Saturday, December 10, 2011
New practice-related scholarship: "The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study"
Has legal scholarship really lost touch with the practice of law? By one measure - no - according to this article by Professors David L. Schwartz (Chicago-Kent) and Lee Petherbridge (Loyola-L.A.) available at 96 Cornell L. Rev. 1345 (2011) and SSRN, here. From the abstract:
Chief Justice Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not “particularly helpful for practitioners and judges.” Chief Justice Roberts’s criticism echoes that made by other judges, some of whom, like Judge Harry Edwards, have been much more strident in the contention that legal scholarship is largely unhelpful to practitioners and judges. Perhaps inspired by criticisms like those leveled by Chief Justice Roberts and Judge Edwards, legal scholars have sought to investigate the relevance of legal scholarship to courts and practitioners using a variety of means. One avenue of investigation has been empirical, where several studies, using different, and sometimes ambiguous, methodologies have observed a decrease in citation to legal scholarship and interpreted the observation to mean that legal scholarship has lost relevance to courts and practitioners.
The study reported here examines the hypothesis that legal scholarship has lost relevance to courts. Using empirical techniques and an original dataset that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the United States circuit courts of appeals over the last 59 years. It finds a rather surprising result. Contrary to the claims of Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last 59 years there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit courts of appeals. Using empirical and theoretical methods, this study also considers explanations for courts’ increased use of legal scholarship.
At the Careerist blog, Nelson Miller, Dean of Cooley Law School’s Grand Rapids campus says yes. And he backs up his argument with an armload of statistics. Here is one excerpt:
Despite the recession and current job-market conditions, employment of recent law graduates has been relatively strong. Over the past ten years, recent graduates who are unemployed but not seeking employment has run between 1.7 percent and 3.2 percent, with a median of 2.2 percent. When calculating unemployment rates, the Bureau of Labor Statistics excludes those not seeking employment. Using the BLS approach and data, unemployment rates of recent law graduates were 5.3 percent in 2001 and 6.1 percent in 2002. Those rates then declined to 2.7 percent in 2006 before rising in 2007 to 4.1 percent. In 2008, the rate rose to 5.4 percent and then to 6.0 percent in 2009 and 6.2 percent in 2010.
These figures are all well below the national unemployment rate that reached 9.6 percent in 2010. They are also figures for the most recent entrants into the law field. Keep in mind that lawyer unemployment in 2010 was just 1.5 percent. Probably, no field of recent college graduates fares significantly better than law graduates do. Critics assert that recent law graduates find more work in nonprofessional fields. Yet in 2010, only 1.9 percent of 2010 graduates with known employment status reported nonprofessional employment, up by only 0.6 percent from 2007. Nonprofessional employment varied little in the past ten years, starting at 1.5 percent in 2001 and never exceeding 1.9 percent.
Friday, December 9, 2011
In a special section of Science Times in the New York Times this past Tuesday, Professor Daphne Koller, of Stanford University’s Artificial Intelligence Laboratory, touts technology as the way to increase the availability and affordability of individualized education:
How can we improve performance in education, while cutting costs at the same time? In 1984, Benjamin Bloom showed that individual tutoring had a huge advantage over standard lecture environments: The average tutored student performed better than 98 percent of the students in the standard class.
Until now, it has been hard to see how to make individualized education affordable. But I argue that technology may provide a path to this goal.
Consider the success of the Khan Academy, which began when Salman Khan tried to teach math remotely to his young cousins. He recorded short videos with explanations and placed them on the Web, augmenting them with automatically graded exercises. This simple approach was so compelling that by now, more than 700 million videos have been watched by millions of viewers.
At Stanford, we recently placed three computer science courses online, using a similar format. Remarkably, in the first four weeks, 300,000 students registered for these courses, with millions of video views and hundreds of thousands of submitted assignments.
. . . .
. . . [P]resenting content in short, bite-size chunks, rather than monolithic hourlong lectures, is better suited to students’ attention spans, and provides the flexibility to tailor instruction to individual students. Those with less preparation can dwell longer on background material without feeling uncomfortable about how they might be perceived by classmates or the instructor.
. . . In short, everyone has access to a personalized experience that resembles individual tutoring.
. . . .
For many types of questions, we now have methods to automatically assess students’ work, allowing them to practice while receiving instant feedback about their performance. With some effort in technology development, our ability to check answers for many types of questions will get closer and closer to that of human graders.
. . . .
Some argue that online education can’t teach creative problem-solving and critical-thinking skills. But to practice problem-solving, a student must first master certain concepts. By providing a cost-effective solution for this first step, we can focus precious classroom time on more interactive problem-solving activities that achieve deeper understanding — and foster creativity.
