July 25, 2011
Course Pack Alternatives
I am a firm believer that more professors/adjuncts should be citing to or linking to library resources in lieu of a course pack. I would argue that most, if not all, of the content in the course pack that you are asking a student to purchase, could be found in library databases. Asking our students to retrieve the information from a database would reinforce their research skills and would also save the university copyright permission costs.
Your librarians can help provide durable links to database content to embed into your Blackboard or other course site. Many free resources also allow durable or permalinks. For example, Thomas.gov allows durable linking to congressional resources.
When you are planning your course content, contact your librarian for assistance with embedding library resources. It will save your students money and get the content to them in their preferred format – online for “free”.
Editorial: A Response to Bryan Garner
My co-blogger Jim Levy has posted here about an article in the New York Times by Bryan Garner, which was part of a series of articles concerning whether a third-year of law school is necessary. While I think that Mr. Garner makes several good points, his article is incomplete, and, thus, it might be misleading to some readers.
He states: "The biggest failure at most law schools is the dearth of seriously good skills courses, especially training in legal writing." What he neglects to say is that all law schools have a first-year legal writing program, which is usually staffed by highly-trained, dedicated teachers.
He also writes: "Law schools generally reward scholarship, not teaching excellence, and there is a built-in bias against one-on-one teacher-student time." I agree that one-on-one teacher-student time is vital for students and that law schools need to provide much more one-on-one time. However, he neglects to point out that one-on-one time is an important part of first-year legal writing. Legal writing teachers generally spend much more time with their students than any other teacher in the law school.
He also declares: "On top of that, lawyers of all kinds -- both academic lawyers and practicing ones -- rationalize their linguistic ineptitude by claiming that legal jargon is necessary (most of it isn’t); that writing instruction is elementary, remedial stuff (it should progress to advanced techniques); and that writing style doesn’t matter anyway." Academic lawyers have not done this for many years. The movement in law school legal writing programs is for clear writing, and this also applies to most other professors. Moreover, my experience working for two large law firms for five years in the early 90s leads me to believe that most lawyers also want clear legal writing.
He concludes: "For starters, the second and third years of law school ought to include much more research, writing and editing, with three to six short papers required in each course. . . Each paper should be subjected to rigorous editing, then rewritten and resubmitted." I strongly agree with this comment. Although most law schools require two advanced writing projects, these projects are generally in scholarly writing, and they often do not receive enough supervision. If a student does not use his legal writing skills, they will atrophy. However, I should note that most law schools have advanced skills offerings, including clinics, and many require one advanced skills course.
In sum, I agree with Mr. Garner that law schools need to offer more writing opportunities and more skills courses to their students. However, we cannot ignore what law schools are already doing and the many professionals who have brought about those changes and who are working for even more change.
Bryan Garner in the NYT about why law schools should include significant writing in all three years
My co-blogger Professor Fruehwald reported here on a series of editorials in last Friday's paper opining on the need for a third year of law school. One of the people asked to weigh-in is Bryan Garner. Here's what he had to say about the importance of writing to a good legal education:
The biggest failure at most law schools is the dearth of seriously good skills courses, especially training in legal writing. Law schools generally reward scholarship, not teaching excellence, and there is a built-in bias against one-on-one teacher-student time. Too often the only feedback a student gets from a professor is a single letter grade after the final exam. Now add this: of all law-school courses, legal writing is both the single most time-intensive subject and the least respected.
Most legal scholarship is poorly written and is mired in nonpractical abstraction that few can understand and fewer still can benefit from. Most law professors don’t know how to write well, so they could hardly teach the subject if they wanted to. On top of that, lawyers of all kinds -- both academic lawyers and practicing ones -- rationalize their linguistic ineptitude by claiming that legal jargon is necessary (most of it isn’t); that writing instruction is elementary, remedial stuff (it should progress to advanced techniques); and that writing style doesn’t matter anyway. But it does matter: clear writing equates with clear thinking, and judges and employers cry out for both. Put all these things together, and you have serious educational pathologies.
So what’s the cure? For starters, the second and third years of law school ought to include much more research, writing and editing, with three to six short papers required in each course (not, as is the standard, one “major” research paper during the whole three years). Each paper should be subjected to rigorous editing, then rewritten and resubmitted. (This is perfectly doable. I've done it for classes of 30 at the University of Texas and at Southern Methodist University.) Law schools should get their priorities straight and better meet the needs of their students’ future employers.
