Tuesday, July 25, 2017

Is Textualism Objective and Politically Neutral?

Maybe not. Professor Joe Kimble has studied fifteen years’ worth of Michigan Supreme court cases to assess the results of decisions based on textualist analysis. Here is the abstract:

This article reviews and codes 96 cases overruled by the Michigan Supreme Court during 15 years. Those overrulings, made by justices who are textualists, show a strong ideological tilt toward conservative results. Along the way, the article discusses plain meaning (or plain language) in interpretation, definitions of ambiguity, the use of dictionaries, and the surplusage canon. The article concludes that, in practice, textualism is not nearly as objective and politically neutral as it professes to be.


In practice, textualism has devolved into a vehicle for ideological

judging—disguised as deference to the legislature. The numbers in

Michigan, though, blow its cover: 81 cases overruled, and civil plaintiffs

and criminal defendants lost in more than 90% of them.

You can access the article here. What the Michigan Supreme Court Wrought in the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 2000–15, 62 Wayne Law Review (2017).


July 25, 2017 | Permalink | Comments (0)

Submit an article to "Perspectives: Teaching Legal Research and Writing"

Maybe you've got a good teaching idea that you'd like to write-up and share with a like-minded audience or perhaps you're working on a longer, law review-type article that won't get into print for a while but you could spin-off a shorter piece from it and get it published this fall. Or perhaps you've only got time this summer to write a "micro-essay" or you'd like to try your hand at writing a book review. Perspectives: Teaching Legal Research and Writing, a Thomson-Reuters publication, is actively seeking articles, "micro-essays," and book reviews (not of textbooks published for the field but more general interest books that are readers might not know about but are pertinent to their classroom work).  Here are the details on how to get published in a periodical that reaches close to 5,000 readers including LRW profs, librarians, legal writing specialists and judges:


In addition to publishing traditional length articles, Perspectives (check out the latest issue here) recently began publishing “micro-essays” of 100 words or less. Future issues of Perspectives will  feature new micro-essay topics. The topic for the up-coming issue to be published later this year is:  "Best Database?: What is your desert island database, legal or non-legal?” 
Please consider submitting a micro-essay on your “desert island database” by the Fall deadline of October 1, 2017. We welcome multiple submissions from a single author and will publish the best selections in the next issue. Be creative; be provocative; let us know what advice the latest micro essay topic inspires you to recommend to our readership. You can submit your micro essay(s) by October 1 to Board Members Beth  Edinger at edinger@law.edu, James Levy at levyj@nsu.law.nova.edu or any current Board member listed on the masthead. To see the current issue of Perspectives, an archive of past issues, the Author’s Guide, and other details, please go to: legalsolutions.com/perspectives.
Perspectives is a journal for law librarians, law professors, and everyone else who is intrigued by the challenge of teaching legal research and writing. In three electronic publications each year (fall, winter, and spring), Perspectives provides a forum for exploring a broad array of teaching theories, techniques, and tools. Readers and authors include:  
  • new and experienced law librarians and law professors;
  • practicing attorneys who help associates to develop as researchers and writers or who serve as adjunct faculty at law schools; and
  • writing specialists at law schools, law firms, courts, and other legal institutions. 

Submissions from authors are due August 15 for the fall issue. Perspectives articles tend to be short, typically between 1,500 and 5,000 words (between two and eight double-spaced pages). The articles generally examine how teachers can best help law students, young lawyers, and others learn to research and write efficiently, enjoyably, and effectively. The articles do so, moreover, in a relaxed, lightly footnoted, and highly readable prose—more like that of many bar association publications than that of traditional academic journals. Most articles focus on a practical issue, task, or topic, for example:  

  • the use of wikis as a teaching and learning tool;
  • game-based teaching techniques;
  • clinicians’ insights for research and writing professors;
  • student engagement with appellate advocacy assignments;
  • incorporation of frequent student-to-faculty feedback;
  • collaborations between research and writing instructors; and
  • creating and managing online courses. 

In addition, regular columns address curricular design, teachable moments, technology for teaching, thorny research matters, and experts’ writing tips. Members of the Perspectives editorial board manage these columns. The editors are experts in teaching research and writing in law firms, libraries, and law schools. They have discretion to edit articles, including by shortening them to conform to available space, and the editors are available to advise prospective authors.  

