Saturday, November 28, 2015
This is a new article by Professors Adam Chodorow (Arizona State) and Professor Philip Hackney (Louisiana State) entitled Post-Graduate Legal Training: The Case for Tax-Exempt Programs which is scheduled for publication next year in volume 65 of the Journal of Legal Education but a draft of which is available now on SSRN here. From the abstract:
The challenging job market for recent law school graduates has highlighted a fact well known to those familiar with legal education: A significant gap exists between what students learn in law school and what they need to be practice-ready lawyers. Legal employers historically assumed the task of providing real-world training, but they have become much less willing to do so. At the same time, a large numbers of Americans – and not just those living at or below the poverty line – are simply unable to afford lawyers. In this Article, we argue that post-graduate legal training, similar to post-graduate medical training, is a good way to address these market failures and reduce the gap in both skills and legal services.
We consider a number of questions regarding how best to structure post-graduate legal training programs, including whether law schools should take the lead in developing them, and, if so, whether to locate such programs within law schools. We then turn to the important tax issues such programs raise. Programs operated within law schools should generally not affect those schools’ tax-exempt status. Tax exemption for stand-alone programs is more complicated, but we conclude that properly structured programs should be granted tax-exempt status, both as a policy matter and under current IRS guidance. We offer suggestions about how best to design programs to come within that guidance and call on the IRS to issue clear guidance for these kinds of programs.
Friday, November 27, 2015
Mark Cooney has compared the tenets of legal plain English with the tenets observed by professionals in the literary field. They’re the same!
Plain language is just good writing. Period. That’s all it means. And it’s a writing
style that’s not only embraced but demanded (on pain of rejection) by literary
professionals outside the legal arena. In case you doubt this, let’s look at some submission
guidelines and advice from publishers and literary experts.
You can read more here.
Thursday, November 26, 2015
The new issue of Pennsylvania Lawyer Magazine has a short article describing Widener's new incubator program which launched this fall with an initial group of three students. You can read the full article called A Good Start: Incubator Program Helps New Lawyers Learn the Basics of Running a Successful Practice at 37 Pennsylvania Lawyer 42 (November/December 2015) or download it from SSRN here. The following is a brief excerpt:
The three new lawyers sat in the training room at Widener University Commonwealth Law School in Harrisburg, listening to a Philadelphia attorney talk by Skype about how to market a law firm.
“Who are you? What’s unique about you? What do you offer?” Jennifer Ellis asked the group, prompting silent reflection about what the three bring to potential clients. They also got a lesson in Google AdWords, content management systems for websites and where to buy affordable stock photos to illustrate websites without getting into copyright trouble.
The talk isn’t about zealous representation, but it is critical for new lawyers who are launching solo or small-firm careers in a modern, tight legal market. And it is just one component of a new program based in central Pennsylvania that is initiating new attorneys as much into the business of law as the practice of it.
A joint effort of Widener Law Commonwealth and the Dauphin County Bar Association (DCBA), the incubator project kicked off early this year as the first based entirely in Pennsylvania. It provides new legal professionals with Harrisburg office space, computer and printing equipment, training in the work of building a law practice, mentoring and networking support.
The three inaugural participants are recent Widener Law Commonwealth graduates who, in exchange for their acceptance into the one-year program, agreed to pay for their malpractice insurance and commit to 100 hours of pro bono legal work through MidPenn Legal Services, a nonprofit providing free civil legal assistance to low-income families in crisis. Participants are also encouraged to take on “low bono” clients.
“This program is dynamic because it not only gives the new attorneys legal experience and business skills, it adds affordable legal services to the community,” according to Robyn L. Meadows, who was serving as interim dean of the law school when the incubator program launched in January. “We hope it will build a lasting appreciation for the importance of assisting the underserved, no matter here the attorneys’ careers take them.”
. . . .
The three initial participants in the Dauphin County program, Patrick Daniels, Mark Calore and John Sweet, were all given office space on the lower level of the DCBA building on Front Street in Harrisburg. It is a professional setting in the prime business district. The bar association provides furniture, utilities and wireless Internet service as well as other less glamorous things such as mail service and trash removal, important but pesky details to new lawyers trying to get a foothold. The law school provides computers and space for files.
. . . .
Participation in the program includes a series of training sessions coordinated by the law school, such as the law-firm-management session with Ellis. Other training topics have included financial planning and setting up business bank accounts to comply with regulations, setting up accounts for tax purposes, keeping client funds separated and marketing. The DCBA makes networking opportunities available. The participants are welcome to attend all the weekly lunch-and-learn sessions at the bar association at no cost. They learn from the speakers and from the lawyers sitting next to them. “That’s a good networking opportunity,” said Daniels, who is making the continuing-education programs a priority. “It’s just an added benefit to the experience.”
