. 

Las_Vegas_slot_machines
Photo by Yamaguchi先生

Nonprofit Quarterly reports that three students, three parents and three alumnae are alleging breach of contract and seeking an injunction to keep open Sweet Briar College in Lynchburg, VA.  They allege that they had entered into express and implied agreements with the College that they would not only have the benefit of a four-year degree from the College but would also enjoy the benefits of being alumnae or of having children who were alumnae.

According to the Des Moines Register, in 2011, an 87-year-old grandmother was playing the slots, when the screen told her that she had a "bonus award" of $41797550.16.  Last week, Iowa's Supreme Court ruled unanimously that she had won $1.85.  They rejected claims of breach of an implied contract and found that the "bonus award" was just the product of a computer glitch.   

April 27, 2015 in Games, Government Contracting, In the News | Permalink | Comments (0) | TrackBack (0)

Contractual Issues and the Chicago Cubs' Kris Bryant

April is the finest month for a Chicago Cubs fan, because even the Cubs are within a few games of first place in April.  

CubsAnd hope springs anew with each Spring Training  This year Cubs fans have extra reason to hope because of young prospect, Kris Bryant.  There was only one catch.  Bryant did not start the year playing for the Cubs.  As reported here in Business Journalism, despite hitting nine home runs in 40 at bats and earning a .425 batting average, Bryant was demoted to the Cubs' Triple-A affiliate for the start of the season.  Cubs GM, Theo Epstein, gave Bryant's need to develop his defensive skills as the reason for the demotion, but many believe that the purpose is to delay Bryant's eligibility for arbitration and free-agency.  Bryant's ability to avail himself of these mechanisms would kick in 2017 and 2020 respectively  if Bryant was on the Cubs' roster to start the season, but they will kick in a year later if Bryant misses the season's first ten games.  

Thirteen days into the season, the Cubs brought Bryant up from the minors.  Mike Olt and his lifetime .158 batting average kept third base occupied while Bryant was improving his defensive skills.  

April 27, 2015 in Celebrity Contracts, In the News, Sports | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2015

On Issue-Spotting and Hiding the Ball

As for the series on law school instruction and law schools in general that Jeremy started here recently: count me in!

I agree with Jeremy’s views that issue-spotting is very important in helping students develop their “practical skills,” as the industry now so extensively calls for.  As Jeremy and Professor Bruckner do, I also never give up trying to have the students correctly issue spot, which in my book not only means spotting what the issues are, but also omitting from their tests and in-class analyses what I call “misfires” (non-issues).  In my opinion, the latter is very necessary not only for bar taking purposes, but also in “real life” where attorneys often face not only strict time limits, but also word limits.

But I’ll honestly admit that my students very often fail my expectation on final tests.  Some cannot correctly spot the issues at all.  Many have a hard time focusing on those aspects of the issues that are crucial and instead treat all issues and elements under a “checklist” approach overwriting the minor issues and treating major issues conclusorily.  Yet others seem to cram in as many issues as they can think of “just in case” they were on the test (yes, I have thought about imposing a word limit on the tests, but worry about doing so for fear of giving any misleading indication of how many words they “should” write, even if indirectly so on my part). 

Maybe all this is my fault … but maybe it isn’t (this too will hopefully add to Professor Bruckner’s probably rhetorical question on how to teach issue-spotting skills).  Every semester, I post approximately a dozen or so take-home problems with highly detailed answer rubrics.  I only use textbooks that have numerous practice problems long and short.  I review these in class.  I also review, in class, numerous other problems that I created myself.  I give the students numerous hints to use commercial essay and other test practice sources.  Yes, all this on top of teaching the doctrinal material.  All this is certainly not “hiding the ball.”  Frankly, I don’t really know what more a law professor can realistically do (other than, of course, trying different practice methods, where relevant, to challenge both oneself and the students and to see what may work better as expectations and the student body change).

So what seems to be the problem?  As I see it, it doesn’t help that at least private law schools at the bottom half of the ranking system have to accept students with lower indicia of success than earlier.  But even that hardly explains the problem (who knows what really does).  Some law schools have to offer remedial writing classes and various other types of extensive academic support to students in their first semesters and beyond.  Some of the problem, in my opinion, clearly stems from the undergraduate-level education our students receive.  In large part, this makes extensive use of multiple-choice questions for assessments and not, as future lawyers would benefit from, paper or essay-writing tests or exercises.  Thus, undergraduate-level schools neither teach students how to spot "issues" from "scratch" nor do they teach them how to write about these.  Numerous time have my students told me that they have not really written anything major before arriving in law school.