You can submit your article(s) by August 15 to Board Members Beth  Edinger at edinger@law.edu, James Levy at levyj@nsu.law.nova.edu or any current Board member listed on the masthead. To see the current issue of Perspectives, an archive of past issues, the Author’s Guide, and other details, please go to: legalsolutions.com/perspectives.



July 25, 2017 | Permalink | Comments (0)

Important Study of Law Student Study Habits

I have frequently advocated that law students need to change their study habits in light of research by educators.  (e.g., here)  I have argued that self-testing, retrieval, spaced studying, elaboration, interleaving, and problem-solving work better than rereading and rote memorization.  Now, a law teacher and a cognitive psychologist have done an empirical study of law school learning techniques, and they have come to the same conclusion. 

Smarter Law Study Habits: An Empirical Analysis of Law Learning Strategies and Relationship with Law GPA by Jennifer M. Cooper & Regan A. R. Gurung.

"Non-empirical law school study advice that emphasizes reading and briefing cases, memorizing rules, and outlining without frequent self-testing and formative self-assessment is contrary to cognitive science and leads to a “law school learning trap.” Law students fall into a “law school learning trap” by focusing on memorization of cases and rules for "class prep," putting off practice application of the law as "exam prep." Law students and legal educators misjudge the power of testing as a learning tool, instead relying on non-empirical, anecdotal resources to guide law student study methods.

Empirical research from a Law Student Study Habit Survey shows that practice application of the law through self-testing, self-quizzing, and elaborative strategies positively correlates with academic success in law school, while reading and briefing cases, weak critical reading skills, and rote memorization of rules without practice applying the law negatively correlates with academic success in law school.

Both legal educators and law students need to incorporate testing and formative assessment as a study and learning strategy to learn each new topic, not just exam prep. Self-testing and formative assessment are not only critical for success in law school, but help students develop successful learning strategies for the bar exam and as lifelong learners in law practice."

Considering this study and the wealth of research by general education scholars, it is clear that law schools must teach their students new study habits.  This can be done in a one-hour session on orientation with supplemental reading assignments.  Such effort will greatly improve law students' ability to remember, understand, and use legal knowledge.

(Scott Fruehwald)

July 25, 2017 | Permalink | Comments (0)

Monday, July 24, 2017

I'm back . . . with a new book recommendation on writing well.

To all our loyal readers, a brief apology for my absence from blogging the past few months. Long story short, I was working as a visiting professor in the law department at the U.S. Air Force Academy, an absolutely tremendous experience that I may blog about down the road (Suffice it to say for now, the Air Force Cadets are incredibly impressive people to say the least). But the workload and schedule this past spring really whomped me good (I may blog about that later too). That coupled with making the transition back to Florida from Colorado after being away for a year and, frankly, just needing a break from the daily blogging grind led me to take an unscheduled, temporary break.  But now I'm back and I apologize to anyone who sent me tips, messages and other announcements for the blog that weren't attended to - now that I'm back in blogging mode again and you can count on me again. 

For my first entry in a bit, I wanted to mention a new book on good writing that I heard Fareed Zakaria mention back in May on his Sunday CNN "360" show (If you didn't know already, Mr. Zakaria makes a weekly book recommendation as part of his closing remarks). This one is titled "Do I Make Myself Clear: Why Writing Well Matters" by Sir Harold Evans, a British newspaper editor who in 2001 was voted by British journalists as the "all-time greatest British newspaper editor" and, later, in 2004 was knighted by the Queen. Based on that, I think it's fair to say that Sir Evans knows a thing or two about clear writing. Here are some of the accolades about "Do I Make Myself Clear" (which is now on the NYT Bestseller list) collected by Amazon:

"Mr. Evans's skills are on display on nearly every page of "Do I Make Myself Clear? Why Writing Well Matters." Writing a book about writing well can be hazardous for the author-reviewing one is risky, too-but in this case at least the author and his readers have nothing to fear."

