Thursday, July 28, 2016
In 42 Litigation No. 1 (Fall 2015), George Gopen deals with three controversial topics of grammar: (1) Can you split the infinitive? (2) When a comma or period follows a quote, should it be placed inside or outside the question mark? (3) Should you use the Oxford comma?
As usual, Professor Gopen’s answers are well-reasoned and accord with common sense. You can access the article here.
Conclusion: "Building on Best Practices is a worthy addition to the canon of literature on reforming legal education. Before the Great Recession, without today’s pressing economic incentives, law schools made uneven strides to incorporate lessons from MacCrate, Best Practices, and Carnegie. Today, compounding economic crises and escalating accreditation requirements make reform urgent, necessary, and inevitable. To demonstrate that law schools can still add value to careers and society, legal educators must grapple with structural changes that affect every aspect of teaching, learning and researching. Building on Best Practices provides diverse expertise and useful guidance on approaching these challenges and on improving and expanding the enterprise of legal education."
Wednesday, July 27, 2016
Sixth Annual Western Region Legal Writing Conference: Awakening the Force: LWI and the Development of Professional Identity
Jeffrey E. Proske and Hether C. Macfarlane:
Exciting news! It’s not too late to register for the Sixth Annual Western Region Legal Writing Conference which will be held at the University of the Pacific, McGeorge School of Law on August 5-6, 2016. The theme this year is “Awakening the Force: LWI and the Development of Professional Identity.” We have an exciting line-up of presenters, and there is no registration fee. However, we do ask that everyone, including presenters, register so we know how many people will be attending. The link on the McGeorge website is:
The website includes information about hotels in the area and the free parking at the law school. It also includes a list of the presenters and presentations we’ll be featuring this year.
We’re looking forward to seeing everyone in August.
According to recruiter Harrison Barnes:
In fact, most attorneys who work in law firms are exposed to a literal parade of people coming into their offices, going out to lunch with them, texting them, taking them out for drinks, emailing them and calling them on the phone to discuss how things are so negative and wrong inside of their law firms.
- The people instigating these conversations and negative way of thinking never last inside of law firms.
- In most instances, the people who choose to listen to and participate in this way of thinking also will be gone in short order.He observes:
- Unfortunately, the careers of most attorneys inside of law firms end unnecessarily—not because they cannot do the work but because they adopt the “us versus them” attitude that holds everyone on the “us” side back. When I talk with partners who are not succeeding, associates who are not succeeding, and counsel who are not succeeding, in virtually every conversation it comes out that they do not view themselves on the same team as the people they are working for. In contrast, when I talk to attorneys who are succeeding all they talk about is how they are on the same team as the people running the law firm.
- You must never think or act negatively towards the powers that feed you.
Unfortunately, the careers of most attorneys inside of law firms end unnecessarily—not because they cannot do the work but because they adopt the “us versus them” attitude that holds everyone on the “us” side back. When I talk with partners who are not succeeding, associates who are not succeeding, and counsel who are not succeeding, in virtually every conversation it comes out that they do not view themselves on the same team as the people they are working for. In contrast, when I talk to attorneys who are succeeding all they talk about is how they are on the same team as the people running the law firm.
You can read the rest here. I think the follow-up advice should be that if you are unhappy with a firm, don’t complain. Move elsewhere.
Massachusetts joins 24 other states in adopting the Uniform Bar Exam beginning in 2018. The UBE consists of essay questions, multiple choice and "skills" assessments (such as asking students to draft documents based on the supplied materials). Bloomberg's Big Law Business News has more details:
Passing the bar in Massachusetts may soon carry a little more weight.
That’s because this week, Massachusetts adopted the Uniform Bar Exam, a standardized test that consists of multiple choice questions, essays, and skills assessments, now used in 24 states and the District of Columbia.
The move comes amid growing support for a national standardized bar exam: In February, the American Bar Association’s House of Delegates approved a resolution from the ABA Law Student Division that called for all jurisdictions to adopt the UBE as quickly as possible. The Division argued that the current exam structure needlessly burdens mobility throughout the country.
