Saturday, April 30, 2011
There is an article in the New York Times entitled Law Students Lose the Grant Game as Schools Win. It tells how law students are losing their merit scholarships after their first year, much to their surprise. As the article suggests, the solution to this problem is to disclose what percentage of merit scholarships are renewed after the first year. However, few law schools do this. Is this the best way for law schools to teach professional conduct? In my opinion, the best way to teach ethics is for the teacher and the institution to set an ethical example. Comments welcome!
Recently, the the U.S. Department of Transportation put the wheels in motion to ban airlines from serving peanuts on planes. However, it soon discovered that the effort would not succeed in the near future. A 12 year old law stands in the way. According to CNN Travel:
"The Department is prohibited by law from restricting the serving of peanuts aboard aircraft unless a peer-reviewed study determines that serving of peanuts causes severe reactions among airline passengers. There has been no such peer-reviewed study, so we declined to take action at this time," it said in a statement.
As it stands, some airlines serve peanuts (for example, Delta and American), and some do not.
From Friday's New York Times:
Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.
But it was a process that took a half-century to unfold. In 1961, a Harvard-trained astronomer, Frank Kameny, stood alone against the federal government. Fired from his federal job simply for being gay, he wanted to petition the Supreme Court. But at a time when all 50 states still criminalized sodomy, even the American Civil Liberties Union declared it had no interest in challenging laws “aimed at the suppression or elimination of homosexuals.” Mr. Kameny wrote his own appellate brief; without comment, the court turned him away.
Over the next quarter-century, lifted by gales of change in sexual morality and in the status of women, gay-rights advocates mobilized at every level of the legal profession. In the late 1960s, they successfully challenged the antigay civil service policies under which Mr. Kameny had been discharged. In 1973, a small group of gay lawyers formed the Lambda Legal Defense and Education Fund, enlisting the help of prominent heterosexual lawyers. They drafted legislation protecting gays from discrimination in housing and employment.
At the same time, gay-rights supporters began lobbying law schools, and then professional organizations like the American Bar Association, to adopt nondiscrimination policies. With these in place, they pressured schools to exclude law firms from on-campus recruiting unless they agreed not to discriminate against gay students in hiring. The Association of American Law Schools endorsed this approach. These developments paved the way for firms that had once fired suspected homosexuals to adopt their own nondiscrimination policies.
Changes in the profession ran in parallel with the evolution of jurisprudence on sexuality. In 1986, in Bowers v. Hardwick, the Supreme Court upheld a Georgia sodomy law. Five justices — one of whom told a closeted law clerk that he had never met a gay person — dismissed the idea of a right to gay sex as “at best, facetious.” But four justices disagreed — a harbinger. Within a decade, openly gay law clerks had become unremarkable.
You can read the rest of the editorial here.
Friday, April 29, 2011
The gang member in Los Angeles who murdered a liquor store employee and then tattooed a map of crime scene on his chest that included details only the perpetrator would know. It wasn't too tough for the LAPD to crack the case after that. From the online ABA Journal:
It's standard practice in Los Angeles for authorities to take photographs of the bare chests of suspected gang members when they are arrested for relatively minor offenses.
Records of their tattoos may be useful identification tools in subsequent crimes. And, for those who spray graffiti around the city, it's not unusual for a tagger to mark his own body with one of the same images he paints on buildings.
But the tattoo that homicide investigator Kevin Lloyd of the Los Angeles County Sheriff's department spotted one day in a photograph of Anthony Garcia went way beyond that. Under the heading Rivera Kills, a reference to Garcia's Pico Rivera gang affiliation, the inked design appeared to map out a liquor store murder scene, including details that only someone who was there was likely to know, according to the Los Angeles Times.
And not just any murder scene—Lloyd's attention was caught, after he glanced at the photo in passing, because the tattoo appeared to map out a homicide that he had personally investigated that had become a cold case.
You can read the rest here.
