Saturday, July 16, 2011
As those of you who follow this blog know, I like to compare law to music. Jack Sammons has written a fascinating new article in which he makes an analogy between law and music.
This article, based on a talk given at Villanova in honor of Joe Vining, starts with the following problem:
“Regarding ‘law,’ as Joe Vining teaches us, there is nothing we can point to and say: ‘That is it.’ Those things we might be tempted to think of as law are only evidence of it and not the thing itself. For someone like Joe, who resists the theoretical and insists that truthful thought starts in trusting perceptual beliefs, ‘in the empirical’ as he often describes it, this is a problem. And yet, Joe has, through his work, shown us ‘law,’ and, true to his understanding of it, he has displayed it in a manner that, in Schelling=s words, seeks to ‘. . . enlarge our thought so that it shall be in proportion to the phenomenon’.
“But how can this be? What possible ontology could account for the law he displays? And by what epistemology could we know it? I want to offer to you today one way of understanding law as Joe has displayed it for us by drawing upon an analogy to music. For it is easier for us to trust the perceptual beliefs we have about music than it is those we may have about law. Our perceptions of music, I believe, offer us the shortest, least arduous, and most natural route into matters of ontology and epistemology.”
And here is how parts of the article were described in a magazine article:
“One thing I found, through using this analogy to music to understand law is that a person who has not pre-analytically felt the forces of music, felt its motion, felt the tensions, the resolutions, the ongoing explorations of meaning, along with the creation of a sense of direction in which these continue forever, has not understood music. And, a person -- a judge or a lawyer -- who has not pre-analytically felt the tension, the movement, and the resolution, along with the creation of a sense of direction in which these seem to continue forever, has not understood the law.
“Now, of course, all of this sounds esoteric, but I would insist that it is not and insist further that such questions about the law are at the heart of the life of the judge, the lawyer, and the law student. These questions are at the heart of how we read cases, speak on behalf of clients, write opinions, and, in fact, they provide the measurements by which we know when we are doing these things well.
“In times well past, a life within the law would have been a life of unquestioned meaning for the law had its own honored enchantment. Service to the law was service to something that could be understood as, in some fashion, in touch with a divine that arose from within our lives when they were truthfully imagined. Such an understanding seems well beyond us now, but I believe that an attempt to return to the few understanding of the law's enchantment left to us -- its excess, if you will; the way in which the law, like music, always seems to be more than it is and to point beyond itself and to insist upon its own continuing is essential to any understanding of the law that does not reduce it to petty force and reduce us to violent difference.
“What I argued in the paper, following Joe Vining, was for an understanding of a non-conceptual mode of knowing the law and a different dimension of the law's being and time that our common understanding of experience obscures from us or even denies and yet, as music reveals to us, can still be there within our ordinary perceptions.”
It's either good or bad, depending on who you talk to according to this post from lawjobs.com:
Robin Scullin, Association of Corporate Counsel's director of communication and public relations, said in an email to CorpCounsel.com that the association's statistics show that corporate law department hiring is going up as more work is being brought in-house.
ACC vice president of legal resources James Merklinger told the Chicago Tribune recently that its volume of job listings has more than doubled since the start of the year. The Tribune, however, focused on the difficulties faced by older workers in the profession who may be passed over in favor of lower-cost workers with less experience.
A search of ACC's 822 job listings Monday yielded only 183 staff attorney positions. The majority of vacancies advertised required significant experience.
Nicky Mukerji is director of business intelligence at Nashville-based Legalbill, a consulting and analysis firm that helps companies reduce legal spending. What's he's seeing in his practice is that to the extent that companies are hiring, they're hiring higher-end attorneys.
"You get someone who has already managed matters," says Mukerji. He notes that those attorneys who have extensive experience working on either side of the inside/outside counsel relationship are going to be more beneficial to companies. Those attorneys "know how to leverage outside counsel to gain the maximum advantage for the most optimum price," he says.
