Saturday, December 10, 2016

How to Lose a Case before the Supreme Court

As the old proverb tells us, you can’t change your horses in midstream.

In Osborn v. Visa Inc., 797 F. 3d 1057 (D.C. Cir. 2015), VISA, MasterCard, and some affiliated banks lost an antitrust case dealing with ATMs. So they successfully filed for cert. Then the Supreme court ordered that the cert. writs were improvidently granted:

These cases were granted to resolve [w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act. … After “[h]aving persuaded us to grant certiorari on this issue, however, petitioners chose to rely on a different argument in their merits briefing. … The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted. (my emphasis).

The respondents had made an argument with which the Court agreed:

Petitioners’ principal argument that the [allegations in the complaint] are insufficient is that “where the parties to a joint venture cooperate within the context of that venture to pursue the interests of the venture as a whole, their conduct counts as unilateral rather than concerted for purposes of Section 1 and cannot form the basis of a claim.” This new, single-entity theory was not raised in the petition for certiorari before this Court [and is] based on an entirely different idea of what is supposedly deficient in the complaints. Accordingly, Petitioners’ new theory should not be considered by this Court. (my emphasis)

You can read more here at the Benesch Friedlander Coplan & Arnoff blog.


December 10, 2016 | Permalink | Comments (0)

Friday, December 9, 2016

Faculty Checklist: Steps to Respond to Classroom Incivility

We sometimes have to confront inappropriate student comments that disrupt the class. At the same time, we want to promote responsible free expression.

From Academic Impressions, here is a detailed set of suggestions on how to deal with these difficult situations.


December 9, 2016 | Permalink | Comments (0)

Still Time to Get “Building on Best Practices” Free

If your law school is involved in the assessment process (what school isn’t?), this book may be of great value. Below is a letter from one of the editors, Professor Lisa Bliss explaining how to access a free electronic copy.


Dear Friends,

Attached you will find an Executive Summary of all of the sections of Building on Best Practices:  Transforming Legal Education in a Changing World, Maranville, Bliss, Kaas and Lopez, Eds., LexisNexis 2015.  This Executive Summary, as well as all chapters of the book, are available on SSRN.  The abstract is below. 

Please note that until December 31, 2016, you can still obtain a free electronic copy of the book by submitting a request for the free electronic version which will be offered until that date to:  After this year, electronic copies will no longer be free.

To purchase a hard copy of the book, you may order one for $45 from Carolina Academic Press, which purchased the rights to the book.  All royalties for sales are being donated to CLEA.  To order, go to:

With best wishes,

Lisa Bliss

Abstract:  This Executive Summary is designed to acquaint the reader with the main ideas found in Building on Best Practices: Transforming Legal Education In A Changing World. It provides a concise summary of every section of the book, which is not a second edition, but a follow up to Best Practices in Legal Education: A Vision And A Road Map. The book addresses the law school missions, a balanced curriculum, and pathways, integration, and sequencing the curriculum. It provides a comprehensive analysis of experiential education and all its forms, including law clinics, externships, and alternative clinical models. The book provides a broader view of what legal education must do to train lawyers of the future, and identifies ten essential areas of legal education, together with guidance on what and how to teach them. Finally, the book identifies how to create an institutional culture of assessment in law schools, and how to transform legal education in today’s world.

Lisa Bliss 

Clinical Professor

associate DEAN of experiential education

Co-director, Health Law Partnership Legal Services Clinic

Georgia State University College of Law

PO BOX 4037

atlanta, Georgia 30302-4037


404-413-9131 (w)  |  404-413-9145 (fax)  |

Skype:  lisa.bliss.atl

SSRN Author Page:



December 9, 2016 | Permalink | Comments (0)

Thursday, December 8, 2016

Michael Hunter Schwartz to Step Down as Dean

From the National Jurist:

The dean of the University of Arkansas at Little Rock William H. Bowen School of Law will step down from the position and return to the faculty in June.

Michael Hunter Schwartz, who has been named among the Most Influential in Legal Education by National Jurist, has been dean since 2013.

