December 1, 2012
"Experiential Learning in a Lecture Class: Exposing Students to the Skill of Giving Useful Tax Advice"
As our students continue to enter a legal profession that is changing and as the models for the delivery of legal services continue to evolve, so should our pedagogy. Thus, the modest objective of this piece is to share my experience, and offer some thoughts, about developing and integrating practice-oriented experiential modules into tax lecture courses. This article explains and reflects upon two exercises that I have used to provide students with opportunities to play the role of a lawyer in transactional tax planning settings. Both exercises are intended to help students begin to see how they can turn their growing substantive knowledge into “useful tax advice.” By “useful tax advice,” I mean informative and understandable advice that comprehensively addresses the client’s economic objectives (including, but not limited to the client’s tax objectives) and that gives the client a clear appreciation of the benefits and risks of a tax-related business decision; as a result of this advice, the client should be able to make an educated choice.
I hope that others can use, and hopefully improve upon, the exercises discussed herein. Moreover, I hope that, when creating and implementing experiential modules in their classes, others can use my reflections to avoid my mistakes and build on my successes. Ultimately, I hope that I can make even a small contribution to the development of the professoriate and to our collective endeavor of helping law students become lawyers.
Does a Liberal Arts Perspective Contribute to Legal Education
With the growing interest in law school courses that are of immediate practical value, this question arises. Is there room in the curriculum for courses that seem not practical—for example a course in legal history or law & literature? My answer is yes.
Let me begin with a quote from Steve Jobs of Apple fame:
I think our major contribution [to computing] was in bringing a liberal arts point of view to the use of computers,” he said. “If you really look at the ease of use of the Macintosh, the driving motivation behind that was to bring not only ease of use to people—so that many, many more people could use computers for nontraditional things at that time—but it was to bring beautiful fonts and typography to people, it was to bring graphics to people … so that they could see beautiful photographs, or pictures, or artwork, et cetera … to help them communicate.
Our goal was to bring a liberal arts perspective and a liberal arts audience to what had traditionally been a very geeky technology and a very geeky audience.
Just as a liberal arts perspective contributed to computing, it also contributes to lawyering. It better enables us to think creatively, communicate creatively, and persuade creatively.
(I found the quote from Steve Jobs in a letter that Professor J.P. Olivelle wrote to the Alcade, the magazine of the alumni association of the University of Texas)
November 30, 2012
Westlaw objects to use by LexisAdvance of "WL" designation for unpublished decisions.
3 Geeks and a Law Blog is reporting that Thomson Reuters (Westlaw's parent company) has sent a letter to its customers noting its objection to the use by LexisNexis of the "WL" designation to refer to unpublished decisions available on Westlaw. In the letter, West doesn't indicate whether it plans to pursue legal action or will otherwise try to stop Lexis from using "WL" citations but instead warns its customers not to trust the accuracy of those citations unless they come from Westlaw itself.
According to a letter sent by LexisNexis to its own customers, the availability of Westlaw parallel citations for unpublished decisions is a new feature of Lexis Advance the company has been touting in a recent marketing campaign. You can read the exchange between Thomson Reuters and Lexis concerning the "WL" citation controversy by clicking here.
New Issue of The Law Teacher and Call for Papers
The Fall 2012 Issue of the Law Teacher is available here. In addition to some wonderful articles, it contains a call for papers for the 2013 Summer Conference of the Institute for Law Teaching and Learning (June 7-9, 2013 in Topeka, Kansas). The deadline for submission of proposals is February 1, 2013, and the Conference's theme is "Hybrid Law Teaching." They are also hosting a conference entitled "Law Teaching for Adjunct Faculty" on April 13, 2013 at Western State College of Law, Fullerton, California.
Washington D.C. Gives Us a Lesson in Wordsmithing
Washington D.C. Gives Us a Lesson in Wordsmithing
Our leaders in Washington are finally coming to grips with the budget deficit. Presumably, in order to make tax hikes less controversial, they have altered their vocabulary.
“Taxes” are now “revenues”
“Raising taxes” is now “changing rates.”
It’s worth pointing out to our students that word choice is a technique of persuasion.
November 29, 2012
Are law schools recruiting practicing lawyers as deans to show they are serious about a practical legal education?
