Monday, August 8, 2011

Lawyers Should Model Civility

Thomson Reuters News & Insights reports that U.S. Supreme Court Justice Stephen Breyer, as the keynote speaker of the ABA annual meeting, focused on the concept of civility.  See the full post here.

"Every one of us is in a position to teach the importance of civility, education and the rule of law," said Breyer….Breyer, entertaining in front of the crowd of about 1,000, said that discourse may be less than polite inside the Beltway of late, but the nine high court justices remain courteous to one another -- even when faced with sharply diverging points of view.
"I've never heard a voice raised in that conference room in 17 years," Breyer said.

Food for thought as we begin a new academic year.


August 8, 2011 | Permalink | Comments (0)

Legal services sector rebounds by adding 4,000 jobs in July

From AmLaw Daily:

The legal industry rebounded sharply last month, adding 4,000 new jobs after dropping 2,900 in June, according to preliminary figures released Friday by the Bureau of Labor Statistics.

The robust July figure--which arrived on the heels of a major stock market decline and accounted for seasonal adjustments such as summer employment--offset a weak first half of the year on the hiring front.

According to the latest adjusted BLS figures, the legal industry has suffered through a see-saw first six months of 2011, adding 1,400 jobs in January; losing 1,600 in February; losing 1,400 more in March; losing another 900 in April; adding 2,300 in May; and losing 2,900 in June.

Adding in July's estimated gains, the economy has created a projected total of 900 legal jobs so far this year, according to the BLS. In the past 12 months, 3,400 new legal jobs have been added, due in large part to steady hiring between August and November 2010.

July saw the legal industry outperform the broader U.S. economy, which, after making only modest gains in May and June, added an estimated 117,000 jobs during the month. The additional jobs lowered the nation's unemployment rate slightly, from 9.2 percent to 9.1 percent.


August 8, 2011 | Permalink | Comments (1)

New Book: Law and Human Behavior

Vandeplas Publishing has just published my book, Law and Human Behavior: A Study in Behavioral Biology, Neuroscience, and the Law.  The book is available at
Behavioral biology and neuroscience are the next frontiers for legal thought. In the next few years, behavioral biology and neuroscience will become as important for the analysis of law as economics has been for the last several decades. In this book, Professor Fruehwald presents the general principles of behavioral biology and neuroscience, then applies these principles to topics in the law. He believes that there was a nascent legal system on the savannah, where innate behavioral rules were enforced by devices such as force, reputation, and ostracism. Among the topics he explores are the use of behavioral biology and neuroscience to critique Postmodern Legal Thought, reciprocal altruism as the basis for contract, a biological basis of rights, and how behavioral biology can be used to analyze constitutional cases. He concludes by showing why it is important to base law on a correct view of human nature.

August 8, 2011 | Permalink | Comments (0)

Bryan Garner's Dictionary of Legal Usage (3d Ed.)

Head over to the Law Librarian Blog to get Mark Giangrande's full review. In the meantime, here's a taste (or click on the link and get yourself a copy):

Oxford University Press sent a review copy of Garner’s Dictionary of Legal Usage 3d Edition recently.  I’ve been paging through this marvelous resource regularly, which is not something I would normally do with a dictionary.  In fact, calling the book merely a dictionary is really a disservice to it.  Bryan A. Garner is known as the general editor of Black’s Law Dictionary (latest, 9th ed., West 2009) and the author of many other titles that focus on writing.  He contributes, for example, to the latest edition of the Chicago Manual of Style (University of Chicago Press 2010) on grammar and usage, and is co-author (with Justice Antonin Scalia, no less) of Making Your Case:  The Art of Persuading Judges (West 2008).  Garner sports close to 300 entries in WorldCat for titles associated with legal writing and usage in one form or another.  The one exception I see is The Rules of Golf in Plain English (University of Chicago Press 2004).  With Garner’s credentials firmly established, let’s look at the Dictionary of Legal Usage 3rd.