In New York, bar exam students take the UBE for the first time this month.
According to Erica Moeser, president of the NCBE, “The UBE is under study in a number of places.”
Oregon appears to be moving forward, though the State has not released a formal order at this time. In June, the Supreme Court of Texas ordered the creation of a task force on the Texas Bar Examination, which will consider, among other things, whether to adopt the UBE.
Examinees in Massachusetts will sit for the UBE beginning in July 2018, and it will include a Massachusetts-specific component to ensure that newly-licensed attorneys are familiar with key state laws and procedures. It is the ninth jurisdiction to adopt a local law component.
. . . .
Continue reading here.
Here is another excellent example of learning outcomes from Washburn School of Law:
1. Graduates will demonstrate knowledge of the law and the legal system.
1.1. Students will demonstrate an understanding of the terms, rules, and principles of law.
1.2. Students will read authority, identify the rules within the authority, and synthesize those rules into a logical framework for analysis.
1.3. Students will demonstrate an understanding of organization, hierarchy, and relationships within the legal system.
1.4. Students will demonstrate an understanding of primary and secondary sources of law and the ways in which they relate to one another.
2. Graduates will demonstrate analytical and problem-solving skills.
2.1. Where there is controlling legal principle, students will identify and apply the controlling legal principles that apply to case-based or hypothetical fact scenarios.
2.2. Where the controlling legal principle is indeterminate,
2.2a. Students will use analogical reasoning to identify possible legal rules to predict and explain how case-based or hypothetical fact scenarios will likely be resolved.
2.2b. Students will identify policy and practical considerations to predict and explain how case-based or hypothetical fact scenarios will likely be resolved.
3. Graduates will communicate effectively.
3.1. Students will write in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.
3.2. Students will speak in a clear, concise, well-organized, professional manner that is appropriate to the audience and the circumstances.
3.3. Students will demonstrate active listening in communications with others, including legal professionals and laypersons.
4. Graduates will demonstrate competency in legal practice skills.
4.1. Students will demonstrate the ability to conduct legal research.
4.2. Students will demonstrate the ability to conduct a factual investigation.
4.3. Students will demonstrate the ability to interview and counsel a client.
4.4. Students will demonstrate the ability to negotiate and advocate on behalf of a client in appropriate circumstances.
4.5. Students will demonstrate the ability to draft documents used in legal practice.
5. Graduates will possess the requisite skills to recognize and resolve dilemmas in an ethical and professional manner.
5.1. Students will articulate the sources, structure, and substance of the laws governing the ethics of the legal profession.
5.2. When presented with a dilemma drawn from case-based or hypothetical facts, students will articulate the relevant and applicable ethical standards, apply those ethical standards, and propose one or more resolutions that result in an ethical outcome.
5.3. Students will consistently exercise professional and ethical responsibilities.
6. Graduates will demonstrate knowledge of the importance of service to the profession and to the community at large, both nationally and internationally.
6.1. Students will demonstrate an awareness of and a willingness to contribute to the profession's responsibility to ensure access to justice.
6.2. Students will demonstrate a willingness to contribute to serving the underserved and traditionally marginalized communities.
6.3. Students will recognize the interconnectedness of societies and cultures throughout the world and will demonstrate a commitment to finding solutions to problems that impact people globally.
6.4. Students will recognize the existence and value of diversity both within the legal profession and among the clients it serves.
Tuesday, July 26, 2016
At Chronicle Forums, a reader asks this question:
So we have a new VPAA starting soon, and he asked to meet with me in mid-July to discuss the department I chair, its majors, etc.
I have three goals:
1) Clearly communicate the state of our department and its programs.
2) Get the relationship with the VPAA started on the right foot.
3) Send the signal that our dean has been very difficult to work with (he is the worst supervisor I have ever had), has been strangling our department, etc., without seeming unprofessional.
So... Any advice about how to handle this discussion? Do I just need to leave #3 out? Or are there ways to send the message without compromising #2?
Most responders advised staying away from #3. Soon, I will be speaking with my new dean. I plan to establish my credentials by talking about what I am doing and discussing several projects that I or the school might undertake. I will let the dean learn for himself the negatives.
