Monday, June 26, 2017

Lawyers' Fees and Claret: A Story Too Good to Pass Up

Off Topic (maybe not). I recently came across this story, originally posted on Faculty Lounge and reposted on Legal Ethics Forum.

Several decades ago, an American client asked me to help recruit some British barristers for an international project.  I flew to London and met in chambers with a QC and a junior, and we discussed other barristers who might be interested in joining the group.  After about thirty minutes, the conversation veered oddly off course, as the two barristers began talking about the need for “cases of claret.”  One of the possible recruits liked a particular type of claret, another one preferred some other claret, and they all seemed to be interested in acquiring it only by the case.  They went on this way for a good twenty minutes, matching barristers to claret and commenting on how many cases of claret each one usually brought home.

Finally, it dawned on me.  “Oh,” I said, in a direct manner that made my Chicago upbringing even more obvious, “you’re talking about money.”

The room fell deadly silent, as if I had uttered some unforgivable vulgarity in relation to the royal family. (This was in the days before scandal and divorce had rocked the institution, which was still spoken of in hushed and reverential tones.)

The junior barrister tensed in his chair, giving every indication that I had triggered the “fight or flight” reflex.  It was as though he had been surprised in a bordello raid, and was trying to decide whether to demand a search warrant from the constable or bolt for the back door.

The QC at first appeared paralyzed; his vigorously ruddy complexion having turned deathly ashen. Obviously shaken, he eventually stirred.  “Well, well,” he said, “that’s enough of that. Perhaps you should speak with the clerk.”  There was no more talk of claret, or money.  If my client had not been so internationally prominent, I am quite sure that I would have been shown the door.

(by Steven Lubet)

You can read the rest here and here.


June 26, 2017 | Permalink | Comments (0)

Law School Assessment Blog

Last week, I mentioned an excellent post on formative assessment by Larry Cunningham, What Law Schools Can Learn about Assessment from Other Disciplines.  It is from a blog that Dean Cunningham started last year.  There is lots of info on his blog concerning formative assessment.

Law School Assessment

(Scott Fruehwald)

June 26, 2017 | Permalink | Comments (0)

Sunday, June 25, 2017

American Airlines Won’t Cut Leg Room by 2 Inches

Good news for travelers. From Conde Nast Travel:

Never do two inches feel quite so large as when you don't have them on an airplane—thus the previous outrage over American Airlines' announcement it would be cutting that much legroom in some economy seats on new planes. But now, the airline has changed course.

The largest carrier in the U.S. announced the change in plans in a company letter to employees Tuesday, according to CNN, citing "a lot of feedback from both customers and team members." Originally, the plan called for reducing seat pitch, or the space between the same spot on two seats, in three rows of economy class from 31 inches down to 29 inches on the airline's new 737 MAX jetliners. Additionally, the rest of economy would have seat pitch reduced to 30 inches in an effort to squeeze more seats on to the planes.

As a result, the airline will have a minimum of 30 inches of pitch for all main cabin rows on the 737 MAX planes.

You can read more here.


June 25, 2017 | Permalink | Comments (1)

AAUP Takes Stand against Political Harassment of Faculty

Recently, a right wing media outlet has led attacks on faculty members for statements that faculty members and usually their schools complain were taken out of context. The American Association of University Professors has issued a statement on the matter. Here are the opening paragraphs:

We are dismayed that another faculty member, John Eric Williams of Trinity College, has become the target of a flood of threats following reports about his social media postings by the right-wing media outlet Campus Reform. In this case, the college was shut down for a day so that law enforcement officials could investigate threats to the college and to the faculty member. This is the second time this month that an institution of higher education has had to close down in response to threats, disrupting education and creating an environment of fear on campus.

We condemn the practice, becoming all too common, of bombarding faculty members and institutions of higher education with threats. When one disagrees with statements made by others, threats of violence are not the appropriate response. Such threatening messages are likely to stifle free expression and cause faculty and others on campus to self-censor so as to avoid being subjected to similar treatment. Targeted online harassment is a threat to academic freedom.

You can read the rest here.

For an article on the subject, please click here.


