Friday, June 24, 2016

University of Texas Affirmative Action Case: Summaries

As you probably know, the Supreme Court has upheld the part of the university’s admissions program that includes diversity as a factor. Here is National Public Radio’s summary. And here is a longer report from the Washington Post.


June 24, 2016 | Permalink | Comments (0)

Proposal for New AALS Section: Leveraging Technology Section

The AALS Clinical Section’s Technology Committee is gathering signatures to petition the AALS to establish this section. From Best Practices for Legal Education, here is a prospectus:

The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems.  It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community. 

The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering.  The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.

You can read more here (May 24, 2016).


June 24, 2016 | Permalink | Comments (0)

Thursday, June 23, 2016

The Style of Legal Writing

This past May, at Greenhorn Legal, Chelsea Wilson (Wash U.) offered guidance on legal writing—not the “rules,” but thinking about the audience, the tone, and concision.

You can access the posting here.


June 23, 2016 | Permalink | Comments (0)

ABA Journal: Why law schools need to teach more than the law to thrive (or survive) by Chad Asarch & Phil Weiser

Why law schools need to teach more than the law to thrive (or survive) by Chad Asarch & Phil Weiser.

"The ongoing discussion on the future of legal education all too often misses the opportunities for innovation and re-invention."

"At Colorado Law, we are working to engage a range of employers and to develop experiments—on both the curricular and extracurricular fronts—to help students build key competencies and a portfolio of skills that will be valued by employers, including those who traditionally never hired from law schools. This strategy, as explained in this report (PDF), led the two of us to work together to create new nontraditional real estate transactions courses that developed important competencies. The results of this collaboration provide important lessons for the way forward."

"The two new courses—Real Estate Transactions and Advanced Real Estate Transactions—underscore the range of opportunities open to law schools willing to experiment. These courses are important not only because they enabled students to learn through experiences with real-world situations, but also because they were designed to enable students to develop a number of valuable competencies, including how to work well in teams, learn from feedback, and approach their work with a positive attitude."

"In designing both courses, the starting place was that actual real estate deal documents and issues would be front and center. In the foundational class, students began developing the skills necessary to read a real estate transactional document effectively, including an understanding of how the various provisions of the document work together and an appreciation for how different document revisions and additions were necessary to advance the cause of their client."

"In the advanced class, students learned to take their burgeoning understanding of real estate deals to the next level by working on negotiation projects in teams. With respect to both classes, the goal was to build on the traditional “issue spotting” and critical thinking skill set developed in the first year and to focus on practical legal skills (drafting contracts), contextual knowledge (how real estate development works in practice), and professional skills (including working effectively in teams). In so doing, the courses helped students develop as more complete professionals and build key competencies sought after by employers."

"Through this class (and complementary efforts), Colorado Law students discovered the importance of professional skills (including emotional intelligence) that they might not have previously viewed as important to their success."

"The world of legal education needs to move beyond a traditional model that has never worked for many of our students. In that sense, today’s challenging environment for law schools is an overdue wake-up call to ask ourselves what competencies matter for our students—that is, what competencies will help them add value as lawyers, policymakers, and leaders—and how can we best teach and deliver those competencies. With a range of promising experiments in new curricular and extracurricular offerings (some prompted by the ABA’s call to articulate key competencies developed by law schools), there are compelling reasons to believe that a reimagined law school experience is a worthwhile alternative to simply shrinking down the traditional law school model."

(Scott Fruehwald)

June 23, 2016 | Permalink | Comments (0)

Wednesday, June 22, 2016

What Persuades? Good Facts, Good Law, Good Writing

In the June 2016 issue of the Michigan Bar Journal, attorney Kenneth Oettle offers sound advice on persuasive lawyering. To confirm his views, he asked his “polling group”:

The following answers are representative: (1) “use compelling facts, ordered clearly and rationally, that lead the reader to a moral judgment in your favor” (this answer comes very close to home base); (2) “provide good law”; (3) “tell the reader in the first three paragraphs why you should win”; (4) “use nouns and verbs” (as opposed to adverbs and adjectives, which are editorials); (5) “be concise”; (6) “sound authoritative”; and (7) “don’t bad-mouth the adversary.” This last item is more about what not to do, but in this age of incivility, a respectful, low-key brief is like a breath of fresh air and thus is likely to have affirmative persuasive value.