Edward KosnerWall Street Journal

"Have you heard of Harold Evans? Sir Harold Evans? Of course you have. He is one of the greatest and most garlanded editors alive....As a master editor and distinguished author, Evans is well qualified to instruct us on how to write well. But can he delight us in the process? After reading this book, I can affirm the answer is yes."―Jim HoltNew York Times Book Review

"A writing manual so smart and incisive that it could surely benefit anyone-journalist, student, business executive, legislator-who has ever tried to craft an English sentence and fallen short."―Malcolm JonesDaily Beast

"Going well beyond the typical style guide's proscriptions against the passive voice, clich?, and so on, this polemic on writing takes the view that "the oppressive opaqueness" of much contemporary prose "is a moral issue."―New Yorker

"Evans's book offers plenty of practical advice for those seeking to improve their writing skills, with a 10-point checklist to encourage a clear approach."―Financial Times

And if anyone is interested in publishing a book review of "Do I Make Myself Clear" in Perspectives: Teaching Legal Research and Writing - please get in touch with me. 


July 24, 2017 | Permalink | Comments (0)

Fine Print in a Debt Collection Notice Doesn’t Violate the Statute

Recently, the Third Circuit ruled in favor of a debt collection agency using the devices that plain English advocates deplore. From the opinion:

Alexandra Jewsevskyj brought a putative class action against Financial Recovery Services, Inc. (“FRS”), LVNV Funding, Inc., Resurgent Capital Services, L.P., and Alegis Group, LLC (collectively, “Defendants”), claiming that FRS did not provide Jewsevskyj adequate notice of her right to contest an alleged consumer debt, as required by § 1692g of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692g.

Here’s the court’s description of the letter’s formatting.

The body of the letter is typed in all uppercase letters, in Times New Roman style, and in 8-point font. There is minimal spacing between the lines in each of the three full paragraphs on the front page and thus the text is compressed. The second paragraph of the letter contains what is commonly referred to as the “validation notice,” which describes a mechanism for Jewsevskyj to contest the debt.

You can access the opinion here. Jewsevsky v. Financial Recovery Services.


July 24, 2017 | Permalink | Comments (0)

100 Beatles Songs in 11:28 Minutes

Off topic, but suitable for the slow summer days. Even the early songs are  more complex than they initially may seem.  Here.


July 24, 2017 | Permalink | Comments (0)

6th Annual Educating Tomorrow's Lawyers Conference

6th Annual Educating Tomorrow's Lawyers Conference: Educating Tomorrow's Lawyers... to Serve Tomorrow's Clients

October 5-7, Denver.

Agenda, Registration

From the ETL Website:

"The challenges facing the legal profession right now are many—and many of them will be more successfully addressed if we listen to and better understand the needs of legal consumers. That mindset begins in law school, which is why clients are at the center of our 6th Annual Educating Tomorrow’s Lawyers Conference.

Always interactive and always provocative, this year’s conference will highlight changes in the profession, in delivery of legal services, and in the needs of legal consumers, and challenge participants to identify opportunities to bring these concepts to life for law students. 

Our list of accomplished speakers pulls from innovators in legal education, leaders from alternative legal service organizations, and pioneers in the quest to rethink legal services to meet the needs of legal consumers.

And the big news this year is that all registrants are welcome. No longer do you need to be part of the ETL Consortium to attend. We are excited to see new faces and learn new perspectives."

ETL is at the forefront of legal education.  This should be a great conference!  As noted above, for the first time this year, anyone can attend.

(Scott Fruehwald)

July 24, 2017 | Permalink | Comments (0)

Sunday, July 23, 2017

ABA Censures Texas Southern’s Law School

From the ABAJournal blog:

Texas Southern University Thurgood Marshall School of Law has been publicly censured by the ABA’s Section of Legal Education and Admissions to the Bar after gender discrimination allegations from a female associate dean.

Also, the section council found that the law school was out of compliance with standards involving admissions, education programs, academic advising and equal opportunity.

The council released two separate decisions for its findings. One decision (PDF) involves Standard 104, which deals with law school questionnaires submitted to the ABA, and Standard 205(b), which addresses and equal opportunity for students, faculty and staff.

You can get the details here.


July 23, 2017 | Permalink | Comments (0)

Could the President Pardon Himself?