By the time most of readers click onto our blog, Prince Harry and Ms. Middleton will have tied the proverbial knot. For historical perspective, here is a two minute video on the wedding of Queen Elizabeth and Prince Philip. If you watch it, you will learn how tall the wedding cake was, how many stag parties Prince Philip had, and where they honeymooned.
That 1947 wedding inspired the 1951 movie musical “Royal Wedding,” in which Fred Astaire dances on the ceiling.
Thursday, April 28, 2011
Legal skills article of interest: "The 'Next' Generation: Measuring First-Year Student Response to WestlawNext"
This is a student note from the Texas Law Review by (3L?) Lisa D. Kinzer. The full article is not yet available but the abstract has been posted on SSRN:
When Thomson Reuters debuted its WestlawNext legal research platform a year ago, many predicted that law students would prove to be the biggest fans of this 'googlized' version of Westlaw. And in the six months that the Next platform has been available to law students, anecdotal evidence has suggested that students are indeed abandoning the two major traditional platforms (Westlaw and Lexis) in mass numbers. However, no empirical study has confirmed this trend.
In this study, I survey the four hundred first-year law students at the University of Texas School of Law to determine which database each uses most often, and what factors are taken into account in making the choice. Preliminary results indicate that the majority of students are using WestlawNext most of the time. When one considers that very few practitioners even have access to WestlawNext, the implications for the effective preparation of law students for the workplace are considerable.
In this paper, I review the results of my survey and offer proposals as to how law schools can incorporate the seemingly addictive WestlawNext into their research curriculum while still ensuring that students will be effective when working with the limited resources available at the average law office.
We'll keep our eyes peeled for the final draft because this sounds like a good one.
Hat tip to rethinc.k
Once you figure out the correct standard of review (e.g., de novo, abuse of discretion, clearly erroneous, etc.), which is not always easy, here's a handy formula for drafting your SOR paragraph courtesy of the blog Vodzaklegal:
1. First Sentence
Because a statement of the standard of review often appears early in an appellate brief, put the issue in context first.
The district court interpreted 28 U.S.C. § 1961 to mean that post-judgment interest on prejudgment interest does not begin to run until the district court issues an order quantifying the amount of prejudgment interest due.
2. Second Sentence
In the second sentence, identify the type of underlying issue resolved by the lower court and the applicable standard of review in a simple, concise statement.
Statutory interpretation presents a question of law over which this Court exercises de novo review.
Provide a citation to mandatory authority. Generally, one citation is sufficient for a well-established standard of review. If no mandatory decision addressing the precise issue exists, then consider including a second citation from outside the jurisdiction. This is not required, but it can be helpful and demonstrate your understanding of the standard of review.
Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 305 (3d Cir. 2008).
See also American Telephone and Telegraph Company v. United Computer Systems, 98 F.3d 1206, 1209 (9th Cir. 1996) (treating the interpretation of 28 U.S.C. § 1961 as a pure issue of law subject to de novo review on appeal).
4. Last Sentence
In the last sentence, define the standard of review.
Under a de novo standard of review, this Court owes no deference to the district court’s statutory interpretation analysis.
Again, cite to a mandatory decision supporting your proposition.
See Pell, 539 F.3d at 305.
Click here, and scroll down, to see what it looks like all put together.
Hat tip to the (new) legal writer blog.
Cursive handwriting is still taught in schools but teachers don't spend much time on it and even that could end soon. From the New York Times:
For centuries, cursive handwriting has been an art. To a growing number of young people, it is a mystery.
The sinuous letters of the cursive alphabet, swirled on countless love letters, credit card slips and banners above elementary school chalk boards are going the way of the quill and inkwell. With computer keyboards and smartphones increasingly occupying young fingers, the gradual death of the fancier ABC’s is revealing some unforeseen challenges.
Might people who write only by printing — in block letters, or perhaps with a sloppy, squiggly signature — be more at risk for forgery? Is the development of a fine motor skill thwarted by an aversion to cursive handwriting? And what happens when young people who are not familiar with cursive have to read historical documents like the Constitution?