Why is that, then?  Isn’t that problem one of time and resources; in other words, the fact that not just law professors, but probably most university professors, are required to research and write extensively in addition to teaching and providing service to their institutions?  For example, see Jeremy’s comments on his busy work schedule here.  Something has to give in some contexts.  At the undergraduate level, maybe it’s creating and grading essays and instead resorting to machine-graded multiple-choice questions and not challenging students sufficiently to consider what the crux of a given academic problem is.  Just a thought.  I am, of course, not saying that we should not conduct research.  I am saying, though, that I find it frustrating that lower-level educations, even renowned ones, cannot seem to figure out how to use whatever resources they do, after all, have to train their students in something as seemingly simple as how to write and how to think critically.

At the law school level, some “handholding” and various types of practical assistance is, of course, acceptable.  But to me, the general trend in legal education seems to be moving towards a large extent of explaining, demonstrating, giving examples, setting forth goals, assessments, and so forth.  I agree with what Jeremy said in an earlier post that we should at some point worry about converting the law school education process into one that resembles undergraduate-style (or high school style!) education.

Recall that the United States is not an island unto itself.  Many studies show that our educational system is falling behind international trends.  Where in many other nations in the world (developed and developing), students are expected to come up with, for example, quite advanced research and writing projects for their degrees, we are - at least in some law schools - teaching students just how to write, and what to write about.  This is a sad slippery slope.  Until the American educational sector as such improves, I agree that we should do what we can to motivate and help our students.  But I also increasingly wish that our “millennial” students would take matters into their own hands more and take true ownership of learning what they need to learn for a given project or class with less handholding, albeit of course still some guidance.  Nothing less than that will be expected from them in practice. 

April 23, 2015 in Commentary, Contract Profs, Current Affairs, In the News, Law Schools, Teaching | Permalink | Comments (4) | TrackBack (0)

Issue Spotting: A Response to a Comment

Howard Law's Matthew Bruckner has posed some challenging questions for me in the comments to the second post in this series.  He writes:

To the point raised in your post though, even experienced lawyers benefit from headnotes on cases, reading treatises, learning to pick up on contextual clues, etc. And your casebook likely has a table of contents that situates the case you're reading in class within a range of issues and sub-issues. I suppose that if you situate the case for the students, there is a risk that students will stop trying to pick up these contextual clues for themselves. But if you don't, there is also a risk that students won't ever appreciate why you read a case in the first instance, etc.

ScholarMatthew has a point.  There are lots of shortcuts to issue spotting for those students who are on top of things enough to use them.  I have a running joke with my students in both contracts and business associations.  If a student has a hard time identifying the issue in the case or (in contracts) tells me that the issue is whether one party breached (always a good place to start), I tell them to check the syllabus and see what subject matter we are covering on that day.  After some laughter and shuffling of papers, we approach an identification of the issue and establish once again that students do not look at syllabi and certainly would not benefit from 12-14 page syllabi identifying SLOs.

But that is just the beginning of an issue-spotting exercise, because as we progress through the semester, I also use issue-spotting as a mechanism of review.  So, for example, when we get to affirmative defenses, we may have cases in which extrinsic evidence, the statute of frauds and interpretive issues also arise.  In discussing damages, in addition to those issues, there might also be questions of affirmative defenses or even problems in formation.  I use Socratic questioning to see if students can find those issues as well.  And I really do aspire to treat the Socratic questions as means of reminding them, through step-by-step questioning, of things they knew in their past life (that is, three weeks ago, when the relevant doctrine was still stored in short-term memory).  For me the Socratic method is, in this instance, both about teaching them the right questions to ask of a case and about reminding them that they can do this on their own.

Matthew Bruckner's comment continues:

We definitely practice reading cases, extracting relevant facts and issues, understanding a case' procedural history in my 1L contracts class. But by second semester, I'm giving them the issue flat out and then we spend the whole class working on legal analysis trying to understand why the court reached the conclusion that it did.