But Mukerji says if corporate hires were escalating substantially, he would expect to see evidence in their outside counsel spending. "I haven't seen a whole lot of reduction, I've just seen growth," says Mukerji.
Of his corporate clients that are hiring new in-house counsel, Mukerji says one thing seems pretty clear: "When you're trying to get legal work done, if you're looking from a business-management point of view, it's an in-source versus outsource decision."
Law departments tend to have a lot more information than ever before about their legal spend, says Mukerji. And they're using that information to make educated decisions about where to put their dollars. Mukerji says every choice -- between hiring in-house counsel, outside counsel, a contract attorney, or using legal-process outsourcing -- is now being made based on aggregated data.
"Because of the economic conditions we were in, there has been a shift in law department management -- which is focusing on objective as much as subjective information," says Mukerji.
And money is still tight across the corporate economy."Given the economic circumstances, corporations are less inclined to hire something that's a fixed cost -- a lawyer -- unless they absolutely need it," says David Bargman, president of Baum, Stevens, Inc., a New York-based legal recruiting firm.
According to Bargman, in-house lawyers have fared very poorly in The Great Recession. "The only ones who are successful, by and large, are the very senior attorneys," he says, "people who command business already, people who are in charge of things like compliance, maybe, but by and large there's not much of a market."
Read more here.
Today, many of our students and recent grads struggle under the crushing weight of student loans. Dealing with debt—as opposed to incurring debt—is a new task for them. At the Chicago Sun-Times, Terry Savage gives a brief, but thorough guide to paying off student loans. The article includes a number of useful websites.
Friday, July 15, 2011
If you're looking for another "real-life" example of the importance of good legal writing to give to your students, consider this recent decision from the 5th Circuit. It's a lawsuit brought by a high school cheerleader claiming her civil rights were violated when she didn't make the squad. The appellate court affirmed summary judgment for the defendant-school district, calling the case "a petty squabble, masquerading as a civil rights matter." The court then went-to-town on the plaintiff's attorneys (pages 23-24) for including the following passage in their brief which the 5th Circuit called a poorly written, "unjustified attack" on the trial judge:
The Magistrate’s egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches’ Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.
Here's what the 5th Circuit said about the above:
These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney’s decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys’ attack on Magistrate Judge Stickney’s decisionmaking is reprehensible.
In a footnote, the 5th Circuit continued its criticism of the plaintiff-appellant attorneys' brief writing skills:
Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.
Ouch. You can read the full decision by clicking here.
Hat tip to Above the Law.
From Richard Zorza’s Access to Justice Blog:
“The Commission on Uniform Laws has approved a Uniform Law designed to standardize the authentication of online state legal materials. Here is some of their press release:
July 12, 2011 — A new act approved today by a national law group establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book. The Uniform Electronic Legal Material Act was approved today by the Uniform Law Commission (ULC) at its 120th Annual Meeting in Vail, Colorado.”
Hat Tip @mdstatelawlib
We've reported before that Bloomberg Law is hoping to capture a big chunk of the commercial legal research market (here and here) and this new release is its latest effort to become a Wexis killer. From Robert Ambrogi's LawSites:
Bloomberg Law today released what it describes as “the next evolution” of its legal research platform. Changes include a redesigned interface, enhanced search capabilities, new practice centers and enhanced collaboration and workflow features. One thing that is not changing is Bloomberg Law’s flat-fee, all-inclusive pricing — something the company believes is key to differentiating it from the big-two legal research services, Westlaw and LexisNexis.
. . . .
The price of a subscription remains what it was when the service launched — $450 per user per month. (Enterprise pricing is available to larger organizations.) That price is all-inclusive; there are no hidden or add-on charges for any of the service’s features. The only price increases customers will receive will be minor adjustments every other year based on the cost of living. “We’re committed to predictable, transparent pricing,” [CEO and former president of Lexis-North America] Andreozzi says.
