Monday, May 28, 2012

Dru Stevenson on Legal Education: A Reply

Professor Dru Stevenson has written a post entitled "Should Law Schools Focus on Lawyering Skills?" on Circuit Splits. He writes,

"I do, however, disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual. And I recently blogged here about the direction I would like to see schools go - echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley). Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on ‘counseling patients,’ and ‘medical clinic management,’ or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills. I wonder if any other profession criticizes its theoretical wing like ours does.

The most troubling aspect of turning the focus of law schools completely toward ‘skills’ is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching ‘skills’ - these are better learned by ‘doing’ and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships. After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely. The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals."

He later adds: "Ultimately, this is a symptom of a larger problem happening at colleges and universities everywhere. As Professor Benjamin Ginsberg has described in his wonderful book The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, undergraduate institutions nationwide are replacing academically rigorous courses for ‘life skills’ courses on subjects like event planning, how to keep a journal, social networking, and so on."

Professor Stevenson has painted an inaccurate picture of the legal education reform movement; he has produced a strawman. (Professor Stevenson can you cite to an article that advocates teaching rudimentary paperwork skills as a significant component of law school? Have you read articles on legal education by Michael Hunter Schwartz, Benjamin Spencer, Judith Wegner, Laurel Oates, James Stratman, Leah Christensen, Robin Boyle, Stef Krieger, Richard Neumann, etc.? Have you read any cognitive psychology articles on learning theory?) Those in this movement do not want to turn law schools into trade schools. We do not want to teach "mechanical" tasks or rudimentary paperwork skills. Rather, we recognize that theory and practice are inseparable. We want to combine doctrine with doing, theory with practice. We want law students to be able to apply doctrine to facts and doctrine to drafting documents.

Learning theory has demonstrated that students learn better when they apply doctrine. As Kristen Holmquist has stated, "one acquires content knowledge, ‘uses’ that content in relevant ways, and thereby gains a deeper and more nuanced understanding of the original learned content." (SSRN at 16-17). She has elaborated: "Higher-order thinking skills like evaluating and creating come only after repeated opportunities to apply, or act on, memorized and then understood information." (SSRN at 15) Similarly, as Best Practices points out, "It takes time to develop expertise in legal problem-solving. Problem-solving skills can be developed only by actually working through the process of resolving problems. Developing problem-solving expertise requires repetitions of ‘training’ as against the hard world of consequences, of repeated success and failure, and some inductive efforts at understanding what works and what does not, what seems important and what does not." (Best Practices in Legal Education, at 142.) In other words, rather than developing mechanical skills, the legal education reform movement wants to develop higher order skills than the current methods of legal education, like the case method, do.

Professor Stevenson asks, "Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on ‘counseling patients,’ and ‘medical clinic management,’ or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills." I ask Professor Stevenson, would you like to have a surgeon who has only learned the theoretical part of medicine? One who has never met a patient before? One who has never performed surgery before? I want a surgeon or a lawyer who has been trained in both theory and practice, who has been through a rigorous intellectual program that has trained the lawyer or surgeon to solve complex problems in their field. For example, Professor Holmquist has declared, "Yet this cognitive/practical divide is as untenable in lawyering as it is in learning. Is writing a motion for summary judgment in a multi-million-dollar copyright matter a cognitive skill, or a practical one? And imagine deposing a scientist employee of a corporate defendant in an environmental matter. Imagine further that the scientist is both reluctant and knowledgeable. Is it a cognitive task or a practical one to elicit useful information from him?" (SSRN at 16)

Professor Stevenson also criticizes the general trend at universities to teach 'life skills’ courses on subjects like event planning, how to keep a journal, social networking, and so on." I couldn’t agree more. I have previously advocated that universities teach critical thinking and problem solving. (post) However, I don’t think universities were doing this much before the "life skills" movement.

Finally, legal education reformers are not advocating using a single model for all law teachers or all law schools. There is a need for law schools that take different approaches. What we do not need is legal education that is stuck in the nineteenth century and that does no good for law students, clients, and society.

Paul Horwitz also has a post on Stevenson’s post here.

(Scott Fruehwald)

P.S. I will have more on the Holmquist article on Tuesday.

May 28, 2012 | Permalink | Comments (2)

Today is Memorial Day

In honor of those who have served and paid the ultimate price.


From the Legal Skills Prof Blog.

May 28, 2012 | Permalink | Comments (0)

Sunday, May 27, 2012

A Facebook Wedding: Tax Consequences

Undoubtedly Facebook founder Mark Zuckerberg and Priscilla Chan entered into a prenuptial agreement.  However, tax advantages also accompany the married life. At Forbes, lawyer Deborah Jacobs delineates the tax consequences. Here is an excerpt dealing with federal estate taxes:

There’s also a huge federal estate tax advantage to the Zuckerberg/Chan merger. (California does not have an estate tax.) Assets inherited from a spouse are not taxed as long as the inheritor is a U.S. citizen. This is the unlimited marital deduction. So Zuckerberg and Chan can now avoid the tax on their death by leaving everything to each other directly (outright) or having the assets go into a special trust, called a marital trust.

The marital deduction doesn’t avoid estate tax – it just postpones it. Whatever is left when the survivor dies could be subject to the tax.

Still, contrast the protections of marriage with what would happen if their previous arrangement continued.  Apart from assets left to a spouse, which are tax-free, right now we can each transfer up to $5.12 million tax-free during life or at death to anyone else. Anything above that amount is subject to a 35% tax.

Next year this whole system may change. Unless Congress acts before then, at the end of this year the current $5.12 million per-person exclusion from the federal estate and gift tax will automatically dip to $1 million and the tax on transfers above that amount will go up to 55%.


May 27, 2012 | Permalink | Comments (0)

Survey finds college students hand-write class notes to learn; they type notes for convenience

That's one of the conclusions from a forthcoming article called The impact of laptop-free zones on student performance and attitudes in large lectures to be published in the Journal of Computers and Education. The researchers also concluded, based on their study of introductory biology classes at U.C. Irvine, that students who used laptops in class performed more poorly on exams compared to students who took notes by hand. From the article abstract:

The goal of this study was to determine if laptop use in lecture negatively impacts learning outcomes of surrounding students taking notes on paper. Two sections of a large introductory biology course (>400 students/section) were zoned into a laptop-permitted and a laptop-free area. Two sections in which laptop users could sit anywhere served as the Control. There was no difference in the attendance (∼85%) or percentage of students using laptops (∼29%) between Zoned and Control sections. Academic performance, based on exam points earned, was not significantly different for paper-users in Zoned and Control sections indicating laptop use did not impair the overall achievement of surrounding students. However, there was a correlation between exam performance and note taking preference: paper note takers scored significantly higher and laptop users scored significantly lower than predicted by pre-class academic indicators (p<0.01, paired t-test). The majority of both laptop (64%) and paper users (82%) in the Zoned sections supported a policy restricting laptop use to specific areas. Thus, while we further investigate whether the relationship between laptop-use and performance is correlative or causative, zoning is an effective method for accommodating both laptop users and paper note takers in the same lecture hall.


May 27, 2012 | Permalink | Comments (1)