Saturday, April 14, 2012
New "legal skills" scholarship: "And the winner is: how principles of cognitive science resolve the plain language debate"
By Professor Julie A. Baker (Suffolk) and available at 80 UMKC L. Rev. 287 (2011) and SSRN here. From the abstract:
“Legalese – you mean jargon? Legal jargon? Terrible! Terrible!” – U. S. Supreme Court Justice Stephen G. Breyer, 201'3
This statement captures the prevailing view in the teaching and practice of legal writing – that “legalese” is bad and must be eradicated and that plain language should be employed as the alternative to legalese. Yet defenders of legalese remain – and they argue that the language of the law is intertwined with the law itself, such that “simplifying” this language detracts from its meaning and makes it less precise. How, then, is a legal writer to write?
This article posits that the two different methods are not polar opposites, but rather are “endpoints” on the spectrum of language available to the legal writer. To explain this view, the article begins by reviewing what we mean by “legalese” vs. “plain language,” and how the one has fallen into disfavor while the other has become the prevailing method in legal writing pedagogy and practice. The article then undertakes a study of Cognitive Science, particularly Cognitive Fluency – the measure of how easy or difficult the mental process feels when the brain receives information. Fluency principles are critical to the understanding of the preference for plain language, which until now has been supported only by anecdotal and empirical surveys.
Applying fluency principles to legal writing, the article demonstrates that most of the time, plain language is, in fact, the right way to write, as it is “fluent” and thereby inspires feelings of ease, confidence, and trust in readers (whereas legalese is “disfluent,” engendering feelings of dislike and mistrust). The article suggests, however, that there are times when the legal writer’s analytical or persuasive goals may be served by more difficult, less fluent language – and that, going forward, an approach aimed at moderating fluency will produce the most effective legal writing. Thus, no language (except, maybe, “law French”) should be prohibited entirely, but all language should be considered as the range of options available to the skilled legal writer.
Friday, April 13, 2012
According to one major study, reported at msnbc:
While most of us are careful to avoid over-advertising our talents, that may not be the best way to land a job, a new study shows. Researchers have determined that when it comes to interviews, narcissists do it better because they’re not at all shy about self-promoting, according to the study published in the Journal of Applied Social Psychology.
“The point is that these guys – and girls – are very successful in interview settings,” said the study’s lead author, Peter Harms, an assistant professor of management at the University of Nebraska. “Under high pressure they increase their self- promotion. They talk a lot and they talk fast. And people tend to mistake that fast talking as a sign of competence and intelligence. They think that fast talkers have a lot to say and know the material so well that they don’t need to pause and think about it.”
But a good job interview doesn’t guarantee a good co-worker:
While narcissists are good at landing the job, they ultimately tend to bring a toxic component into the office environment, Harms said. “It’s a terrible strategy long term to behave the way they do,” he added. “They have shorter relationships. And people rate them more negatively.”
You have a few days left to submit your 2011 federal tax returns. This post from USA.gov links to these resources that may be of use:
• Tax Forms and Publications
• Publication 17 — The Only Tax Guide Most Individuals Need (PDF)
• Tax Benefits — You May Qualify
• E-file Your Taxes
“If you cannot file your tax return by the deadline, then request an extension. Keep in mind that an extension does not give you additional time to pay if you owe taxes. You’ll need to estimate the amount you owe and submit a payment in order to avoid interest and penalty charges.”
Thursday, April 12, 2012
How Law School Instructors Can Use Four Characteristics of Successful Second-Language Acquisition Pedagogy to Create Successful Law Students
Legal education can learn a great deal from other areas of education. One such area is teaching English as a second language.
Abstract: "Modern law students may come to law school not trained in how to evaluate their ability to learn or how to improve how effectively they learn. While “law teaching requires law students to teach themselves,” students first need to know how to do exactly that before they can succeed in law school, on bar exams, and beyond. For students to teach themselves, they must first understand how to learn and become metacognitive. Law school instructors can adapt second-language acquisition pedagogy to help teach their students how to achieve those goals."
In case you've been wondering what 'ol satan-eyes has been up to lately, on Wednesday a California hearing panel denied Manson's request for parole for the 12th time since he was first imprisoned in 1971 for the Tate-LaBianca murders. Manson, who is 77 years old, won't be eligible for parole again until 2027 when he'll be 92. CNN also notes that Manson has racked up more than 100 disciplinary violations during his time behind bars, the most recent ones involving possession of a weapon and illegal cellphone.