Daphne Koller, “Death Knell for the Lecture: Technology as a Passport to Personalized Education,” N.Y. Times, December 6, 2011.
Mercer University Law School is launching an innovative LL.M in federal practice and procedure. Here is the announcement:
The LL.M. in Federal Criminal Practice and Procedure is the only program in the nation designed for law school graduates seeking to prepare themselves for federal criminal practice as a prosecutor, Federal Defender, or private defense counsel.
The unique curriculum, designed and taught by a faculty with substantial experience in both federal criminal practice and legal education, focuses on preparing students for federal criminal practice in the full range of federal cases, from “white collar crime” cases to narcotics, firearms, immigration, and terrorism cases. The program employs a variety of instructional methods, including simulation exercises, a clinical field placement, writing assignments, and classroom instruction. The depth and breadth of the course work exceeds and complements the coverage of federal criminal practice typically offered by J.D. programs.
Here is the link.
Thursday, December 8, 2011
Strengthen your public speaking skills, whether in court or the classroom, by banishing verbal "fillers." From the Harvard Business Journal blog, with a nod to Strunk and White:
One trend I've noted recently is the expression, "Does that make sense?" often used by a speaker during a conversation — or a presenter during a presentation — to check whether the listener or audience has understood or appreciated what the speaker has just said. Unfortunately, the expression has two negative implications:
• Uncertainty on the part of the speaker about the accuracy or credibility of the content
• Doubt about the ability of the audience to comprehend or appreciate the content.
"Does that make sense?" has become so pervasive, it joins the ranks of fillers, empty words that surround and diminish meaningful words, just as weeds diminish the beauty of roses in a garden. Most speakers are unaware that they are using fillers, and most audiences don't bother to think of their implications. The phrase has attained the frequency — and meaninglessness of:
• "You know..." as if to be sure the listener is paying attention
• "Like I said..." as if to say that the listener didn't understand
• "Again..." as if to say that the listener didn't get it the first time
• "I mean..." as if to say that the speaker is unsure of his/her own clarity
• "To be honest..." as if to say the speaker was not truthful earlier
• "I'm like..." the universal filler which says absolutely nothing
Responsible speakers or presenters, in their well-intentioned effort to satisfy their audience, have every right to check whether their material is getting through. However, instead of casting negativity on the content or the audience, all a speaker has to say is: "Do you have any questions?"
Suppose one of your clinic or externship students turns to writing creative fiction and writes a story somewhat based on the case of a real client. You may be concerned that readers of the story will lose trust in your program’s willingness to keep client information confidential.
In a recent federal case, a former summer clerk later wrote two published stories based on her real-life experience, despite having signed an agreement promising client confidentiality. The clinic, the Louisiana Capital Assistance Clinic, sought an injunction, and the former student attempted to invoke Louisiana’s anti-SLAPP suit statute. The United States District Court for the Eastern District of Louisiana rejected the argument of the former student and permitted the case to go forward.
Yet one more subject to discuss with your students. Here is a link to the story from US Law Week online.
Earlier this week, I mentioned that the LSAC study concluded that law students have problems dealing with ambiguity. Charles Calleros has two ambiguity exercises here.
"The Grocer's problem nicely illustrates ambiguity, by showing how even a "statute" with two "judicial" applications can point in different directions in the application to a new case, depending on the rationale for the previous applications."
"Rules for Lina illustrates uncertainty in the interpretation of the first case, allows students to clear up that ambiguity and to construct a multi-faceted rule through synthesizing 4 cases, and introduces uncertainty in the application of facets of that rule to new facts in the essay exam."
Add this tool to your research resources. The Law Library of Congress has been archiving legal blogs since 2007. You can access the archive here.
"The collection has grown to more than one hundred items covering a broad cross section of legal topics. Blawgs can also be retrieved by keywords or browsed by subject, name, or title."
Just like the Wayback Machine , this archive will help researchers (and the librarians who support them) locate legal blog posts no longer live on the web. Now if we could just get the editors of the Bluebook to revise the rules for citing online sources…
Wednesday, December 7, 2011
Thinking about buying a new Kindle Fire or other mid-size tablet for work or personal use? You may want to first check out this small usability study by Jakob Nielsen's Alertbox. Although intended to provide feedback for content providers on how to make websites more compatible with the new, midsized 7" screens, the study revealed some user interface disadvantages of the smaller screens compared to their bigger siblings.