This post from the ABA Journal blog notes that a few law schools of late have recruited accomplished practitioners to serve as their deans eschewing traditional career academics. The most recent of these decisions involves the appointment of a former Kirkland & Ellis managing partner to the deanship at Catholic University School of Law. Does this micro-trend signal an effort by those schools to improve their street cred with employers by hiring experienced lawyers who signal "we're serious about training practice-ready law grads." Are these schools hoping that a high profile practitioner will be able to leverage his or her broad contacts in the community into more job opportunities for students? That might be the intent but in my limited experience with this sort of thing it seems to produce a clash of cultures that makes it difficult for the dean to effectively manage career academics. But perhaps the time is ripe for some schools who want to break from tradition by embracing a practitioner at the helm. We shall see.
Anyway, here's an excerpt from the ABA Journal story:
The managing partner of the Washington, D.C., office of Kirkland & Ellis is on the verge of a significant career change, one that may also signal a growing new emphasis on legal jobs at the nation's law schools.
Daniel F. Attridge will take the helm as law dean of Catholic University of America in July, the Washington Post's College Inc. blog reports. He has been a partner of the law firm since 1985 and served as its managing partner since 1998.
It is the second time this year that a law school has made the unusual appointment of a practicing lawyer for its top job, according to the National Law Journal.
Brooklyn Law School announced in March that Nicholas W. Allard, who was then chair of the lobbying and election law practice at Patton Boggs, would be its next dean.
A third practitioner, trial lawyer Tom Keefe Jr., accepted a temporary appointment as law dean at St. Louis University earlier this year and said he plans to run his law practice concurrently.
. . . .
As numerous ABAJournal.com posts have detailed, many law schools are seeing a significant decline in enrollment and a number of their graduates have had difficulty finding legal work in recent years, due to the struggling economy and efforts by corporations to cut costs for the well-paid legal work that used to help fuel more law firm hiring.
"Law School Is Worth the Money" - Not.
You knew this was coming. In response to Dean Mitchell's Op-Ed in yesterday's NYT, noted below, in which he accuses bloggers and a few "sensationalist" law profs of whipping up hysteria over the law school scam thing, Professor Paul Campos has written a reply here at Salon.com. The exchange reminds me of that old SNL skit with Dan Aykroyd and Jane Curtin, Point Counter-Point. Since it's almost time for "Friday Fun" anyway, please enjoy the classic clip below.
The Daily Routines of Famous Writers
Brain Pickings has collected first person explanations in which famous writers provide their daily writing routines. Here are just two:
I need an hour alone before dinner, with a drink, to go over what I’ve done that day. I can’t do it late in the afternoon because I’m too close to it. Also, the drink helps. It removes me from the pages. So I spend this hour taking things out and putting other things in. Then I start the next day by redoing all of what I did the day before, following these evening notes. When I’m really working I don’t like to go out or have anybody to dinner, because then I lose the hour. If I don’t have the hour, and start the next day with just some bad pages and nowhere to go, I’m in low spirits. Another thing I need to do, when I’m near the end of the book, is sleep in the same room with it. That’s one reason I go home to Sacramento to finish things. Somehow the book doesn’t leave you when you’re asleep right next to it. In Sacramento nobody cares if I appear or not. I can just get up and start typing.
E. B. White, in the same fantastic interview that gave us his timeless insight on the role and responsibility of the writer, notes his relationship with sound and ends on a note echoing Tchaikovsky on work ethic:
I never listen to music when I’m working. I haven’t that kind of attentiveness, and I wouldn’t like it at all. On the other hand, I’m able to work fairly well among ordinary distractions. My house has a living room that is at the core of everything that goes on: it is a passageway to the cellar, to the kitchen, to the closet where the phone lives. There’s a lot of traffic. But it’s a bright, cheerful room, and I often use it as a room to write in, despite the carnival that is going on all around me. A girl pushing a carpet sweeper under my typewriter table has never annoyed me particularly, nor has it taken my mind off my work, unless the girl was unusually pretty or unusually clumsy. My wife, thank God, has never been protective of me, as, I am told, the wives of some writers are. In consequence, the members of my household never pay the slightest attention to my being a writing man — they make all the noise and fuss they want to. If I get sick of it, I have places I can go. A writer who waits for ideal conditions under which to work will die without putting a word on paper.
