Thursday, January 15, 2009
How to Teach the Difference Between Restatement of Agency 2d §8 and Restatement of Agency 3d §2.03 in Limerick Form
Sunday, December 7, 2008
Posted by Jeff Lipshaw
It's that time of year when law school professors (including me) procrastinate and whine about grading, even though it's one of the few burdens that fall upon us in our privileged lives. I thought I would procrastinate in a useful way as I make my way through another round of bluebooks. Here are some tips that go beyond the old IRAC/TREAC saws (even though thar's truth in them thar saws!):
1. When the professor tells you how much each question is worth, take it seriously! In particular, there is a tendency to devote disproportionately too much time to small questions at the beginning, sort of like going out too fast in the first mile of a 10K race. For example, I always assign 180 points to my three hour exams, so that the points roughly equal the amount of time to be devoted. If the first contracts law question has only 10 points assigned, it's unlikely the professor has in mind that you write the history of consideration law since the days of assumpsit - take a minute to figure out what the most obvious point of the question is, and write for 10, not 30, minutes on it.
2. When the professor asks you to consider the claims plaintiff may make against a list of potential defendants, put yourself in the shoes of the the plaintiff, and again, start with the most obvious and work your way to the more subtle. The reason is that you pick up more issues this way. What I see a lot is students picking up on the most obvious issue that springs from the facts, say, a piercing the corporate veil issue to get to the shareholders, jump right to it and forget to discuss what claims the plaintiff has against the corporation itself, thus missing a chunk of possible points. Again, put yourself in the position of the plaintiff. Who do I sue first most obviously? Where are the issues in that? Then who else do I go after?
3. Don't try to be funny. Trust me. Even though my class is one-part stand-up comedy to two parts substance, I get no comic relief from witticisms (even your repeating my own) in the exam. It doesn't hurt you; it just wastes your valuable time.
4. Organize, organize, organize. You wouldn't believe the advantage that comes from having the issues separated by paragraph headings or outline notation. Chances are that the professor has a sample answer or outline split up into issues. Even you don't write your answer in the same order, having the issues split out lets us see clearly what you got and what you didn't. (This, of course, assumes you have something relevant to say. They say in practice: when you have the law, argue the law; when you have the facts, let them speak, and when you have neither, pound on the table. The exam analog would be: (1) when you know the material, show it; (2) if you have style, use it; and (3) if you have neither, puke all over the bluebook.)
Where I notice this particularly is in big "issue-spotter" questions with complex facts in the second half of the exam, when students are already tired. This is where you really want to suck it up and resist your impulse to blow chunks all over the page. Instead, take a deep breath. Slow down for a couple minutes and write an outline of the answer in the margin before digging in.
5. For God's sake, if you have terrible handwriting, invest in a Mavis Beacon typing course. The reality is that grading is very much art surrounded by a patina of science. By and large, a couple points on the exam here and there won't make a big difference. I feel very, very confident that my exams create a representative continuum. But there are arbitrary calls at the margins, particularly when you have to turn numerical scores into letter grades. Why let that go against you because the professor got frustrated trying to make sense of a test that looks like Linear A or Hammurabi's Code in the original cuneiform? (To be clear, I have no prejudice against handwritten exams; I have given just as many As on handwritten as typed and I've seen typed exams that look like the old "12 monkeys will eventually type the Encyclopaedia Brittanica" story. But it's far more common to have unintelligible handwriting than unintelligible typing.)
Well, back to the salt mine.
P.S.: If it makes any of my students feel better, I have had the recurring dream every night this week in which it is now the end of the semester, the exam is coming up, and I realize that I have never prepared for or gone to the advanced math class that meets on Mondays at 10:00 a.m.
P.P.S.: Question for ABA Journal - Is this an example of slipping off topic?