June 25, 2017 | Permalink | Comments (0)

Saturday, June 24, 2017

Needed: A New Bar Exam

Over at the Best Practices for Legal Education blog (June 8, 2017), Ben Bratman call for a rethinking of the bar exam. He argues that the National Conference of Bar Examiners stands in the way of innovation:

Written performance testing was the last meaningful innovation in bar exam testing. In thinking about who might lead an effort toward the next one that introduces greater clinical evaluation, including possibly of oral skills, I think not of a top-down effort from the resolutely conservative NCBE. It is focused on getting as many jurisdictions as possible to adopt its Uniform Bar Exam (26 and counting as of today). Rather, I think of a bottom-up effort by individual states—perhaps with California in the lead—serving as laboratories for testing methods that could ultimately spread to other jurisdictions, thereby persuading or forcing the NCBE to join.

The biggest barrier to innovation at the state level is the NCBE’s influence, which increases with each state that adopts the UBE and thereby constrains itself to offer the conventional bar exam that the NCBE requires it to.

He concludes:

Today, 24 years after the MacCrate Report, 20 years after the advent of the MPT, and 10 years after the Carnegie Foundation Report, the legal profession needs a better bar exam.  I join Professor [Deborah Merritt’s call for a national task force on the bar exam, sponsored by AALS, the Conference of Chief Justices, the ABA Section of Legal Education and Admissions to the Bar, and maybe even the NCBE.  As Professor Merritt writes, such a task force could “study current approaches to the bar exam, develop a more realistic definition of minimum competence, and explore best practices for measuring that competence.”

You can read more here.

As I write this posting, I think about my newly-graduated students on the first floor of the building sitting through an expensive commercial bar review course viewing mostly videos. I wonder if this exercise in memorizing lots of rules and some test-taking techniques is the best way for them to prepare for their professional futures.


June 24, 2017 | Permalink | Comments (0)

Friday, June 23, 2017

How to Write So Judges Will Like You

At the Adams and Reese blog, we read the results of interviews with a dozen judges on the topic of legal writing. The blog relates the many points on which judges agree. Here is the concluding paragraph:

“The skill of a lawyer,” said one judge, “is to make a complicated problem simple.” Your writing is how you tell the court what you want and why you are due to get it. It’s how you make your case and advocate for your client. It’s a large part of how you win. So the next time you sit down to write something to a judge, from a discovery motion to a bet-the-farm appellate brief, remember that you are only one among many other things on the court’s to-do list. Make your work product stand out. Make the judges breathe a sigh of relief as they turn the page. They’ve already told you how.

You can access the blog posting here.


June 23, 2017 | Permalink | Comments (0)

Thursday, June 22, 2017

Larry Cunningham on Assessment

What Law Schools Can Learn about Assessment from Other Disciplines

Some great advice:

I came away from the conference with the following takeaways about how these other disciplines are using assessment:

  • They use assessment data to improve student learning, both at an individual and macro level.  They are less focused on using assessments to “sort” students along a curve for grading purposes. Driven in part by their accreditors, the sciences use assessment data to help individual students recognize their weaknesses and, by graduation, get up to the level expected for eventual licensure, sometimes through remediation. They also use assessment data to drive curricular and teaching reform.
  • They focus on the validity and reliability of their summative assessments.  This is probably not surprising since scientists are trained in the scientific method. They are also, by nature, accepting of data and statistics. They utilize item analysis reports (see bullet #3) and rubrics (for essays) to ensure that their assessments are effective and that their grading is reliable. Assessments are reused and improved over time. Thus, a lot of effort is put into exam security.
  • They utilize item analysis data reports to improve their assessments over time. Item analysis reports show things like a KR-20 score and point biserial coefficients, which are statistical tools that can help assess the quality of individual test items and the exam as a whole. They can be generated by most scoring systems, such as Scantron and ExamSoft.
  • They utilize multiple, formative assessments in courses. 
  • They collect a lot of data on students.
  • They cooperate and share assessments across sections and professors.  It is not uncommon for there to be a single, departmentally-approved exam for a particular course. Professors teaching multiple sections of a course collaborate on writing the exam against a common set of learning outcomes.
  • They categorize and tag questions to track student progress and to assist with programmatic assessment. (In law, this could work as follows. Questions could be tagged against programmatic learning outcomes [such as knowledge of the law] and to content outlines [e.g., in Torts, a question could be tagged as referring to Battery].)  This allows them to generate reports that show how students perform over time in a particular outcome or topic.
  • They debrief assessments with students, using the results to help students learn how to improve, even when the course is over.  Here, categorization of questions is important.
  • They utilize technology, such as ExamSoft, to make all of this data analysis and reporting possible.
  • They have trained assessment professionals to assist with the entire process.  Many schools have assessment departments or offices that can setup assessments and reports. Should we rethink the role of faculty support staff? Should we have faculty assistants move away from traditional secretarial functions and to assisting faculty with assessments? What training would be required?