A topic that’s making the rounds becomes increasingly less academic: Could President Trump put an end to the Russian scandal by pardoning himself? The Constitution does not address the question of self-pardons. And a pardon need not require a preceding criminal conviction. As to the central question, no one really knows the answer. For the textualists, here is Article II, Section 2 of the Constitution:

The president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Thus we do know that a pardon would have to predate an impeachment. At the Constitutional Convention, the proposed provision initially authorized presidential pardons, except for treason. Over the course of the Convention, the wording changed to make an exception for impeachment.

For a full discussion, please click here to access an article in the Washington Post.


July 23, 2017 | Permalink | Comments (0)

Saturday, July 22, 2017

Fewer Summer Associates, Higher Salaries

From JDJournal:

For the past several years, there has been an average decrease in summer hires of 2.02 percent at the 92 Am Law 200 firms that participated in The American Lawyer’s Summer Associates Survey. Despite this the survey reported an increase in the average salary for these associates. The average for summer associates at the participating law firms is $3,285 per week. This salary is up 11.36 percent from just last year.

New York City is still the place to be for summer associates. There were 2,175 hired for the summer. Chicago had 311 summer associate hires with Los Angeles close behind at 299 and Boston had 222. There were four firms with the highest pay. Boasting a $3,750 per week salary were Fried, Frank, Harris, Shriver & Jacobson; Cooley; Dechert; and Kramer Levin Naftalis & Frankel. Working for Baker, Donelson, Bearman, Caldwell & Berkowitz in Tennessee only brings in $1,500 a week.

The lack of hires is being attributed to a lack of work to give them. As Atlman Weil consultant Eric Seeger said, “A majority of firms are telling us that their partners are not busy enough. In firms where partners are having a hard time keeping themselves busy, they have less work to throw to associates.”

You can read more here.


July 22, 2017 | Permalink | Comments (0)

2017 SEALS Conference (July 31, 2017-August 6, 2017) in Boca Raton

SEALS is holding its 2017 conference in Boca Raton beginning July 31, and this looks like an exciting conference for legal educators.  I don't think that I have seen so many panels devoted to teaching and legal education on a general law school conference.  The conference provides an opportunity for attendees to learn about new and more effective approaches to legal education.  In fact, it appears that one could start the conference with no knowledge of recent educational techniques and come out an expert.

First, SEALS is devoting several panels to mindfulness.  This is especially appropriate in light of the New York Times article last week on the tragic death of a lawyer related to drug addiction.  There is so much more that law schools can do to help their students prepare for practice, and SEALS should be commended for having these panels.

There are too many panels on legal education to list them all.  The topics range from panels for beginning teachers to advanced topics in legal education.  The topics include legal research, legal writing programs, transactional simulations, technology, teaching fundamentals, experiential learning, classroom flipping, outcomes, professional identity training, formative assessment, etc.  Here are a few panels that look particularly good:

Character and the Classroom
This panel builds on a recent survey of more than 20,000 lawyers that highlights the importance of character for future attorneys. In addition to legal analysis and lawyering skills, new lawyers need instruction and practice building positive character traits. These traits include diligence, active listening, industry, integrity and attention to details. This panel explores the ways these skills can be developed in both legal research and writing and doctrinal classrooms. It also offers concrete lesson plans, practices, and rules that can be used to reinforce these important traits. Finally, this panel addresses limitations on attempts to help adult learners develop character.

Moderator: Professor Scott Norberg, Florida International University College of Law

Discussion Group: Teaching Fundamentals II--Classroom Teaching

The participants, all dedicated and excellent teachers, discuss their classroom teaching philosophies and methodologies, including Socratic, Discussion, Lecture, and Experiential Learning. The participants also talk about dealing with newer generations of students, managing time, “flipping the classroom,” covering the material, teaching respect, and incorporating professionalism and cultural awareness in the classroom as well as other subjects. This group focuses on nuts and bolts and also pursues broader issues such as teaching philosophy.

Moderator: Professor Enrique Armijo, Elon University School of Law

Discussion Group: Methods of Formative and Summative Assessment

This session explores the development and use of assessment tools, both formative and summative, especially in light of the new ABA Standard 302 on Learning Outcomes. The tools include the development of meaningful writing assignments, exercises and simulations, formative evaluations, and effective examinations. Topics include the basic mechanics of constructing efficient formative and summative tools, and such related matters as cultural implications, the relevance of disabilities, the rationales behind open and closed book exams, and more.