The article discusses these “tactics.” The take-away message:

The synergy of all these tactics produces clarity, which gets the point across and gives you credibility. If you are willing to be clear, then you probably aren’t hiding anything. Basically, you earn credibility by telling the truth clearly, crisply, and with conviction. The more credible you are, the more persuasive you are because courts need to rely on your presentation of facts, caselaw, and argument.

You can access the article here.


June 22, 2016 | Permalink | Comments (0)

Tuesday, June 21, 2016

Advice for New Teachers

Ben Owens is a high school science and math teacher. Here are the highlights of his advice to new teachers. Needless to say, the advice applies to new and experienced law professors as well.

    1. Avoid, like the plague, teaching in isolation. Build a vibrant network of peers and then use it to share ideas, give and receive constructive criticism, and learn new ways to improve your teaching.
  • Know what you are teaching, as well as your limits. 


    1. Teach more than just the curriculum. Leverage your knowledge to teach the skills that students will need and be expected to use for the rest of their lives – even if they are not formally included in your curriculum.
    2. Know your students. It has been said that the three most important things to truly reach students are relationships, relationships, and relationships.
    3. Know & use teaching best practices. We know what works and what doesn’t. Student-centered classrooms, enabling technologies, inquiry-based instruction, problem and project-based learning are all examples of proven instructional methods that work.
  • Be a visible leader for your students in and outside your school. 
  • Focus on continuous improvement. 
  • Be a role model to your peers – even as a new teacher. 
  • Find the balance. 


  1. Lastly, share your story. Find that one thing that you love the most or that is working and share it. You can read more here
  2. (ljs)

June 21, 2016 | Permalink | Comments (0)

Monday, June 20, 2016

Law Deans Support Arizona Law's Decision to Make LSATs Optional

From Jason H. Beehler at the blog of the Kegler Brown Hill & Ritter law firm:

Law school deans from all over the country have written an open letter to the Law School Admissions Council, expressing support for the University of Arizona, which recently began accepting law students based upon GRE scores rather than LSAT scores.

The row began earlier this spring, when Arizona made the decision to give applicants the option of taking the GRE instead of the LSAT, which is administered by the Law School Admissions Council. Upon hearing of Arizona’s plan, the Council warned Arizona in April that the school could be expelled from the Council’s network of law schools.

On Wednesday, May 4, nearly 150 deans of law schools all over the country (including those of Harvard and Yale) wrote a letter to Council president Daniel Bernstine, supporting Arizona’s “experiment” with admissions criteria, and expressing “great concern over LSAC’s threat to expel the University of Arizona Law School.”

You can read more here. As far as I know, studies suggest that grade point averages are better predictors than LSATs.


June 20, 2016 | Permalink | Comments (0)

Sunday, June 19, 2016

Three Types of Ambiguity in Transactional Documents

In the June 2016 issue of The Transactional Lawyer, Stephen Sepinuck identifies the three types and focuses on contextual ambiguity. Here are the definitions:

Semantic ambiguity exists when a word or phrase has multiple meanings and more than one of those meanings could reasonably apply. One classic contracts case involved semantic ambiguity in the word “chicken”: was the term in an agreement between a domestic seller and a foreign buyer limited to only young birds suitable for broiling and frying or did it also include older – and less expensive – fowl, best suited for stewing?

Syntactic ambiguity arises from sentence structure, most frequently from the misplacement of a modifier so that it is unclear to what word or phrase a modifying word or phrase refers. For example, a settlement agreement that releases “all claims for the avoidance or recovery of transfers in the amount of $59,999.99 or less” is ambiguous: the specified amount might modify “claims” or “transfers,” and that distinction can matter if a single claim concerns multiple transfers.