. . . .
The Oxford Dictionaries announces the “word of the year”: an arguably nonword, an “emoji.” What is an emoji? Here is an extensive list of these typographical wonders. Specifically, The prize goes to the "tears of joy" emoji:
Here are the runner-up candidates:
ad blocker, noun: A piece of software designed to prevent advertisements from appearing on a web page.
Brexit, noun: A term for the potential or hypothetical departure of the United Kingdom from the European Union.
Dark Web, noun: The part of the World Wide Web that is only accessible by means of special software, allowing users and website operators to remain anonymous or untraceable.
lumbersexual, noun: a young urban man who cultivates an appearance and style of dress (typified by a beard and checked shirt) suggestive of a rugged outdoor lifestyle.
on fleek, adjective (usually in phrase on fleek): extremely good, attractive or stylish.
refugee, noun: A person who has been forced to leave their country in order to escape war, persecution or natural disaster.
sharing economy, noun: An economic system in which assets or services are shared between private individuals, either free or for a fee, typically by means of the Internet.
they (singular), pronoun: Used to refer to a person of unspecified sex.
You can read more here. :)
Jennifer Romig has created a library of emojis that professor can use in commenting on student papers. You can access this marvelous collection here.
Wednesday, November 25, 2015
On this Thanksgiving day, I would like to thank all those teachers, law professors, and and law firm colleagues who helped me become the legal professional I am today. In particular, I would like to single out one person who helped me most to develop my personal identity as a lawyer--Robert I. Cusick.
From the dedication to Developing Your Professional Identity: Creating Your Inner Lawyer (2015):
I dedicate this book to the memory of Robert I. Cusick, who was my mentor in legal ethics. Ric was a long-time partner at the law firm of Wyatt, Tarrant, & Combs in Louisville, Ky. Ric “helped draft the Kentucky Bar Association’s procedural ethics rules and served as Chairman of a KBA committee that revised the substantive ethics rules. He also served as a Bar Examiner for the KBA for a number of years.” In 2006, President George W. Bush nominated Ric as Director of the Office of Government Ethics, and he served in this post for five years.
What others have said about Ric:
“Mr. Cusick led a life of service to others. ‘He was a man of character and honor whom treated everyone he met with dignity and respect.’ He was described by many as a ‘lawyer's lawyer.’"
“He was noted for having a special gift for investigating and piecing together ‘what really happened.’”
“He was a man of character and honor and treated everyone he met with dignity and respect. He was a terrific raconteur. He could be counted on. He will be missed.”
OGE's current Director, Walter M. Shaub, Jr., recalls that, "Ric Cusick was a strong advocate for the principle that public service is a public trust, a core principle to which OGE remains committed. He was an ardent believer in the non-partisan values underlying the government ethics program. I admired him for that and considered him a friend. I know that all of us at OGE who had the privilege of working closely with him are going to miss him."
I treasure the time I worked with Ric at Wyatt, Tarrant, & Combs, and I am indebted to him for what he taught me.
Professors Mark Roark and Warren Emerson believe that current signals like see and cf. are insufficient and offer 13 new ones. Here is their abstract:
Currently, The Bluebook recommends twelve signals that give direction to the author’s intended use of sources. Bluebook signals communicate how the author believes the work cited is relevant to the proposition. But Bluebook signals could communicate so much more.
This Essay recommends thirteen new signals for The Bluebook’s next edition. Indeed, this is no love sonnet to Baby Blue, but rather an urging to sample the selections of intention with the pairings of rote form. These signals would provide more than just form, and delve into the author’s voice in selection of authorities and his or her intention when citing a particular work. They may further do away with the need for parentheticals in some instances, making law reviews more concise, or may expand the need for parentheticals, which would also be good.
Either way, law reviews prevail as these new signals dictate a further march towards author clarity in the pursuit of meaning. While these citations may indulge some level of frivolity, we assure you, they are no mere joke. They relate to the way authors perceive the substance of their work, their position in the academy, and the moral equivalency of their place, substance, and words. This article proposes new signals arranged in taxonomy to their function – elucidating substance, elevating status, and un-equalizing moralities.
Despite the authors’ protestations, the reader might detect a bit of humor here. You can access the article here.