The most striking observation from testing the [Kindle] Fire is that everything is much too small on the screen, leading to frequent tap errors and accidental activation. You haven't seen the fat-finger problem in its full glory until you've watched users struggle to touch things on the Fire. One poor guy spent several minutes trying to log in to Facebook, but was repeatedly foiled by accidentally touching the wrong field or button — this on a page with only 2 text fields and 1 button.
. . . .
Our iPad testing showed that full sites work quite well on 10-inch tablets. Conversely, testing mobile phones revealed that specialized mobile sites are superior on smaller touchscreens (typically, 3.5-inch diagonal).
Using designs intended for a full screen on a 7-inch tablet is like squeezing a size-10 person into a size-7 suit. Not going to look good. But that's what the Fire is trying to do. Accessing full (desktop) sites on the Fire was a prescription for failure in our testing. Users did much better when using mobile sites.
Using sites optimized for 3.5-inch mobile screens on the bigger 7-inch screen felt luxurious — somewhat like using a regular website on a 30-inch monitor. You have all the space in the world and can see the entire page with little (if any) scrolling.
. . . .
Our studies of Kindle Fire weren't intended to advise consumers on whether to buy a Fire device. Our goal was to discover design guidelines for companies that are building websites, apps, or content that their customers might access on a Fire.
. . . .
Even so, I have some observations on the device itself, based on both my personal use over the past two weeks and on the usability study.
The Fire is a heavy object. It's unpleasant to hold for extended periods of time. Unless you have forearm muscles like Popeye, you can't comfortably sit and read an engaging novel all evening. The lack of physical buttons for turning the page also impedes on the reading experience for fiction. On the older Kindles, it's easy to keep a finger on the button when all you use it for is to turn the page. In contrast, tapping an area of the screen disrupts reading enjoyment, is slightly error-prone, and leaves smudges on the screen. The Fire screen also has more glare than the traditional Kindle.
For reading fiction, the older Kindle design wins.
For nonfiction, such as textbooks and magazines, the older Kindle's awkward interaction design precludes easy navigation and the grayscale screen doesn't properly display illustrations.
The Kindle Fire wins big for reading magazines and other light nonfiction. Deeper reading that requires users to frequently refer to other parts of the text is still not well supported. Even with a touchscreen, within-book navigation is slow and awkward, so I don't recommend the Kindle Fire for reading textbooks.
You can continue reading here.
Here are the details:
Director, Law Skills and Experiential Learning - Loyola New Orleans University, Law School
The responsibilities of the Director of the Law Skills and Experiential Learning encompass any and all tasks necessary to plan,organize, and administer Skills Curriculum courses each semester aswell as to oversee and manage experiential learning experiences andplacements of law students.
Qualifications: J.D. degree with at least three years of law practice and significant administrative experience; superior organizational and interpersonal skills; ability to demonstrate initiative and be a self-starter and a team player; must be proficient in MS Office applications; ability to communicate effectively with faculty, staff and students, as well as, the Skills and Experiential learning faculty, alumni and judges.
To apply for a currently posted position , please email your resume and cover letter to: firstname.lastname@example.org or print an application and mail signed application to:
Human Resources Department
Loyola University New Orleans - Box 16
6363 St. Charles Avenue
New Orleans, LA 70118
Please complete our EEO Inquiry Form when applying for the following currently posted positions. Please do not include the EEOC form in the same email with your resume or with the printed application. Only candidates who are interviewed will receive responses.
Though this article from Bloomberg does mention a recent law grad who worries that his $160k in law school debt will affect every aspect of his life for the next 25 years, including whether he can afford to raise children.
"Trapped by a $50,000 Degree in a Low Paying Job"
Laura Sayer, unsure of what she wanted to do after graduating from college in 2006, figured a master’s degree was “a safe bet.”
With $5,000 in undergraduate loans from her time at the University of Cincinnati, Sayer was set back $50,000 more after completing the Interdisciplinary Master’s Program in Humanities and Social Thought at New York University. The 27-year-old now makes about $45,000 a year as an administrative assistant for a nonprofit group, a job that didn’t require her advanced degree.
More people are losing the same gamble as a 33 percent jump in U.S. graduate school enrollment in the past decade, coupled with an 80 percent surge in tuition and required fees, runs headlong into a weaker job market. Universities are fueling the trend by offering more one- and two-year programs in areas from environmental science to sports management that rarely come with financial aid other than the option for loans.
“Students need to be more skeptical that the income, debt and job-placement statistics that they’re being shown about graduate schools may not reflect individual experiences,” said Mark Kantrowitz, publisher of FinAid.org, a website with educational-lending information. “It’s like the advertisements on TV for weight-loss programs: the results are not typical.”
. . . .