Jimmy Bryant, director of Archives and Special Collections at the University of Central Arkansas, says that a connection to archival material is lost when students turn away from cursive. While teaching last year, Mr. Bryant, on a whim, asked students to raise their hands if they wrote in cursive as a way to communicate. None did.
That cursive-challenged class included Alex Heck, 22, who said she barely remembered how to read or write cursive. Ms. Heck and a cousin leafed through their grandmother’s journal shortly after she died, but could barely read her cursive handwriting.
“It was kind of cryptic,” Ms. Heck said. She and the cousin tried to decipher it like one might a code, reading passages back and forth. “I’m not used to reading cursive or writing it myself.”
Students nationwide are still taught cursive, but many school districts are spending far less time teaching it and handwriting in general than they were years ago, said Steve Graham, a professor of education at Vanderbilt University. Most schools start teaching cursive in third grade, Professor Graham said. In the past, most would continue the study until the fifth or sixth grades — and some to the eighth grade — but many districts now teach cursive only in third grade, with fewer lessons.
“Schools today, we say we’re preparing our kids for the 21st century,” said Jacqueline DeChiaro, the principal of Van Schaick Elementary School in Cohoes, N.Y., who is debating whether to cut cursive. “Is cursive really a 21st-century skill?”
With schools focused on preparing students for standardized tests, there is often not enough time to teach handwriting, educators said.
You can read the rest here.
Building on the insights of thinkers from Plato to McLuhan, Carr makes a convincing case that every information technology carries an intellectual ethic—a set of assumptions about the nature of knowledge and intelligence. He explains how the printed book served to focus our attention, promoting deep and creative thought. In stark contrast, the Internet encourages the rapid, distracted sampling of small bits of information from many sources. Its ethic is that of the industrialist, an ethic of speed and efficiency, of optimized production and consumption—and now the Net is remaking us in its own image. We are becoming ever more adept at scanning and skimming, but what we are losing is our capacity for concentration, contemplation, and reflection.
Part intellectual history, part popular science, and part cultural criticism, The Shallows sparkles with memorable vignettes—Friedrich Nietzsche wrestling with a typewriter, Sigmund Freud dissecting the brains of sea creatures, Nathaniel Hawthorne contemplating the thunderous approach of a steam locomotive—even as it plumbs profound questions about the state of our modern psyche. This is a book that will forever alter the way we think about media and our minds.
Hat tip to the Harvard Business Review.
It’s that time of year when those of us who work in the library can feel the final exam tension in the air. Students procrastinate and stress over final exams for weeks, often turning to commercial outlines and study aids, hoping they can cram for an exam. Here are some resources that may help alleviate some of their anxiety:
Burkhart, Ann M. & Robert A. Stein, Law School Success in a Nutshell: A Guide to Studying Law and Taking Law School Exams, 2d ed. (Thomson/West 2008).
Calleros, Charles R., Law School Exams: Preparing and Writing to Win (Aspen Publishers 2007).
Darrow-Kleinhaus, Suzanne, Mastering the Law School Exam: A Practical Blueprint for Preparing and Taking Law School Exams (Thomson/West 2007).
Dernbach, John C., Writing Essay Exams to Succeed in Law School (Not Just to Survive), 3d ed. (Aspen Publishers 2010).
Strong, S.I., How to Write Law Essays & Exams, 3d ed. (Oxford University Press 2010).
Whitebread, Charles H., The Eight Secrets of Top Exam Performance in Law School: An Easy-to-Use, Step-by-Step Program for Achieving Great Grades!, 2d ed. (Thomson/West 2008).
Good luck on finals!
Simon Stern has written an interesting article entitled Detecting Doctrines: The Case Method and the Detective Story in which he compares the detective story and legal reasoning. You can find the article here.
