Thursday, November 16, 2017

Questionable Nominations to the Federal Judiciary

The President has nominated individuals to the federal judiciary whose qualifications are problematic at best.

Take Brett Talley. From New York magazine:

Brett J. Talley has practiced law for less than three years. He has never tried a case — or even argued a motion.

But he does write a spirited, far-right blog: Shortly after the massacre at Sandy Hook elementary, Talley described Barack Obama’s proposal to expand background checks and restrict rapid-fire weapons as “the greatest attack on our constitutional freedoms in our lifetime.” One month later, he endorsed the idea that Americans “will have to resort to arms when our other rights — of speech, press, assembly, representative government — fail to yield the desired results.” During the 2016 campaign he derided the Democratic nominee a (NPR).s “Hillary Rotten Clinton.”

So much for judicial temperament. You can read more here and here. And then there’s nominee Jeff Mateer. From The Hill:

President Trump's nominee for a federal judgeship in Texas once described transgender children as part of “Satan’s plan,” compared homosexuality to bestiality and advocated for gay conversion therapy.

You can read more here. These and other nominations are passing through the Senate Judiciary Committee on party line votes.

These future judges may be disappointed when they realize that most of their cases do not deal with hot button political issues, but with complex commercial and corporate disputes and run-of-the-mill criminal cases.


November 16, 2017 | Permalink | Comments (0)

Behavioral Legal Ethics

Three law professors have a blog called Behavioral Legal Ethics--Tigran W. Eldred, James G. Milles, and Molly J. Walker Wilson.

There is the introduction to the website:

"Behavioral Legal Ethics* is a place for a wide-ranging discussion about the intersection between behavioral science, law and ethics. The conversations will appeal to anyone interested in the ways in which empirical psychological research can inform questions about how legal institutions and practices encourage ethical behaviors in legal and non-legal actors."

"*Thanks to Jean Sternlight and Jennifer Robbennolt, whose influential article Behavioral Legal Ethics coined the phrase."

There is a wealth of interesting information on this blog.  The most recent post is Behavioral Legal Ethics and Accurate Science.

(Scott Fruehwald)

November 16, 2017 | Permalink | Comments (0)

Wednesday, November 15, 2017

Creating a “Belonging Mindset”

Most of us are acquainted with Carol Dweck’s notion of a growth mindset—that you can develop your basic abilities with hard work and dedication. At Best Practices for Legal Education, Carrie Sperling advocates a “belonging mindset”: Students will have a better chance for success if they have not only a growth mindset but also belief that they belong in law school:

Belonging mindsets: When students feel they belong in an educational environment, they perform better and are less likely to drop out of a program. This is particularly true for underrepresented students who, by virtue of being different, often feel they don’t belong.

When negative stereotypes exist, members of the stereotyped group worry about whether they fit in, whether they will succeed in law school, and whether the legal profession is for them. These worries can deplete students’ cognitive resources, zapping them of their motivation and their ability to bounce back from setbacks. Because learning depends on motivation, students without a sense of belonging fall behind.

That’s why educators must be in tune with the kind of environment they create. Do you work to encourage belonging mindsets?

You can read more here (Nov. 2, 2017).


November 15, 2017 | Permalink | Comments (0)

Tuesday, November 14, 2017

Advice on Taking the Bar Again

About this time of year, former students who didn’t make the cut on the bar exam are starting to gear up to take the exam a second time. Joe Regalia has written a helpful article that should help comfort the bar failers and help them plan their study strategy. Here are his three big take-aways:

Frequently test yourself to see how many rules you can remember from each subject—without any crutches!

Create your own detailed schedule; don’t rely on the commercial bar services—and start practicing essays and MBE questions early and often.

Have a defined, step-by-step process for answering essays and attacking MBE questions.

You can read the full article here.


November 14, 2017 | Permalink | Comments (0)

Monday, November 13, 2017

Villanova Law Seeks Ass't Dean of Admissions & Financial Aid

Here's the ad. Villanova is a great place to work, and the staffs of the admissions and financial aid departments are great people. 

November 13, 2017 | Permalink | Comments (0)

ABA Warns More Schools about Bar Passage Rates

From the National Jurist (excerpts):

The American Bar Association has warned two more law schools that they are “significantly out of compliance” with accreditation requirements, primarily related to poor bar exam performance. That brings the total number of schools with current warnings to five, and several more schools could receive warnings in the next year or so. 

Florida Coastal School of Law and Atlanta’s John Marshall Law School were the latest schools to receive warning letters from Barry Currier, the ABA’s managing director of Accreditation and Legal Education.