Gerrald Ellis, 28, took about $160,000 in federal loans to attend Fordham Law School, and then spent a year searching for a job. He eventually found work at a four-lawyer firm in White Plains, New York, doing consumer protection work.
Because his student debt is so high compared to his salary, Ellis said he expects to qualify for a plan that would let him pay 15 percent of his salary for 25 years, and whatever debt is left after that is forgiven.
“I’m trapped for at least two decades,” said Ellis, who lives in Harlem with a classmate who also borrowed more than $100,000. “The debt has an impact on everything, where I decide to live, what job I take. I can’t even imagine having kids with this kind of debt burden. Multiply that by a whole generation.”
You can continue reading here.
What a wonderful holiday surprise!
Retired banker and attorney Robert H. McKinney is donating $24 million to the Indiana University of Law School in the city of Indianapolis.
On Thursday afternoon, university officials announced the gift and said the law school would be renamed the University Robert H. McKinney School of Law in honor of McKinney.
The gift is the largest gift that the law school has ever received. Combined with matching funds from an IUPUI fundraising campaign, the total value rises up to $31.5 million.
The law school said that the money will fund five endowed chairs to help attract and retain nationally recognized scholars to the faculty. The gift will also create a $17.5 million endowment to fund scholarships for excelling students.
Congratulations to IUPUI Law and thanks to Robert McKinney.
Yesterday, I wrote about a research study that demonstrated the need for new approaches to law teaching. Of course, if we are going to change legal education, we need a new type of casebook. Carolina Academic Press has recently began publishing such case books.
In Improving Legal Education by Improving Casebooks: Fourteen Things Casebooks Can Do to Produce Better and More Learning, Michael H. Schwartz, one of the writers of the CAP casebooks, shows how to write a new type of casebook that integrates doctrine with practice skills.
Legal education has enough scholar-driven casebooks. What legal education needs right now are learning-centered casebooks written by experts in law teaching. We need casebooks that engage students in all three Carnegie apprenticeships, casebooks that make it easy for law professors to adopt best practices, casebooks that offer law teachers a different model. We need casebooks that translate well-documented principles of instructional design to the creation of law school casebooks. This article uses the core, guiding principles of the Context and Practice Casebook Series as a mechanism for arguing for a new model of law school casebook design. It identifies fourteen features of casebooks in the Context and Practice Series that distinguish the books from some, most, and, in some instances, all other casebooks currently available in the legal education marketplace. The distinctive features fall into five categories. First, the article describes innovations aimed at increasing the likelihood that we produce practice-ready lawyers. Second, it articulates what casebooks can take from the field of instructional design. Third, it addresses what was, perhaps, the most challenging aspect of the design, creating learning experiences that assist students in synthesizing their existing value systems with the value systems implicitly and explicitly taught in law school. Fourth, the article describes the ways in which series books assist law teachers in being more effective as day-to-day classroom teachers. Finally, it explains what the books in the series do to assist law professors in providing students meaningful opportunities for practice and feedback, and to make it easier for law teachers to conduct multiple and varied summative assessments.
Tuesday, December 6, 2011
“Public service is a broad category and there are law schools that excel in one part, but not in another,” said Jack Crittenden, Editor In Chief of The National Jurist. “It would be unfair and unwise to lump Federal clerkships in with government opportunities.”
Penn State University was the only law school to make three of the five lists — government, prosecutor/public defender, and state judicial clerks.
Thirteen additional law schools made two of the lists: American University, Capital University, Charleston School of Law, CUNY, Florida State, North Carolina Central, Northeastern, Southern University, University of Arizona, University of Baltimore, University of Denver, University of Wyoming and Yale University.
The magazine looked at employment data, curricula and standard of living to determine three of the categories. Standard of living is a calculation that includes debt, loan forgiveness options, salary and regional cost of living. For state and Federal judicial clerkships, the magazine relied solely on employment placement data.
“Our goal was to identify the law schools that have a proven track record of producing graduates for the different segments of public service,” Crittenden said. “Other rankings may focus on prestige. This study focuses on results.”
The magazine recognizes 15 law schools in each category, but does not rank the schools. The complete lists will be published in the January issue of National Jurist and the Winter issue of preLaw magazine.
The honored schools include:
Top schools for government jobs:
Albany Law School
Ave Maria School of Law
Florida A&M University
Florida State University
Pennsylvania State University
Southern University Law Center
University of Arizona
University of Denver
Top schools for prosecutorial/public defender jobs:
Brooklyn Law School
Florida State University
Indiana Univ. - Bloomington
North Carolina Central Univ.