Many scholars have compared legal judgments with detective stories, and have suggested that law professors should teach cases in a way that reflects the structure of detective fiction. This essay explores that analogy, arguing that detective fiction’s asserted concern with the logical analysis of clues helps to show why exponents of legal doctrine would look to this genre as a model. Detective stories changed in the late nineteenth century, for the first time organizing their narrative structure around the use of clues, and hence claiming to promote logical reasoning in a way that allowed the reader to compete with the detective in solving the mystery. This explanation echoes the rationales offered by the advocates of the case method when it was first being endorsed around the same time. Law teaching changed similarly, moving from the methods of lecture and memorization to an approach that required students to navigate a narrative medium (the case) and to discover its essential components on their own. These two developments, in literature and law, stem from a common source - the emergence of new scientific methods aimed at tracing visible effects back to their hidden causes, exemplified by Charles Lyell’s work in geology and Charles Darwin’s work in evolution. When the early advocates of the case method talked about legal science, they emphasized scientific values such as coherence, clarity, and consistency, but an equally important aspect of the enterprise received much less rhetorical emphasis - namely, the method itself, which reflected the forms of scientific inquiry exemplified by Lyell and Darwin.
I am just finishing grading the last set of quizzes for students in my Land Use course. Years ago, Ron Agulnick, my co-teacher and a practicing lawyer, decided that giving a final exam at the end of the course was not pedagogically sound. Students would cram at the end of the semester, get no substantive feedback on their answers, and, right after the exam, promptly forget most of what they had quickly learned.
Instead, we give our students a series of five in-class quizzes, each on a discrete piece of the course—the contents of the quizzes do not overlap. Immediately after the students take a quiz, we give them our answers. Each quiz counts for 20 points.
Students thus study a handful of classes very intensely for each quiz. They tell us that, as a result, they remember more of the material, long term. Students also get instant feedback, a pedagogically valuable benefit.
Most quizzes consist of ten questions, each worth two points. Some require paragraph answers; most are multiple guess. The questions are thus quite straightforward. I have never believed that the exam setting is the place to evaluate a student’s analytical abilities. Instead, we hold exit interviews in which we encourage small groups of students to discuss the bigger issues with us. I will write about those another time. I should note that I use a different grading system in each course that I teach.
Wednesday, April 27, 2011
I am currently reading Gretchen Rubin’s (a former lawyer) bestseller “The Happiness Project”. It seems to me that there is some useful advice for law students in her book.
Her twelve commandments include the following rules that we should encourage law students (and ourselves) to attempt to achieve:
Do it now (procrastination seems to be a trait of many law students)
Be polite and fair
Do what ought to be done
Ms. Rubin also wrote about several “Secrets of Adulthood” which she described as “the lessons I’d learned with some difficulty as I’d grown up”. Some of them are useful lessons to share with law students preparing to enter the legal profession:
It’s okay to ask for help.
It’s important to be nice to everyone.
If you’re not failing, you’re not trying hard enough.
Don’t let the perfect be the enemy of the good.
Perhaps if law students did more soul-searching about what really excites them before they graduate, they would find a place where they can enjoy the practice of law. It should be about fulfillment more than image/prestige/money etc. The practice of law should not be a field that people leave in order to find fulfillment. We should continue to encourage our students to be the change they want to see in the profession.
I'm presently working on an article about "best practices" for technology use in the law school classroom and one of my points is that we need to teach students to "unplug" since the ability to concentrate and engage in deep thinking are key lawyering skills students must learn to develop. Here's a book that supports the premise - Hamlet's Blackberry by journalist William Powers. An excerpt from the NYT's book review:
Powers suggests that evolutionary programming may be partly responsible for the drive that has many of us constantly checking our digital screens. We are wired by nature, he notes, to pay attention to new stimuli, thereby helping us to respond quickly to predators or to nab a potential meal. The biochemical effect of the iPhone ping, in fact, might be injecting my brain with what one scientist calls a “dopamine squirt.”
In other words, marketers have told us we must be connected all the time, and our brains have done the rest. The author worries that our homes, the traditional shelter from the crowd, have been invaded to the point where we may be in danger of no longer connecting deeply with our families, our books and our thoughts.