For that, Andreozzi maintains, you get virtually everything that Westlaw and LexisNexis have — all federal and state primary law, a top-tier citator, national and international dockets, and in-depth news and business intelligence drawn from Bloomberg’s global network.
At this point in its development, Andreozzi believes, Bloomberg Law compares unfavorably to Westlaw and LexisNexis only in one respect: its lesser collection of secondary legal materials such as treatises and practice guides. The company continues to move towards the goal of developing secondary materials to cover all practice areas, but it is several years away from reaching that goal, Andreozzi says.
Even so, Andreozzi asserts that such secondary materials account for no more than 10 percent of all legal research. Ninety percent of research involves the three areas where Bloomberg Law is strong: primary law, citations and business intelligence. In fact, Andreozzi believes, lawyers at the highest levels of their practice areas are most likely to focus on that latter category of business intelligence research, including business news, corporate and company information, and docket information.
You can read more of Robert Ambrogi's report here.
Hat tip to the online ABA Journal.
Following up on our post from yesterday about the best law firms based on "quality of life" comes this post from the National Jurist Magazine ranking law schools based on "standard of living" (for those grads entering private practice) which takes into account expected salary and loan debt following graduation.
To determine standard of living, The National Jurist used median starting salaries, average debt payments, estimated federal and state taxes and cost of living adjustments for the regions where graduates were employed.
. . . .
[T]here are big differences between schools. For example, graduates at the University of Texas take home a net of $101,308 after debt and taxes, and modifying for cost of living adjustments. More than half of the schools in the study netted less than half of that amount, with six lower than $25,000.
Sixty-three law schools in the study were excluded from the final ranking because the percent of graduates with a known salary was below 40 percent. Seven schools were omitted due to lack of data.
“This ranking gives prospective students an important look at what life is like in the first few years after graduation,” Crittenden said. “But we felt it would be unfair to include schools where the salary data was not representative.”
Here is the list of the top 20 schools are ranked by NJM.
1 University of Texas
2 University of Georgia
3 Vanderbilt University
4 University of Virginia
5 Northwestern University
6 University of Chicago
7 University of North Carolina
8 University of Michigan
9 Washington University in St. Louis
10 Duke University
11 Southern Methodist University
12 Emory University
13 University of Notre Dame
14 Stanford University
15 Washington and Lee University
16 Yale University
17 Harvard University
18 University of California--Berkeley
19 Boston University
20 University of Pennsylvania
Click here to see schools 21-50.
I have just returned from the Applied Storytelling Conference at theDenver University’s Sturm College of Law and the Legal Writing Institute Writers Workshop held at the Chautauqua in Boulder. Both were fabulous experiences.
The Applied Storytelling Conference was sponsored by the Legal Writing Institute and the Clinical Legal Education Association. It permitted us to delve deeply into how lawyers, judges, clients, students and the rest of us think and persuade and are persuaded.
A big thanks to organizers David Thomson, Robert McPeake, Steve Johansen, Ruth Anne Robbins, Alison Julien, and Brian Foley. Here is a link to the program. Videos of the presentations will soon be available online. We’ll keep you posted.
The Writers Workshop was a great success. Twelve Legal Writing profesors brought their manuscripts and met with four facilitators: Steve Johansen, Jill Ramsfield, Chris Rideout, and me. We held large-group discussions about writing and publishing and broke down into small groups in which the manuscript of each participant was the subject of detailed, constructive discussion. Taking part in this workshop is probably the most professionally fulfilling thing I do.