(Scott Fruehwald)

June 22, 2017 | Permalink | Comments (0)

World's Longest Legal Cases

Some may remember Jarndyce v. Jarndyce, the fictional case in Bleak House by Charles Dickens. It was based on the real case of Jennens v. Jennens, which continued for 117 years until the legal fees exhausted the estate.

And there’s the New Orleans case that lasted 57 years. Unfortunately, the successful plaintiff died six years before the case concluded.

The D.C. Bar’s magazine, Washington Lawyer features a short article about other cases that lasted a very long time (here).


June 22, 2017 | Permalink | Comments (0)

GOP Senate Health Care Bill Explained

Politico has a detailed graphic comparing Obamacare and the House and Senate proposals. You can access it here.


June 22, 2017 | Permalink | Comments (0)

Student’s Mic Cut During Graduation Speech

The graduating high school senior issued some polite, but critical remarks about the school’s administration, and suddenly, his mic was cut off. The other students gave him a standing ovation.

When will administrators ever learn? Cutting off speech is not the best way to handle these sorts of surprises. You can read the story here and also see a short video of his truncated speech. I’m glad he’s coming to Villanova.


June 22, 2017 | Permalink | Comments (0)

Wednesday, June 21, 2017

Exercises in Legal Writing: Part I (With Answers)

In the June 2017 issue of the New York State Bar Association Journal, Judge Gerald Lebovits offers his first set of writing exercises:

This multi-part series is designed to help you exercise your legal-writing skills. In Part I, the Legal Writer will review some of the most important concepts in legal writing, including the passive voice, writing in the positive, metadiscourse, and gender neutrality.

Below are exercises to test you on the concepts you’ve learned, or which you already know. Edit the sentences: Change the words, rearrange them, add or delete them. After you’ve edited the sentences, look at the answers at the end of this article to determine whether you’ve edited them correctly.

He provides suggested answers. You can access the article here.


June 21, 2017 | Permalink | Comments (1)

Tuesday, June 20, 2017

Alliteration at the Supreme Court

Here is the opening sentence in Justice Gorsuch’s opinion in Henson v. Santander Consumer USA, Inc. (here).

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry.


June 20, 2017 | Permalink | Comments (0)

Metaphors: What Exactly is a “Witch Hunt"

In the current political drama, my President has given new currency to the term “witch hunt.” At Lingua Franca, Lucy Ferriss offers us a history of the term. Interestingly, the term does not have an ancient history. It was coined in the late 1800s:

Yet according to the Oxford English Dictionary, the term witch hunt, which Donald Trump used last week to refer to the investigation into whether his campaign had ties to the Russian government, was first used in 1885, in H.R. Haggard’s fabulist novel King Solomon’s Mines. Before then, witches were suspected, tried, prosecuted, and condemned, but not hunted.

You can read more here. The article has a decided political slant.


June 20, 2017 | Permalink | Comments (0)

The Further Politicization of Judicial Nominations

From the Legal Intelligencer:

A political action committee named Concerned Veterans for America has begun running an ad asking readers to call their senators and urge a vote in favor of Stephanos Bibas, a Penn Law professor who was recently nominated to fill a vacancy on the U.S. Court of Appeals for the Third Circuit.