A hot topic across the legal blogosphere this week has been the nationwide drop in bar pass rates which some attribute to the allegedly declining credentials of law students (and here) resulting from the drop in applications since the number of law school matriculants peaked in 2010 at 52,500. Others argue that the drop in bar pass rates is due to an increasingly difficult exam (here and here). Whatever the reason, with many of the state bar pass rates now accounted for, legal bloggers (here, here here and here) as well as national media outlets like the Wall Street Journal have been reporting this troubling trend. My co-blogger Professor Sirico posted a handy graphic below that summarizes the data state-by-state. Now you can add Michigan to the list of states reporting a decline in bar pass rates from 2014 when 63% of all test-takers passed to this year when only 61% passed. While the overall percentage drop is not especially disturbing, it's the results from Cooley (now Western Michigan University) that are likely to raise eyebrows. While bar pass rates for U. Michigan actually increased from last year when 87% for all test-takers passed to this year when 92% passed, for Cooley its bar pass rates for all takers dropped from 44% in 2014 to 39% this year. Of course this is most concerning to the students affected but since Cooley has been a lightening rod for criticism that schools are accepting students who are not otherwise qualified to pass the bar in order to fill empty seats due to declining applications, this will no doubt become a story. Cooley and the other Michigan schools affected by the drop in bar pass rates will likely offer their own explanations for the drop this year while also trying to figure out, like many other law schools nationwide, how to goose up the numbers for next year.
Hat tip to JD Underground.
Tuesday, November 24, 2015
Monday, November 23, 2015
The Rhodes Trust has announced the names of the 32 men and women chosen as Rhodes Scholars from the United States for 2016. The scholarships cover all expenses for two or three years of study at the University of Oxford, in England.
The American winners were chosen from 16 districts across the United States and represent 22 colleges and universities. American citizens may apply for the scholarships through either the state where they legally reside or the state where they have attended college for at least two years. (From the Chronicle of Higher Education)
You can access the list here. The statement that the winners hail from 22 colleges and universities is accurate, but perhaps misleading. 9 of the 22 come from Ivy League universities. Most others come from other elite universities. It’s hard to believe that those schools have a near monopoly on the best and brightest.
From the Economist (here):
The Economist’s first-ever college rankings are based on a simple, if debatable, premise: the economic value of a university is equal to the gap between how much money its students subsequently earn, and how much they might have made had they studied elsewhere. Thanks to the scorecard, the first number is easily accessible. The second, however, can only be estimated. To calculate this figure, we ran the scorecard’s earnings data through a multiple regression analysis, a common method of measuring the relationships between variables.
Here are the top ten (more on the website):
|Rank||%ile||College||State||Expected earnings||Median earnings||Over/Under|
|1||99||Washington and Lee University||VA||
|6||99||Otis College of Art and Design||CA||
|8||99||Alderson Broaddus University||WV||
|9||99||Texas A & M International University||TX||
|10||99||California State University-Bakersfield||CA||
Some surprises here.
Coinciding with the publication of Richard Susskind's new book, The Future of the Professions, which makes predictions about the way technology will change many of the "thinking" professions like lawyering, a U.K. blog called Legal Week notes that a few artificial intelligence applications are already being used by some firms to provide more cost efficient legal services. In a post called Is Artificial Intelligence the Key to Unlocking Innovation in Your Law Firm? legal technology expert Greg Wildisen notes that Foley & Lardner is using technology to offer its clients "an outsourced, turnkey compliance solution" to help them navigate legal issues arising under the Foreign Corrupt Practices Act (Foley partner David Simon describes in a short YouTube video how this new technology-based compliance service works). Mr. Wildisen also describes how a company called Neota Logic (where he is a managing director) developed a series of employment law apps called ComplianceHR in cooperation with the firm of Littler Mendelson to provide legal assistance to human resource departments. One of the apps helps users assess whether an individual qualifies as an employee or independent contractor under the laws of 51 separate jurisdictions by accessing some 1,400 cases and considering 80 different factors. And way back in 2011, a Boston, Massachusetts company called Fair Outcomes had already developed software to help resolve legal disputes with optimum efficiency while eliminating the transactional costs associated with hiring lawyers to negotiate a settlement. Mr. Wildisen also notes that the seminar created a few years ago at Georgetown Law School in which students learn to develop legal apps (and here) to help dispense legal advice is an idea that has spread to other law schools which will accelerate the use of AI-type solutions to the practice of law. Though many lawyers may be nervous about the potential for AI to replace the need to hire lawyers for certain tasks, Mr. Wildisen reminds us that so many legal questions go "un-lawyered" these days that rather than fear the inevitable spread of technology, lawyers should instead look for ways to leverage it to address some of these unmet needs for cost efficient legal services. You can read Mr. Wildisen's full post at Legal Week right here.