The law school received the 2016 E. Smythe Gambrell Award for Professionalism Programs in recognition of the school’s comprehensive professionalism curriculum. 

Schwartz, who is currently teaching classes, will return to the faculty on June 30.

You can read more here.


December 8, 2016 | Permalink | Comments (0)

The Importance of Mentors

My law school’s website is featuring Nancy Shane Rappaport, our graduate, who has been named chair of DLA Piper’s Philadelphia Litigation Practice. Here’s what she has to say about mentors:

“Mentors and champions are essential to developing your own career path,” said Rappaport. “A mentor is someone you can go to who can counsel you on your career path. A champion is someone who is going to grab your hand and bring you along, introduce you to influential people both within and outside the firm, and be your advocate in partner and committee meetings, proactively pushing you toward bigger and better things for your career. You must earn that person’s respect and nurture that relationship. Jim Brogan has been my mentor and my champion.”

Rappaport emphasizes that developing relationships is paramount and found that her own alumni relationships have been integral to her success.

“No matter how good of a lawyer you are, if you don’t have a champion, it makes that path particularly difficult,” said Rappaport “I feel like I owe a lot to Jim’s connection and the skills [James Brogan, also one of our grads] I learned at Villanova. I have always had a passion for the practice of law, and Jim has given me guidance on developing my practice and making the most of my career.”

As for the importance of legal writing: “You need to learn how to write persuasively as an attorney and to think outside the box. I learned these skills at Villanova.”

You can read more here.


December 8, 2016 | Permalink | Comments (0)

Announcing Beyond Legal Reasoning: A Critique of Pure Lawyering By Jeff Lipshaw

Jeff Lipshaw previews his new book on legal reasoning:

Announcing Beyond Legal Reasoning: A Critique of Pure Lawyering


"The concept of learning to ‘think like a lawyer’ is one of the cornerstones of legal education in the United States and beyond. In this book, Jeffrey Lipshaw provides a critique of the traditional views of ‘thinking like a lawyer’ or ‘pure lawyering’ aimed at lawyers, law professors, and students who want to understand lawyering beyond the traditional warrior metaphor. Drawing on his extensive experience at the intersection of real world law and business issues, Professor Lipshaw presents a sophisticated philosophical argument that the "pure lawyering" of traditional legal education is agnostic to either truth or moral value of outcomes. He demonstrates pure lawyering’s potential both for illusions of certainty and cynical instrumentalism, and the consequences of both when lawyers are called on as dealmakers, policymakers, and counsellors.

This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena."

(Scott Fruehwald)

December 8, 2016 | Permalink | Comments (0)

Wednesday, December 7, 2016

Did Justice Scalia’s Rhetoric Harm His Legacy?

At a recent Federalist Society gathering, Professor Toni Massaro argued that the Justice’s opinions lacked empathy and were hurtful to large segments of the public. Here is an excerpt from an interview with her:

Justice Scalia’s ability to craft real zingers made his power-soaked quill even sharper. That was his right, of course. One hopes, in fact, that justices will speak forcefully and eloquently against ideas they find abhorrent. I respect that.

But the exceptionally brutal and mocking tone he occasionally used against his ideological opponents was one that many other powerful figures have avoided. Abraham Lincoln’s nation-knitting style is an excellent example. We stir to his words over 150 years later and are buoyed by his unfailing humanity toward his enemies, even in the midst of that burning conflict.

So I admire Justice Scalia’s writing style. It was a shaft of light that made his ideas uncommonly clear and bold. But we also should be mindful of where his sentences ran out and why that matters. And we should recognize how fiery rhetoric can scorch more than it illuminates. That is a line worth drawing and respecting, even if not always easy to discern.

You can read more here at the National Law Journal.


December 7, 2016 | Permalink | Comments (0)

And Still Another Phishing Scam

From the Mintz Levin blog:

As we reported earlier this week, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights described a phishing campaign that is attempting to convince recipients of their inclusion in OCR’s Phase 2 audit program. The email, which was disguised as an official communication, suggests that recipients click on a link. This link takes recipients to a non-governmental website marketing cybersecurity services.