Future articles in this series will return to these types of ambiguity and strategies for avoiding them. This article focuses on the third type of ambiguity: contextual ambiguity. Explaining Contextual Ambiguity Contextual ambiguity can arise in two distinct ways. First, it is created when two or more statements or clauses in the same agreement or in related agreements are inconsistent. For example, consider an agreement that calls for “payment of $75,000 in six monthly installments of $15,000.” Six payments of $15,000 will, of course, total $90,000. So, does the agreement require payment of $75,000 or $90,000?

The second method in which contextual ambiguity is created is through the juxtaposition of terms, so that the language of one affects the meaning of another. . . .

You can access The Transactional Lawyer here.


June 19, 2016 | Permalink | Comments (0)

Saturday, June 18, 2016

NY Post: Our Cell Phones Are Killing Us

I have often talked on this blog about humans' limited attention, and how students must focus their attention on the learning task to learn properly.  In particular, I have mentioned that surfing the internet or texting during class causes students to miss most of what is going on in class.  As this article demonstrates, cell phones can have even more serious consequences.

Our Cell Phones Are Killing Us by Maureen Callahan.

"According to the CDC, over 8 people are killed and 1,161 are injured each day in the US by distracted driving. Texting while driving is now the leading cause of teenage deaths in this country. Anecdotally, emergency rooms are seeing an uptick of injuries to “petextrians” — people who text while walking and have, say: run into a 300-pound bear (California, 2012), fallen into a fountain at the mall (Pennsylvania, 2011), or fallen on to train tracks (Pennsylvania, 2012)."

(Scott Fruehwald)

June 18, 2016 | Permalink | Comments (0)

Using Narrative in Transactional Documents

Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016)

Here is the introduction:

A granddaughter joins the family business as a partner. An entrepreneur

licenses his newest product. Two parties decide to settle a dispute. A

charitable idea materializes as a private foundation. A parent's belief in the

power of education is perpetuated by a trust agreement. Each of these

events forms a narrative. A transaction is more than the scratch of pens

across signature pages or the click of keys to email an executed document.

A transaction is itself a story. These stories, made with provisions and

clauses, result in the formation of contracts, agreements, and wills.

Conceptualizing transactions as narratives benefits the negotiation, drafting,

implementation, interpretation, and, ultimately, enforceability of the

transactional document.

Here is a passage from the article giving specific reasons for including narrative:

Once these misconceptions are removed, drafters can see yet another

benefit narrative techniques offer: opportunities and strategies to engage

clients. Narrative techniques further the attorney-client relationship by

promoting a closer examination of individual client goals and designing

documents to further those goals.21 It should be remembered that not only

the drafting but also the negotiation, implementation, interpretation, and

enforceability of a transactional document may benefit from

conceptualizing transactions as narratives. After all, at the heart of all

transactions is a client’s story.22 Deliberate use of narrative techniques in

the drafting of transactional documents acknowledges the presence of this

story and leverages its presence to further the intent of the parties.

You can access the article here.


June 18, 2016 | Permalink | Comments (0)

Friday, June 17, 2016

Ghost Writing for Low Income People

Sometimes lawyers draft legal documents for people who can’t afford a lawyer and who are ineligible for legal services. The lawyer does not place his or her name of the document. Thus, “Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution.” In her article, Characterizing Ghostwriting, Deborah Lyn Basset discusses the ethics and the pros and cons of this practice. Here is the abstract:

It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution. Ghostwriting offers a practical contribution to the shortage of affordable legal services by increasing the number of individuals who are able to receive some, albeit limited, legal assistance. Despite its practical utility, ghostwriting implicates several ethical concerns, and courts have reached conflicting conclusions as to its ethical propriety. This Article, invited for the February 2015 St. Mary's Journal on Legal Malpractice and Ethics Symposium, analyzes the criticisms of legal ghostwriting and concludes that these concerns have been overstated; legal ghostwriting is consistent with the ethical rules.