You can access the conversation here.
Monday, July 25, 2016
I will first examine the learning outcomes of the University of Arkansas at Little Rock William H. Bowen School of Law. I have chosen UALR because it is headed by Michael Hunter Schwartz, who was the first legal education scholar to use general education research on a large-scale. (He took a community college course in learning theory.)
Statement of Educational Goals Concerning Knowledge, Skills, and Values
A. KNOWLEDGE. Every graduate should have knowledge and understanding of the following at a level sufficient to practice ethically as a lawyer and to pass the bar examination in any United States jurisdiction:
1. The organization, hierarchy and relationships of legal systems;
2. The sources of primary law and the ways they relate to one another;
3. The nature of legal rules and institutions;
4. The fundamental sources and tools of legal research;
5. The principles of the fundamental areas of American substantive law, including civil procedure, constitutional law, contracts, criminal law and procedure, evidence, property, and torts;
6. The nature, sources, and content of ethical standards applicable to lawyers and the practice of law in the United States.
B. SKILLS. Every graduate should have the following skills:
1. Within a specific or discrete subject matter, to engage in effective problem solving by:
a. identifying and diagnosing problems;
b. generating alternative solutions and strategies;
c. developing and implementing plans of action; and
d. keeping the planning process open to new information and ideas.
2. To comprehend legal texts and apply the legal principles extracted from the texts to new factual circumstances by:
a. comprehending a legal text, such as a case, a statute, an administrative rule, a secondary source, or a contract;
b. comprehending a series of legal texts and synthesizing them into a coherent legal narrative, including the ability both to harmonize apparently conflicting authorities and to recognize genuinely conflicting authorities; and
c. applying governing legal principles to new factual situations, including the abilities to spot issues, to formulate issues, to develop potential legal solutions, and to assess their validity.
3. To conduct effective and efficient legal research by developing a research strategy, identifying potentially relevant sources of law, locating legal texts that provide the governing legal principles for a factual situation, and understanding the role that legal reasoning plays in legal research.
4. To communicate effectively orally and in writing by presenting material in a clear, concise, well-organized, and professional manner that is appropriate to the audience and circumstances.
a. For all communication, to use active listening, empathy, and emotional intelligence.
b. For written communication, to write
1) an effective objective memorandum predicting the resolution of one or more legal issues;
2) effective trial and appellate briefs advocating a position for a client; and
3) a legally effective document other than in the litigation context.
5. To work cooperatively as part of a team.
6. To practice effectively by:
a. recognizing and resolving potential ethical issues;
b. developing systems and procedures to ensure the efficient allocation of time, effort, and resources, and the timely performance and completion of work; and
c. facilitating effective working relationships.
C. VALUES. Every graduate should understand and exemplify the following values:
1. As a member of a profession dedicated to the service of clients, a commitment to professionalism and to the rules of professional responsibility, including:
a. attaining and maintaining a level of competence in the lawyer’s own field(s) of practice;
b. representing clients in a competent manner;
c. increasing the lawyer’s knowledge of the law and improving the lawyer’s practice skills; and
d. other aspects of professionalism, including honesty, integrity, reliability, respect for others, diligence and hard work, maturity, and judgment.
2. As a member of a profession that bears special responsibilities for the quality of justice, a commitment to:
a. promoting justice, fairness, and morality in the lawyer’s practice in harmony with the lawyer’s ethical duties to clients;
b. contributing to the profession’s fulfillment of its responsibility to ensure that adequate legal services are provided to those who cannot afford to pay for them;
c. contributing to the profession’s fulfillment of its responsibility to enhance the capacity of law and legal institutions to do justice; and
d. showing respect for all people.
3. As a member of a self-governing profession, a commitment to:
a. participating in activities designed to improve the profession;
b. assisting in the training and preparation of new lawyers; and
c. striving to rid the profession of prejudice based on race, religion, national or ethnic origin, gender, sexual orientation, disability, age, or socio-economic status, and to rectify the effects of those prejudices.