The solution is to learn to unplug. You can read the rest of the review here.
My co-editor Lou Sirico reminds us below that today is Administrative Professionals Day. This editorial from the New York Times asks whether technology is going to make the traditional office secretary go the way of the travel agent (not eliminated altogether but much less needed).
Here's an excerpt:
In 1961, the trade magazine Today’s Secretary predicted that, 50 years hence, the “secretary of the future” would start her workday at noon and take monthlong vacations thanks to the “electronic computer.” According to another optimistic assessment, secretaries (transported through office hallways “via trackless plastic bubble”) would be in ever-higher demand because of what was vaguely referred to as “business expansion.”
But nearly 60 years later, on the date now promoted as Administrative Professionals Day, we’re living through the end of a recession in which around two million administrative and clerical workers lost their jobs after bosses discovered they could handle their calendars and travel arrangements online and rendered their assistants expendable. Clearly, while the secretary hasn’t joined the office boy and the iceman in the elephant’s graveyard of outmoded occupations, technological advancements haven’t panned out quite the way those midcentury futurists imagined. There are satisfactions to the job, to be sure, but for many secretaries, it remains often taxing, sometimes humiliating and increasingly precarious.
Check out the rest of the editorial here. The author, Lynn Peril, is a secretary herself and has written a book called “Swimming in the Steno Pool: A Retro Guide to Making It in the Office.”
From the Wall Street Journal Law Blog:
The service is called JD Match, and its premise is to link law students looking for jobs with hiring law firms without a lot of the wasted time, effort, expense and overall agony brought on by the current law-school hiring process, with its interviews and fly-backs and courtship and disappointment.
JD Match, which is largely the brainchild of law-firm consultant and writer Bruce MacEwen, who will serve as the company’s president, will “match” law students with firms, much in the way matching services pair up medical students and residency programs.
It’ll work like this: law students will pay $99 per recruiting season to sign up. From there, they’ll upload their information, including a resume, etc., and will then rank the law firms they’d like to work for. On the other end, the firms will rank students who’ve signed up.
Then comes “match day.” Using a “proprietary algorithm,” the service will match the firms and students based on their own preferences. Matches will be run three times during the recruiting period: in August, September and again in October.
. . . .
Now, a few caveats to mention here. JD Match is unlikely to revolutionize law-school hiring, at least not yet. Unlike the matching process for medical students, the results of the JD Match search are not binding on anyone. Students don’t have to commit to go to a firm; the firms don’t have to commit to giving an offer.
You can read the rest here.
It's called "Quiet Hours." Here's the explanation courtesy of the Chronicle of Higher Ed along with a video illustration below:
[To prevent multitasking distractions at work, here's a] strategy . . . offered by Adam Pash’s Quiet Hours, an Adobe Air-based utility (Windows/OS X) that helps you work with focus, while knowing that you won’t miss anything. The way it works is simple: Take any app that’s a distraction, and drag it to the Quiet Hours app. (Windows users can drag them from the Start menu; Mac users should drag from the Applications folder.) Set the app’s timer for however long you want to work without interruption. When that time has elapsed, Quiet Hours will re-launch those applications. A couple of things worth noting: You have to quit the distracting apps (e.g., Twitter, IRC, e-mail . . . or some scholarly application) yourself. And nothing about Quiet Hours prevents you from re-opening them in the interval. What the utility offers you is two things: 1) an instantly-configurable reward for getting your stuff done, and 2) the sure knowledge that you will in fact check back in for critical messages at some point. That might seem silly, but there’s an advantage to a visual reminder–in this case, the opening application–to check your e-mail one last time before leaving for the day. The basic idea is that you can concentrate on your work *now*, because the app promises to check on your distractions (professional and non-) later.
Thanks to LegalBlogWatch for alerting us to this response by a South Florida attorney to a show cause order issued by the U.S. Bankruptcy Court for the Southern District of Florida. You don't have to understand the underlying legal issue to recognize how pissed this attorney is with the judge. It really makes one wonder, what was the attorney thinking? There's absolutely no doubt that this is going to end very badly for the attorney. The only question is exactly how badly will it end.