In its response, Florida Coastal pointed out that its incoming credentials are better than 23 other law schools. 

"[W]e do not believe we are out of compliance at the present," the school stated in a letter to the local newspaper. "The ABA’s decision was based on historical data and likely influenced by our recent bar passage results. It was also made before the ABA could have seen the 90 percent improvement in our Florida first-time bar pass results from February to July."

Arizona Summit School of Law, is on probation for noncompliance with ABA admissions and academic standards.  Only nine of Arizona Summit’s 2017 graduates who took the Arizona Bar Exam passed the test. The school’s total pass rate for the July 2017 exam was 20.1 percent.

 “In May 2017, two other law schools — Thomas Jefferson School of Law and Appalachian School of Law — received similar warning letters regarding admissions practices and academic programming.

You can read the full article here.


November 13, 2017 | Permalink | Comments (0)

Teaching Behavioral Legal Ethics

I have been doing a lot of research on cognitive biases recently, and I ran across a great article on teaching cognitive biases in a legal ethics class:

Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility by Tigran Eldred.


"The field of behavioral legal ethics — which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers — has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This Article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective. Reflections on the approach, including the encouraging response expressed by students to this interdisciplinary method of instruction, are also discussed."

As I have said many times on this blog, law students need to be exposed to how cognitive biases affect their thinking and the thinking of others.  Professor Eldred does an excellent job of showing how an ethics teacher can integrate these lessons into a professional responsibility course.  All legal ethics professors need to read this article.

(Scott Fruehwald)

November 13, 2017 | Permalink | Comments (0)

Sunday, November 12, 2017

Avoid Toxic Co-Workers

From Northwestern’s Kellogg School of Management:

The people we sit near at work inevitably impact our day. They may brighten our day. What’s more, our work neighbors can actually change how well we do our own jobs.

Researchers looked at the 25-foot radius around high-performers at a large technology firm and found that these workers boosted performance in coworkers by 15 percent. That “positive spillover” translated into an estimated $1 million in additional annual profits, according to new research from Dylan Minor, an assistant professor of managerial economics and decision sciences at the Kellogg School.

Of course, the flipside is that bad eggs impact their neighbors, too. Negative spillover from so-called toxic workers is even more pronounced—sometimes having twice the magnitude of impact on profits as positive spillover. Yet, while this toxic spillover happens very quickly, it also dissipates almost immediately once that worker is either fired or relegated to the far physical reaches of the company.

In addition, working around toxic co-workers may make you toxic—a spillover effect.

You can read more here.


November 12, 2017 | Permalink | Comments (0)

Saturday, November 11, 2017

Detroit Mercy Law Review call for proposals and papers on Sanctuary Cities

Here are the details:

The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything in Between The University of Detroit Mercy Law Review is pleased to announce its annual academic Symposium to be held on March 23, 2018 at University of Detroit Mercy School of Law.

This Symposium will contemplate a broad range of issues associated with Sanctuary Cities –presentations may focus on a specific era – past, present, or future – or may discuss a subject through the past, present and propose future solutions. Presentation topics could include, but are not limited to:

• The potential consequences of Trump’s immigration policies (including the Muslim Ban);
• The ability or inability of Trump and ICE to carry out these immigration policies;
• The constitutionality of Trump’s and ICE’s policies and actions;
• The efficacy of Program 287(g) and the potential consequences thereof;
• The impact of the Countering Violent Extremism (“CVE”) program;
• The efficacy of states’ Sanctuary legislation, like (pro) California and (anti) Texas;
• The ability or inability of cities and states to provide protection to undocumented citizens;
• The rights that undocumented citizens, particularly youth, should enjoy;
• Strategies and policies that cities and states can adopt to protect their undocumented citizens;
• The potential benefits or consequences for cities and states who adopt Sanctuary laws;
• The consequences for the changes made to the DACA program and possible solutions; and
• The position that SCOTUS would take on these issues, including existing legislation & DACA.

The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 300-400 words that details their proposed topic and presentation. Included with the abstract should be the presenter’s name, contact information, and a copy of their resume/curriculum vitae. Since the above list of topics is nonexhaustive, the Detroit Mercy Law Review encourages all interested parties to develop their own topic to present at the Symposium. In addition, while submitting an article for publication is not required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the 2018-2019 edition of the Law Review.

The deadline for abstract submissions is December 3, 2017. Individuals selected to present at the Symposium will be contacted by December 10, 2017. Law Review editorial staff will contact those selected for publication in 2018 regarding details and deadlines for full-length publication.