4. As a member of a learned profession, a commitment to selecting and maintaining employment that will allow the lawyer to develop as a professional and to pursue the lawyer’s professional and personal goals.
This list divides learning outcomes into three parts: knowledge, skills, and values. This division corresponds to the Carnegie Report's three apprenticeships: 1) the “cognitive apprenticeship,” which focuses on expert knowledge and modes of thinking, 2) the “apprenticeship of practice,” which educates students in “the forms of expert practice shared by competent practitioners,” and 3) the “apprenticeship of identity and purpose,” which “introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible.” As the Carnegie Report noted with its apprenticeships, UALR's knowledge outcome corresponds with what has traditionally been taught in law school, while skills and values deals with subjects that until recently hadn't received much coverage in law school. This shows that we need to continue to teach most of the subjects we have been teaching in law school, but that we also need to significantly expand the scope of legal education to include practice skills and professional identity.
The knowledge section encompasses the traditional subjects of law school, but it does so in a detailed manner so that individual professors can see what they specifically need to teach in their classes.
The skills list is a detailed list of the skills students will need in practice. Much of this part covers metacognitive thinking, which is necessary to produce self-regulated learners. It includes problem-solving skills, reading skills, research strategy skills, communication skills, cooperation, ethical/professionalism skills.
The final section concerns values (professional identity). Having spent the last couple of years writing a book on how to teach law students professional identity, I find this list to be comprehensive and detailed. This section divides into serving clients, serving the community (justice), serving the profession, and choosing one's profession.
In sum, the UALR learning outcomes is an excellent list. Compare this list to what you were taught in law school and see which you prefer.
Update: Dean Schwartz has informed me that the learning outcomes were in place before he came to UALR. It is great to see such a proactive faculty.
It's become the de facto bible on law review article submissions including sections that cover the methods for submitting an article, any special formatting requirements, how to contact law reviews to request an expedited review, and how to contact them to withdraw an article from consideration. It's now been updated once again for the 2016 article submission season. Professors Allen Rostron and Nancy Levit (both of UMKC) point out that the latest version of their guide includes these highlights:
- They've included an updated chart showing as much information as possible about what law reviews are not accepting submissions right now and what dates they may resume accepting submissions; and
- They note the continuing trend toward journals that use and prefer Scholastica or accept emails submissions. Specifically, 20 journals prefer or strongly prefer Scholastica, 20 more list it as one of the alternative acceptable avenues of submission, and 24 (compared to 10 a year ago) now list Scholastica as the exclusive method of submission. There has also been an uptick in schools having their own independent online submission platforms. In addition, two schools permit submissions through Lex Opus, one through SSRN’s e-submission service, and one through Twitter.
Download the complete and updated submission guidelines from SSRN here.
As most of you probably know, the ABA has enacted new standards that require law schools to create and publish learning outcomes. Here are the new standards:
Standard 301. OBJECTIVES OF PROGRAM OF LEGAL EDUCATION
(a) A law school shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.
(b) A law school shall establish and publish learning outcomes designed to achieve these objectives.
Standard 302. LEARNING OUTCOMES
A law school shall establish learning outcomes that shall, at a minimum, include competency in the following:
(a) Knowledge and understanding of substantive and procedural law;
(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral communication in the legal context;
(c) Exercise of proper professional and ethical responsibilities to clients and the legal system; and
(d) Other professional skills needed for competent and ethical participation as a member of the legal profession.
Implementing these new standards will require that law schools carefully evaluate their programs of legal education. Hopefully, this will reveal the many deficiencies in current legal education, and help law schools create programs that reflect the latest education research. Over the next few days, I will look at some of the law schools that have already posted their learning outcomes.
Of these materials, I believe that the following are the most helpful.