Read the remained of Mr. Garner's comments here.
Bibliography of recent scholarship on the legal profession - Part 5 on attorney's fees
Here's the fifth installment from Bobby Click, Recent Law Review Articles Concerning the Legal Profession, 35 J. Legal Prof. 173 (2010). Part 1 of this biblio can be found here, Part 2 here, Part 3, here and Part 4, here.
5. Attorney's Fees
Matthew Albanese, Reasonably Untimely: The Difficulty of Knowing When to File a Claim for Attorney Fees in Social Security Disability Cases, and an Administrative Solution, 78 GEO. WASH. L. REV. 1014 (2010).
Victoria L. Collier & Drew Early, Cracks in the Armor: Due Process, Attorney's Fees, and the Department of Veteran Affairs, 18 ELDER L.J. 1 (2010).
Adam Shajnfeld, A Critical Survey of the Law, Ethics, and Economics of Attorney Contingent Fee Arrangements, 54 N.Y.L. SCH. L. REV. 773 (2010). This article offers a comprehensive overview of contingency fee arrangements. Including a discussion of the historical development of the arrangements, justifications for the arrangements, rules governing arrangements, and various proposals of reform. [*182]
Stephen E. Friedman, Giving Unconscionability More Muscle: Attorney's Fees a Remedy for Contractual Overreaching, 44 GA. L. REV. 317 (2010). This article focuses on contractual unconscionability. Specifically, the author contends there are inadequate remedies available for victims of contractual unconscionability. The author also suggests giving the courts the ability to award attorney fees in situations of contractual unconscionability to help prevent it in the future.
Brett E. Heyman, Administrative Law - Government Agency Withholding Information, Reimbursing Attorney Fees - Davy v. Central Intelligence Agency, F.3d 1155 (D.C. Cir. 2008), 43 SUFFOLK U. L. REV. 501 (2010).
Philip Talmadge, Emmelyn Hart-Biberfeld & Peter Lohnes, When Counsel Screws Up: The Imposition and Calculation of Attorney Fees as Sanctions, 33 SEATTLE U. L. REV. 437 (2010).
Eyal Zamir & Ilana Ritov, Revisiting the Debate over Attorney's Contingent Fees: A Behavioral Analysis, 39 J. LEGAL STUD. 245 (2010). This article presents a series of experiments that were designed to reveal people's preferences regarding attorneys' fees.
More on the one-space, two-space controversy
A lot of ink, um, I mean electrons have been spilled over whether you should put one space or two at the of end of a sentence before starting the next. First Slate.com weighed in (here and here) now comes 3 Geeks and a Law Blog which describes different approaches depending on the medium (smartphone, website, legal document, etc.). The consensus seems to be that one space is correct (notwithstanding your default settings to the contrary) though I doubt anyone has ever lost a case because they used two.
After attending a 4-hour grammar class--yes, I know, I am a geek--I was heartened to witness that there are those still out there who are positively impassioned about punctuation.The class erupted in a thirty-minute discussion on--get this--how many spaces should follow a period.Good grief.You would have thought we were talking about which soda as better: Pepsi or Coke. No fewer than thirty-five people weighed in on the matter. These were their thoughts:
- If you are typing on a typewriter (and, really, who does this?), it is two spaces.
- If you are tweeting, it is one space--if you have even written a complete sentence, that is.
- If it is a legal document, it is two spaces.
- If it is a mobile device, most phones automatically make it a period followed by one space, if you enter two spaces.
- If it is web copy, it is one space.Finally, after nearly coming to fisticuffs, the consensus was to use one space after a period.Geez. You woulda thought it was the Grammargeddon.
July 24, 2011
Using Secondary Sources to Enable Fact Finding by Appellate Courts
In the Legal Intelligencer, Bruce Merenstein explains how appellate courts can use secondary sources to accept facts that were never in the trial record. Here is an example from Sykes v. United States, holding that an Indiana statute criminalizing vehicular flight from a law enforcement officer as a violent felony:
In his opinion for five of the justices in the majority, Justice Anthony M. Kennedy contended that statistics on the dangers of fleeing from police in a vehicle, as well as on injuries arising from other violent felonies listed in the ACCA, "confirm the commonsense conclusion that Indiana's vehicular flight crime is a violent felony." In support of this contention, Kennedy cited statistics from a number of recent studies by the International Association of Chiefs of Police, the Bureau of Justice Statistics, and the U.S. Fire Administration, as well as additional statistics from a concurring opinion by Justice Clarence Thomas.