On Wednesday, OCR followed up their alert with additional details about the phishing campaign. According to OCR, the phishing email originates from the email address and directs individuals to a URL at OCR points out the subtle difference from the official email address for its HIPAA audit program,, noting that such subtlety is typical in phishing scams.


December 7, 2016 | Permalink | Comments (0)

Tuesday, December 6, 2016

UMass School of Law gets full ABA accreditation.

It's taken six years but the school is finally victorious. From the Boston Globe (read the school's official press release here):

UMass Law School gains full accreditation


The University of Massachusetts School of Law in Dartmouth announced Tuesday that it has received full accreditation by the American Bar Association, a milestone for the six-year-old school that has struggled with growing pains.


UMass officials said they believe its new status will propel the state’s first public law school, which has faced lackluster enrollment and ongoing financial issues, toward greater success and help in its mission to produce attorneys focused on social justice.


“For those of us concerned about protecting the rights of all residents of the Commonwealth, UMass Law will play a key role in that effort moving forward,” said UMass President Martin T. Meehan.


The school received provisional accreditation in 2012. After a visit in March and several rounds of meetings this fall, the bar association awarded full accreditation Dec. 2. Most states require students to have graduated from an accredited law school to become licensed, and the status is seen as a general seal of approval in the law education industry.


. . . .

Continue reading here.


December 6, 2016 | Permalink | Comments (0)

A new book to help bilingual Spanish-English speaking lawyers develop better legal fluency

Professor Stacie Strong at U. Missouri wants people to know about a new book she just published for Spanish-English speaking, bilingual lawyers, law students and law profs. The goal of Professor Strong and her co-authors is to help those who speak both Spanish and English develop better legal skills working in both languages. Here's a summary of the new book, called  Comparative Law for Spanish-English Lawyers: Legal Cultures, Legal Terms and Legal Practices / Derecho comparado para abogados anglo- e hispanoparlantes: Culturas jurídicas, términos jurídicos y prácticas jurídicas, from the publisher Edward Elgar Publishing:

Comparative Law for Spanish–English Speaking Lawyers provides practitioners and students of law, in a variety of English- and Spanish-speaking countries, with the information and skills needed to successfully undertake competent comparative legal research and communicate with local counsel and clients in a second language. Written with the purpose of helping lawyers develop the practical skills essential for success in today’s increasingly international legal market, this book aims to arm its readers with the tools needed to translate unfamiliar legal terms and contextualize the legal concepts and practices used in foreign legal systems.

Comparative Law for Spanish–English Speaking Lawyers / Derecho comparado para abogados anglo- e hispanoparlantes, escrita en inglés y espa-ol, persigue potenciar las habilidades lingü'sticas y los conocimientos de derecho comparado de sus lectores. Con este prop—sito, términos y conceptos jur'dicos esenciales son explicados al hilo del análisis riguroso y transversal de selectas jurisdicciones hispano- y angloparlantes. El libro pretende con ello que abogados, estudiantes de derecho y traductores puedan trabajar en una segunda lengua con solvencia y consciencia de las diferencias jur'dicas y culturales que afectan a las relaciones con abogados y clientes extranjeros. La obra se complementa con ejercicios individuales y en grupo que permiten a los lectores reflexionar sobre estas divergencias.

You can order the book here.



December 6, 2016 | Permalink | Comments (0)

Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories by Lucy A. Jewel

Here is a fascinating article that examines legal reasoning through the lens of cognitive science:

Old-School Rhetoric and New-School Cognitive Science: The Enduring Power of Logocentric Categories by Lucy A. Jewel.


"For thousands of years, the format and structure of legal arguments have not changed. Drawing upon legal history, jurisprudential trends, and cognitive science studies, this article theorizes that ancient legal thought structures have stayed with us so long because they offer a way to present complex information in a clean and structured way. Explicitly teaching students that categories can be consciously constructed in a broad or narrow fashion gives them a special set of tools that will help them move from a lay understanding of law to a professional understanding of the law and lawyering.