Susan A. Ambrose et.al., How Learning Works: 7 Research-Based Principles for Smart Teaching (2010)
Peter C. Brown et.al., Make It Stick: The Science of Successful Learning (2014)
Duane Shell et.al., The Unified Learning Model: How Motivational, Cognitive, and Neurobiologal Sciences Inform Best Teaching Practices (2010)
Daniel T. Willingham, Why Don’t Students Like School? (2009)
E. Scott Fruehwald, How to Help Students from Disadvantaged Backgrounds Succeed in Law School, 1 Texas A & M L. Rev. 301 (2013)
E. Scott Fruehwald, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (2013)
Michael Hunter Schwartz et.al., Teaching Law by Design (2009)
Michael Hunter Schwartz et.al., What the Best Law Teachers Do (2013)
Sunday, July 24, 2016
For those of our readers who thought those old Property cases were irrelevant, think again. From Cozen O’Connor:
The Texas Supreme Court handed property owners a major victory on an issue of increasing importance as West Nile Virus and Zika Virus spread around the country. The court held that the doctrine of ferae naturae limits a property owner’s liability for harm from indigenous wild animals that the property owner has not attracted to its property. As a result, the court dismissed the claims of a worker who asserted that the property owner should have protected him from mosquito bites that infected him with West Nile Virus.
You can read more here.
From Advisor Technology:
On Monday (July25), the search engine is introducing a search feature that will facilitate users looking to register to vote before the presidential election in November, The Verge and The Next Web reported.
If someone Googles “register to vote,” the phrase will yield thorough instructions on how a person can register in each U.S. state, including requirements and deadlines.
Jacob Schonberg, a Google product manager, said that it won’t matter which state you’re in or how you cast your ballot. Users will be able to “find the step-by-step information they need to register correctly and on time — right at the top of the Search page and in the Google app,” he said, according to The Verge.
Google confirmed that the feature will launch Monday at 6 a.m. Pacific time (9 a.m. Eastern.)
Saturday, July 23, 2016
In the Practical Real Estate Lawyer, Professor Tanya Marsh has published an article on the subject in which she analyzes a number of restrictive covenants in litigated cases. Her examples would be useful in teaching a transactional drafting course or in the landlord-tenant segment of a Property course.
Here is the abstract:
Retail real estate lease transactions heavily utilize two kinds of restrictive use covenants — prohibited use covenants and exclusive use covenants. The structure and language of these covenants is so well established that they are practically boilerplate. This article analyzes recent appellate court decisions as well as common formulations and uses of restrictive use covenants and concludes that there is a significant disconnect between the expectations of tenants and landlords, and the way that modern courts interpret, enforce, and remedy restrictive use covenants. Common vulnerabilities in restrictive use covenants are discussed, and transactional attorneys are encouraged to dust off form language and methodically address each of the issues raised in the paper in order to craft clear and unambiguous restrictive use covenants that efficiently address client goals.
You can access the article here.
Yup, the very last company making VCRs, the Funai Company of Japan, stopped production this week due to the difficulty in obtaining parts according to this New York Times "Personal Tech" column. One of the more interesting tidbits from the article is that Funai actually sold 750,000 VCRs last year. I never would have guessed it have even been possible to sell that many. And get this; Sony was still making Betamax cassettes up until this year. If you're the kind of person who finds that intriguing, you may want to read on . . . .
Many new technologies are born with a bang: Virtual reality headsets! Renewable rockets! And old ones often die with a whimper. So it is for the videocassette recorder, or VCR.
The last-known company still manufacturing the technology, the Funai Corporation of Japan, said in a statement Thursday that it would stop making VCRs at the end of this month, mainly because of “difficulty acquiring parts.”
The Japanese newspaper Nikkei reported on the impending demise earlier this month.
The news represented the death rattle of a technology that was considered revolutionary when it was introduced in the 1950s. It took several decades for VCRs to make their way into consumers’ homes, but in its heyday it was ubiquitous and dominant.
According to the company — which said in the statement, “We are the last manufacturer” of VCRs “in all of the world” — 750,000 units were sold worldwide in 2015, down from millions decades earlier.
In 1956, Ampex Electric and Manufacturing Company introduced what its website calls “the first practical videotape recorder.” Fred Pfost, an Ampex engineer, described demonstrating the technology to CBS executives for the first time. Unbeknown to them, he had recorded a keynote speech delivered by a vice president at the network.