Pennsylvania State University
University of Akron
University of Arkansas-Little Rock
University of Baltimore
University of Denver
University of Florida
University of New Mexico
University of the Pacific
University of Utah
A Case of Incipient Verbal Diarrhea
Phone People, Would You Put Your Mute Buttons On?
My Jurisprudential Rectum
Don’t Lecture Me, Puppy
Was That a Yes or a No?
Well, actually, a happy belated St. Nicholas Day. It was December 6. In many parts of the world and among many Christian groups, St. Nicholas Day kicks off the holiday season. St. Nicholas was the 4th century bishop of Smyrna and noted for his kindness to the poor and particularly to children. Today, his feast day is often a day for giving gifts, especially gifts given secretly.
A saint is someone who has led an exemplary life and is an inspiration to the rest of us. Of the many, many saints, how many were lawyers? I know of only two. St. Thomas More who was a prominent public lawyer until his conflict with Henry VIII, and St. Ives, who helped the poor.
I have argued several times on this blog that we need to change our teaching methods by adding miniskills, such as exercises on case synthesis, deductive reasoning, analogical reasoning, distinguishing cases, etc., to our everyday teaching. (I am not saying that some teachers do not use these techniques, just not enough of us.) Despite the Carnegie Report and Best Practices, there has been great resistance in the legal academy to change. The question is has enough evidence been presented to show that we really need to change our teaching methods?
A report by Dorothy Evensen, James Stratman, Laurel Oates, and Sarah Zappe, Developing an Assessment of First-Year Students' Critical Case Reading and Reasoning Abilities: Phase 2 (LSAC 2008) demonstrates that we are not doing a good job in teaching law students reading and reasoning skills. The authors describe their study as: "The research team in this project developed a prototype, multiple-choice test to assess case reading and reasoning among law students at two points during the first year. The project was motivated by the importance of cases in legal education, a paucity of empirical evidence concerning law students’ reading abilities, and a need for measurements that could be used to study pedagogical interventions and students’ skill development. A primary goal of the research project was to test the theoretical argument that law students have difficulty dealing with what are called the indeterminacies or discourse-specific ambiguities and vagueness of cases. "
"Statistical analyses produced results similar to the findings from Phase 1. No significant differences between first- and third-year scores were detected. The total mean scores for each test version were 8.3 for TV1 and 7.25 for TV2. Mean scores for students between semesters (two and three) or between years (first and third) were not significantly different, indicating that students’ case reading and reasoning skills do not improve as a result of law school instruction. Also, consistent with Phase 1 findings, the test showed a positive but low correlation with LSAT scores and law school grade point averages." (emphasis added)
To follow the nuances of this report, you will need to read it in detail, which I recommend that everyone who is interested in the future of legal education should do. In any case, it demonstrates that we cannot say that our traditional methods of law teaching are working, and we need to develop and use new methods to teach basic skills.
P.S. The article includes a bibliography of other articles on testing law school teaching.
Monday, December 5, 2011
New legal skills-related scholarship: "Brain Plasticity and the Impact of the Electronic Environment in Law and Learning"
Brain plasticity has become a hot topic in educational circles. As computers and the Internet fundamentally change how we work and how we learn, law librarians need to understand the implications of brain plasticity and learning styles. This article introduces the human brain's amazing ability to adapt and form connections that allow us to do a great number of things—including our ability to read at all.
Yesterday, I posted my argument that education in the humanities is essential to a good legal education, because those topics teach us about the human condition. Today, I want to offer just a few specific examples.
1. To learn what it feels like to grow old and lose control over one’s life, read Shakespeare’s Lear.
2. To understand why people deny the existence of environmental hazards, read Ibsen’s “An Enemy of the People.”
3. To understand loneliness, read Nicholas Virgilio’s haiku:
ordering eggs and toast
in an undertone
4. To understand why the rich view the world differently than others do, view Velasquez’ Las Meninas.
5. To understand the fundamentalist mindset, watch “Inherit the Wind.”
6. To understand the risk of being too prideful, read the Oedipus plays.
Today LexisNexis is launching LexisNexis Advance. Robert Ambrogi has a post here with screen shots and detailed information about the new platform.
"It achieves the dual purpose of greatly simplifying legal research while also helping to ensure that your research is thorough and on point. Through folders, filters and graphical tools, it makes it easy to track your research. Its universal search combined with heads-up pricing lets you explore freely without fear of inadvertently incurring extra costs.
As a generation weaned on Google, legal researchers expect search to be simple and intuitive. Lexis Advance is a big step forward in that direction."
3 Geeks and a Law Blog also has a post about the new platform and provides a quick fact sheet with useful information for new users (or those that need to get ready to teach new users).
It sure is an interesting time to teach legal research!