Thursday, July 14, 2011
Study finds student laptop use in large undergrad classroom caused majority of observed distractions
This study, Behind the Laptops in a Large Lecture, by Virginia Tech Engineering Professor Jeffrey Connor is very much like the one we reported on back in April by St. John Law Professor Jeff Sovern in that both used observers to document student classroom laptop use. With regard to Professor Connor's study, he found that although all of his 185 students were required to own laptops, only about 1/3 brought them to class. But those who did used them inappropriately 86% of the time. Professor Connor found that laptops accounted for more classroom distractions than all other reasons combined. From the abstract:
In the spring of 2009 a large lecture class, CEE 2814 Measurements, was observed to
determine student laptop activity during lecture. This 185 student section met three times per week in a large lecture hall for 43 total classes in the semester. All students were required to own a laptop. For 26 of these lectures a graduate student sat in various locations throughout the room and recorded the students’ participation levels during the class. The purpose of this study is to observe how students interact with the lecture during class and what distractions were presented with the use of laptops. Among other conclusions, it was found that computers caused more distractions than all other distractions combined, and 34% of the students brought a computer to class and 86% used them for purposes other than class related. It was further found that the majority of all distractions were computer related. Results suggest that laptop computers are not an overall effective tool in a large classroom environment.
You can read the full study here.
Who hasn’t had to suffer under a bad dean or supervisor? If you haven’t yet, you probably will sooner or later. In an article on the Chronicle of Higher Education, Allison Vaillancourt writes:
One person I know remarked, “Karma ensures that what goes around comes around, but it doesn’t always come around in our lifetime. We sometimes need to speed things up a bit.” In support of that position, I’ve seen a fair number of people work not to kill their horrible bosses, but to kill those people’s careers. In some cases, their efforts have been quite masterful.
Most of the comments following the article, however, have a different viewpoint. Most say that trying to sabotage the boss will eat up a lot of your emotional energy and probably prove unsuccessful. They counsel that bad bosses ultimately will bring about their own destruction. That’s my experience. Still, the question is whether you want to wait until the denouement occurs or find another job.
I'll confess that I wasn't aware there's been a push by the American Association of Law Libraries for a universal citation format (and maybe that's the problem according to Joe Hodnicki at the Law Librarian blog). Here's the mission statement from UniversalCitation.Org.
In the late 1990's, the American Bar Association, American Association of Law Libraries, and many others looked to the future of legal information and saw the need for change. As the country and our courts shifted to a digital environment, they saw the need for a new way to refer to court decisions and other documents on which the law depends. With the potential for great increases in the availability of legal information, there needed to be a citation style that did not depend on the increasingly outdated print editions that used to be the basis of legal references.
As of this date, several American jurisdictions have adopted a Universal Citation format, but most have not. There are a variety of reasons why courts have hesitated to adopt Universal Citation, but given its success as a citation form in the jurisdictions that have adopted it, and the ease with which it has been adopted in Canada, United Kingdom, Australia, and elsewhere, its value and utility are hard to deny.
Given this the continued reliance on print citations, and the restrictions that this places on open access to the law, it is necessary to act. Universalcitation.Org is being organized to fill the gap. Our aim is to provide the organizational infrastructure needed to facilitate the adoption and use of a uniform set of media and vendor neutral citations that can be used for all American court decisions.
The Law Librarian blog raises the issue because there's a meeting at Rutgers on July 25, 2011 to formulate plans to implement a universal citation format. At present, a few jurisdictions have adopted it and the ABA had previously endorsed it but further initiatives seemed to have stalled. You can read Joe Hodnicki's efforts to explain why, here.