I never give up on issue spotting.  It is not only relevant in the litigation context.  But as I'm sure Professor Bruckner knows, it is also the best mechanism for helping transactional lawyers prevent the contract they are drafting from becoming Exhibit A to the complaint.  Issue spotting is relevant whether the client is coming to you with a transaction gone wrong or a contemplated transaction.  The challenge facing transactional attorneys is all the harder because they have to entertain ideas of what might go wrong and figure out the best way to insulate the client from liability if what might happen does happen.

I am near the end of teaching a bar prep course for the first time.  I had my 3L students write about twenty practice bar exam essays, and at the end of the semester, I am still reminding them: IRAC, IRAC, IRAC.

Links to Related Posts:

The Current Series 

V: Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?

IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?

III: My Advice to Law School Transparency: Declare Victory and Move On

II: SLOs and Why I Hide the Ball (and Why You Don't Have To)

I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice

Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom

Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy

Thoughts On Curricular Reform III: The Costs of Change

Thoughts on Curricular Reform II: Teaching Materials

Thoughts on Curricular Reform I: The Problem

April 23, 2015 in Commentary, Teaching | Permalink | Comments (2) | TrackBack (0)

Did Legal Education Take a Wrong Turn in Separating Skills and Doctrine?

This is the fifth in a series of posts on reform in legal education.  Related posts are listed at the bottom of this post.

ScholarA few years ago, I was at a conference on national security law, and one of the scholars there, a Navy veteran, suggested that the military had made a wrong turn in entrusting knowledge of the law of armed conflict to JAG officers.  As impressed as he was with the commitment of those JAG officers to the rule of law, he thought it would be better if all officers were expected to know the law of armed conflict rather than having a rudimentary introduction to the relevant law but relying on the expertise of JAG officers in the decision-making process.  The attendant JAG officers were unanimous in their opposition to this notion, and I'm in no position to judge the merits of the claim, but the idea stuck with me.  

I think we have a similar situation in law schools.  In the 1980s and 1990s, law schools created legal writing programs, and they hired a legal writing faculty to teach in those programs.  Like JAG officers with respect to the law of armed conflict, dedicated legal writing faculty members have thought about legal writing -- and related subject matters such as legal reasoning and legal research -- in different and deeper ways than traditional doctrinal instructors had done or now do.  They are our trusty repository of information about how our students think, write and reason and of pedagogical innovations that will help them do better.  

It is a problematic model.  It creates a hierarchical division of labor within faculties, generating resentments on all sides, and it does not serve our students as well as would an integrated curriculum in which legal writing, reasoning and research were treated as integral to every doctrinal course.  Students think that legal writing is a separate subject matter, and they don't all have the instinct to apply the skills, techniques and intellectual habits to which they are exposed in legal writing to their work for doctrinal courses.  

One response has been to ask doctrinal courses to incorporate more skills training into doctrinal courses.  Another has been to add additional courses and required credits in courses in which students work on legal writing and reasoning skills.  To keep with the theme of this series, the result is that traditional legal education gets squeezed.  We are asked to do more in less time.  I propose we consider doing more in more time by integrating legal writing and reasoning into the traditional doctrinal curriculum and eliminate independent writing programs.

Schools have been  very creative in staffing their legal writing programs (involving visiting faculty, contract faculty, adjuncts, VAPs, and tenured and tenure-track faculty in teaching legal writing and research).  There likewise could be innumerable models (which would preferably involve integrating current legal writing faculty members into traditional classroom teaching) for integrating teaching doctrine and skills.

Let the innovations begin!

Links to Related Posts:

The Current Series 

IV: What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?

III: My Advice to Law School Transparency: Declare Victory and Move On

II: SLOs and Why I Hide the Ball (and Why You Don't Have To)

I: Why Is the Legal Academy Incapable of Standing Up for Itself?

Related Posts form 2012:

Thoughts on Curricular Reform VI: Preparing the Academically Adrift for Practice

Thoughts on Curricular Reform V: A Coordinated Curriculum and Academic Freedom

Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy

Thoughts On Curricular Reform III: The Costs of Change

Thoughts on Curricular Reform II: Teaching Materials

Thoughts on Curricular Reform I: The Problem

April 23, 2015 in Commentary, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 22, 2015

Tiered Water Pricing System Declared Unconstititional in California

On Monday, a California Appellate Court declared the tiered water payment system used by the city of San Juan Capistrano unconstitutional under Proposition 218 to the California Constitution.  The California Supreme Court had previously interpreted Prop. 218’s requirement that “no fees may be imposed for a service unless that service is actually used by, or immediately available to, the owner of the property in question” to mean that water rates must reflect the “cost of service attributable” to a particular parcel.