November 28, 2012
Dean Lawrence E. Mitchell: "Law School is Worth the Money" in N.Y. Times
Dean Lawrence E. Mitchell of Case Western Reserve has written an article in defense of law schools for the New York Times. He declares, "I’M a law dean, and I’m proud. And I think it’s time to stop the nonsense. After two years of almost relentless attacks on law schools, a bit of perspective would be nice."
He continues, "The hysteria has masked some important realities and created an environment in which some of the brightest potential lawyers are, largely irrationally, forgoing the possibility of a rich, rewarding and, yes, profitable, career."
Dean Mitchell concludes, "The overwrought atmosphere has created irrationalities that prevent talented students from realizing their ambitions. Last spring we accepted an excellent student with a generous financial-aid package that left her with the need to borrow only $5,000 a year. She told us that she thought it would be 'irresponsible' to borrow the money. She didn’t attend any law school. I think that was extremely shortsighted, but this prevailing attitude discourages bright students from attending law school.
We could do things better, and every law school with which I’m familiar is looking to address its problems. In the meantime, the one-sided analysis is inflicting significant damage, not only on law schools but also on a society that may well soon find itself bereft of its best and brightest lawyers."
You can read the rest of the article here.
Another survey shows many clients balk at paying for legal research
There have been a couple reports in the past month or so describing how clients are increasingly refusing to pay for legal research conducted by their lawyers. The Wall Street Journal noted that the vast majority of in-house law departments object to the legal research bills submitted by outside law firms and one client has even gone so far as to obtain its own contract with Wexis requiring its outside attorneys to use that instead. Another legal services consultant also found that many clients are refusing to pay for legal research costs.
Now comes the video report below from Bloomberg law (hat tip to the Law Librarian blog) noting that 43% of the law firms it surveyed said they are eating the cost of legal research because clients won't pay for it. Obviously law schools must continue to teach legal research because it's a core lawyering skill but it is also one that some lawyers may find they have to give away for free.
Do Men Care About Work-Life Balance?
After the publication in the Atlantic of her article, “Why Women Still Can’t Have It All,” Anne-Marie Slaughter received a number of emails from men deploring the ways in which their jobs deprive them of taking part in family life:
Roughly 15 to 20 percent of the responses to my article that I have personally received have been from men. Many are from fathers who are very unhappy with the choices their daughters face. Others are from young men who want to be able to spend more time with their children and be fully equal parenting partners with their working wives but feel they don't have those options either. Indeed, a number of men have written to bemoan the strong gender stereotyping that they encounter, whereby a guy who wants to take paternity leave, flex-time, defer a promotion because the job up has too much travel, or simply needs to leave at 6 every night to pick up his kid from daycare, is regarded as insufficiently committed to his work or else just "not one of the guys."
But what I'm not convinced about is that men are drumming for change. In the world of Big Law and Wall Street, I haven't seen much evidence of it. While I know plenty of men who have dropped out of pressured professions, there also appears to be a surplus of men eager to replace their vacated spots in the rat race. I often hear about how promising women decide to get off the partnership track, but promising men seem to stick it out.
November 27, 2012
Tips for avoiding sloppy legal writing
From our buddies at the always informative blog Attorney@work. And, yes, most of these are obvious but that doesn't mean they aren't worth repeating.
Your writing will be better if you use a dictionary and thesaurus. Spell-check does sometimes suggest alternative word choices (I get it every time I use “advise”), so use it but pay attention. Don’t just blow through it. Be careful of Auto-fill, too. The unintended consequences can be embarrassing, to say the least.
Have someone else read your writing. This might be a secretary, your spouse, a colleague. How much time you spend on this exercise will perforce be dictated by the importance of the communication. Consider doing it with everything for a day to improve your awareness of the issues.
Always proofread before sending. A good practice is to save a draft of what you write and go work on something else. When you return to your draft, your fresh eye may pick up previously unnoticed errors. The longer the time between drafting and review, the better the review will be—although, yes, this is really hard at the fast pace of legal practice today.
Continue reading here.