In a bizarre twist to the Manson story, a California man believes he may be Manson's illegitimate son, conceived in 1967 during a drug-fueled hippie orgy in San Francisco. Matthew Roberts, who presently works as a DJ in a San Fernando strip club, says the association with Manson has ruined his career. While DNA testing has thus far been inconclusive, the physical resemblance is striking. Check out this video interview with Mr. Roberts via CNN and see for yourself.
Hat tip to Michael Traister.
This was sent to me by Professor Christine Bartholomew of SUNY Buffalo:
In connection with the Third Annual Empire State Legal Writing Conference, we will host an ALWD Scholars’ Forum. The Forum will take place on Friday, June 22, from 11:30 am to 5:00 pm at SUNY Buffalo School of Law in Buffalo, New York. The conference itself will take place all day on Saturday, June 23.
The Forum is open to as many as 12 faculty members who have scholarship in the works – from idea stage to a full draft article. The Forum will be led by Sarah Ricks, a Clinical Professor of Law at the Rutgers School of Law – Camden. Participants will be divided into small groups with an experienced scholar as a leader, and will have an opportunity to present their scholarship and receive feedback from the group. Past participants have found the ALWD Forums to be a wonderful, supportive environment for the exchange and development of ideas.
While we welcome scholarship projects on any topic, we hope to encourage interdisciplinary scholarship that encompasses both legal communication and other academic disciplines. SUNY Buffalo has rich resources for interdisciplinary work, and more than 150 faculty members from a wide range of disciplines have participated in the law school’s Baldy Center for Law and Social Policy. If we are able to recruit participants with interdisciplinary projects, we will attempt to match them with a SUNY Buffalo scholar in the appropriate field.
There is no fee for either the Forum or the conference, but enrollment in the Forum is limited to 12 participants. We will fill spots on a first-come basis. The application deadline is Monday, June 4, 2012. To participate in the ALWD Scholars’ Forum at this year’s Empire State Conference, please register on the Conference web site: www.law.buffalo.edu/empirestate2012
Many of us are aware of NJ Governor Chris Christie’s plan to merger parts of Rutgers University with Rowan University and the negative impact it may have on the Rutgers-Camden law school. Here is an article that once again invokes the wise maxim: “Follow the money.”
Critics, including a U.S. senator, are convinced that a main motivation behind a plan to merge Rutgers University's Camden campus into Rowan University is an effort to improve the Glassboro school's financial position.
Of the three entities involved in the plan—Rutgers, Rowan University, and the University of Medicine and Dentistry—Rutgers has the best bond rating by far. The proposed merger would permit Rutgers to borrow money at good interest rates to assist the other two institutions.
There’s another maxim—one that the Governor seems to be ignoring: Politics is the art of compromise. I have heard of no attempts to find a compromise solution. The governor has never been known as a great compromiser.
Drinking Alcohol May Significantly Enhance Problem Solving Skills by Christine Hsu. "Lead author Professor Jennifer Wiley of the University of Illinois at Chicago discovered that alcohol may enhance creativity problem solving by reducing the mind’s working memory capacity, which is the ability to concentrate on something in particular." "Research from the current study published in the journal Consciousness and Cognition also found that people who drank alcohol and had a blood alcohol level of 0.07 or higher were worse at completing problems that required attentional control but better at creative problem solving tests." "The surprising discovery was that participants with a BAC of 0.07 or higher solved 40 percent more problems than their sober counterparts and took 12 seconds to complete the tasks compared to 15.5 seconds by teetotal participants." "Wiley said that the key finding was that being too focused can blind a person to novel possibilities and a broader, more flexible state of attention may be helpful for creative solutions to emerge."
"Other experts said while the findings were interesting and made sense, they stressed that sleep is probably just as beneficial for enhancing creativity. Past research showed that people who were allowed to sleep after being given a problem were also more likely to come up with a creative solution compared to those who stayed awake."
Do you follow your professor or other law professors on Twitter? This post from WorldWideLearn lists the top 50 law professors on Twitter.
“Criteria for selection for this list include the quality of the tweets, the number of followers and the most active users.”
Take a look and find some new interesting tweets. I wonder if you may get some clues about upcoming exam questions.