None of these statistics were in the trial record.
ABA considers changing accreditation standard requiring schools to increase bar pass rates
The present standard requires that 75% of a school's graduates to pass the bar exam in at least three of the past five years. The standard can also be met if the pass rate for first-time takers is no more than 15% below the average pass rate in that state for three of the past five years. The proposed standard would raise those rates to 80% and 10%, respectively. The Standards Review Committee is considering the change in response to concerns that the present rule doesn't offer enough protection to students and will force schools to do a better job preparing them for the bar. However, there are concerns that the proposal will adversely affect minority students.
From the National Law Journal:
The organization is trying to reconcile the legal profession's need for greater diversity with its desire to push law schools to better prepare students to pass the bar. For the second time in four years, it is considering raising the minimum bar-passage-rate requirement as part of a comprehensive review of law school accreditation standards.
Diversity advocates mobilized against the push in 2007 out of fear that it would discourage schools from accepting students -- often from disadvantaged backgrounds -- with lower credentials but high potential. Once again, they are gearing up for a fight. "I don't think any of the previous arguments have gone away," said Ngai Pindell, a professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas and a board member of the Society of American Law Teachers, which opposes any change. The organization "is still concerned with the possible effects on curriculum and on diversity."
. . . .
The hope is that higher standards would push schools with lower passage rates to invest more in academic support and bar preparation, [Santa Clara Dean Don] Polden said [He is chair of the Standards Review Committee]. They also would serve a consumer-protection function, assuring law students a reasonable expectation of passing the bar.
You can read more reporting here.
Another reason to banish jargon from your writing
The best reason is that it makes your writing ponderous (in the worst cases, indecipherable). Now this study conducted by NYU and a Swiss University finds that jargon also makes your audience think you're lying. Not good.
In four experiments, the impact of concreteness of language on judgments of truth was examined. In Experiments 1 and 2, it was found that statements of the very same content were judged as more probably true when they were written in concrete language than when they were written in abstract language. Findings of Experiment 2 also showed that this linguistic concreteness effect on judgments of truth could most likely be attributed to greater perceived vividness of concrete compared to abstract statements. Two further experiments demonstrated an additional fit effect: The truth advantage of concrete statements occurred especially when participants were primed with a concrete (vs. abstract) mind-set (Experiment 3) or when the statements were presented in a spatially proximal (vs. distant) location (Experiment 4). Implications for communication strategies are discussed.Apparently the use of business jargon is more likely to make people think you're lying. According to BNet, "the study is out of New York University and a Swiss university and shows that when you want to seem believable and trustworthy, concrete language is the way to go."
Business-speak What people who aren't liars say
"Reach out" "Talk to/phone/e-mail/send carrier pigeon to"
"Deep dive" "Instead of doing our usual half-assed job, we took the time
to investigate properly"
"Deliverables" "Mundane tasks I am responsible for completing"
"Ballpark" "I have no idea. But here's a guess"
"Let's take this offline" "Let's talk about this after the meeting, so we don't
embarrass ourselves in front of the boss/waste everyone else's time"
Hat tip to the Careerist at lawjobs.com.
College and grad students use internet more than general population
That's according to this study by the Pew Internet Center. High usage among college and grad students is driven in part because of laptop ownership (presumably purchased in connection with attending school). From the introduction:
When it comes to general internet access, young adults of all stripes are much more likely than the general population to go online. Fully 92% of 18-24 year olds who do not attend college are internet users, comparable to the rate for community college students and just slightly lower than the rate for undergraduate and graduate students (nearly 100% of whom access the internet).
Undergraduate and graduate students differentiate themselves more clearly when it comes to home broadband access, as more than nine in ten undergraduate (95%) and graduate students (93%) are home broadband users—well well above the national adult average of 66%.
Community college students (78% of whom are home broadband users) and young non-students (82% of non-students in the 18-24 age cohort are home broadband users) adopt broadband in comparable numbers—both have higher adoption rates than older adults but lower adoption rates than students in undergraduate or graduate institutions.
When it comes to accessing the internet on a mobile device such as a laptop or cell phone, young non-students (79% of whom are wireless users) are a bit less likely to go online wirelessly than either undergraduate or graduate students, but notably more likely than the overall adult population to do so. These differences in wireless usage between students and non-students are largely driven by differences in laptop computer ownership.
Hat tip to Chronicle of Higher Ed.