At least two-thirds of California water suppliers use some type of tiered structure depending on water usage.  For example, San Juan Capistrano had charged $2.47 per “unit” of water (748 gallons) for users in the first tier, but as much as $9.05 per unit in the fourth.  The Court did not declare tiered systems unconstitutional per se, but any tiering must be tied to the costs of providing the water.  Thus, water utilities do not have to discontinue all use of tiered systems, but they must at least do a better job of explaining just how such tiers correspond to the cost of providing the actual service at issue.  This could, for example, be done if heavy water users cause a water provider to incur additional costs, wrote the justices. 

The problem here is that at the same time, California Governor Jerry Brown has issued an executive order requiring urban communities to cut water use by 25% over the next year… that’s a lot, and soon!   Tiered systems are used as an incentive to save water much needed by, for example, farmers.  The California drought is getting increasingly severe, and with the above conflict between constitutional/contracting law and executive orders, it remains to be seen which other sticks and carrots such as education and tax benefits for lawn removals California cities can think of to meet the Governor’s order.  Happy Earth Day!

April 22, 2015 in Current Affairs, Famous Cases, Food and Drink, Government Contracting, In the News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

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Tuesday, April 21, 2015

Weekly Top Tens from the Social Science Research Network

SSRNSSRN Top Downloads For Contracts & Commercial Law eJournal
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 456 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 356 Hello Barbie: First They Will Monitor You, Then They Will Discriminate Against You. Perfectly. 
Irina D. Manta and David S. Olson 
Hofstra University - Maurice A. Deane School of Law and Boston College Law School 
3 255 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
4 177 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
5 170 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
6 129 Loyalty Rebates after Intel: Time for the European Court of Justice to Overrule Hoffman-La Roche 
Damien Geradin 
George Mason University School of LawTilburg University - Tilburg Law and Economics Center (TILEC) 
7 125 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 
8 113 Insider Trading in Commodities Markets 
Andrew Verstein 
Wake Forest University School of Law 
9 97 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
10 95 A Fuller Understanding of Contractual Commitment 
Zev J. Eigen and David A. Hoffman 
Northwestern University School of Law and Temple University - James E. Beasley School of Law 

SSRN Top Downloads For LSN: Contracts (Topic)
RECENT TOP PAPERS 

RankDownloadsPaper Title
1 456 Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail 
Einer Elhauge 
Harvard Law School 
2 255 The Choice-of-Law Revolution Fifty Years after Currie: An End and a Beginning 
Symeon C. Symeonides 
Willamette University - College of Law 
3 177 Contract as Empowerment 
Robin Bradley Kar 
University of Illinois College of Law 
4 169 The Aesthetics of Contract Theory 
Efi Zemach and Omri Ben-Zvi 
Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law 
5 125 When Faith Falls Short: Bankruptcy Decisions of Churches 
Pamela Foohey 
Indiana University Maurer School of Law 
6 125 The Future of Contract Law in Europe 
Jan M. Smits 
Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI) 
7 97 Judicial Deregulation of Consumer Markets 
Max N. Helveston 
DePaul University - College of Law 
8 95 A Fuller Understanding of Contractual Commitment 
Zev J. Eigen and David A. Hoffman 
Northwestern University School of Law and Temple University - James E. Beasley School of Law 
Date posted to database: 22 Feb 2015 
Last Revised: 16 Mar 2015
9 94 Antitrust Arbitration and Merger Approval 
Mark A. Lemley and Christopher R. Leslie 
Stanford Law School and University of California, Irvine School of Law 
10 88 Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws 
Ann M Lipton 
Duke University School of Law

 

April 21, 2015 in Recent Scholarship | Permalink | TrackBack (0)

Monday, April 20, 2015

Weekly News Roundup

DouglasMollThe Texas Lawyer reports that Texas has amended a statute that allows plaintiffs to recover attorneys' fees in breach of contract claims.  The statute originally allowed for recovery from an individual or a corporation.  The amendment permits recovery from any non-government entity.  As law Prof. Doug Moll (pictured) explains, the purpose of the policy is to encourage settlement and permit parties that could not pay their own attorneys' fees to sue for breach. "There is not a policy justification I can see for distinguishing between business forms in an attorney fee-shifting statute,"  Moll noted in defending the amendment.  The bill faced some opposition from groups that would not want to exempt state entities and from others who wanted the law to allow either side, not just plaintiffs, to collect attorneys' fees.  But lawmakers did not want to mess with Texas law.  