Chapter Eight: The Legal Profession and Society
This chapter's purpose is to help students understand how the legal profession views itself and how society views the legal profession. It takes a unique pedagogical approach to teaching students about the legal profession: it presents quotes about lawyers and the legal system then asks students to reflect on those quotes.
A. Reason as the Basis of Law.
Reason as the Basis of the Law: Sir Edward Coke
“Reason is the life of the law; nay, the common law itself is nothing else but reason…The law, which is perfection of reason.”
Sir Edward Coke
- What does Coke mean by this quote?
- Do you agree with Coke?
B. Law as Experience.
The Nature of the Law: Justice Holmes
“The life of the law has not been logic; it has been experience.”
Oliver Wendell Holmes Jr.
1. What does this quote mean?
2. Do you agree?
3. How does Holmes’s view differ from those of Coke, Johnson, and Aristotle?
E. The Common Good as the Basis of Law.
A Republican View of the Origin of Ethics Codes
“The consensus among leading commentators on legal ethics issues is that the legal ethics codes embody an adversarial ethic. An examination of the historical roots of the legal ethics codes in the work of George Sharswood, a nineteenth century jurist and scholar provides an alternative interpretation. Although largely ignored by commentators today, Sharswood's essay on ethics was the original source of most of the modern legal ethics codes. Sharswood believed that a lawyer's principal obligation was the republican pursuit of the community's common good even where it conflicts with either her client's or her own interests. Sharswood defined the common good as the protection of order, liberty, and property in order to provide individual with the opportunity to perfect themselves.”
- What is the republican view of legal ethics?
- How does having a republican view of the role of the legal system affect lawyers’ professional identities?
- Which basis of law do you think is better?
- How does our modern view of the legal system reflect these bases?
G. Utilitarianism as the Basis of Law.
“The greatest happiness of the greatest number is the foundation of morals and legislation.”
- What does this quote mean?
- Do you agree?
- What are the alternatives to utilitarianism?
- How does Bentham’s concept of law differ those of the other authors in this section?
- How does Bentham’s view affect individual rights?
- Is our legal system based on utilitarianism? Partially?
- Reflect on how a system based entirely on utilitarianism would look.
Sunday, November 22, 2015
Chapter Nine: My Role in the Legal Profession
This chapter's purpose is to help students discover their role in the legal profession. It includes sections on
What Area of Law Do I Want to Practice?
My Place in the Legal Profession
Standards of Civility
Dealing with Subordinates
As with most of the other chapters, I develop the students professional identities in this chapter mainly though reflection questions and problem solving exercises.
The chapter ends with a discussion of an important part of practical wisdom--moral courage.
At this time of year, we all know law graduates who can use a little reassurance and advice.Not everyone passes the bar exam on the first attempt. Here, Harrison Barnes gives level-headed advice for those who need to move on and try again. Good advice to pass on to students.
In addition, he lists seven famous people who failed the bar on their first attempt. You will be surprised. You know them all.
Veterans law clinics have been recently growing in popularity including a new one launched by the University of Missouri School of Law in 2014. After its first year of operation, an instructor, Professor Angela Drake, and participating student, Stacey Nicks, take a moment to reflect on what's worked and what hasn't. Both perspectives are included in a new article Perspectives on the Veterans Clinic Model at Law Schools: Lessons Learned by an Instructor and a Student which is available at 45 U. Mem. L. Rev. 943 (2015). Here's an excerpt:
The following essays present two perspectives on the Veterans Clinical Model. One is written by an instructor, and one is written by a student. Both essays discuss experiences at the newly created Veterans Clinic at the University of Missouri School of Law.
II. Skills Training At The Veterans Clinic At The University Of Missouri School Of Law: Lessons Learned
I consider one of my greatest professional accomplishments to be launching The Veterans Clinic at the University of Missouri School of Law in the spring of 2014. After decades of private practice followed by teaching as an adjunct, I currently have the privilege to serve as the Clinic's Supervising Attorney and Instructor. It is always exciting to be part of a new academic venture, whether that might be a new course, a program, or a clinic. It has been particularly exciting to be part of this new project here at Missouri because of the Law School's commitment to prepare students for the practice of law through the teaching of client-centered skills. In the following sections, I share some of my experiences during the Clinic's first year of existence.