The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Symposium Director, Jessica Gnitt at Please cc the Detroit Mercy Law Review Editor-in-Chief, Matthew Tapia, at


November 11, 2017 | Permalink | Comments (0)

Five Business Lessons from “The Founder”

The movie, The Founder, chronicles Ray Kroc’s success story in creating the McDonald’s fast food empire. At Attorney at Work, consultant Jared Correia finds five business lessons in the movie:

  1. You have to get lucky.
  1. People won’t like what you’re doing.Whenever you try to do something new or different, haters gonna hate.
  1. You have to want it more than anything (or anyone) else. 
  1. It’s not always about being nice. So, here’s the thing: Ray Kroc was kind of a dick — even if “The Founder” establishes that point at its own pace. He’s the salesman’s salesman. The deal goes downhis way; everything else is secondary. The list of people Kroc screws over could appear at the front of “The Iliad.”
  1. You don’t have to be an innovator.“The Founder” stands for the proposition that successful businesspeople don’t have to have the best ideas … if they can steal the best ideas.

You can read the full explanations here.


November 11, 2017 | Permalink | Comments (0)

Friday, November 10, 2017

US News Promotes Legal Writing

In spite of all the mischief that U.S. News rankings cause, sometimes the periodical does something constructive. Recently it published a short article advising would-be law students to check out the legal writing programs of the schools that they’re thinking of applying to (here).

US News does rank legal writing programs at law schools. As with all its rankings, I would take this one with a grain of salt. The high ranking schools have great legal writing programs, but many other schools have programs that are equally as good. In fact, today, most schools with which I am acquainted have great programs.


November 10, 2017 | Permalink | Comments (1)

Thursday, November 9, 2017

U. Dayton seeking to hire Assistant Professor of Academic Success

Here are the details courtesy of Lawyering Skills Professor Victoria L. VanZandt:

Assistant Professor of Academic Success– POSITION SUMMARY


The University of Dayton School of Law invites applications for one Assistant Professor of Academic Success. This is a non-tenure track position with an initial appointment of one year and the possibility of renewal for long-term (three or five-year) appointments after three years of satisfactory service.


The focus of the Academic Success Program at the School of Law is to help students develop the skills necessary for law school success and first-time bar passage. Responsibilities of the Assistant Professor of Academic Success will include:


· teaching academic success courses related to legal reasoning, critical reading, exam- writing, and bar examination preparation;


· providing academic advising and professional development counseling for students;


· supervising and evaluating the Law School’s Learning Communities program, including designing student-led sessions and working with upper-level Dean’s Fellows;


· participating in the larger community for academic success professionals through regular attendance or presentations at conferences and other relevant endeavors to support the faculty member’s professional development;


· delivering and assessing a comprehensive program of academic support from orientation until graduation.


Applicants must have a J.D. degree from and a record of high academic achievement at an ABA- accredited law school and recent experience in legal education or law teaching in an American law school, particularly in designing and teaching academic success courses or those related to legal reasoning, critical reading, exam-writing, and/or bar examination preparation. Applicants must also articulate a commitment to academic support, including implementing the best models and practices available to encourage student success and utilizing recent developments in pedagogy in American law schools.


We prefer candidates with:


· Demonstrate a commitment to academic support, including implementing best models and practices available to encourage student success and utilizing recent developments in pedagogy in American law schools;


· Demonstrate successful experience providing effective academic advising and professional development counseling for students;


· Recent successful experience developing and administering structured intervention and counseling programs for at-risk students;


· Recent successful program administration, including delivering and assessing all aspects of a program, especially if the experience relates to academic support;


· Demonstrate successful experience compiling and analyzing data for statistical analysis, including familiarity with the most commonly used statistical software programs;


· Excellent written and oral communication skills, including effective presentation skills;


· Effective interpersonal communication skills with various constituencies;


· Ability to work collaboratively with colleagues;


· Demonstrate successful experience mentoring and working with students from diverse backgrounds; and


· Expressed willingness to engage with Catholic and Marianist educational values.


The University of Dayton, founded in 1850 by the Society of Mary, is a top ten Catholic research university. The University seeks outstanding, diverse faculty and staff who value its mission and share its commitment to academic excellence in teaching, research and artistic creativity, the development of the whole person, and leadership and service in the local and global community.


To attain its Catholic and Marianist mission, the University is committed to the principles of diversity, inclusion and affirmative action and to equal opportunity policies and practices. As an Affirmative Action and Equal Opportunity Employer, we will not discriminate against minorities, females, protected veterans, individuals with disabilities, or on the basis of sexual orientation or gender identity.