You can access the article here. St. Mary's Journal on Legal Malpractice & Ethics, p. 284, 2015.  Good topic for class discussion.


June 17, 2016 | Permalink | Comments (0)

"Designing a Transactional Law Clinic for Life-Long Learning"

This is a new article by Professor Patience Crowder (Denver) recently published at 19 Lewis & Clark L. Rev. 413 (2015) and available on SSRN here. From the abstract:

This article makes an important contribution to existing clinical scholarship generally, and, more specifically, to scholarship about transactional lawyering and transactional law clinics. It is one of the first articles to detail transactional clinic design and is particularly important as the number of transactional clinics continues to increase and more articles about transactional clinical scholarship are published. This article serves as a blueprint for the start or redesign of a transactional clinic. Drawing from the author’s start-up expertise, this article identifies the concepts that are unique to and essential for effective transactional clinic design. In addition to proposing best practices for transactional clinic design, this article focuses on the unique utility of transactional law clinics to teach professional development and identity to law school students — an articulated apprenticeship in the oft-cited 2007 Carnegie Foundation Report. The article demonstrates these points through an analysis of teaching law school students the reflective skill of self-regulated learning, which emphasizes for students the way they learn as opposed to what they learn.


June 17, 2016 | Permalink | Comments (0)

Thursday, June 16, 2016

Keeping Up on Legalized Marijuana

Marijuana law has to be a fertile field for interesting Legal Writing problems. You can keep up on developments at a weekly blog from the Seyforth Shaw firm: The Blunt Truth: The Week in Weed. You can access it here.


June 16, 2016 | Permalink | Comments (0)

Wednesday, June 15, 2016

Teaching Visuals: The New Nutrition Labels

The Food and Drug Administration is offering us a chance to help students learn about using visuals. From the Jones Day law firm:

Effective July 26, 2016, FDA is amending its labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the label to assist consumers in maintaining healthy dietary practices. The results of this regulation will be very visible to consumers, since it will change the format and content of the familiar "Nutrition Facts" panel that appears on all packaged foods. The changes are intended to reflect new knowledge of nutritional science, to better reflect the amounts of food people commonly eat per "serving," and to better inform consumers to help them achieve nutrition and weight-loss goals. The new rules were publicized by an announcement from First Lady Michelle Obama.

The final rule: (i) updates the list of nutrients that are required or permitted to be declared; (ii) provides updated Daily Reference Values ("DRV") and Reference Daily Intake values ("DV") that are based on current dietary recommendations from consensus reports; (iii) amends requirements for foods represented or purported to be specifically for children under the age of 4 years and pregnant and lactating women, and establishes nutrient reference values specifically for these population subgroups; and (iv) revises the format and appearance of the Nutrition Facts label. Some of these suggested changes include larger type calorie counts and serving sizes, and the declaration of the gram amount and percent DV of "added sugars" in a serving of a product. FDA stated the updated information is consistent with current data on the associations between nutrients and chronic diseases, health-related conditions, physiological endpoints, and/or maintaining a healthy dietary pattern that reflects current public health conditions in the United States, and corresponds to new information on consumer understanding and consumption patterns.

For a visual comparison of the old and new labels, please click here.

Students might compare the type size for different items and consider what information was omitted and what was excluded.


June 15, 2016 | Permalink | Comments (0)

A good blog for aspiring legal writers

I recently stumbled upon a new (to me) blog called Word Counter Blog when a post called "How much writing do you have to do in law school?" turn up in my weekly news feed (the author correctly advises aspiring law students that it's not the length of the assignments in law school that's a killer but the time and effort required to hone and polish them).  A quick skim of a few, random posts since the blog was first launched in 2014 indicates it's definitely one lawyers and law students alike may want to regularly check-out since it covers many topics relating to both the process of writing as well as stylistic pointers. Pertinent posts include "How to find time to write" (hint: cut way on watching TV), "How to write a persuasive essay," "What is an average typing speed?" "How many words are there in a 10 minute speech?" and "What is the best font for a business proposal?"

Check out Word Counter Blog here.