Saturday, December 6, 2008
Teacher sorry for binding girls' hands, feet in slavery lesson
--Yahoo! News headline this morning
Number of times in teaching Torts that a very young Childress answered a 1L's question about the difference between assault and battery with a physical demonstration: One. Explaining myself to the dean: priceless. [Alan Childress]
Friday, December 5, 2008
" Free Networking Digree Online Course " : I deleted this one. This is worse than those blogs on capital punishment that had used Google AdSense and suddenly found they were advertising lots of mobility scooters (electric chairs). [Alan Childress]
Thursday, December 4, 2008
Posted by Jeff Lipshaw
I taught a class on Entrepreneurship and the Law at the IU School of Law - Indianapolis while I was still the general counsel at Great Lakes Chemical (spring 2005). I cold-called Mickey Maurer (we had several mutual friends but had never met each other), then the director of the Indiana Economic Development Corporation (appointed by the then new Governor Mitch Daniels), and asked him if he would be willing to talk to my eight-person class for a couple hours about what it was like to be an entrepreneur.
He got back to me with a "that sounds like fun," showed up at the appointed hour, spoke to the students about his experience starting up the Bank of Indianapolis, and took questions with all of the energy and down-to-earth good sense and enthusiasm for which he is beloved in Indianapolis.
He is also a crossword constructor, and has contributed puzzles to Will Shortz that have been published in the New York Times, including one that is in Shortz's book of best ever NYT puzzles.
Tuesday, December 2, 2008
My good friend David Zaring alerted me to these job postings in the Legal Studies and Business Ethics Department at The Wharton School:
Friday, November 21, 2008
Stanford Announces Fellowship In Professional Responsibility and the Legal Profession (Deadline 12/1/08)
Posted by Alan Childress
Prof. G. Randall Lee at Widener, on behalf of the AALS Section on Professional Responsibility, forwarded to members this interesting announcement, and has said we could reprint it here at LPB:
Stanford Law School’s Center on the Legal Profession invites Fellowship applications for the forthcoming academic year (2009-2010).
The Center on the Legal Profession, directed by Professor Deborah L. Rhode, supports research, teaching, programs, and public policy initiatives on crucial issues facing the bar. The Center focuses on issues of professional responsibility and the structure of legal practice. Central concerns include how to enhance access to justice, sustain ethical values, improve bar regulatory structures, and effectively respond to the changing dynamics of legal workplaces. Upcoming Center events include The Roadmap to Justice Project, a national effort to draw leaders in the field to develop an agenda for expanding access to legal services for low- and middle-income individuals, and the International Legal Ethics Conference in 2010.
The Center on the Legal
Profession Fellowship is a full-time, one-year residential fellowship
beginning in June 2009. It is designed to offer scholars interested in topics of
professional responsibility and the structure of legal practice an opportunity to
conduct research and participate in law school events. Fellows will be provided
with office space, a stipend of $50,000, and a generous benefits package.
All inquires about the program and applications should be submitted by December 1, 2008 to:
Amanda Packel, Associate Director, Center on the Legal Profession
Stanford Law School 559 Nathan Abbott Way Stanford, California 94305-8610
firstname.lastname@example.org -- Tel (650)
736-9770 Fax (650)
Sunday, November 16, 2008
I got an email stating that the new edition of the problems casebook by Tom Morgan (GW) and Ronald Rotunda (now at Chapman) is now available for spring 09 adoption, via this link.
Thursday, October 23, 2008
Just out by Aspen Publishers is the problems casebook by Nathan Crystal of the University of South Carolina, entitled Professional Responsibility: Problems of Practice and the Profession, Fourth Edition, 2008. Its link here. Here is part of the blurb: "this concise problem-based casebook continues to offer students the opportunity to hone their judgment skills and to develop a philosophy of lawyering that can become a credo for dealing with the hard ethical issues that are part of their chosen profession."
Wednesday, October 22, 2008
This is a follow-up to our April posts here and here on the statistical info behind passing the MPRE (minimum passing score, average score, standard deviation, etc.) and Jeff's own musings about coming out of ethical hiatus to take the exam as a certified AARP member (and his commendable result). Now consider this student blog's post and reader comments on the recent August 8, 2008 exam administration, studying for it, and sweating out the results. Those who blogged it out seemed to agree the questions were nearly incomprehensible, but they inexplicably passed anyway. The students did not address Jeff's most acute piece of advice: "#13. Don't drink a Venti Starbucks thirty minutes before you start the exam."