“After I rewound the tape and pushed the play button for this group of executives, they saw the instantaneous replay of the speech. There were about 10 seconds of total silence until they suddenly realized just what they were seeing on the 20 video monitors located around the room. Pandemonium broke out with wild clapping and cheering for five full minutes.
. . . .
At the time, the machines cost $50,000 apiece. But that did not stop orders from being placed for 100 of them in the week they debuted, according to Mr. Pfost. “This represented an amount almost as great as a year’s gross income for Ampex,” he wrote.
. . . .
Continue reading here.
Friday, July 22, 2016
Attorney and Adjunct professor Glen West gives this checklist to students in his In-House Counsel course. He emphasizes that contract issues must be taught in the context of cases that deal with these issues. Here is a summary checklist:
Limit The Parties Liable on a Contract to the Intended Parties to that Contract
- Clearly disclosing the limited-liability entity as the actual party to the contract
- Ensure that the signatory on behalf of a limited-liability party only signs in a representative capacity
- Ensure that the contract contains no language that suggests that the signing representative has undertaken personal liability in addition to or in lieu of the named limited-liability entity
Actually Read and Understand (and Consider Modifying) the Choice of Law, Choice of Forum, and Notice Provisions of the Contract
- A mandatory choice of forum clause actually chooses the mandatory forum
- Notice provisions matter and need to be updated when your company moves
- Choosing all the law you want to apply to the contract and claims that could arise thereunder or related thereto
Know the Difference Between Conditions and Covenants and Use the Right Words to Convey that Difference
Damage Limitations Clauses: Please don’t use words to which you do not know the meaning—the contract will be construed in accordance with the meaning the courts have previously given those words, whether or not you know what they mean
You can access the article here.
Thursday, July 21, 2016
Here’s one formulation of the doctrine:
A pronoun, relative pronoun, or demonstrative
adjective generally refers to the nearest reasonable antecedent.”
Professor Kimble offers a simple example:
Start with an innocuous example: men and women who are
tall. Are you talking about all men or only those who are tall?
That is, does the who-clause modify both nouns? There’s no
way to tell — no syntactic principle, no grammatical rule or
convention, that resolves the ambiguity. Yes, English meaning
depends on placement, and ideally the modifier would attach
only to the nearest antecedent, but here it may not.
After a full discussion of the doctrine, with plenty of examples, he criticizes textualism for its dismissal of legislative history as an aid to interpretation:
Canons as a group have no superior claim
to legitimacy, orderliness, reliability, or acceptance. If judges
can make informed, sensible decisions about them in individual
cases, then surely judges can make informed, sensible decisions.
about legislative history.
It’s a good idea to acquaint students with the doctrine and show them how to write sentences that are unambiguous and do not require resorting to questionable canons.
You can access the article [15 Scribes 5] (2014-15)) here.
Wednesday, July 20, 2016
Law.com has the story:
The University of Nebraska College of Law’s new Build Your Character app helps students track their law school activities and development in eight key skills areas.
Want to graduate from law school as a well-rounded attorney?
There’s an app for that.
Next month, the University of Nebraska College of Law will roll out an app designed to help students develop 27 distinct professional skills by tracking their activities and coursework. Administrators say that the app, built by students in the university’s computer science school over the past year with input from law faculty and students, is the first of its kind at a law school.
“The goal is to help students focus on the broad range of skills they will need as lawyers,” said Interim Law Dean Richard Moberly. “In some ways, I want students to use this to take ownership over their educational opportunities.”
The Build Your Character app aims to encourage students to look beyond reading, writing and “thinking like a lawyer” to hone abilities including networking, listening, organizing and problem solving—skills that students tend to overlook.
The tracking feature also enables students to easily review all their relevant law school experience ahead of job interviews. Should a student interview for a job at a mediation center, for example, the app can create a document listing every class, organization, speaker and event they attended that dealt with conflict resolution, said Molly Brummond, assistant dean for student and alumni relations. Hence, students have ready-made interview talking points, she said.
Several bar exam and Law School Admission Test prep outfits offer apps, as do legal research databases and The Bluebook—that Bible of legal citation. But law schools in general have been slow to embrace mobile technology.
. . . .
Continue reading here.