More on Vermont Law School's response to declining applications
The National Law Journal has some additional details on a story we reported here about VLS's decision to offer buy-outs to staff (and then faculty, if necessary) in the face of a significant decline in student applications. The school will also expand its offerings of "certificate" degrees to help make-up the shortfall in revenue. And while it also plans to increase the size of its LLM program in order to boost revenue, anecdotal evidence suggests it may not be worth the additional expense to students hoping to land a good job. To the contrary, at least one legal recruiter says an LLM may hurt a candidate's chances. Something to consider before piling your debt higher and deeper.
From the NLJ:
Vermont is taking a two-pronged approach to the estimated 14 percent revenue decline next academic year. First, the school is looking to reduce costs through voluntarily staff buyouts, which could extend to faculty if there are not enough takers. Second, Vermont plans to increase the number of LL.M and certificate programs it offers in order to boost tuition revenue.
"Sooner or later, I think everyone will have to face what we're facing right now," said Mihaly in a November 26 interview. He noted that as a standalone law school, Vermont cannot rely on a larger university to plug budget shortfalls as a stop gap. "We're all facing the winds of sweeping change," he said.
The voluntary buyout offers went out in late November, and administrators hope that the buyouts will get them most of the way to their goal. Still, Mihaly predicted that additional cutting will be necessary.
"I think it's safe to say that some sort of voluntary buyout package will be offered to the faculty, and I think it will be early next year," Mihaly said. "We don't want to go there if we don't have to."
. . . .
The law school began the process of belt tightening last year, but is looking to make larger changes that will ensure sustainability in a future of smaller J.D. classes.
Part of that sustainability may well be a greater focus on online, LL.M, and certificate programs centered on the school's historically strong environmental law program.
The school began offering an online LL.M in environmental law in 2011, and that course has proven to be popular with students, Mihaly said. The school also plans to ramp up its two-year accelerated J.D. program. Administrators also hope that the addition of specialized advanced law programs will also attract more J.D. students who have specific career aspirations.
Continue reading here.
Penn State Law To Split Into Two Schools
From The Faculty Lounge:
Penn State Law announced to students this week that the University plans to split the law school into two separate institutions starting in 2015. I have many thoughts about this decision, but my first instinct is that it might mark the beginning of a reputational divide between the two Penn State law schools. The biggest fear for the Carlisle folks will be that their campus will be used by the University to generate revenue, with less concern about admissions predictors and resources (notwithstanding reputational costs) while the other campus will be allowed to maintain high credentials and substantial investment in faculty, protecting reputation, even if those features come at significant cost to the University.
Experiential Learning in Australia
Education in the Field: A Case Study of Experiential Learning in International Law by Andrew D. Mitchell, Bruce Oswald, Tania S. Voon, and Wendy Larcombe.
Abstract: Australian and international law schools are increasingly focussed on experiential learning as a means of promoting student engagement and developing graduate attributes. In this article, we review the existing forms of experiential learning and present a course design for ‘education in the field’ that combines elements of internships and simulations with an intensive collaborative learning experience. This course design has been developed and evaluated over the past five years in our teaching of the international law course Institutions in International Law. Its effectiveness in engaging students and achieving high level learning outcomes led to its adoption this year in a second international law course focused specifically on legal professionalism in a global context: Global Lawyer. Both courses are taught primarily through two weeks of intensive seminars outside Australia, visiting a diverse range of institutions and practitioners. This intensive experience ‘in the field’ creates a raft of opportunities for enriching students’ learning. It is also a rewarding experience for teachers, although it creates a number of challenges not faced in a typical law school classroom. We conclude that while this form of experiential learning entails significant administrative and financial costs, these are outweighed by the educational and institutional benefits that flow from this teaching mode.
November 26, 2012
Should we allow non-lawyers to help the unrepresented?