Consider also this older epinions post and comments, Advice on How to Pass the MPRE from Someone Who Just Did Last Month. Another student wrote, a year ago, that the exam prep needed more than she was led to believe: friends "simply reviewed the material the day before the exam. To quote my dear friend Mirenda aka Ma Henny, 'Whatevva Hunney'." As Mike has written, one point shy is not enough. The official NCBE exam website is here.
Monday, September 22, 2008
The beauty, humor, and frustration of university teaching, as years fly by, is nicely captured in math prof Manil Suri's "X = 50 Semesters." It is part of the NY Times Sunday Magazine's roundup of education (in which legal education is underexamined). Hat Tip to Devan Desai in his concurring opinions post on the magazine issue. [Alan Childress]
Monday, September 1, 2008
[by Bill Henderson, crossposted to ELS Blog]
In a provocative post entitled "Is the End Near for Yale's Dominance", Brian Leiter reports one insider's assessment that Yale may lose three or four additional faculty members. If that happens, surely Harvard, with its recent lateral hiring sprees, will be the best law school in the country--right? Brian thinks that predictions of Yale's decline are premature. I agee. But in the process Brian implicitly highlights an interesting problem: what exactly does it mean to be the "best" law school?
Here are the vexing facts: on a per capital basis, Yale places more people in academia and Supreme Court clerkships than any other law school; Yale's acceptance rate is 7.3% versus 11.8% for Harvard; yet, over the last decade, the average U.S. News academic reputation score for the two schools are exactly--yes, exactly--equal: 4.840 for Harvard, 4.840 for Yale.
Is it possible that Yale is #1 because, well, Yale is #1 -- and has been every year since USN began publication? Brian refers to U.S. News "small school bias". He is right. Because of Yale's massive endowment and small student size, it enjoys a per-pupil expenditure that is roughly 1/3 its total tuition price. According to a simulation model of the 2008 U.S. News rankings, which Andy Morriss and I recently constructed, Harvard would not overtake Yale even if:
- Harvard's median LSAT climbed to 180 and its median UGPA hit 4.0;
- Harvard's academic and lawyer-judge reputation scores were both a perfect 5.0;
- Harvard's acceptance rate plunged to less than 5%.
In fact, even with these changes, Yale would still have a nice leadership cushion. [Note: Similar anomalous math was noted by Ted Seto in his classic essay, Understanding the U.S. News Law School Rankings, SMU L Rev (2007).]
Yet, Yale's dominance keeps things simple. Applicants signal their elite status by enrolling at Yale. Judges, in turn, derive prestige by hiring Yale graduates, even though they mockingly complain that Yale clerks know very little law. And faculty favor Yale graduates because it validates our own sense of eliteness and institutional upward movement. We can rationalize Yale's dominance in terms of scholarship, but the real endgame is the allocation of positional goods. It is so easy to get too caught up on the hamster wheel of envy and prestige without realizing that the energy expended does not necessarily produce anything of lasting social value.
Of course, each of us is free to determine our own merit criteria. I think the "best" law school is the one where faculty are willing to make inordinate personal sacrifices for the benefit of the collective enterprise--and where aspiring lawyers leave the law school skilled, confident, ethical, and ensconced in a powerful professional network that opens doors and values public service. In turn, alumnus are sufficiently grateful for the transformative experience they received that they are willing to underwrite the law school's mission and subsidize this opportunity for future generations. This vision requires a greater focus on internal rather than external metrics. For us human beings, that is no easy trick.
Friday, August 22, 2008
Posted by Jeff Lipshaw
My colleague and suite-mate, Mike Rustad, is co-chairing "Successful Strategies for Jury Trials," a day-long conference to be held at the Suffolk University Law School here in the heart of downtown Boston on Friday, October 24, 2008. The panels will include state and federal judges, distinguished trial lawyers, and two of the leading academics in jury research, Professor Valerie Hans (left) of the Cornell Law School, and Neil Vidmar (right) of the Duke Law School. Take a look at the brochure: the topics will include how to conduct pretrial jury management in light of empirical research, the best trial strategies, insights into how juries make decisions, how juries perceive experts, and the role of jury consultants.