Anyone familiar with the style of the Oxford English Dictionary should feel comfortable with the presentation in this title.  There are similar levels of detail, though no so extensive as to get lost in the historical usage of words.  One of the things I like is where Garner makes precise distinctions between possible word choices.  Take the entry for "exculpate," where the terms exonerate, acquit, absolve, and vindicate may share some common general meaning but do not mean exactly the same thing.  Here is the entry:

exculpate; exonerate; acquit; absolve; vindicate.These verbs share the sense “to free from a charge or blame, esp. as a result of an authoritative finding.”  To exculpate is simply to clear from all blame – traditionally in a matter of no great seriousness, but today increasingly in matters of serious gravity <DNA evidence ultimately exculpated him and saved him from the death sentence>.  To exonerate, literally speaking, is to free from an onus; the words can be used in civil contexts not involving allegations of wrongdoing <the release exonerated all liens>, but more often today it implies such a thorough contradiction of guilt that all imputations of blame are wiped away <he was exonerated when three witnesses corroborated his alibi>. (See exonerate.)  To acquit is to have a definite finding of “not guilty” by a jury.  Suspicion of blameworthiness may indeed linger in a moral sense, but no longer in a legal sense <the jury acquitted the defendant as a result of the bolloxed prosecution>.  (On the use of this word in a civil context, see acquit (A).)  To absolve suggests a discharge from all obligations and penalties – often in the form of a formal release or an explicit judicial finding.  (See absolve & release.)  To vindicate is to clear (either the person or the person’s actions) from all censure <the defendant’s investment strategies were vindicated in the end>.  Vindicate is alone among these synonyms in possibly referring not just to people but to things as well.  For an additional sense of vindicate, see vindicate.


August 8, 2011 | Permalink | Comments (0)

Hey, kid. Wanna be a law prof?

Then check this out.

If you are considering going on the AALS job market this year or in the near future, please consider attending the Aspiring Law Professors Conference at the Sandra Day O’Connor College of Law at Arizona State University.  The conference is designed for those seeking to go on the academic teaching market and provides insight on the AALS hiring process (how to maximize your FAR form, interviewing at AALS), give you the insider’s perspective on the appointments process, provide advice about breaking into the academic job market (through AALS or other avenues—such as adjuncts, clinical instruction), and give you the opportunity to participate in a mock interview or mock job talk and get feedback. 

The conference will be held on Saturday, September 10, 2011.  The featured speaker will be Eugene Volokh, Gary T. Schwartz Professor of Law at UCLA School of Law.  There will also be a number of other speakers from a variety of law schools. 

Please visit for more information about the conference and to register.  If you are not on the market, please pass this information along to anyone who may be interested.

Hat tip to Professor Kimberly Holst.


August 8, 2011 | Permalink | Comments (0)

Sunday, August 7, 2011

Which Law Schools Produce the Most Big Law Partners?

I copy this from the Tax Prof  Blog (Aug. 4):

Tax Prof Theodore P. Seto (Loyola-L.A.) has posted Where Do Partners Come From? on SSRN. Here is the abstract: Which law schools produce the largest numbers of partners at national law firms? This article reports the results of a nationwide study of junior and mid-level partners at the 100 largest U.S. law firms. It identifies both the top 50 feeder schools to the NLJ 100 nationwide and the top 10 feeder schools to those same firms in each of the country’s ten largest legal markets. U.S. News rank turns out to be an unreliable predictor of feeder school status. Hiring and partnering by the NLJ 100 are remarkably local; law school rank is much less important than location. Perhaps surprisingly, Georgetown emerges as Harvard’s closest competitor for truly national status. (I would also add that you have to consider the population of the law schools; you might expect more partners from the larger schools (LJS))

Rank  School  (1986- Partners in the NLJ 100)
1      Harvard (946)
2      Georgetown (729)
3      NYU (543)
4      Virginia (527)
5      Columbia (516)
6      G. Washington (447)
7      Michigan (444)
8      Chicago (426)
9      Texas (384)
10    Northwestern (365)
11    Pennsylvania (329)
12    Boston U. (317)
13    Fordham (306)
14    UC-Berkeley (287)
15    UCLA (257)
16    Yale (253)
17    Stanford (240)
18    UC-Hastings (233)
19    Duke (219)
20    Boston College (213)
21    Cornell (204)
22    Vanderbilt (186)
23    Illinois (183)
24    American (179)
25    Loyola-L.A. (162)
26    Miami (160)
26    Temple (160)
28    Notre Dame (159)
29    Florida (154)
29    Loyola-Chicago (154)
31    Houston (153)
32    USC (151)
33    Washington U. (149)
34    Emory (148)
35    Villanova (137)
36    Catholic (135)
37    DePaul (134)
38    SMU (132)
39    Minnesota (130)
39    Pittsburgh (130)
41    Tulane (125)
42    St. John’s (121)
42    Wisconsin (121)
44    Brooklyn (119)
45    Chicago-Kent (111)
46    North Carolina (109)
47    Maryland (105)
48    William & Mary (104)
49    Georgia (99)
50    Ohio State (96)
51    San Diego (94)
52    Santa Clara (93)
53    Iowa (91)
54    Hofstra (89)
55    Kansas (87)
56    Case Western (86)
57    Indiana-Bloomington (85)
58    Suffolk (81)
58    Syracuse (81)
60    Rutgers-Newark (80)
60    Rutgers-Camden (80)
62    New York Law School (78)
63    Cardozo (77)
64    George Mason (76)
64    Missouri-Columbia (76)
64    San Francisco (76)
67    St. Louis (75)
67    Washington & Lee (75)
69    John Marshall (74)
70    Widener (71)
71    Pepperdine (66)
72    Seton Hall (65)
73    South Texas (62)
73    Wake Forest (62)
75    Albany (61)
75    UC-Davis (61)
75    University of Washington (61)