June 15, 2016 | Permalink | Comments (0)

Tuesday, June 14, 2016

Plagiarism Allegations Aren’t Limited to Schools

Consider this law suit:

It might be too late for Justin Bieber and Skrillex to say “Sorry.”

The duo has been sued over their No. 1 hit over alleged copyright infringement, according to court documents acquired by EW. Singer-songwriter White Hinterland, whose real name is Casey Dienel, claims “Sorry” infringes the copyright of her 2014 song “Ring the Bell.” Warner-Tamerlane Publishing Corp. and Universal Music are also named in the suit.

You can read more here at Entertainment.

I’m wondering how a scenario like this could be used in a Legal Writing problem. Students might be intrigued by having to distinguish two songs and investigating the tests that courts use.


June 14, 2016 | Permalink | Comments (0)

Monday, June 13, 2016

How Familiar are We and Our Students with the Digital Economy?

The Pew Research Center provides interesting information.

A national Pew Research Center survey of 4,787 American adults – its first-ever comprehensive study of the scope and impact of the shared, collaborative and on-demand economy – finds that usage of these platforms varies widely across the population. In total, 72% of American adults have used at least one of 11 different shared and on-demand services. And some incorporate a relatively wide variety of these services into their daily lives: Around one-in-five Americans have used four or more of these services, and 7% have used six or more.

At the same time, around one-quarter of Americans (28%) say they have not used anymajor shared or on-demand platforms, and many are wholly unfamiliar with the tools and vocabulary of the new digital economy. For instance, 15% of Americans have used ride-hailing apps like Uber or Lyft, but twice as many have never heard of these apps before. Similarly, 11% of Americans have used home-sharing platforms like Airbnb or VRBO, but roughly half have never heard of home-sharing sites. In addition:

  • 61% of Americans have never heard of the term “crowdfunding.”
  • 73% are not familiar with the term “sharing economy.”
  • 89% are not familiar with the term “gig economy.”

For the full study, please click here. For what it’s worth, my San Francisco daughter regularly uses Uber. I never have. Her artist friend successfully used crowdfunding to send his invited art piece and himself to a European exhibition. I have contributed to a crowdfunding effort. I have never heard the term “gig economy.”


June 13, 2016 | Permalink | Comments (0)

An Active-Learning Approach to Teaching Personal Jurisdiction

An Active Learning Approach to Teaching Tough Topics: Personal Jurisdiction as an Example by Cynthia M. Ho, Angela Upchurch, & Susan M. Gilles.


"This article illustrates how an active-learning approach to teaching and learning tough topics is beneficial for students and teachers alike. Personal jurisdiction is used as an illustrative tough topic, although the recommended strategies can be adapted for use in any course. The article focuses on how the authors have effectively enhanced student learning of personal jurisdiction at three different schools by providing context to personal jurisdiction and adopting active-learning exercises before, during and after class. Context is provided with guided reading of key cases, as well as videos. Active-learning exercises involve a variety of methods, including interactive questions and explanations before, during and after class; these include “clicker” questions as well as questions that can be done as part of a quiz on TWEN. The article provides specific steps for implementation that can be used by faculty teaching with any casebook at little to no cost and with varying degrees of technical intervention. The article also provides practical strategies drawn from the authors’ experience teaching personal jurisdiction, as well as challenging topics in other courses.

Samples of some of the materials used by the authors are included in the Appendix."
This is an excellent article, and its techniques can be applied to teaching many other topics.  As the authors point out, this approach is a cost-effective way to bring active learning into the doctrinal classroom.

June 13, 2016 | Permalink | Comments (0)

Are online law schools the wave of the future?