Highly recommended. Enroll while it's hot!
Friday, August 15, 2008
[posted by Bill Henderson]
With all the discussion we have been having on institution building (Henderson, Lipshaw I, Chen, Madison, Caron, Smith, Lipshaw II, and Ribstein), it should not go unnoticed that one of the truly great deans of our generation, Richard Matasar (New York Law School), has posted his entire playbook on SSRN, entitled "Defining our Responsibilities: Becoming Academic Fiduciaries."
Two of Rick's most recent accomplishments are selling his school's "air rights" in the Tribeca neighborhood of Manhattan, which financed a new building and created a large NYLS endowment, and implementation of a data-driven curriculum over the last five years that resulted in a 2007 NY first-time bar passage rate of 90.2%, which is 1 point below Cornell and 1 point above Fordham. See this NYLJ story.
Incidentally, Rick's article is in the same volume of Law & Contemporary Issues as Clayton Gillette's "Law School Faculty as Free Agents" essay.
Posted by Jeff Lipshaw
Gordon Smith has jumped into the fray Bill Henderson created with his deft analysis of the "faculty free agency" issue, since added to by Jim Chen, Mike Madison and Paul Caron. Gordon's focus was on the need to create a sense of of intrinsic value or joy within an institution. (Aside: my own joy right now has a lot to do with the fact that Bill Henderson is a co-editor of this blog!) That was a conclusion I reached, perhaps not as articulately, in a response to Bill's comment on my deconstruction of incentives a couple days ago. But it is buried in the comments, so with the magic of technology and a bit of editing I'm going to repeat it here.
I love Bill's aspiration to create a mission beyond self-interest within a faculty. The wonderful thing about his is this: "an initiative that will add value for students and the institution--e.g., creating skills, building relationship, solving real world problems, etc." So the question is how translate great faculty accomplishments (like the one Bill describes Andy Morriss undertook in Cleveland). The task is to have those accomplishments be seen as capital, and then to do what we can to make them school-specific.
So the way to create school-specific capital is to have evaluators (students, alumni, other faculty) value it as such, and to keep people around long enough to get the programs institutionalized. My point is not to throw cold water on the aspiration, but to suggest: (a) doing that is really aspirational (read: difficult but not impossible); (b) the task is difficult (but not impossible) even where, unlike in law schools, there is a unifying metric (that's the only reason for distinguishing a complex business), and (c) in my experience, contracts are not motivators, they merely legalize a more, how shall we say, emotional commitment.
I truly believe that what inspires people to great performance is a sense of mission, purpose, creation, posterity, whatever, and contracts or other legal or rule-based commitments are the tail of that dog. Cool. Do five year contracts or commitments. But do it within an institution marked by inspired and inspiring leadership.
Wednesday, August 13, 2008
[posted by Bill Henderson, cross-posted to ELS Blog]
[Update: Paul Caron (Cincinnati), Michael Madison (Pittsburgh Law), Jeff Lipshaw (Suffolk), Jim Chen (Louisville) have picked up on the analysis in the below post. There seems to be some misunderstanding on my point of "long-term contracts." In retrospect, I should have said "long-term commitments" (i.e., extra-legal and perhaps not committed to writing) to avoid what I think is an unproductive analysis of run-of-the-mill employment and commercial contracts.
I am talking about this: Academic X says, "I will stay here X number of years and ignore outside offers if you provide me with the resources to execute the following institutional plan [e.g., labor-intensive but high-yield teaching, public service, useful scholarship that will be noticed and solve a real world problem, etc.]." Law School Y says, "I love this idea. If you are right, it will grow our institution. Because you have committed to building it here, School Y will fund it." Because both Academic X and Law School Y have aligned personal and institutional agendas, their cooperation and commitment grows the institutional pie; both are made better off. Moreover, it becomes magnetic for other scholars and funders who share the substantive vision.