(ljs) (Thnx to Jim Maule)


August 7, 2011 | Permalink | Comments (0)

South Dakota S. Ct. holds "Happy B-day" greeting to judge via Facebook is not an ex parte communication

The issue arises out of a case in which a state employee sought a new trial in his wrongful termination case based on a "Happy Birthday" message sent by a defense witness via Facebook to the presiding judge. The South Dakota Supreme Court held that the trial judge was not required to recuse himself, hence the plaintiff was not entitled to a new trial, because the communication did not relate to the subject matter of the lawsuit.  Here's the pertinent part of the decision from Onnen v. Sioux Falls Independent Sch Dist. # 49-5, 2011 S.D. 45:

Onnen [the plaintiff in the wrongful termination case] moved for a new trial based on “ex parte communications Judge Srstka had received from a major witness [Rokusek] for the Defendant.” Rokusek posted a message on Judge Srstka’s Facebook page wishing him a happy birthday in Czech. The Facebook post occurred while this case was pending but before Rokusek testified. Onnen also argues that Judge Srstka should have recused himself because two relatives within the third degree of relationship were employees of the District.

Judge Srstka then heard and denied Onnen’s motion for a new trial. He noted that he was not biased by any ex parte communication by Rokusek wishing him a happy birthday on his Facebook page.

The District argues that the Facebook post was not, by definition, an “ex parte communication”  because it was not related to any court action. Rather, it was only incidental contact between Judge Srstka and a witness and was not related to the case itself. The District is correct. Canon 3(B)(7) of the Code of Judicial Conduct provides that a “judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . .”

SDCL 16-2-appx-c3(B)(7) (emphasis added). The plain language of Canon 3(B)(7) indicates that ex parte communications are a violation of the Canon when they concern “a pending or impending proceeding” and are not otherwise allowed. Onnen makes no allegation that the Facebook post in any way concerned his proceeding.

Even if the Facebook post was considered an ex parte communication, Onnen still cannot demonstrate that it warrants a new trial. In State v. Thorsby, 2008 S.D. 100, 757 N.W.2d 300, we considered an ex parte communication allegation where a clerk improperly placed a note in the defendant’s file regarding her conduct towards the clerk. The note amounted to an ex parte communication to the judge. Id. , 753 N.W.2d at 304. We stated that “where an ex parte communication is not invited or initiated by the judge, reversible error occurs only if the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence appears with reasonable certainty.” Id. (citing O’Connor v. Leapley, 488 N.W.2d 421, 423 (S.D. 1992)).

In this case, Judge Srstka did not invite or initiate the Facebook post by Rokusek. Judge Srstka noted that the post was only one of many and that he did not personally know Rokusek. Furthermore, Judge Srstka did not connect the post to Rokusek even after he testified. Judge Srstka also stated that “Rokusek’s message is not related to this case, and it did not affect my decision-making, as I did not know it occurred.” The post did not relate to any facts regarding the case and certainly not to any facts Onnen would need to rebut. Also, there is no indication in the record that Judge Srstka was improperly influenced by the post.

You can read the full decision here.

Hat tip to Professor Roger Baron.


August 7, 2011 | Permalink | Comments (0)

New York bar leaders ask ABA to help make law students "practice ready"

From the New York Lawyer:

Arguing that in addition to knowing the law attorneys must "know how to do useful things with the law to help solve client problems," New York bar leaders are pressing for a greater emphasis on making law school graduates and young attorneys "practice ready."