Moderators: Professor Olympia Duhart, Nova Southeastern University Shepard Broad College of Law; Professor Steven Friedland, Elon University School of Law

(Scott Fruehwald)

July 22, 2017 | Permalink | Comments (0)

Friday, July 21, 2017

Ranking for Latin American Universities

Times Higher Education has issued its 2017 rankings for universities in Latin Amerca. From a national perspective, Brazil is the leader. Argentina, Chile, and Columbia are expected to become world leaders. Here are the rankings:

Latin America rank 2017 Latin America rank 2016 World rank 2016-17 University Country
1 2 401–500 State University of Campinas Brazil
2 1 251–300 University of São Paulo Brazil
3 3 401–500 Pontifical Catholic University of Chile Chile
4 4 501–600 University of Chile Chile
5 10 501–600 University of the Andes Colombia
6 8 501–600 Monterrey Institute of Technology and Higher Education Mexico
7 Not ranked 601–800 Federal University of São Paulo(UNIFESP) Brazil
8 5 601–800 Federal University of Rio de Janeiro Brazil
9 6 601–800 Pontifical Catholic University of Rio de Janeiro (PUC-Rio) Brazil
10 9 501–600 National Autonomous University of Mexico Mexico

You can access more here.


July 21, 2017 | Permalink | Comments (0)

Books that Have Shaped Our Students’ Lives

At Vitae, Professor and Librarian Jennier Burek Pierce   offers quick descriptions of novels that are popular among young people (in addition to the Harry Potter novels). An acquaintance with them may give us more of a connection with our students. You can access her list here.


July 21, 2017 | Permalink | Comments (0)

Thursday, July 20, 2017

Should You Use “And/Or”?

In a recent article, Ira Robbins defends the phrase and argues that if used properly, it clearly conveys a particular meaning: “A and/or B “means A or B or both A and B. Still, not everyone uses the phrase in this way. He writes: “Overall, courts generally “abhor” the term and/or, often claiming the phrase has been so criticized that the court need not reiterate that criticism in the present case.”

From the abstract:

And/or, however, is not ambiguous at all. It has a definite, agreed-upon meaning: when used properly, the construct means “A or B or both.” In most areas of law, there simply is no compelling reason to avoid using and/or. The term is clear and concise. It derives criticism mainly from the inability of people to use it correctly.

Pleadings, contracts, statutes, and patent claims all allow for a cogent use of and/or. Conversely, some legal areas—such as jury instructions, search warrants, and jury verdicts—do not typically allow a drafter to provide options, making and/or unsuitable. Despite the few contexts in which and/or should be avoided, the construct should not be discarded simply because individuals occasionally misuse the term.

After all, legal drafters and courts commonly struggle with using and interpreting “and” and “or,” words that are riddled with ambiguity. And/or has a precise meaning; it allows for the possibility of conveying options in the alternative. As with many consistent errors in legal writing, the problem lies not with the 3 term and/or itself, but with a lack of close attention to detail. Legal drafters should use it with the same level of care with which they use any other word or phrase.

I never use the phrase. Aside from questions of clarity, I find it awkward.  You can read the article and decide for yourself (here). And/Or and the Proper Use of Legal Language, Maryland Law Review (forthcoming).


July 20, 2017 | Permalink | Comments (0)

Wednesday, July 19, 2017

End of Term Judicial Opinion Dumping by SCOTUS

The more things change, etc. A Washington Post editorial (1950):

Our courts have been notoriously backward in their public relations, and in none of them is this failing more conspicuous than in the Supreme Court of the United States.  Last week, for example, that high tribunal dumped 18 [sic] opinions into the lap of bewildered newspaper and radio reporters.  Some of these opinions were of great importance….  It was utterly impossible for the newsmen to read and digest so many opinions in so few hours, and if they could have done so most newspapers would have had great difficulty in giving adequate coverage to so large an output.

 Such a heavy accumulation of cases usually occurs only at the end of the term.  But that is serious enough, for the justices have a habit of putting off until the last opinion day some of the most troublesome and important cases.  The result is that some momentous decisions go almost unnoticed by the public.  Perhaps it is of no concern to the court whether its output is properly communicated to the people.  Yet we do not see how any body in a democratic land could take such an attitude, and this seems to apply especially to the Supreme Court, which, lacking both purse and sword, is dependent upon the acceptance of its rulings by public opinion.