That's the argument made by Professor Gillian Hadfield (USC) in this editorial at CNN.com. Millions of Americans face relatively non-complex legal problems ranging from foreclosures, to small business compliance issues, to how to read a lease yet they can't afford the typical hourly rate most attorneys charge. Professor Hadfield suggests that one way to meet the legal needs of the unrepresented is to train non-lawyers to dispense advice in these rather routine matters. (Perhaps law schools could provide the training by offering masters degrees like Vermont Law School is proposing as a way to both fill this unmet need for low cost legal representation as well as fill their own seats in light of the precipitous drop in J.D. applications)
I think this is what Rocket Lawyer is hoping to do by giving clients access to online attorneys who are admitted in their jurisdiction for a rock bottom rate. And then there's emergence of kiosk syle law practices that are aiming to do the same thing (and here). Perhaps Professor Gillian's proposal recognizes that these low cost alternatives to the traditional law firm model for dispensing legal advice are not going to be economically feasible given the average educational debt of today's law school graduates. Most recently graduated law students simply can't survive by billing only $25 to $50 per hour. Thus enter Professor Gillian.
Lawyers, make room for nonlawyersIn our country, lawyers and judges regulate their own markets. The upshot is that getting legal help is enormously expensive and out of reach for the vast majority of Americans. Anyone faced with a contract dispute, family crisis, foreclosure or eviction must pay a lawyer with a JD degree to provide service one-on-one in the same way lawyers have done business for hundreds of years.
Increasingly, the only "persons" with access to legal help are "artificial persons" -- corporations, organizations and governments. No wonder that in a 2010 New York study, it was shown 95% of people in housing court are unrepresented. The same is true in consumer credit and child support cases; 44% of people in foreclosures are representing themselves—against a well-represented bank, no small number of whom engaged in robo-signing and sued people based on faulty information.
These numbers are just the tip of the iceberg. For every person who is unrepresented in court there are probably tens of thousands who didn't have any legal advice when they did the things that landed them in hot water in the first place. Who can afford $200 to $300 an hour to get advice on local small business regulations, the fine print in a mortgage document, or how not to make mistakes that will cost you in court when fighting over kids and money with your soon-to-be ex-spouse?
. . . .
I believe there is no way to help ordinary people with their legal problems without fundamentally changing the way lawyers and judges regulate the practice of law.
What we need are more efficient ways of delivering legal help and less expensive nonlawyers who can provide legal assistance. Supreme court judges in every state have the authority to accomplish this with the stroke of a pen.
. . . .
It doesn't take high-level legal expertise to advise a person facing eviction for unpaid rent that if she wants to contend that her apartment has no heating and the ceiling is falling down, she should bring some photographs or other evidence to court to back up her claim. The same applies to people who need to understand what the arcane legal language in a court order or rule means.
There are many basic issues that could be handled by nonlawyers. Allowing nonlawyers to work for businesses that invest and specialize in giving this kind of help would supercharge the potential for reducing the cost of legal help.
The use of non-JD legal assistants and nonlawyer dominated businesses is not a venture into uncharted waters. The United Kingdom has a long history of allowing a wide variety of differently trained individuals and organizations provide legal assistance, and studies show that the practice works very well. In many cases, people are better served by a nonlawyer organization that specializes in a particular type of legal help—navigating housing or bankruptcy matters, for example—than they are by a solo practitioner with a general practice.
Furthermore, when people have access to lower-cost alternatives to full-fledged attorneys, they use these resources. In practical terms, that means that only 5% to 10% ignore their legal issues in the United Kingdom. Compare that to New York, where significant majorities of low-income households with legal problems—65% with housing problems, 59% with financial issues, 50% with health insurance problems—do nothing in response to their problems. But as often is the case, untreated problems lead to worse problems—and bigger headaches for our courts.
Continue reading here.
Stories of Supreme Court Justices and Their Clerks
The November 2012 issue of the Washington Lawyer offers an interesting book review of “In Chambers: Stories of Supreme Court Law Clerks and Their Justices” (University of Virginia Press 2012) (scroll down the web page a bit). The review concludes:
The institution of Supreme Court clerks provides a special but revealing glimpse into the otherwise private world of the Supreme Court. By exploring a selection of this unique corps of lawyers, many who went on to influential careers, In Chambers adds an interesting peek at Court history at the highest level. By gathering these essays (and providing additional sources for those who want to know more), the authors add information about our least understood branch of government. Passing references are made to controversial incidents—Justice Black’s association with the Ku Klux Klan as a young man, Justice Rehnquist’s notorious memo to Justice Jackson endorsing Plessy v. Ferguson—but there are no headline–making stories here. In Chambers is a serious, scholarly look at the Court from the unique perspective of one of its special institutions.