The New York State Bar Association is urging the American Bar Association, which convenes its annual meeting today in Toronto, to evaluate the legal education protocol with an eye toward "enhancing clinical work and supervised activities such as meeting with clients inside and outside the clinical setting and in court, and developing capstone courses."

A draft resolution submitted to the ABA's House of Delegates calls on several of the ABA's constituent bodies—the Center for Legal Education, the Center for Professional Responsibility, the Section of Legal Education and Admissions to the Bar, the Committee on CLE, the Committee on Ethics and Professional Responsibility and the Committee on Law School Accreditation—to "consider the requirements for the success of future lawyers as they carry out their responsibilities."

"Legal education should have more of an emphasis on making sure graduates are ready to practice law," State Bar President Vincent E. Doyle III of Connors & Vilardo in Buffalo said in an interview yesterday. "It is something that has been de-emphasized, and it shows. Our research and our own experience show that graduates are less prepared to practice law. The design is to encourage law schools to make that a focus, not the sole focus, but we do think it is important to point out to the legal community that this should be a priority in their curriculum."

The resolution is directly rooted to the "Report on the Task Force on the Future of the Legal Profession" issued under the past state bar president, Stephen P. Younger of Patterson Belknap Webb & Tyler, and historically rooted in a 1992 ABA report commissioned by then-ABA President Robert MacCrate, the last New York attorney to head the ABA. The MacCrate report, a seminal critique of U.S. legal education, urged a more practice-oriented, as opposed to theory-oriented, approach.

The state bar revisited the precepts of the MacCrate report and concluded that while legal education and post-graduate training have improved markedly since 1992, "too many law students and recent graduates are not as well prepared for the profession as they might be."

"We used to think that being a good lawyer simply meant knowing the law," Messrs. Doyle and Younger said in a report submitted to the ABA. "Today, we are more likely to think that good lawyers know how to do useful things with the law to help solve client problems. …Accreditation rules should emphasize how to apply theory and doctrine to actual practice, as well as encourage the process of developing professional judgment. These are critical skills that all newly admitted lawyers should have as they embark on their legal careers."

The state bar's resolution does not suggest specific changes to the law school curriculum. Rather, it is a general call to revisit the issues raised by the MacCrate commission to ensure that the expectations of law clients are addressed in legal education and training.

"Too many law students and recent graduates are not as well prepared for the profession as they might be," the state bar said in a summary of its one-page resolution. "Law schools, bar examiners, the judiciary and the bar owe more to our young colleagues in these difficult times. This resolution is intended to cause those involved in legal education to address these issues, find solutions and revise legal education to meet these needs."

John DeNatale, director of communications and public affairs at the Benjamin N. Cardozo School of Law, said the school is supportive of efforts to better prepare lawyers.

"We see the call to be practice-ready as a reflection of profound changes in the legal world," Mr. DeNatale said. "As business models, cultural standards and institutions undergo transformations, lawyers must be innovative problem-solvers."

Mr. DeNatale said Cardozo Law has 17 in-house clinics and recently created a new position of director of externships.

"All this is an important complement to intensive in-class learning," Mr. DeNatale said. "In the classroom, students engage in doctrinal analysis of cases. In the field, they apply those abilities to complex, fact-rich situations representing actual clients. …As students develop critical problem-solving skills interacting with clients, they become powerful advocates."

Richard A. Matasar, dean and president of New York Law School, agrees that graduates need to be practice ready.

"There is going to be a push toward more practice readiness at most law schools," he said. "It is driven by the market. We need to send our graduates out in a way that makes them more effective, and the schools recognize that."

Mr. Matasar, however, cautioned that each law school's mission is different and said he would oppose any attempt to interfere with the autonomy of the schools to fashion their curriculum to the needs of their students.

"Some schools may see their role as having to produce practice-ready graduates because they may be joining smaller firms and others may see their graduates as going to larger firms where there may be more opportunity for [on the job] training," Mr. Matasar said.

Stewart J. Schwab, dean of the Cornell Law School, also cautioned against a "one-size-fits-all mandate."

"It must be recognized that clinical education, because of the necessarily low student/teacher ratios, is the most expensive form of legal education, and that the benefits of this type of education must be compared to its cost," Mr. Schwab said. "In addition, one danger with some discussions of clinical or skills training is that they focus on skills for a litigation-based practice, ignoring the rather different skills and training needed for a transaction-based practice."

Mr. Doyle stressed that the state bar's resolution does not call for any regulatory changes or mandates on the law schools.


August 7, 2011 | Permalink | Comments (0)