1 2 Williams & Connolly LLP 8.639 Washington, DC 2 1 Ropes & Gray LLP 8.578 Boston, MA 3 NR Weil, Gotshal & Manges LLP 8.195 New York, NY 4 NR Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. 8.184 Boston, MA 5 NR Foley Hoag LLP 8.140 Boston, MA 6 12 Gibson Dunn & Crutcher LLP 8.117 Los Angeles, CA 7 NR Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 8.086 Memphis, TN 8 NR Patterson Belknap Webb & Tyler LLP 8.078 New York, NY 9 NR Dewey & LeBoeuf LLP 8.055 New York, NY 10 NR Fish & Richardson P.C. 8.024 Boston, MA 11 NR Patton Boggs LLP 8.007 Washington, DC 12 13 Sutherland Asbill & Brennan LLP 7.998 Washington, DC 13 10 Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates 7.994 New York, NY 14 3 Morrison & Foerster LLP 7.972 San Francisco, CA 15 NR Jenner & Block LLP 7.958 Chicago, IL 16 11 Vinson & Elkins LLP 7.948 Houston, TX 17 15 Cleary Gottlieb Steen & Hamilton LLP 7.938 New York, NY 18 NR Latham & Watkins LLP 7.934 New York, NY 19 19 Debevoise & Plimpton LLP 7.932 New York, NY 20 14 Carlton Fields 7.914 Tampa, FL
Wednesday, July 13, 2011
In this opinion (State v. Landis) filed by the Iowa Court of Appeals, the court had to consider whether there was sufficient evidence at trial to support the conviction of the defendant-prisoner for spraying a correctional officer with feces in violation of Iowa Code section 708.3B (which makes it a felony for inmates to assault prison employees with "blood, seminal fluid, urine, or feces").
The prosecution offered two types of evidence at trial; eyewitness testimony that the defendant sprayed a substance that looked, "felt" and smelled like feces and a statement by the defendant himself following the incident in which he said "I got you, [correctional officer]. I threw shit on you.”
Although the defendant argued that the state failed to prove its case because it didn't call an expert witness to establish that the substance in question was in fact feces, the appellant court concluded that the ability to identify feces is within the province of the average person:
Indeed, it would be a rare person who had no personal experience with feces. We do not believe the identification of feces falls solely within the domain of expert testimony. Upon submission of the evidence, the jury was to decide whether the State had proved the elements of the crime charged and could use their common sense and daily experiences in determining whether the brown substance was feces.
. . . .
Paraphrase of an old adage seems apropos under the circumstances: If it looks like feces, if it smells like feces, if it has the color and texture of feces, then it must be feces. No witness with a degree in scatology was required, nor was scientific testing required to establish the fact the substance was feces. Thus, Landis‟s conviction for assault on a correctional officer with a bodily fluid was supported by sufficient evidence.
With respect to the defendant's argument that his statement "I threw shit on you" was insufficient, by itself, to support his conviction, the court agreed noting the ambiguity of that word in a very detailed footnote:
“Shit” is defined as excrement. Webster‟s Third New Int‟l Dictionary 2098 (1993). But, the word has also been defined as nonsense, foolishness, something of little value, trivial and usually boastful or inaccurate talk, and a contemptible person. Id. This now ubiquitous word has acquired numerous popular usages apart from its literal meaning. It has been used to describe people, places, and things and to express a wide variety of emotions such as disappointment, disgust, despair, resignation, amazement, awe, shock, anger, and surprise. For examples, see State v. Vance, 790 N.W.2d 775, 784 (Iowa 2010) (“He is going to find the shit . . . .”); Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 676 (Iowa 2004) (“[S]hould be on his „shit list‟ . . . .”); Civil Service Commission of Coralville v. Johnson, 653 N.W.2d 533, 541 (Iowa 2002) (“You ain‟t going to be shit.”); Wilson v. IBP, Inc., 558 N.W.2d 132, 143 (Iowa 1996) (“[T]his guy‟s full of shit.”); Marks v. Estate of Hartgerink, 528 N.W.2d 539, 542 (Iowa 1995) (“It takes a lot of guts and shit . . . .”); State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989) (“[W]hat‟s this not guilty shit.”); Knox