The committee is a nonprofit 501(c)(4) organization, and is widely reported to be backed by Charles G. and David H. Koch, the politically influential conservative billionaire owners of Koch Industries.

The simple online ad displays a photo of Bibas on a blue background. In white and red the ad asks the viewer to "Tell your senator to confirm Stephanos Bibas to the US 3rd Circuit Court of Appeals," and below is a box asking the viewer to "Contact your senator now." When clicked, the ad takes the reader to the Concerned Veterans for America website where the user can fill out a form asking that Bibas be confirmed.

Although the ad was accessible on, it appeared to target viewers based on their search history.

Bibas, through a spokesman, declined to comment. Concerned Veterans for America, which lists the same phone number as that used by Americans for Prosperity—a political advocacy group that the Koch brothers founded—did not return a message seeking comment.

Although it was not immediately clear whether the group is only running ads for Bibas, two press releases from the group issued earlier this month touted fellow nominees Allison Eid, nominated for a spot on the Tenth Circuit, and Ralph Erickson, who was nominated for a spot on the Eighth Circuit.

Bibas, however, may have a unique connection to the organization, as earlier this year University of Pennsylvania Law School announced it received $2.2 million from the Charles Koch Foundation to establish a new criminal justice research initiative.

I should note that many law schools and universities, including mine, have received money from the  Koch Foundation with the proviso that no political strings are attached. If you have access, you can read more here.


June 20, 2017 | Permalink | Comments (0)

Monday, June 19, 2017

Whoosh - Declining Law School Applications and Entering Credentials: Responding with Pivot Pedagogy by Laura Padilla

Whoosh - Declining Law School Applications and Entering Credentials: Responding with Pivot Pedagogy by Laura Padilla.


"Whoosh – that is the sound when the number of law school applications and entering law students and the credentials of those students, decline all at once. This trend has continued for many years, however, given the cyclical nature of law school applications, it will likely reverse eventually and credentials will improve, but not overnight. The first part of the article briefly discusses the decline in law school applicants and applications, including the confluence of perfect storm factors that resulted in more of the crash landing we experienced than a gradual drop. It also details the corresponding drop in entering credentials which accompanied that decline. The article focuses on what we can do as law professors in response to these declines to better equip students for success in law school, the bar examination and practice. The second part describes a range of responses to the storm: panic, paralysis, or pivot. While recognizing there is no single solution and certainly no perfect solution, pivoting seemed the only viable option and certainly the most effective. Pivot pedagogy is essentially a package of ideas to respond to declining applications, applicants, and entering statistics with the goal of improving student performance across the board, especially students with lower entering credentials. This part then details my classroom experiences and experiments with pivot pedagogy over the past two years, including empirical data. It closes with a plea for continued pivot pedagogy as a tool to engage students and improve performance."

(Scott Fruehwald)

June 19, 2017 | Permalink | Comments (0)

Big Law Moves to Advance Diversity

From Above the Law:

Thirty firms, including DLA Piper, Paul Hastings, Jenner & Block, Morrison & Foerster, Blank Rome, and White & Case, have committed to abiding by a version of the “Rooney Rule” when promoting and hiring laterals . . . . [T]he Rooney Rule — named after the late owner of the Pittsburgh Steelers, Art Rooney — requires teams to interview at least one minority candidate when there is a head coach or general manager vacancy

Some firms are moving to develop the Mansfield rule:

The Biglaw version of the rule, named the Mansfield Rule after Arabella Mansfield, the first woman admitted to practice law in the U.S, . . . asks firms to consider two or more candidates who are women or attorneys of color when hiring for leadership and governance roles, promotions to equity partner, and hiring lateral attorneys.

And, if the firms can demonstrate 30 percent of the pool for these positions are diverse, they’ll be “Mansfield Certified.” That spiffy designation will allow firms to participate in a client forum hosted by 45 in-house legal departments, including companies like Facebook, HP, Microsoft, and PayPal.

You can read more here.