This article proceeds in three parts. A combination of descriptive explanation and critique, Part One provides an overview of classical legal thought structures, explains the infrastructural role this type of thinking plays in U.S. legal culture, and considers the potential for injustice when classical legal thought structures are used uncritically. Part One also draws upon the work of cognitive scientists to explain how classical legal thought patterns do not accurately represent how we really think."


December 6, 2016 | Permalink | Comments (0)

How to Draft a Will

In the Nov.-Dec. 2016 New York State Bar Association Journal. Justice Gerald Lebovits give instructions on how to draft a New York will (Part I). With few differences, the instructions work for wills in any state.

A good hand out for students. You can access the article by clicking here.


December 6, 2016 | Permalink | Comments (0)

I’ll Miss Kevin Trudeau

You probably have seen Kevin on one of his many TV infomercials peddling everything from coral calcium to weight loss. His antics offer many lessons on persuasion. Of course, the Federal Trade Commission took issue with his claims and imposed a lifetime ban on his TV money making efforts.

Where is Kevin now? He’s serving a ten year sentence for criminal contempt. From the National Law Journal:

Infomercial king Kevin Trudeau failed to make his most important sale on Monday when the U.S. Supreme Court declined to review his 10-year prison sentence for criminal contempt.

The justices, without comment, denied review in Trudeau v. United States, in which the television pitchman and author appealed a three-judge ruling in February by the U.S. Court of Appeals for the Seventh Circuit.

In 2004, the Federal Trade Commission imposed a lifetime ban on Trudeau "to shut down an infomercial empire that has misled American consumers for years." A Chicago jury in 2013 convicted him of criminal contempt for violating the 2004 consent order when he promoted his book, "The Weight Loss Cure 'They' Don't Want You to Know About."

The appellate panel, led by Judge Diane Sykes, who is on President-elect Donald Trump's list of potential Supreme Court nominees, rejected Trudeau's arguments that the government violated the Speedy Trial Act, the jury received erroneous instructions on the meaning of "willfulness" in criminal contempt cases and his sentence was disproportionate.

“Kevin Trudeau spent his career hawking miracle cures and self-improvement systems of dubious efficacy,” Sykes wrote. His “bag of tricks,” the judge wrote, “contains something to relieve almost any ailment or burden.”

Sykes said the evidence was "easily sufficient to convict" and that the circuits were split over whether "recklessness" or "knowledge" was the intent standard for criminal contempt.

You can read more here.


December 6, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

Seven Steps to a Productive Meeting

I am not a fan of meetings—too much wasted time, too little accomplished. At Attorney at Work, time management expert Paul Burton offers this advice for running an effective meeting:


  1. Set an agenda. 
  2. Make sure there is a hard start and hard stop.
  3. Prepare necessary materials — only.(And ban Power Points)
  4. Distribute materials in advance.
  5. Moderate the discussion. . If you, as the leader, participate too much, you’ll run the risk of commandeering the meeting, which is not an effective use of team members’ time.
  6. Confirm decisions and action items.
  7. Identify follow-up expectations.  Place parameters around the work so people have relatively short-term goals for producing a result. Make the follow-up period reasonable within the context of the work to be performed, but make it date-certain.

For full explanations, please click here.



December 5, 2016 | Permalink | Comments (0)

Yale Sets Principles for Renaming Buildings with Controversial Historical Names

If your school is facing this issue, this may be of interest:

The report of the Committee to Establish Principles on Renaming — offering clear guidelines on university decisions to remove a historical name from a campus building, space, or structure — has been approved by President Peter Salovey and Yale’s trustees.

“Questions of naming and commemoration raise difficult but important discussions,” wrote Salovey in an email to the Yale community. “These are complicated intellectual and moral issues faced by universities and other institutions around the world. From the outset, I have sought for Yale to bring its scholarly resources to bear on this subject of national and international import. My hope is that the principles announced today will prove useful not only to our community but to others as well.”