v. Municipal Court of City of Des Moines, 185 N.W.2d 705, 709 (Iowa 1971) (“You are still a Fascist and your swastika (indicating) Heil Harrison, Heil Harrison and all that shit.”); Graves v. O’Hara, 576 N.W.2d 625, 627 (Iowa Ct. App. 1998) (“We have f**king shit to haul . . . .”); State v. Shortridge, 555 N.W.2d 843, 845 (Iowa Ct. App. 1996) (“Holy shit, let‟s get out of here . . . .”); Peck v. Employment Appeal Board, 492 N.W.2d 438, 439 (Iowa Ct. App. 1992) (“[A]sking what „shit jobs‟ were available.”); State v. Findling, 456 N.W.2d 3, 7 (Iowa Ct. App. 1990) (“I mean this is really big shit here.”); Wiysel v. William Penn College, 448 N.W.2d 712, 713 (Iowa Ct. App. 1989) (“[H]is words were so much „sanctimonious shit.‟”); and Blong v. Snyder, 361 N.W.2d 312, 314 (Iowa Ct. App. 1984) (“[They] told him the pieces he had run were all „shit.‟”). The remarkable versatility of the word “shit” is also demonstrated in George Carlin‟s “Filthy Words,” a verbatim transcript of which is set forth in full in the appendix to the United States Supreme Court‟s opinion F.C.C. v. Pacifica Foundation, 438 U.S. 726, 752-53, 98 S. Ct. 3026, 3042, 57 L. Ed. 2d 1073, 1094 (1978).
State v. Landis may be the last and best word on the inherent ambiguity of "sh*t." Read the full decision here.
Hat tip to Chris Wren.
It's OK for lawyers to monitor jurors social networking sites as long as they don't contact or "friend"
No subscribing to their Twitter accounts either. This from a New York County Lawyers Association Committee on Professional Ethics. Here's the digest:
It is proper and ethical under RPC 3.5 for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter accounts, send tweets to jurors or otherwise contact them. During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror, but must not "friend," email, send tweets to jurors or otherwise communicate in any way with the juror, or act in any way by which the juror becomes aware of the monitoring. Moreover, the lawyer may not make any misrepresentations or engage in deceit,
directly or indirectly, in reviewing juror social networking sites. In the event the lawyer learns of juror misconduct, including deliberations that violate the court's instructions, the lawyer may not unilaterally act upon such knowledge to benefit the lawyer's client, but must promptly comply with Rule 3.5(d) and bring such misconduct to the attention of the court before engaging in any further significant activity in the case.
You can access the full opinion here.
In related news, the San Diego Bar County Bar Legal Ethics Committee ruled that it is unethical for a lawyer to "friend" on Facebook a witness represented by an attorney.
Facebook, of course, is #1 while Myspace has fallen to #3. Anecdotally, LinkedIn seems to be more popular among white-collar professionals such as lawyers though the news story below doesn't say. From The Business Insider:
According to last month's comScore numbers, Myspace has fallen to the #3 social network spot in the US. It was finally overtaken by LinkedIn.
In June, LinkedIn had 33.9 million unique visitors, a 500,000 increase from May. Myspace dwindled to 33.5 million US visitors, a 1.4 million decrease from the month prior.
There is a semblance of hope for Myspace. CNN estimates that its active users still outnumber LinkedIn's by about 15 million. Its US traffic still trumps Twitter's too, which had 30.6 million monthly visitors last month.
But the way things are trending, it's only a matter of time before Myspace drops another slot.
Betsy Collins, a partner in the Mobile, Ala., office of Burr & Forman LLP, gives the following tips to help law clerks and new attorneys impress their supervisors:
- Turn in a draft that is as complete as possible;
- Think creatively and take initiative;
- “Don’t ever ask a partner a question that you could easily find out on your own.”
- “You need to read the case and know what the case says before you cite it.”
- Do not make inexcusable, careless mistakes such as citing overruled law. “This will get you into so much trouble in so many ways—with the partner you’re working for, with the client, with the court,” warns Collins. “The only thing you really have when starting out is your credibility, and if you lose it, it’s really hard to get back.”