Applications will be accepted until November 21, 2017. To be considered as a candidate for this position, you must apply online at: Cover letter and CV should be submitted electronically on the website at the time of application. The cover letter should address the applicant’s ability to meet the minimum and preferred qualifications. For more information about the School of Law or the Academic Support Program, please visit our website at or contact the chair of the hiring committee, Professor Victoria VanZandt, University of Dayton School of Law, 300 College Park, Dayton, Ohio 45469-2772.


November 9, 2017 | Permalink | Comments (0)

Can a Judge Radically Change his Philosophy?

The answer is yes. Consider the late Honorable Charles Halleck who moved from being a conservative firebrand to an outspoken liberal. From the Washington Post:

Charles W. Halleck, an outspoken crew-cut conservative who transformed into a bearded, bell-bottom-wearing progressive during a 12-year stint as a D.C. Superior Court judge, stoking the anger of prosecutors and police officers while championing marginalized groups such as gays, prostitutes and marijuana users, died Oct. 31 at a nursing home in Portola Valley, Calif. He was 88.

You can read more about his colorful life here.

His father was Charles Halleck, sometime majority and minority leader of the Republicans in the  House of Representatives. Though he was quite conservative on most issues, he championed civil rights in the 1960s.

The lesson: Don’t write off people with whom you disagree. People can change.


November 9, 2017 | Permalink | Comments (0)

Sean Parker on Facebook: We created a monster

Sean Parker on Facebook: We created a monster

Sean Parker, co-founder of Facebook talks about the dangers of social media.  Excerpts:

Facebook “literally changes your relationship with society, with each other,” “God only knows what it’s doing to our children’s brains.”

Facebook is designed to exploit “a vulnerability in human psychology” to get its users addicted.

“The inventors, creators — it’s me, it’s Mark [Zuckerberg], it’s Kevin Systrom on Instagram, it’s all of these people — understood this consciously,” he said. “And we did it anyway.”

“We need to sort of give you a little dopamine hit every once in a while, because someone liked or commented on a photo or a post or whatever,” Parker said. “And that’s going to get you to contribute more content, and that’s going to get you … more likes and comments.”

“The thought process that went into building these applications, Facebook being the first of them, … was all about: ‘How do we consume as much of your time and conscious attention as possible?’” he said.

In other words, Facebook and other social media are using cognitive biases to manipulate their readers.

I have written about this manipulation and how to overcome it in my book, Overcoming Cognitive Biases: Thinking More Clearly and Avoiding Manipulation by Others (2017).

"Comedian Bill Maher recently declared, “Apple, Google, Facebook, they are essentially drug dealers.” Similarly, 60 Minutes had a segment on “brain hacking.” What were Maher and 60 Minutes talking about? Brain biases that clog up our thinking and allow us to be manipulated by others."

(Scott Fruehwald)

November 9, 2017 | Permalink | Comments (0)

Wednesday, November 8, 2017

The 10 things every college professor hates when it comes to student behavior

This list was compiled by Professor Lisa Wade, a professor of sociology at Occidental College. If you're a law professor, how many of these pet peeves do you share? How many of these rules do you enforce?  (via The Business Insider and originally published at the blog The Society Pages):

  • Don’t use unprofessional correspondence.

  •  Don’t ask the professor if you “missed anything important” during an absence.

  •  Don’t pack up your things as the class is ending.

  •  Don’t ask a question about the readings or assignments until checking the syllabus first.

  •  Don’t get mad if you receive critical feedback.

  •  Don’t grade grub.

  •  Don’t futz with paper formatting.

  •  Don’t pad your introductions and conclusions with fluff.

  •  Don’t misrepresent facts as opinions and opinions as facts.

  •  Don’t be too cool for school.



November 8, 2017 | Permalink | Comments (0)

Leonard Cohen’s Novels

Before Leonard Cohen decided to devote his life fully to music, he wrote novels. Here is Tim Falconer’s memoir on reading them. From Lithub.


November 8, 2017 | Permalink | Comments (0)

Tuesday, November 7, 2017

McKinsey Study: Law Firms Need to Do More on Gender Equity

From Thomson Reuters:

Findings in the study found that women in the legal industry receive first-time promotions 11% less often than men; female lawyers are 29% less likely to win promotion at the first level of partnership than men; and at the equity partner level in law firms, women are 43% more likely to leave the firm than men, a much higher gap that in other industries.

You can read more here. Download the full report on which this article is based, Women in law firms (PDF–2.3 MB)..