Wednesday, April 11, 2012
The Center for the Study of Applied Legal Education’s (CSALE) Report on the 2010-11 Survey of Applied Legal Education is now available on CSALE’s website: http://www.csale.org/results.html. The report details the results of CSALE’s second triennial survey of law school clinic and field placement programs. Over 84% of accredited law schools responded to the survey, providing information on program design, capacity, administration, funding, pedagogy, and promotion and retention standards at their schools. In addition, 470 clinical educators filled out a separate survey with information on their characteristics and terms of employment. Upon request, CSALE also can generate customized reports cross-tabulating various aspects of the raw survey data.
Maryland statute will prevent employers from asking job candidates and employees for social media passwords
Following up on an earlier story (and here) about employers asking job candidates for their social media passwords as part of the screening process, the Maryland legislature has followed California's lead by passing a bill that would prohibit the practice when it comes to both job candidates and employees. Governor Martin O'Malley, however, must still sign it.
As we noted last time, some commentators call the issue a tempest in a teapot since there are few reported cases of employers who have actually requested passwords from their employees.
From the BNA Electronic Commerce & Law Report (subscription required):
Employers in Maryland would not be allowed to request or require that an employee or job applicant disclose any “user name, password, or other means for accessing a personal account or service through an electronic communications device” under S.B. 433/H.B. 964, a measure that cleared both chambers of the General Assembly April 6.If signed by Gov. Martin O'Malley (D), the law would take effect Oct. 12, 2012.Under the measure, employers could not discharge, discipline, or otherwise penalize an employee for refusing to disclose password information covered by the legislation; nor could they refuse to hire an applicant for such refusal.The definition of employer would include state and local governments, in addition to persons engaged in “a business, an industry, a profession, a trade, or other enterprise in the state.”The legislation would make a distinction between an employee's personal accounts and any “nonpersonal accounts or services that provide access to the employer's internal computer or information systems.” For the latter, an employer could require an employee to disclose user names and passwords.
Improving Your Online Writing Center for International Students (Also Helpful to Traditional Writing Centers)
Educational consultant Beth Hewitt offers this advice. Here’s the abridged version. The full version is at Academic Impressions.
Show respect for the student's knowledge. "International students have different knowledge, not just deficient knowledge,"
Sell yourself as an instructor. Tutors can build credibility by the way they frame the conversation -- "I realize this is done differently in your native language, but English handles it this way..." -- and by using the student's own writing to provide demonstrations and examples, rather than turning to hypothetical sentences or arguments.
Make an art of clockwatching. Hewett advises: "Make sure your staff develop a strategic sense for how to allocate the time they have with the student.
Identify the student's needs. Related to the last point, the tutor needs to be adept at managing and responding to the student's expectations, so that you can balance giving the support students believe they need and the support they most need.
Be careful to speak at the student's level. This requires some degree of sensitivity, as some international students may have a limited grasp of English.
Contextualize the tutorial. International students may face particular challenges understanding the expectations of academic writing in English. The nature of the assignment itself may be at issue. For example, some second-language students may be adept at writing exposition papers, but may lack any experience in writing an argument
Teach by doing. "Show the student how to address the problem." Hewett recommends that instructors walk international students through a four-step process, using examples from the students' own writing. The process is: what, why, how, and do:
- What is the problem?
- Why is it a problem?
- How do I fix it?
- Now do.
Tuesday, April 10, 2012
Synthesizing materials helps students learn better in all fields. Two learning psychologists have noted in a study of history students, "In particular, students may benefit conceptually from learning tasks that promote the construction of a situation model, whereas tasks that can be performed with a more superficial representation of the text, such as using a textbase, [such as a legal treatise] would not lead to better understanding. This distinction is consistent with the idea that the construction of mental models is the key to students' deeper understanding of subject matter."
These authors distinguish "between knowledge-telling and knowledge-transforming when students write essays. Telling is regarded as a passive transfer of information from text to paper, whereas transformation is regarded as a more active and constructive process in which the writer relates the contents of sources in new ways by making novel connections within source material as well as connections to the reader's knowledge. Knowledge-telling thus likely involves a relatively superficial interaction with the textbase, whereas knowledge transforming may involve a more conceptual interaction with the writer’s situation model of the text contents."