 Even at the cost of some inconvenience to itself, we should think the court would abandon its dumping practice and regulate the flow of its opinions to the public more evenly.  It is difficult to see how any harm could be done by such a policy, and it would certainly facilitate understanding of the court and its opinions on the part of the public.

 Actually, the situation is somewhat better now, with the Court spreading out its announcements over a few weeks. You can read more at the Jackson List (here).


July 19, 2017 | Permalink | Comments (0)

Tuesday, July 18, 2017

What Topics Should a Blog or Listserv Find too Peripheral to Include?

Of interest to bloggers and listserv members. A blog or listserv may have a special topic. What should its policy be in considering postings that may wander from that topic? At our blog, were are not strict. Recently, at the LRWProf listserv, some members engaged in a dialogue on baseball issues, which some readers felt went too far afield from the listserv’s topic. In response, Professor Deborah Borman wrote the following. I repost it her with her permission:

I understand being aggravated by a thread on a topic that does not pertain to particular, individual interests. I personally found the thread fascinating, learned many things I did not know, and forwarded it to a non-lawyer, non-professor, baseball-expert friend who admitted that he learned something he did not know from this thread. I certainly don’t want to pick on you or anyone, either, but I do feel compelled to defend the contributors and respond to the themes you raise in your note, i.e., “directly related to the field,” and “closely tied to teaching.”

 The Legal Writing Institute is a unique organization of writing professors comprising professors with a wide spectrum of knowledge and a large variety of interests. As I’m sure you are aware, LWI was born out of the necessity to recognize law school writing programs as vital to legal education, as well as to advocate for equity in salary, security, and promotion. Without reviewing the whole history here (there are others on this list far more equipped to do so than I), LWI and this listserv creates a space for sharing our materials, our opinions, newly enacted laws, and relevant concerns about current events, among many other things.

 Our lives as professional colleagues and our teaching of legal analysis do not occur in a vacuum. We talk to each other about our dreams and goals. We craft student assignments to reflect current events and to integrate legal/social problems, in the hopes that our students will not only learn to analyze and communicate a profound legal analysis, but also to reflect on their individual roles within society. As you know, legal work at its finest, inter alia, addresses and rectifies unfair advantages, provides a voice to unequal parties, sorts and mediates disputes. To this extent baseball is directly related to the field.

 Many of us love sports, and especially love baseball. Some of us craft assignments, illustrations, and analogies to baseball to teach aspects of legal analysis. Baseball has rules and exceptions, not unlike statutes and common law. Baseball is not only a game, but also a beloved summer pastime, a unique American obsession, and a business replete with legal issues and controversy. Baseball has heroes and villains, plaintiffs and defendants, employers and employees, all relevant to the legal system and to our teaching. Baseball is closely tied to teaching.

 Baseball also has a long and hard history or racism, sexism, institutional bullying, and dishonest transactions. These are the intractable social problems that we hope to bring to the attention of our students, as they prepare for a life in the law as advocates for the underserved and the corporate client, as well as to become agents for the courts in the complicated array of local, state, and federal justice systems.

 In my opinion, this discussion is entirely relevant to our goals, our hopes, and our teaching. I learn more from these discussions than from the "me too" emails, as in, "send me a syllabus" or "tell me how to teach contract drafting." If you are not a baseball fan and do not respond favorably to the stories or the analogies (or the abundant stats) perhaps skip these threads. I skip threads on topics that are not of interest to me.


July 18, 2017 | Permalink | Comments (0)

Quintessential American Fiction, according to the Rest of the World

To find out what others in the world think epitomizes quintessential American fiction, Lit Hub conducted an unscientific survey:

In a deeply unscientific survey of nearly 50 writers, editors, publishers, critics, and translators, representing 30 countries, we asked them to name three quintessentially American books, and tell us about their choices.

Individual titles named: 96 · Books by women: 19 · Most popular decade: The 2000s · Least popular decade: The 1940s · Oldest book: The Autobiography of Benjamin Franklin, Benjamin Franklin (1791) · Newest book: Tenth of December, George Saunders (2013) · Most cited writers: William Faulkner (8), Herman Melville (5), F. Scott Fitzgerald (4), J.D. Salinger (4), Mark Twain (4)


For a list of the books and brief summaries, please click here.