From the Philadelphia Business Journal, we get yet another classic municipal contracting case.  City meets company, city hires company to do some fancy, technical thing it can't do itself, city and company exchange allegations of breach of contract, and the parties settled for $4.8 million.  In this case, the city is Baltimore and the company is Unisys.  

As reported here in USA Today, one bi-product of the new nuclear deal with Iran is that Russia now feels free to send Iran S-300 missiles for use in its air-defense system.  The missile deal has been suspended since 2010, and Iran had sued Russia in Geneva, alleging breach of contract and seeking $4 billion in damages.  Iran now says that it will drop the case if Russia delivers the missiles.

April 20, 2015 in In the News, Legislation | Permalink | Comments (0) | TrackBack (0)

Joint Call for Papers from Section on Commercial and Related Consumer Law and Section on Women in Legal Education

AALS Section on Commercial and Related Consumer Law

AALS Section on Women in Legal Education

 

Call For Papers

 

Female Perspectives in Commercial and Consumer Law

The AALS Section on Commercial and Related Consumer Law is pleased to announce a Call for Papers for its program co-sponsored by the Section on Women in Legal Education during the AALS 2016 Annual Meeting.  The papers from the program will be published in the Columbia Journal of Gender and Law.

Female scholars have made pivotal contributions to the development of commercial and consumer laws and scholarship in the United States, especially in the past few decades.  Not only have specific women’s voices played an important role, but distinctively feminist concerns have engendered changes in legal theory and policy.  This panel will discuss the contributions that specific female legal academics have made to the field (as just a few examples, Elizabeth Warren and Jean Braucher).  Also, it will reflect on how feminist concerns have influenced commercial and consumer law scholarship. Finally, it will also include scholarship focused on women’s experiences with consumer and commercial law.

The Committee invites submissions from scholars interested in presenting at the program and in publishing their papers with the Columbia Journal of Gender and Law.  Two speakers will be selected from this call for papers.  The panel is focused on “female perspectives,” broadly construed. The Section strongly encourages proposals from all genders.   

There is no formal requirement as to the form or length of proposals. Preference will be given to proposals that are substantially complete and to papers that offer novel scholarly insights.

Per AALS rules, only full-time faculty members of AALS member law schools are eligible to submit a paper to a Section’s call for papers. Fellows from AALS member law schools are also eligible to submit a paper but must include a CV with their proposal.  All panelists, including speakers selected from this Call for Papers, are responsible for paying their own annual meeting registration fee and travel expenses.

Deadline: AUGUST 15, 2015. We will make decisions shortly after that date.  Please email submissions, in Word or PDF format, to the Program Committee c/o Jim Hawkins at jrhawkins@uh.edu with “AALS Submission” in the subject line. Before sending, please remove all identifying information from the Word or PDF document.

 

April 20, 2015 in Conferences | Permalink | TrackBack (0)

What Is the Place of Core Doctrinal Teaching and Scholarship in the New Curriculum?

When I was a law student, I knew what the core of my legal education was.  It consisted of traditional legal courses like contracts, civil procedure, property, torts, constitutional law, criminal law and procedure, etc.  In my second and third years, most of my courses continued to be core doctrinal courses. I had the option of doing a clinic in the third year, of course, and for some of my colleagues in law school, that was a central experience, but it was very much optional, especially since in those days, if I wanted real-world legal experience, I got it during the summers, and I could also work a bit during the school year.  I don't think there was any doubt in anyone's mind that, for better or worse, doctrinal teaching was the core of legal education.  Skills training was regarded as ancillary, and clinics were supplementary, or perhaps a capstone.

ScholarToday, I think the message is much more confusing.  I have surveyed a number of websites of law schools outside of the top 50 and many push variations of the same themes: come to our law schools and we will give you a practical, hands-on experiential learning experience that will get you a job (or at least qualify or prepare you for one).  If traditional doctrinal teaching is mentioned, it is usually in the context of bragging about small class sizes.  These law schools do not generally emphasize traditional doctrinal teaching or scholarship.