They concluded: The results suggest "that in order for students to gain a deeper understanding of the subject matter, writing tasks must require knowledge-transforming and not just knowledge-telling. One way to achieve this, as we have demonstrated, is to give students access to a variety of sources, and a specific argument writing task, that requires them to construct their own take on the information they read."
Yup, you heard that right. The second Tuesday in April is International Be Kind To Lawyers Day. There's even a website to devoted to the occasion. It's the brainchild of this guy, Steve Hughes, a non-lawyer. Read the story here.
The best part of INTERNATIONAL BE KIND TO LAWYERS DAY is that you're the judge of exactly how much you participate. Here is a brief list of idea starters to get your legal kindness flowing.
- Take your favorite lawyer out to breakfast or lunch (make sure it's not billable!).
- Send your lawyer a "just because" greeting card or a bouquet of flowers.
- Switch your ring tone to the "dah-dah" sound from NBC's "Law & Order."
- Abstain from telling lawyer jokes for 24 hours.
- If you can't abstain, tell your funniest lawyer joke but switch out the lawyer with your profession. (I bet it's still funny.)
- If you accidentally say something wrong or inappropriate on this day, just follow it up with the words, "Strike that from the record." Then continue talking as if nothing happened.
- Salute the flag as you walk or drive by your local courthouse.
- Watch your favorite legal drama and pretend you're the one delivering the powerful closing argument. Some suggested films: "The Verdict," "To Kill A Mockingbird," "A Few Good Men" and "With Justice For All."
- Do some simple repairs around the house with a gavel instead of your trusty hammer.
- Try to slip words like "I object!" or "You're out of order!" into your everyday conversations.
- Try to write up your own Articles of Organization for an LLC or draft your own will. See? It's harder than it looks.
- Take notes at a meeting on a legal pad. Don't you just feel smarter looking at the glorious yellow hue of that 8-1/2" x 14" pad?
- Go ahead, be creative. What are some ways you can be kind to lawyers today? Be sue to let us know so that we can add your ideas to our list.
Hat tip to ATL.
The answer may depend on the state in which you set up shop. ABA staff counsel Will Hornsby advises caution:
Lawyers in every state should look out for these issues:
- The Common Denominator. No false or misleading names. Most states have adopted ABA Model Rule 7.5, which states that law firm names cannot be false or misleading. Sometimes “misleading” is obvious. Sometimes it is a bit tricky.
- This is obvious. If the firm name identifies a practice area, the lawyers need to be experienced in that area. If you have never prepared articles of incorporation for clients, but would like to, it’s a good idea to avoid a firm name like “The Incorporators.”
- This is tricky. If you say you have associates, you need to have associates. Small firm practitioners frequently go by a name such as Jane Doe & Associates. Associates are generally considered to be lawyers who are not partners or shareholders and who are, practically speaking, employees of the firm. Employees who are not lawyers, such as paralegals, investigators and other support staff are not considered associates in most states. And “associates?” That means more than one.
- This is murky. Firm names must avoid implications they are tied to government agencies and public or chartable legal agencies. The University Legal Center, which is down the block from a university but not affiliated with it, or the Peoples Law Clinic, are examples of names that have been found to be misleading.
There’s more—here, at Attorney at Work.
This post from the Chicago Lawyer Magazine discusses some progressive ideas and practices made possible by technology.
“Technology doesn't just change the way lawyers practice law, it offers a way for law firms ranging in size from one to 500 attorneys to radically change their business models and often compete on the same level regardless of their size.”
Some groups of lawyers have used technology to create “ad hoc law firms” to compete for big cases.
“An ad hoc law firm combines a group of small firms or solo practitioners as the lead group of attorneys, working together virtually, on a big case….[using] virtual connectivity ..to team up with lawyers from any firm anywhere in the world to handle cases.”
How will technology change the legal business?
“Professor Ronald Staudt of IIT Chicago-Kent College of Law said technology ultimately lowers the cost of legal services. But, he said it remains unclear if firms like Axiom and Clearspire that take advantage of their lower costs by offering lower rates or fixed fees will become mainstream.”
Hat tip Susan Cartier Liebel (@SoloPracticeU)
Monday, April 9, 2012
The Center for Excellence in Law Teaching at Albany Law School headed by Mary Lynch is another organization that furthers legal education reform.