November 25, 2012
Vermont Law School offers buy-outs to staff; faculty might be next.
As far as I know, this is the first law school to publicly announce staff reductions, which are still voluntary at this point, directly related to the national drop in law school applications. VLS Dean Marc Mihaly acknowledges that this moves comes as a result of changes sweeping the legal services industry due to technology, off-shoring and similar trends that have reduced the demand for law graduates. Many believe these trends are structural and hence permament.
The Dean says that the school is branching out by offering masters degrees in law which may help offset the loss of revenue attributable to the decline in the number of students pursuing traditional law degrees.
Vermont Law School is offering voluntary buyouts to staff and may do so soon with faculty as it prepares for what its president and dean says are revolutions about to sweep both the legal profession and higher education.
A sharp drop in the numbers of Americans applying to law schools — triggered by a drop in the number of legal jobs open — already is being felt at the independent law school’s bucolic campus on the south bank of the White River.
The class due to graduate in the spring with juris doctor degrees numbers just over 200. The class that will follow it in 2014 numbers about 150.
‘‘When our enrollment goes down, we have to downsize,’’ Marc Mihaly, the school’s president and dean, said in an interview. ‘‘No matter what, we’re going to see fewer on-campus JD students (traditional law students pursuing juris doctor degrees). And we have to adjust to that because we do not run deficits in this school.’’
The law school is independent; it is not tied to the University of Vermont or another ‘‘mother ship,’’ as Mihaly put it. He argued that can make it more nimble in responding to changes in the marketplace for legal training.
The declines in numbers at the South Royalton campus reflect a national trend. Word has been spreading in recent years that there are fewer job openings for lawyers. The American Bar Association reported in June that barely half of those who finished law school in 2011 had landed legal jobs within nine months of graduation.
. . . .
The legal profession is entering an era of greater specialization and differentiated levels of training. No longer will law firms be staffed completely with people with three-year juris doctor degrees. ‘‘The market and technology are going to take that model and shake it,’’ Mihaly said.
Instead, they'll be looking to meet their clients’ demands that they reduce costs by having a growing number of tasks handled by people who may have less than three years of traditional legal training, but who are specialists in fields ranging from environmental to sports law, Mihaly said.
Health care has responded to demands for reducing costs by having physicians’ assistants and nurse practitioners take over duties once performed by doctors, Mihaly said, and the legal profession will soon be following suit. Some law firms may figure out that some processes can be handled ‘‘by a call center in India,’’ he said.. . . . .
The school is branching out beyond the traditional juris doctor degree to offer master’s degrees in environmental law and policy and in energy regulation and law.While it responds to big changes in the legal profession, VLS also is grappling with what may be even bigger changes in the world of higher education, Mihaly said. The thousand-year-old model of a university based on a monastic separation from the surrounding community is disappearing, as more people combine education and work.‘Distance learning,’’ with classes offered mainly online, is becoming increasingly popular. Mihaly cited his daughter Elena, a third-year VLS student who is taking courses online while already working at the Colorado attorney general’s office in Denver.
Hat tip to Joseph Harbaugh.
When Can You Use Dashes?
At Grammar Girl, Grant Faulkner, Executive Director of National Novel Writing Month, reflects on dashes and offers this advice:
F. Scott Fitzgerald famously said, “An exclamation point is like laughing at your own jokes.” Overusing dashes can have a similar effect—prose that is trying too hard to be dramatic when it has no business being so. Dashes can render sentences breathlessly hyperactive, silly—or just downright messy. Ironically, Fitzgerald’s editor Max Perkins deleted many a dash from The Great Gatsby.
So, in the spirit of National Novel Writing Month, here’s my advice: Use dashes in the zestful romp of writing a first draft, but snip them out in revision. Ask yourself if there’s another punctuation mark that could work in its place and consider the different effect. Dashes, after all, are most effective as the flashy accoutrements to an otherwise refined outfit, not as the main feature of the outfit itself.
I phrase my advice this way. Sometimes, your frequent need to use dashes really means you need to rewrite your sentences more frequently. But if you are wed to a certain sentence, try using less intrusive punctuation first. Before using a dash, try using a comma. If the comma fails, sometimes you can use parentheticals. If both the comma and the parentheticals fail, feel free to use a dash.