- “Always understand the procedural posture of a case that you’re relying on. A decision may be less than meaningful if the procedural posture of a case is different than your own.”
- “Build rapport with the opposing counsel. Having a good relationship can make a difference if you find yourself in a lurch with a particular deadline or if you have a particular need.”
Hat tip @wiselawlibrary
Creating Emphasis I
Placement of words or ideas in a sentence affects emphasis. Words at the beginning and end of a sentence receive the most emphasis; words in the middle the least. Consider the following examples.
Lee Harvey Oswald, who was killed by Jack Ruby, assassinated President Kennedy.
The man who was killed by Jack Ruby, Lee Harvey Oswald, assassinated President Kennedy.
Jack Ruby killed the man who assassinated President Kennedy, Lee Harvey Oswald.
Jack Ruby killed Lee Harvey Oswald who assassinated President Kennedy.
President Kennedy was assassinated by Lee Harvey Oswald who was killed by Jack Ruby.
President Kennedy was assassinated by the man killed by Jack Ruby, Lee Harvey Oswald.
Each of these examples says the same thing, but each emphasizes a different noun. For example, in the first sentence, Lee Harvey Oswald is emphasized by placement at the beginning of the sentence. Jack Ruby receives the least emphasis because of placement in the middle of the sentence. With the possible exception of the passive sentences, no sentence is preferable. Rather, one should use the sentence that provides the emphasis the writer desires.
A review of a new book that challenges the rationale for tenure given the vocationalization of higher ed from Professor Stanley Fish via the New York Times:
In her new book, “The Faculty Lounges: and Other Reasons Why You Won’t Get the College Education You Paid For,” Naomi Schaefer Riley brings together two subjects that are usually treated separately in the literature.
The first is the increasing tendency, on the part of students, legislators, administrators and some faculty members, to view higher education in vocational terms and to link questions of curriculum and funding to the realization of career goals. The second is the debate about academic freedom: what is it, who should have it, should anyone have it? What Riley does is take the standard rationale for academic freedom seriously and then argue that the ascendancy of vocationalism, in combination with other factors she names, undermines that rationale and leaves very few college teachers in need of, or deserving of, academic freedom.
The standard rationale for academic freedom is that the business of the academy is to advance knowledge by conducting inquiries the outcomes of which are not known in advance. Since the obligation is to follow the evidence wherever it leads rather than to a “pre-stipulated goal” (a phrase Riley takes from my writings), researchers must be free to go down paths as they suggest themselves and not in obedience to a political program or an ideology. That is why (and again she is quoting me) “the degree of latitude and flexibility” that attends academic freedom is “not granted to the practitioners of other professions.”
But, Riley observes, “a significant portion of [the] additional degrees that colleges have added in the past few decades have been in vocational areas,” and those areas “simply do not engage students in a search for ultimate truths,” but instead have pre-stipulated goals. “Do we need,” she asks, “to guarantee the academic freedom of professors engaged in teaching and studying ‘Transportation and Materials Moving,’ a field in which more than five thousand degrees were awarded in 2006?”
Riley makes the same point about “vocational courses” that have been around for a while. Freshman composition, for example, “does not demand that faculty ask existential questions.” Ditto for courses in “Security and Protective Services,” and “Business Statistics.” These are, she says, “fields of study with fairly definitive answers” and it would be hard to argue that they are “essential to civilization.” Those who teach these and similarly vocational subjects “don’t really need the freedom to ask controversial questions in discussing them.”
Another category of courses that Riley believes does not merit academic freedom includes “area, ethnic, cultural, and gender studies.” Here the issue is not an absence of intellectual content, but an intellectual content that goes only in one (leftward) direction. Often, she complains, “the entire premise of the discipline … rests on a political agenda.” Courses “often appear to be a series of axes faculty would like to grind.” Since “the endpoint of their academic study is predetermined,” the departments that offer them “are advertising their lack of a need for academic freedom.”