Committee’s process

In a letter accompanying the report, the committee — chaired by John Fabian Witt ’94, ’99 J.D., ’00 Ph.D., the Allen H. Duffy Class of 1960 Professor of Law and professor of history — noted that, as part of its work, the members “read scholarship on the history and theory of naming and renaming. We studied renaming debates in other times and places. We researched the experience at Yale, and we tried to use the scholarly expertise in history represented on our Committee.”

Watch a video of the committee members discussing their work

You can read more here.


December 5, 2016 | Permalink | Comments (0)

Sunday, December 4, 2016

The English Language: Tough to Pronounce Correctly

Here is a poem by Gerard Nolst Trenite illustrating how differently words are pronounced even when they have the same or similar letters.

Here is a video that permits us to hear the differences and see the words as well.


December 4, 2016 | Permalink | Comments (0)

Yet Another Phishing Scam


From the D.C. Bar Bulletin:

While we have not heard of any instances affecting D.C. Bar members, we want to alert you to a potential email phishing scam targeting attorneys around the country.

The email currently being sent falsely notifies attorneys of a disciplinary action filed against them. The emails have come from the state's office of disciplinary counsel or its local bar. Immediately delete these emails. Do not click on the links or open any attachments. If you do, your computer or device could be exposed to a virus.

The Office of Disciplinary Counsel will never send you a notice of an investigation by email and would never ask an attorney to click on a link.

For questions, please email Members Services or call at 202-626-3475.


December 4, 2016 | Permalink | Comments (0)

Should lawyers be required to take mandatory CLE coursework in technology?

The Florida Supreme Court recently adopted such a rule that goes into effect in January to require all lawyers to take at least three hours of CLE credits in technology-related coursework.  Now comes a member of the Florida Board of Governors who argues in this latest edition of the ABA Journal's Legal Rebels column that other states need to do likewise: 

Mandatory tech CLE: An idea whose time has come


One complaint. Out of 103,000 lawyers. One solitary complaint. The Florida Bar only received one formal objection to its proposal to add three hours to its MCLE requirements and reserve all three hours for technological competence.

Anecdotally, the number of informal complaints were just as prevalent—which is to say, nonexistent. Few things are as powerful as an idea whose time has come. The idea that the use of technology is fundamental to the delivery of legal services is now so self-evident that even the world’s foremost issue-spotters did not bat an eyelash.


This is not a quiet bunch. When some members of the bar leadership identified the Uniform Bar Exam and reciprocity as topics worthy of exploration, the uproar was immediate and overwhelming. When invitations were extended to the likes of LegalZoom and Avvo to discuss their operations in the state—because, you know, they were operating whether the bar spoke to them or not—the cries of “appeasement” and the calls for impeachment were deafening. The Florida Bar is not short on fierce, persuasive advocates who make themselves heard when they see a potential change that might portend negative consequences for the profession. But when the Board of Governors proposed to the Florida Supreme Court a change that would undeniably have a direct impact on every active bar member: crickets. The case for technology competence is so incontrovertible that there was nothing to be said.


The courts already require electronic filing. Electronic filing, in turn, is predicated on a whole host of technological complements: word processing, PDFs, internet, email. Those technological complements introduce a new world of keeping client data confidential: electronic communication, encryption, metadata, mobile devices, the cloud.


But technological competence is not just about satisfying narrow functional requirements, it is about meeting clients where they live. . . . 

Continue reading here.


December 4, 2016 | Permalink | Comments (0)

Saturday, December 3, 2016

Muslim Students Tells Who They Are

A group of Muslim students at the University of Wisconsin produced this timely 3:34 minute video. The students tell us what they like, what they are not, and who they are. Well worth watching.

You can access it here.

Thanks to Mary Ray.


December 3, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

How Much Do Expert Witnesses Charge?

This information is valuable to those who are asked to serve as expert witnesses. According to a broad based survey by The Expert Institute, the average national rate for case review is $351. For depositions, it’s $459. For testimony, it’s $488. Experts in medical cases charge more than experts in nonmedical ones.

Here is an infograph that, among other things, permits checking on average rates in individual states.


December 2, 2016 | Permalink | Comments (0)