So we are talking about communitarian norms here. This type of approach is easy in small groups, which is what law faculty are. Firm-specific capital in law firms is harder to grow/maintain because (a) they have gotten larger, (b) covenants not to compete are prohibited, and (c) there are liquidity constraints imposed by the ban on non-lawyer ownership. On the other hand, law firms work harder at it because they increasingly operate in a competitive national marketplace--firm-specific capital can be huge competitive advantage. Law schools, in contrast, are not subject to the same market pressures--the most elite have huge endowments and donors who want to give more to be associated with the elite brands. Thus, in the legal academy, the free agent ethos is damn near ubiquitous.
No need to be abstract about all this. I lay out a highly plausible counteractive approach in this comment.]
Several bloggers have noted Clayton Gillette's recent article, Law School Faculty as Free Agents, 17 J. Contemp. Leg. Issues 213 (2008). See, e.g., Paul Caron, Larry Ribstein, Al Brophy, and Paul Secunda. Gillette's essay provides the type of straight thinking needed to move the Moneyball-Moneylaw debate into a mode of institutional analysis that can produce actual results. I will briefly lay out Gillette's analysis and then extend it to a concept I call "school-specific" capital--an analog to firm-specific capital.
Law Professor Free Agency
In a nutshell, here is Gillette's argument. The lateral market for law professors is primarily based upon scholarship, which is an observable, coveted good. Teaching and service, to be sure, are relevant goods, but they are hard to measure. Further, faculty make hiring decisions; when they land a high profile scholar, they share equally in the school's reputational gain (albeit these gains are largely limited to opinions of other professors). Yet, if new colleagues shirk committee work or are disengaged and uninspiring teachers, the costs borne by individual faculty members are negligible or non-existent. Hence scholarship becomes the focus of lateral hiring. Clayton observes,
In 30 years of teaching, service as vice dean, and membership on appointments committees, I don’t believe I have ever heard a discussion of a candidate’s qualifications that included serious consideration of institutional service, except insofar as it related to scholarship. ...
[H]iring schools tend to invest little in discovering teaching quality. The hiring decision is typically made after one or two faculty members at the hiring school attend one or two of the visitor’s classes, and that is done through a process (e.g., informing the visitor when faculty members will attend, and allowing the visitor to choose that time) that diminishes the likelihood that those classes will be representative. ... The result is that, as opposed to the meticulous, highly tailored criticism to which a candidate’s scholarship will be subjected, a candidate’s teaching will be evaluated largely to determine whether it is “good enough.” (pp. 228-29)
Gillette's key insight is that the lateral market in legal academia, unlike baseball (a crucial point), does not force the decision-makers [faculty] to internalize the benefits and costs of free agent activity: Some costs potentially get externalized onto the students, alumni and law school administrators. When scholarship opens so many doors, Gillette suggests, it is easy to see how a more robust lateral market can skew institutional incentives and detract from overall educational quality.
To my mind, Gillette sets forth a very coherent and plausible analysis. [I suspect a lot of people will quibble with it, however, believing that their own lateral experience (or aspiration) reflects a more optimal outcome at the institutional level. Listeners interested in the merits of this debate should weigh the critic's potential bias.] It is an open question whether lateral mobility is really on the rise. At Indiana Law, we are building a law faculty universe database that covers 80 years of AALS schools. See "Is Lateral Movement on the Rise? A Precise Answer is on the Way," ELS Blog (Dec. 21, 2006). We see a lot of lateral movement in the 30s, 40s, 50s, 60s, and 70s. Eventually we will answer to the nagging empirical question of whether lateral movement is truly on the rise.
But one thing I can say with confidence--information published on the Internet (Leiter Faculty News and Concurring Opinions) has increased the perception of heightened movement. And perception is all that is necessary to change behavior and institutional norms--possibly in the wrong direction.
Gillette actually understates his argument. Specifically, the proliferation of a free agency ethos not only undercut educational quality, it inhibits the cooperative, highly committed, selfless environments need to create truly exceptional institutions. One of the major implications of more professor mobility is the diminution of "school-specific" capital--i.e., desirable law school attributes, such as innovative curriculum, public service reputation, alumni good will, that remains largely intact when a professor leaves. So more free agency suggests fewer law schools that transform good human capital into great human capital. On this score, the "best" law schools can, in fact, be pretty mediocre. (I believe there is a way out of this box, which I will address below.)