-- Opening paragraph: In your fourth published example of “Ready-Fire-Aim” against this attorney, it is obvious that you have not reviewed the record in this case which does not support the purported findings of fact. It is further quite obvious that you do not believe that the same respect mandated to be shown to you should also be shown to me. Your conclusion that Mr. Denison’s attempt to exempt his commissions as the head of a household is not supported by law is belied by the language of the actual statute. Your conduct in this case was been without citation to any authority for the propositions that: your jurisdiction is never ending and without geographic bounds; your unconditional releases are meaningless; and pronouncements of the United States Supreme Court are mere suggestions.
-- Footnote 1, page 1: Also see Adv Pro 09-01974-JKO where a mis-calendared hearing on a matter where an agreed judgment was submitted in favor of my client was treated as though a surgeon removed the wrong leg.
-- Page 1: In the Order to Show Cause [ECF 588] (hereinafter OSC) at pages 1 and 3, you “found” that “Denison had already admitted he owed those commissions to the Plan Administrator under the Debtor’s confirmed Chapter 11 Plan.” Wrong. Denison admitted that he was overpaid through a mathematical error not of his making.
-- Page 2: In the OSC, at page 3, you found that “During the January 4, 2011, hearing on the sanctions motion, Gleason made no attempt to assert that the Claim was proper (he actually conceded to the fact that it was improper by an agreed order to strike the Claim on December 6, 2010)...” Now I have ordered the transcript to demonstrate that you have “misremembered” the hearing....
-- Page 3: In the OSC, at page 7, you have, once again, proven that the superficially sound logic of the OSC is specious by stating...., “Gleason’s frivolous Claim was stricken by agreed order on December 6, 2010...” ... [T]he claim was not frivolous. What is frivolous is your grabbing of funds without any statutory grounds for so doing, and calling a garnishment by another name.
-- Page 3: The fiction continues on page 8 of the OSC, where you write, again, “Gleason has already stricken the offending Claim by agreed order."
-- Concluding sentence, page 4: It is sad when a man of your intellectual ability cannot get it right when your own record does not support your half-baked findings.
As I read this, I had to keep reminding myself that this is an attorney talking to a federal judge, not vice versa.
Tuesday, April 26, 2011
I (Dennis Kennedy) got the chance last week to talk to and answer questions from students at the University of Missouri Law School.
I spent about two hours with Randy Diamond's Law Practice Management class and then another hour-and-a-half or so talking to an open session about social media, legal technology, career questions, and whatever other topics students wanted to throw at me.
Lots of great questions, including some questions that got me to think about a few things in new ways. It was especially interesting to find the level of interest in LinkedIn, but the wariness about using it. I think I might have changed a few opinions about that.
Despite the amount of time I spent answering questions, I felt quite energized after the sessions and was happy to get the opportunity. A big thank you to the University of Missouri community.
Given the excellent response I've always gotten when talking about technology, practice management and related issues to students at local law schools, I'm surprised that more law professors and law schools don't consider reserving one class or even a session outside teh normal class schedule to bring in practicing lawyers to talk to students and answer questions about the actual practice of law.
The more we can bring lawyers, professors and students together on a regular basis and encourage interaction and discussion, the better and more dynamic a local legal community we're likely to create. I've long felt we've seen too little of that over the years. We now have opportunities to do more of that. Think about what you might do to make that happen.
Today is the day to give our support staff an extra “thank you” for making us look good. According to the International Association of Administrative Professionals, the theme this year is “celebrate all office professionals”:
For Administrative Professionals Day 2011, we’re veering away from the traditional celebration of the day which is centered on administrative professionals. The recession has hit everyone in the office. Downsizing has forced all of us to pull together and work harder, not just the administrative professionals in the workplace. IAAP recognizes the hard work and sacrifice from everyone. This year, celebrate all office professionals.