This is completely understandable.  Teaching contracts (and other first year courses) is not sexy.  Since the first year curriculum is the same with respect to probably 75% of the subjects at all ABA accredited law schools, the folks who try to market individual law schools will not distinguish their institutions by emphasizing the things that all law schools do.  They have to emphasize unique programs, and even if a school really has an outstanding doctrinal teaching faculty, such claims just come off as puffery.

But the problem is that students don't get much experiential education in the first two years of law school.  So attracting them based on clinics and externships makes the doctrinal teaching that they get in the first two years seem, for some students, like some sort of ghastly hazing process.  The situation reminds me a little bit of the Simpsons episode when Police Chief Wiggum confronts a new recruit who just wants a gun:

Chief Wiggum: All right, you scrawny beanpoles: becoming a cop is *not* something that happens overnight. It takes one solid weekend of training to get that badge.

Man: [screaming] Forget about the badge! When do we get the freakin' guns?

Chief Wiggum: Hey, I told you, you don't get your gun until you tell me your name.

Man: I've have it up to here with your "rules"!

My students don't want freakin' guns (or those that do already have them).  They want their own freakin' clients. So when they reach the third year, or do externships in the second year, they think that those experiences are the core of their education and everyone should understand if doctrinal courses takes a back seat.  So, for example, some students are non-plussed that their absences caused by clinical or externship obligations are not excused.  Or they take it as self-evident that they can show up 15-20 minutes late for class because "a client meeting ran over."  And this is not at all because clinicians encourage such attitudes.  On the contrary.  But students nonetheless pull this conclusion out of the ether. 

I get it.  In their position, I would do the same thing, but I had a job lined up as after my first summer, and my law school had a 95% or more bar passage rate when I graduated.  Things are different in this era of declining bar passage rates.  Clinical experiences are invaluable in all sorts of ways, but they do not seem to help with bar passage or with job placement.  By the way, I am always surprised by the lack of a link between clinical education and bar passage, as I always assumed that students would really come to appreciate and thus be motivated to learn the law's subtleties when confronted with them in a live-client context. I have only come across a few studies, which tend to be small or idiosyncratic.  I would love to see more empirical research in this area.

In addition, we are increasingly moving more skills training into the curriculum, both by devoting more time to skills courses and by introducing more skills training into the doctrinal programs.  The candle is burning at both ends, and the class time devoted to traditional coverage of doctrine is shrinking.  But the more worrying problem is that some students are unaware of how crucial doctrinal courses are for their future success.   They may be led by our marketing efforts and our new curricula into the false hope that if they can actually "be good lawyers" in the clinical context, it could not possibly matter that they do not do well on traditional law school or on standardized exams.

April 20, 2015 in Law Schools, Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, April 17, 2015

My Advice to Law School Transparency: Declare Victory and Move On

I'm going to keep this one brief and provocative.

Six years ago, when Law School Transparency (LST) came into existence, law schools had some problems with transparency.  The problems were not actionable.  As Michael Simkovic details here and elsewhere (and I will have many more positive things to say about Simkovic's and Frank McIntyre's scholarship in later posts), law schools have always disclosed employment outcomes in accordance with federal Bureau of Labor Statistics categories of employment and unemployment.  Now, all law schools include on their websites 509 disclosures that are far more detailed about employment outcomes, as well as lots of other useful information about bar passage rates and the scores of incoming students (new 1Ls only, alas).  

The fight is now mostly over debt loads, but again, as Michael Simkovic puts it:

Data from the U.S. Department of Education shows that law students, even at low ranked law schools, remain much less likely to default than most student borrowers.  This is true even though law students typically graduate with higher debt levels.

While student debt loads are a huge concern, law students still are not defaulting on their loans.  

So, at this point what exactly is the purpose of LST's campaign against law schools? 

LST's website identifies its goals as Reform, Information and Accountability.  I would say that LST has succeeded on Information and Accountability.  Don't take it from me.  Here is what Deborah Merritt, who has been quite critical of Simkovic and McIntyre, has to say on the subject:

[T]oday’s law schools publish a wealth of data about their employment outcomes; most of that information is both user-friendly and accurate.