A. First, a Few Words About the Clinic
The mission of The Veterans Clinic is to help veterans and their families secure disability related benefits provided by the federal government. These benefits range from educational stipends to compensation for service connected disabilities. Clinic services are offered to low income veterans and their dependents. The Clinic does not charge its clients for its services. Often, readjustment to civilian life is difficult for veterans and many have trouble finding employment. Helping veterans with educational benefits is important because these benefits increase marketability in an increasingly competitive job market. Disabled veterans in particular have paid a high price for serving their country. The Clinic is specifically designed to give back to these veterans.
The Clinic is also designed to provide students with important practical experience. Because student work is done at each level of adjudication--from the Regional Office level to the Court of Appeals for Veterans' Claims-- students learn the importance of making a good record and arguing the law. The practical skills introduced in the Clinic include: law firm and time management, client interviewing and counseling, problem solving, legal theory development, negotiation, record collection, witness statement preparation, medical record chronologies, and appellate brief writing and argument. Importantly, the Clinic highlights the importance of pro bono work in a lawyer's professional life.
All work is performed in a law firm atmosphere. Weekly debriefing conferences allow students an opportunity to present the substantive issues involved in their cases, as well as to review the evidence they assembled. Collaboration is the hallmark of the Veterans Clinic. Students are both paired with peers and encouraged to reach out to experts in the field.
. . . .
Saturday, November 21, 2015
The embattled Charleston School of Law has a new part-owner who plans to turn the for-profit school into a nonprofit.Edward Bell, a local attorney said he paid an undisclosed price to become one of three owners, along with founding partners, Robert Carr and George Kosko.
He said he is now president of the law school and managing partner of the company that owns the law school, and will pay himself $1.20 a year. His top priority is to covert the law school into a nonprofit entity. He also said he hopes to build a permanent campus in downtown Charleston.
The owners had previously tried to sell the school to InfiLaw Corp., which owns three other for-profit law schools, but that effort was highly criticized by students and faculty. The South Carolina Commission on Higher Education was expected to vote in June of last year not to recommend a license for InfiLaw to operate the school. But infiLaw pulled its application 24 hours before the vote.
You can read more here.
We have published a great deal of criticism of Christopher Columbus Langdell and his case method on this blog. Harold Anthony Lloyd has just posted a particularly insightful critique of the Langdell Method on SSRN:
"Continuing along these lines, it is also hard to see how any alleged divide between theory and practice does not suffer from the same kinds of problems that afflict Cartesian dualism. Descartes believed that mind is an inherently different substance from body, with the former essentially involving thought or consciousness and the latter essentially involving bulk or spatial extension. Although he believed minds and bodies were causally interrelated, he unsurprisingly could never clearly explain how this worked. How can dimensionless thought even touch, much less move something physical? The very notion seems to involve a contradiction: though thought has no dimensions it can nonetheless somehow take hold of and move a body with dimensions. Gilbert Ryle famously mocked this notion with his “ghost in the machine” label—the mind is somehow a nonphysical ghost that resides in and operates the body."
As I have mentioned several times before on this blog, I believe that the Socratic method and reading appellate cases remain important tools for educating lawyers, particularly in the first year. However, law professors need to use these tools more effectively and combine them with other teaching approaches.
National Jurist is reporting that the Blakely Advocacy Institute at the University of Houston School of Law has ranked the top moot court programs for 2015 (based on a methodology that relies on competition results from around the nation, including both individual and team results, as well as taking into account the size and prestige of each competition). The top 16 schools are then invited to compete in January at the annual Andrew Kurth Moot Court Competition held at U. Houston to determine the "best of the best" in moot court teams. See the list of invitees for the 2016 competition here. The top 20 schools as reported by National Jurist are set forth below (click here for the accompanying article). You can find the Blakely rankings for all law schools here (FYI - I did notice a discrepancy between the rankings reported below by National Jurist and the full list of the law school moot court programs found on the Blakely Institute's website).
1. Florida Coastal School of Law
2. Georgetown University Law Center
3. South Texas College of Law
4. UC Hastings College of Law
5. Chicago-Kent College of Law
6. Texas Tech University School of Law
7. University of Oklahoma College of Law
8. Regent University School of Law
9. Michigan State University College of Law
9. SMU Dedman School of Law
11. Liberty University School of Law
12. Loyola University Chicago School of Law
14. U. Miami
15. Seton Hall
16. New York University School of Law
17. St. John’s University School of Law
19. George Washington
20. New York Law School
Friday, November 20, 2015
"The passing rate for the 5,838 first-time applicants was 60.0 percent overall. The passing rate for the 2,485 applicants repeating the examination was 16.0 percent overall." (here) Last year, the passing rate for first-time applicants was 61.4%. In July 2013, it was 67.7%.