June 19, 2017 | Permalink | Comments (0)

Happy Juneteenth Day

Juneteenth, June 19, commemorates the end of slavery in the United States. From Wikipedia:

Juneteenth, also known as Juneteenth Independence Day or Freedom Day, is a holiday that commemorates the June 19, 1865 announcement of the abolition of slavery in Texas, and more generally the emancipation of African-American slaves throughout the Confederate South. Celebrated on June 19, the word is a portmanteau of "June" and "nineteenth".[1][2] Juneteenth is recognized as a state holiday or special day of observance in forty-five states.[3]

The holiday is observed primarily in local celebrations. Traditions include public readings of the Emancipation Proclamation, singing traditional songs such as "Swing Low, Sweet Chariot" and "Lift Every Voice and Sing", and readings by noted African-American writers such as Ralph Ellison and Maya Angelou.[4] Celebrations may include parades, rodeos, street fairs, cookouts, family reunions, park parties, historical reenactments, or Miss Juneteenth contests.[5]

You can read more here.


June 19, 2017 | Permalink | Comments (0)

Sunday, June 18, 2017

Contemporary Teaching Strategies: Effectively Engaging Millennials Across the Curriculum by Renee Nicole Allen & Alicia Jackson

Contemporary Teaching Strategies: Effectively Engaging Millennials Across the Curriculum by Renee Nicole Allen & Alicia Jackson.


"American Bar Association (ABA) Standard 314, Assessment of Student Learning, requires law schools to “utilize both formative and summative assessment methods in its curriculum to measure and improve student learning and provide meaningful feedback to students.” This article will connect multiple formative assessments to Bloom’s taxonomy to demonstrate how law teachers can transform and enhance student learning, while promoting keys steps in the self-regulated learning cycle. First, it is imperative law teachers understand the education background and social landscape that our students, mostly Millennials, bring to law school. We can acknowledge that our Millennial students are different, but what does this really mean and how does this affect our teaching and their learning? Next, effective application of ABA Standard 314 requires law teachers to understand self-regulated learning and the connection between the stages of learning and various formative assessments. To ensure that we are meeting this challenge, law teachers must become facilitators of learning. By serving as facilitators, we acknowledge the importance of involving students in the learning process from the very beginning. This will ultimately result in shifting the focus from the instructor’s teaching to student learning. While there are various teaching methods, we will explore contemporary teaching strategies as means of encouraging a student-centered learning environment. Utilizing contemporary teaching strategies fosters an environment that is ripe for effective formative assessment in our courses.

This article will address contemporary teaching strategies for effectively engaging Millennials across the law school curriculum. Part I will examine the experiences that define Millennials and how they learn best. In Part II, we analyze the impact of ABA Standard 314 on law schools. Part III discusses self-regulated learning and metacognition as tools for lifelong learning. In Part IV, we explore how the student-centered classroom enhances student learning. Finally, Part V demonstrates how Bloom’s Taxonomy can serve as a framework for effective formative assessment."

Formative assessment may be the most important tool for helping law students learn better.  Not only does it provide active learning, it helps students understand how they are grasping concepts and processes.  I like how the authors of this article have connected formative assessment with Bloom's taxonomy.  Students need to develop all their cognitive processes.

(Scott Fruehwald)

June 18, 2017 | Permalink | Comments (0)

Herma Hill Kay Passes Away

Legal legend and former Boalt Hall dean Herma Hill Kay has passed away at age 87. Here is Brian Leiter’s memorial.


June 18, 2017 | Permalink | Comments (0)

Star Professor Reveals Teaching Secrets

Yale Professor Jonathan Reuning-Scherer packs in student at his statistics course. The prize-winning prof recently revealed a major insight:

“When I think about what keeps people’s attention,” Reuning-Scherer considers, “it’s not who has the coolest example or flashiest slides: it is tone of voice.” The details of his presentation extend far beyond course material; breathing, cadence, and volume all are tested methodically for effect. “Where I pause, when my voice goes up or down, when it disappears altogether, or when I tell a stupid joke…being conscious of that has had the greatest effect” on sustained engagement in his class. With a sample size of some 300 students, retaining attention demands ingenuity—and, often, a herculean effort.

You can read more here (I haven’t a good link; please search around on page 2) (or here) where he also discusses his use of the flipped classroom.


June 18, 2017 | Permalink | Comments (0)