As to LST's main claim on Reform: "American legal education is broken because it is systematically unfair and unaffordable," LST and I will have to agree to disagree.  Still, two out of three ain't bad.  LST can take credit for having contributed to an environment in which law schools are forced to provide information about student outcomes in a way that really helps students make more informed decisions about whether to go to law school or whether to choose a particular school.

Congratulations, LST.  You've won.  You've done some real social good.  You and others have persuaded college graduates not to go to law school.  Unfortunately, that might not be good advice, since Simkovic and McIntyre's research shows that students who go to law school are, on the whole, better off for having done so.  

So you can now declare victory and move on to larger projects.  Why not use your model to attack other sectors of the economy that, when compared with law schools, are much less transparent, much more important, far less inclined to self-criticism and far more resistant to outside calls for change?

 

April 17, 2015 in Commentary, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, April 16, 2015

SeaWorld in a World of Trouble

A potential class-action lawsuit against SeaWorld was filed in Florida on April 8 just two weeks after the company was sued over its killer whale care in San Diego in another purported class action suit.    The Florida lawsuit alleges unjust enrichment and fraud, among other issues.  The lawsuit claims that if members of the public knew about SeaWorld’s mistreatment of the orcas, they would not visit the theme parks.  Plaintiffs asks the court to require SeaWorld to reimburse ticket prices to all the people who purchased tickets to the Orlando park in the past four years.  Visitors to the park pay much as $235 per person.  The complaint states that more than five million people attended the Florida theme park in the years 2010 through 2012. 

SeaWorld finds itself in a lot of trouble these days over its treatment of its killer whales.  The park was, for example, subjected to heavy criticism in the CNN documentary “Blackfish” and in a book written by one of its former orca trainers.  Perhaps as a result, its shares have been tanking recently…

SeaWorld, in turn, claims that the criticism and in particular the most recent lawsuit “appears to be an attempt by animal [rights] extremists to use the courts to advance an anti-zoo agenda. The suit is baseless, filled with inaccuracies, and SeaWorld intends to defend itself against these inaccurate claims.”  It also claims that it is a leader in orca care.  SeaWorld’s parks are regularly inspected by the U.S. government and two organizations.  The accreditations of the California and Florida parks expire in 2020.

As part of the experience park visitors purchase, they unquestionably expect to see relatively healthy and happy whales kept under standards of good animal husbandry.  But in reality, according to the lawsuits and other statements about the park, SeaWorld does not live up to this end of the bargain.  Frequent allegations have been made that SeaWorld’s orcas have a shorter lifespan than wild orcas (usually, animals in captivity live longer than their wild counterparts), are kept in chemical-filled and way too small pools, are drugged with antipsychotic medicines, are not provided with sufficient shade, and are subjected to forced breeding.

Either somebody is not telling the truth here or people’s expectations of what constitutes good ethics in relation to keeping and displaying orcas as well as other show and zoo animals, for that matter.  Does this matter under the law?  Of course, the general public has a purely legal right to buy tickets to see various performance and exhibit animals as long as no state or federal law is violated as regards how the animals are treated.  Ethics are a different story.  But misrepresentation is actionable under contracts law.  If the above allegations made by TV producers, former trainers, and numerous consumers are correct, SeaWorld has indeed not lived up to the wholesome, animal-friendly image it portrays of itself in order to sell tickets.  Its alleged questionable conduct has been going on for years.  It’s been almost twenty since a friend of mine (otherwise not very interested in animals) visited SeaWorld San Diego and went on a backstage tour.  He told me about the deplorably small pools in which the animals were kept after their performances.  In this area, ethics and contracts law interface and have finally come head-to-head.  The eventual outcome may be that SeaWorld will not be able to continue making money off its orca shows as it has in the past.  Ringling Bros. is voluntarily phasing out its use of elephants after similar protests about their treatment.   This may not be a bad thing from a public policy point of view.   Time has come to consider how we treat animals in many contexts, and certainly so for mere entertainment and profit-making motives. 

See the Florida complaint here: http://ia902707.us.archive.org/24/items/gov.uscourts.flmd.309289/gov.uscourts.flmd.309289.1.0.pdf

April 16, 2015 in Current Affairs, Famous Cases, In the News, Travel | Permalink | Comments (0) | TrackBack (0)

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