More after the jump. ...
Monday, August 4, 2008
[Posted By Bill Henderson]
[Interested in building a truly great law school? Want a high
quality life for you and your family? Consider this opportunity, which
ran on SSRN Professional Announcements last week. wdh]
In 2007, Indiana University School of Law-Bloomington received a $25 million gift from the Lilly Foundation for the purpose of attracting and retaining leading scholars and teachers. The gift will enable the Law School to hire up to five senior level professors without limitation to specific curricular subject. In addition, the Law School is seeking outstanding applicants for several entry level openings. Although the entry level and lateral hiring committees are particularly interested in hiring scholars that will leverage and extend the School's current strengths, all qualified candidates will receive careful consideration.
About the Law School. The attractions of Indiana Law include:
- Highly collegial faculty with a longstanding focus on globalization, international law, interdisciplinary research, and law & society scholarship.
- Attractive law school facilities, including a top-ranked law library.
- Integration with a major research university on one of the nation's most beautiful campuses.
- Excellent, ambitious JD, LLM, and SJD students with strong entering credentials.
- Strong commitment to curricular innovation to keep pace with a rapidly changing legal profession.
- Three course teaching load, small average class size, and an excellent student-faculty ratio that will further improve through new faculty hiring.
- Excellent support for conference travel related to scholarship and professional service and development.
- A lovely, vibrant Big Ten college town.
- An active and supportive alumni base.
- Competitive salary and benefits.
Application Procedure. The entry level and lateral
appointments committees invite confidential inquiries from
scholars at other institutions. Women and underrepresented minorities
are encouraged to apply. Interested candidates should submit a c.v. and
a letter summarizing their future career goals in the areas of
scholarship, teaching, and service. Please direct these materials,
either electronically or through regular mail to the chair of the entry
level or lateral appointments committees:
Entry Level Contact:
Jeannine Bell, JD, PhD
Professor of Law & Whistler Faculty Fellow
211 S. Indiana Ave., Bloomington, IN 47405
Lateral Level Contact:
Kenneth Dau-Schmidt, JD, PhD
Willard & Margaret Carr Professor of Law
211 S. Indiana Ave., Bloomington, IN 47405
Indiana University is an Equal Opportunity/Affirmative Action employer.
Thursday, July 31, 2008
[posted by Bill Henderson]
A reporter for the ABA Journal has contacted me for a story on uptick in transfer students. She has dug up a lot of information on this topic. Although she has heard a lot of rumors that some law schools directly solicit rising 1Ls from other law schools, at this point they are all rumors from lots of law school administrators.
If any reader has any concrete evidence of direct solicitation of transfer students, the reporter, Leslie Gordon, would love to hear from you. (It would be great if you would cc me, as I would love to see the evidence as well.) Thanks.
Wednesday, July 30, 2008
Posted by Jeff Lipshaw
Danny Sokol (Florida, left), over at Antitrust and Competition Policy Blog (A Member of the Law Professor Blogs Network), provides additional detail (he was also quoted in the New York Times story) on his experience with Barack Obama while Danny was a student at the University of Chicago Law School. His account confirms other stories I've heard about Obama's genuineness. When I was helping out (somewhat) back in the early primary season, some of the people who were working up in New Hampshire told me about the Senator coming out of a building and throwing snowballs at the volunteers, leaving them in something of a quandary - "do we throw snowballs back? are the Secret Service agents going to object if we do?"
It's also interesting to see peers and acquaintances go from being private figures to public figures in full view, particularly when, as Danny points out, part of your appeal and, indeed, charisma, is your individual attention to people. I've experienced the "looking beyond me to the next person" sense in talking to a number of politicians, and in fairness, the number of people who make demands on a mayor's or governor's or senator's or candidate's time simply forecloses the possibility of that now public person being everybody's friend.