Now, one might think that by looking askance at vocational and political instruction, Riley is calling for a return to traditional liberal arts education with its emphasis on open-ended inquiry and intellectual risk-taking. But in fact she is preparing the way for an argument against tenure.
It goes like this. Tenure, like academic freedom, depends on a certain picture of what goes on in college and university classrooms — high-level discussions tied to cutting edge research into intellectual problems. Tenure protects the freedom of instructors to engage in such research. But in many classrooms, dedicated to vocational or corporate or political goals, that’s not what’s going on, and the instructors who preside over those classrooms need neither academic freedom nor tenure. Only those engaged in the “search for ultimate truths” do.
But wait (I mimic the key moment in late-night infomercials), there’s more. So-called “advanced researchers,” who by this argument alone merit academic freedom and tenure, are churning out work with no connection to a real social need. Riley quotes approvingly the judgment of educational theorist Richard Vedder: “…most of the research done to earn tenure is darn near useless. On any rational cost-benefit analysis, the institution of tenure has led to the publication of hundreds of thousands of papers that are … read by a dozen people.”
So it turns out that the very people who, under traditional definitions and standards, would be protected by academic freedom and tenure, shouldn’t be in colleges and university classrooms in the first place because they are selfishly pursuing their own narrow interests and contributing little to the well-being of either students or society. The entire machinery of tenure is based on the imperative “to say something new,” but, Riley contends, there aren’t very many new things to say, especially in the humanities: “With thousands of PhDs being minted every year, topics are drying up by the minute.”
Wouldn’t it make more sense, Riley asks, to hire broadly educated persons who made no pretense of “advancing knowledge” to teach most of the courses? “Wouldn’t someone who has spent more time on that broad education and less time trying to find some miniscule niche on which to write a dissertation be the better teacher for most of those classes?”
In other words, let’s get rid of the research professors for whom academic freedom and tenure make some sense, at least historically, and have a teaching corps that understands itself to be performing a specific task (the imparting of basic skills to undergraduates) and can be held to account directly when their superiors determine that their performance is inadequate. In short, we need more instructors who don’t merit tenure, and once we have them Riley’s conclusion is inevitable: “There is no reason why tenure shouldn’t be abolished at the vast majority of the four thousand degree-granting colleges and universities in the United States.” There is no reason because every reason usually given in support of tenure and academic freedom has been shown to undermine itself in the course of this quite clever argument.
Continue reading here.
Suffolk University Law School located in downtown Boston is seeking to
add an IP transactional clinic to our robust clinical offerings. This
IP clinic will complement our nationally ranked IP program by giving
students the opportunity to engage in actual transactional work under
the guidance of a clinical instructor.
We are seeking a candidate who will develop and operate the IP clinic.
Candidates can be experienced clinical faculty members or
practitioners with a genuine interest in teaching. Candidates must be
a member in good standing of a state bar and have at least three years
of IP transactional experience. Teaching experience preferred but not
Please pass this on to anyone who might be interested.
If interested please send a cover letter and resume to [Email
Professor Andrew Beckerman-Rodau
Co-Director IP Concentration
Suffolk University Law School
120 Tremont Street – Suite 340A
Boston, MA 02108
You can also contact Professor Jeff Pokorak, Director of Clinical
Programs, for additional information on our clinical programs:
Professor Jeff Pokorak
Director Clinical Programs
Suffolk University Law School
120 Tremont Street – Suite 190D
Boston, MA 02108
Tuesday, July 12, 2011
A post from JD Supra discusses best practices for social medial use at work.
The post links to a useful checklist “prepared by the legal experts at the Practical Law Company [that] outlines best practices for a company to consider to avoid legal pitfalls when using social media in its business strategy.” The advice includes creating a detailed and clear policy in writing; providing guidance to social media users on the company policies; and not imposing unnecessary or impractical restrictions. The full checklist can be accessed here.