Professor Jeffrey Van Detta (John Marshall - Atlanta) thinks so as he explains in this just published article entitled The law School of the future: How the Synergies of Convergence Will Transform the Very Notion of "Law Schools" During the 21st Century from "Places" to "Platforms" available at 37 U. La Verne L. Rev. 103 (2015). From the introduction:

What will law schools be like ten years from now? Twenty? How about at mid-century--i.e., in the year 2050? Some have been inspired to approach this question from a perspective of a dystopian future. Rather than assume catastrophe, others have tried to visualize how legal education-- almost moribund in its basic approach after the innovations of Dean Langdell at Harvard in the 1870s--is responding to the “disruptive change.” That “disruptive change” results from three principal sources. First, “disruptive change” is being produced by rapidly proliferating computer and virtuality technologies applied in graduate education. Second, “disruptive change” arises from the evolution of the students themselves. New generations of law students have grown up in a cyber-crucible of virtual reality that I choose to call “virtuality.” Third, law practice itself is poised to enter upon a new age in which the virtual law office becomes an increasingly common choice for law-school graduates, as well as more experienced attorneys reinventing their law practices, and the judicial system itself embraces video conferencing as an increasingly attractive solution to a number of persistently intractable problems.


I have been inspired to ask--and respond--to the question of how legal education will evolve in the future by the excellent interchange I was privileged to have with Professor Dr. Feridun Yenisey, one of Turkey's great legal scholars. Professor Dr. Yenisey and I were members of a panel at the international conference Legal Education In The 21st Century, May 5-8, 2014, in Istanbul and Ankara, Turkey, co-sponsored by Bahçesehir Üniversitesi, Atlanta's John Marshall Law School, and the Union of Turkish Bar Associations. During my portion of the panel in Ankara, I presented my paper on programs delivered via the Internet for foreign-educated lawyers to study aspects of American law in dialogue with American professors, lawyers, and law students-- particularly the Global Forum for American Legal Studies at my home Institution. During the question and answer session, a Turkish colleague in the audience asked about the future role of online legal education and whether purely online legal education was tenable. Not only is entirely online legal education tenable--indeed, it has been done successfully in the United States since 1998 by Concord Law School--it is the future. I then hazarded a prediction for the next meeting of this particular conference at Bahçesehir Üniversitesi, presumably in the 2020s:


Law schools will no longer be ‘places' in the sense of a single faculty located on a physical campus. In the future, law schools will consist of an array of technologies and instructional techniques brought to bear, in convergence, on particular educational needs and problems.


This paper elaborates on that prediction. In so doing, I share a happy discovery that I made as I was contemplating the present article.


In 1994, Robin Widdison--at that time the Director of the Centre for Law and Computing at the University of Durham in England--published a brilliant, visionary article, entitled Virtual Law School. In that article, Dr. Widdison presented a prophetic description of “the central role that information technology will undoubtedly play in law schools of the future,” providing a “science[-]fiction style” narrative, worthy of a Ray Bradbury, in which he presents a “futuristic” portrait of what a 21st century law student's life and studies would be like in a generation hence. While Dr. Widdison is now happily retired from Durham, his ideas live on. They convey an even greater persuasive power today than they had twenty years ago. I shall quote liberally from Dr. Widdison's article, because it illustrates precisely the kinds of “synergies of convergence” in applying technology to educational activities that I predict will make the law school no longer a place, but rather, a platform, unfettered by the bonds of time and physical space.


June 13, 2016 | Permalink | Comments (0)

Sunday, June 12, 2016

Could Apple Go the Way of Blackberry?


When the iPhone came out, the BlackBerry continued to do well for a little while. But the iPhone had completely changed the game — it changed what smartphones were for, from basic business-focused email devices to entire consumer personal computers with desktop-class operating systems and rich app ecosystems. . . .

Today, Amazon, Facebook, and Google are placing large bets on advanced AI, ubiquitous assistants, and voice interfaces, hoping that these will become the next thing that our devices are for.

If they’re right — and that’s a big “if” — I’m worried for Apple.

Today, Apple’s being led properly day-to-day and doing very well overall. But if the landscape shifts to prioritize those big-data AI services, Apple will find itself in a similar position as BlackBerry did almost a decade ago: what they’re able to do, despite being very good at it, won’t be enough anymore, and they won’t be able to catch up.

You can read more here.


June 12, 2016 | Permalink | Comments (0)