"CELT's mission is to provide legal educators with the resources to provide a pedagogically sound and innovative program of instruction to meet the changing needs of law students and legal educators, as well as the clients lawyers ultimately serve.
The Center serves as a web-based clearinghouse for material on teaching and curriculum development, legal education reform and the ABA accreditation revisions based on the 'Student Learning Outcomes' movement; CELT also hosts the 'Best Practices for Legal Education'Blog."
According to the Law School Admission Council.
ABA Fall 2012 Applicant and Application Counts
The following is a breakdown of ABA 2012 applicants and applications by region (based on ACES/ACES² data received through 03/30/12) and the percent change from last year:
Region Applicants Applications # Pct Chg # Pct Chg Far West 7,940 -15.9% 65,203 -13.2% Great Lakes 7,863 -16.5% 67,458 -14.0% Midsouth 7,439 -17.1% 82,283 -13.6% Midwest 2,099 -20.4% 12,363 -14.5% Mountain West 3,311 -13.2% 13,911 -10.4% New England 2,917 -19.0% 36,387 -12.1% Northeast 9,769 -16.4% 77,009 -17.3% Northwest 1,752 -13.9% 10,628 -13.2% South Central 6,322 -9.4% 30,371 -11.8% Southeast 8,617 -10.1% 45,351 -9.5% Regional Total 58,029 -14.9% Other* 2,664 -28.4% Total 60,693 -15.6% 440,964 -13.6%
* Other includes those applicants whose permanent residence is not available or is outside the United States.
Last year at this time, we had 91% of the preliminary final applicant count.
Currently there is one school with an application volume increase of 40% or more, while 17 schools show a volume decrease of 30% or more. 29 schools show an increase in applications, while 167 show a decline and 2 show no change. A more detailed breakdown of school increases/decreases is shown below:
Increase of 100% or more: 1
Increase of 50% to 99%: -
Increase of 40% to 49%: -
Increase of 30% to 39%: -
Increase of 20% to 29%: 1
Increase of 10% to 19%: 11
Increase of 1% to 9%: 16
No change: 2
Decrease of 1% to 9%: 34
Decrease of 10% to 19%: 76
Decrease of 20% to 29%: 40
Decrease of 30% or greater: 17
Applications to private institutions are down 13.5%, while applications to public law schools are down 13.8%.
Significantly, the LSAC has collected data suggesting that students with higher LSAT scores are staying away from law school more than students with the lowest scores.
The chart below shows the high LSAT score of 2012 ABA applicants with the percent change from last year:
Highest LSAT Number of Applicants Pct Chg YTD < 140 4,180 -4.3% 140–144 5,631 -6.2% 145–149 8,709 -13.8% 150–154 11,449 -18.8% 155–159 12,059 -13.8% 160–164 8,817 -18.4% 165–169 5,673 -18.5% 170–174 2,571 -20.7% 175–180 659 -13.6%
According to the most recent report from the Bureau of Labor Statistics which warns that the number of law school graduates is expected to continue to outpace the available jobs in the legal sector. As reported by the AmLaw Daily:
After gaining jobs for two straight months, the legal sector lost 1,300 positions in March, according to preliminary data released Friday by the U.S. Bureau of Labor Statistics.
Friday's report recorded 1,116,400 legal sector positions last month, down from the 18-month high the industry hit in February. The bureau's revised data also showed that the legal sector gained 1,900 jobs in January rather than the 1,000 originally estimated.
The latest figures aside, the legal industry continues to employ far fewer people than it did prior to the recession, when it was common for the bureau to record 1,180,000 legal employees in a given month.
. . . .
Friday's report is the second dose of bad employment news for the legal sector in recent days.
In a March 29 report examining the job outlook for the industry, the Bureau of Labor Statistics predicted that the number of lawyers practicing in the country will grow 10 percent between 2010 and 2020—from 728,000 to 801,800.
At the same time, the report said, "growth in demand for lawyers will be constrained as businesses increasingly use large accounting firms and paralegals to do some of the same tasks that lawyers do." The report estimated that overall legal sector employment will increase 11 percent by 2020, and that paralegal and legal assistant jobs will surge 18 percent.
The report, which the ABA Journal reported on Thursday, cautions that the number of law school graduates continues to outpace the anticipated growth in jobs. The most recently available data from the American Bar Association pegs the number of law school grads for 2010 at 44,000.
Continue reading here.