July 18, 2017 | Permalink | Comments (0)

Why Professional Identity Training Is So Important

This weekend, the New York Times published a tragic story about a lawyer who had died of an overdose after falling into the abyss.  The story, told by his ex-wife, takes the lawyer from the early days of their marriage, through law school, then to his life as a lawyer.  I would like to concentrate on his time in law school.

"Some research shows that before they start law school, law students are actually healthier than the general population, both physically and mentally. 'There’s good data showing that,' said Andy Benjamin, a psychologist and lawyer who teaches law and psychology at the University of Washington. 'They drink less than other young people, use less substances, have less depression and are less hostile.'

In addition, he said, law students generally start school with their sense of self and their values intact. But, in his research, he said, he has found that the formal structure of law school starts to change that.

Rather than hew to their internal self, students begin to focus on external values, he said, like status, comparative worth and competition. 'We have seven very strong studies that show this twists people’s psyches and they come out of law school significantly impaired, with depression, anxiety and hostility,' he said."

"Wil Miller, the lawyer and former methamphetamine addict, said that in his experience, law school encouraged students to take emotion out of their decisions. 'When you start reinforcing that with grades and money, you aren’t just suppressing your emotions,' he said. 'You’re fundamentally changing who you are.'

Research studying lawyers’ happiness supports this notion. 'The psychological factors seen to erode during law school are the very factors most important for the well-being of lawyers,' Lawrence Krieger, a professor at Florida State University College of Law, and Kennon Sheldon, a professor of psychology at the University of Missouri, wrote in their 2015 paper 'What Makes Lawyers Happy?' Conversely, they wrote, 'the factors most emphasized in law schools — grades, honors and potential career income — have nil to modest bearing on lawyer well-being.'

After students began law school they experienced 'a marked increase in depression, negative mood and physical symptoms, with corresponding decreases in positive affect and life satisfaction,' the professors wrote.

Students also shed some of their idealism. Within the first year of law school, students’ motivation for studying law and becoming lawyers shifted from 'helping and community-oriented values to extrinsic, rewards-based values.'

Young lawyers in treatment at the Center for Network Therapy, an ambulatory detox facility in Middlesex, N.J., frequently tell Dr. Indra Cidambi, the medical director, that the reality of working as a lawyer does not match what they had pictured while in law school."

The above paints a picture that is representative of what law schools often do to their students.  When I was in law school thirty years ago, our law library had a poster of how a person's brain looks before and after law school.  This poster is very similar to the above story.

The key point in the above is that law school changes its students from relying on internal values, such as self-worth, accomplishment for accomplishment's sake, and a love of the law and learning, to external ones, such as status and money.

In recent years, some law schools and law professors have advocated teaching professional identity and wellness.  Instead of just teaching the ethical rules in a Socratic manner, they advocate immersing students in the profession.  They want students to learn what the law profession is really about and to connect their values with those of the profession.  This requires students to internalize the practices, customs, and values of the legal community.

I said that some law schools and law professors are doing this, but there are not nearly enough.  All law schools need to teach professional identity and wellness.  If they do so, this will help produce healthier lawyers and produce a better legal community for society.  I do not mean to say that law schools can prevent all of a lawyer's future problems, but they can provide a firm foundation for future lawyers.

I recommend that everyone read the Krieger/Sheldon piece linked to in the above article.  I have also written a book on professional identity training, Developing Your Professional Identity: Creating Your Inner Lawyer (2015), that is intend to help law students understand the legal profession and their role in it.

(Scott Fruehwald)

July 18, 2017 | Permalink | Comments (0)

Monday, July 17, 2017

Should Appellate Courts Avoid Citing Unpublished Opinions?

In a recent North Carolina Court of Appeals case (here), the majority opinion raised eyebrows when it cited an unpublished opinion. In fact, the concurring opinion politely criticized the majority, stating that a court should cite such opinions only in exceptional situations of which the case was not one.

The Smith Moore Leatherwood law firm blog discusses the case here.


July 17, 2017 | Permalink | Comments (0)

Opening for a Library Director at Villanova

And also a senior paralegal.

Director of Law Library


Senior Paralegal



July 17, 2017 | Permalink | Comments (0)