November 7, 2017 | Permalink | Comments (0)

Monday, November 6, 2017

John Grisham Takes on Sleazy Law Schools

John Grisham Takes on Sleazy Law Schools

Controversies over questionable for-profit law schools are moving from news reports to novels—probably not a good development for legal education.

In his latest novel, The  Rooster Bar, John Grisham writes about students at the “Foggy Bottom Law School” who realize that they are being scammed. So they present themselves to the public as lawyers and start practicing law without a license. Complications ensue.  Here is a review from USA Today.


November 6, 2017 | Permalink | Comments (0)

Reading in the Digital Age: A Review of ‘Words on Screen’ by James B. Levy

Here is a fascinating review by our co-blogger Jim Levy: Reading in the Digital Age: A Review of ‘Words on Screen.’

Have you ever wondered whether the medium or platform affects how much readers engage with the text?  "A book review of 'Words on Screen' by Naomi Baron."


"In sum, 'Words on Screen' reveals that reading is a more complex activity than meets the eye. Individual reading strategies, the chosen platform, and the medium all play a role in how much students engage with the underlying ideas reflected in the text. Changing any of these variables can affect the reader’s relationship with the text which ultimately impacts their understanding and retention of the content. For LRW professors, the value of Baron’s book is that it can help us become more aware of the need to train students in a range of reading styles and platforms that they can learn to toggle between depending on the task at hand. For us and our students, being an effective reader in the digital age is about knowing how to pick right tool for each job."

(Scott Fruehwald)

November 6, 2017 | Permalink | Comments (0)

Revisiting The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure by Brent E. Newton: Wrap Up

Over my last four posts, I have been revisiting Brent E. Newton's The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure, which appeared five years ago.  In this post, I will gauge how much progress law schools have made over the last five years in legal education reform.  My conclusion is disappointing.  I would estimate that at most law schools have accomplished 25% of what professor Newton proposed.

Law schools with the help of the ABA have made great improvements in certain areas.  Law schools have made great strides with transparency.  Now, law students have a good picture about employment outcomes at law schools, as well as other factors that go into choosing a law school. The new ABA requirement that law schools must look at outcomes is a momentous change.

There have not been many changes in Newton's first area--"(1) defects in the law school admissions process."  Too many students still come to law school unprepared for what law school requires.  There are also still many "(2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools."  The excessive number of law schools has resulted in schools fighting over potential students, and some law schools dipping much deeper into the applicant pool than they should.  This problem has been exacerbated by the still bloated federal loan program.  In addition, law school tuition and scholarship distribution remain unfair to those who can afford law school the least.  Finally, the law school governance process has contributed to the slow progress in legal education, and U.S. News rankings are still a major factor in making decisions.

Some schools and professors have made important changes in "(3) defects in law schools’ curricula, pedagogical methods, and assessments of students."  However, many schools have not, and many professors refuse to change their teaching methods.  All professors need to teach their students metacognitive skills, use active learning, do problem-solving exercises, and adopt frequent formative assessments.  A few professors doing these is not enough.

Despite the fact that it is obvious legal education improvement requires a new type of professor, "(4) deficiencies in the professoriate at law schools" continue.  Of course, many professors who have started as traditional law professors have made themselves into 21st-century professors.

There are still many "(5) problems related to legal scholarship and law reviews."  I disagree somewhat with Professor Newton concerning the balance between teaching and scholarship, but I think it is important that teaching and scholarship be equally important for every law professor.

Finally, "6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market" continue.  State bars need to develop bar exams that test what lawyers do in practice so that law schools will teach what is done in practice.  Teaching to the exam is not bad when the exam tests what you want students to know.

My conclusion is that in the last five years law schools have taken only small steps in reforming legal education.  If you consider that much of what Professor Newton advocated was also in the Carnegie Report and Best Practices for Legal Education (both 2007), the results are even more disappointing.

So what can be done.  First, law schools should adopt a mission statement based on Newton's statement "Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'”  Something like "This law school has made a fiduciary commitment to its students that its ultimate goal is to produce graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'"

Second, law professors should use texts that incorporate the latest in educational research.  There are lots of texts like this out there. You don't have to reinvent the wheel.  Third, law should incorporate metacognitive training into their classes.  Teach students how to think better and make students self-directed learners.  Fourth, professors should use active learning, problem-solving exercises, and formative assessment.

Finally, professors should read about teaching and learning.  If you read only one book, I recommend Susan Ambrose et. al., How Learning Works: Seven Research-based Principles for Smart Teaching (Jossey-Bass, 2010).

(Scott Fruehwald

November 6, 2017 | Permalink | Comments (0)