February 11, 2012
How Many Presidents Have Taught Constitutional Law?
The answer is four: Presidents William Howard Taft, Woodrow Wilson, Bill Clinton, and Barack Obama. How well did the scholarly experience inform their presidential conduct? Here’s a fairly nasty article from the Washington Examiner. Here are a few sample paragraphs:
The skill-sets they bring to the presidency just give them the sophistry and brazenness necessary to invent new and creative ways of violating the constitutional oath of office.
Obama is the fourth former con law prof to serve as president, joining William Howard Taft (University of Cincinnati Law School), Woodrow Wilson (Princeton and New York Law School), and Bill Clinton, (University of Arkansas Law School).
Please don’t shoot the messenger. All I do is report the opinion of someone else.
New legal "skills" scholarship: "Clinicians, practitioners, and scribes: drafting client work product in a small business clinic"
By Professor Robert R. Statchen (Western New England) and available at 56 N.Y.L. Sch. L. Rev. 233 (2011/12) and on SSRN here. From the abstract:
The recent and rapid growth of transactional clinics, and more specifically small business clinics (SBCs), mandates that time and attention be given to pedagogical methods within this specialized clinical structure. This Article focuses on the drafting component of an SBC. It is often asserted that legal education does not effectively provide students with business-oriented, practical skills training. At the heart of an SBC is the necessity to prepare appropriate written client work product. SBCs also provide an excellent opportunity for students to acquire interviewing, researching, drafting, counseling, problem-solving, and other expertise. This Article attempts to provide a process for efficiently teaching students drafting skills appropriate for an SBC and, ultimately, for transactional practice. A clinical professor supervising an SBC must balance competing goals of delivering professional client work product, providing an appropriate educational experience for students, and, for some SBCs, fulfilling a social and economic justice role. Based on the diverse legal needs of a small business (e.g., entity formation, intellectual property, employment, tax, and finance), the significant role documentation serves in meeting these needs (e.g., client memoranda, organizational documents, contracts, and employee applications/manuals), and the reality that clinical students must acquire other professional skills during their clinical experience (e.g., problem-solving, researching, interviewing, and counseling), an efficient drafting process is required to facilitate students’ ability to produce real world, client work product in one, or at most two, semesters. The drafting process the author proposes in this Article borrows from clinical (collaborative/partnership supervision) and legal writing (new rhetoric) pedagogies, and also incorporates the value creation theory that is well-established, if not foundational, in the transactional law community.
February 10, 2012
HeinOnline launches browsable Congressional Record Index
From Legal Research Plus:
HeinOnline’s “U.S. Congressional Documents” library offers browsable copies of the Congressional Record Index. Given proposals to axe many print copies of the Congressional Record, there is concern that, among other things, we could lose ready access to the great research tool that is the Index. Last year, we researched dozens of wilderness-related bills in the 1950s-1960s. Initially, title searching in Congressional documents databases did not identify them all, because a few of the earlier bills were captioned as “forestry”—a fact discovered by using the print version of the Congressional Record Index. So, we are relieved that HeinOnline has preserved the Index’s utility with browsable PDFs. To boot, they do a great job with metadata structuring. Each letter within an Index may be accessed via separate hyperlink. As one browses, the list of hyperlinks remains visible along the left of the screen, allowing for easy navigation.
Fear of Speaking
I am surprised at how many of our students are afraid of public speaking. If this fear leads them to avoid getting behind the podium, they will seriously will hamper their professional careers. Attorney at Work has posted an excellent entry with numerous suggestions for the hesitant speaker and for the speaker who needs assistance in thinking about how to execute a great presentation. There is too much information to summarize here.
E-Discovery – 7th Circuit Pilot Program
This article from Law Technology News discusses an e-discovery program in the 7th Circuit and the impact it could have on other jurisdictions.
"The abundance of electronic information now available makes it more important than ever that litigators understand how to prepare their clients for e-discovery without letting prohibitive costs influence their clients' litigation decisions. Judges and lawyers in the 7th U.S. Circuit Court of Appeals understand this predicament and have taken preventive action by drafting e-discovery principles and implementing them, on a test basis, in hundreds of pending cases in the 7th Circuit."
The participating judges report that they have seen increased cooperation among parties, more meaningful attempts to resolve discovery disputes, and more attention to clients’ data.
The 7th Circuit program may serve as a template for programs in other jurisdictions. More information can be found here.
Wegner on the Second- and Third-Year Curriculum (Wegner 6)
In the last part of her article, Reframing Legal Education’s "Wicked Problems," Professor Wegner discusses problems of the second- and third-year curriculum. She proposes to deal with these problems by renegotiating basic bargains when you reach a dead end.
The advanced curriculum has reached a dead end because "many students’ second- and third-year classroom experiences are relatively dilute or packed with information without necessarily generating marked engagement. Students face few course requirements and have considerable flexibility about what they study and when. . . . Academic and career advising is generally limited, and after the disorienting force of the first year experience, many students are at a loss about what professional path they might wish to pursue. Intensive preparation for class often goes by the wayside and students‘ time and attention often turns to extracurricular activities and part-time work."
Wegner suggests four strategies to overcome these problems: 1) purposeful design on a large scale, 2) rethinking content, 3) rethinking pedagogy, and 4) rebalancing teaching and learning responsibilities.
Wegner thinks that one method of purposeful designis to recreate the institutional mission. She mentions institutions that have already done this including NCCU, which has "required comprehensive examination on first year subjects at the end of the first year, and a number of course requirements in the upper division (including focusing on statutory interpretation)" and Elon, which "has hired a substantial number of faculty members with significant expertise in educational theory and practice, and has endeavored to forge an educational model that focuses on leadership and professionalism." Similarly, "Northwestern has adopted a long-range plan geared to preparing its graduates to function well in corporate settings, following a careful study of what those employing many of its graduates would like to see."
She also argues that there should be significant differences (progression) between the second and third years. Concerning the second year, she writes, "There is therefore a case to be made that the second year of law school should provide students with an opportunity to grapple with their own doubts and questions about how they might fit within the legal profession. If schools have not taken significant steps to help students engage with the apprenticeship of professional identity and values,. they may need to take considered steps to do so during the second year." She also mentions Washington and Lee’s new third-year program, "which is structured to provide participating students with two five-unit practica courses," "a two-week skills immersion module at the start of each semester," and "a two-hour professionalism course that will run throughout both terms, and engage in various forms of public service including work with student groups or external groups."
Wegner’s second strategy is rethinking content–"what gets taught, by whom, and when." In curriculum discussions, "rarely does the discussion center on what a well-educated lawyer should know." Furthermore while "faculty members and students are drawn to clustering courses by subject area," employers rarely care about concentrated subject matter preparation. Thus, pedagogy and rebalancing the responsibilities of teachers and students become more important.
In discussing rethinking pedagogy, Wegner focuses on "theoretical developments related to student engagement, the role of instructional objectives, and the potential for imagining and embracing new conceptions of course design." Student engagement includes "the level of academic challenge, opportunities for active and collaborative learning, students‘ interaction with faculty members, enriching educational experiences, and supportive campus environment." There also four types of engagement in the classroom: "(a) skills engagement (including attending class and taking good notes to understand the material presented); (b) emotional engagement (including really wanting to learn the material and thinking about it between course sessions); (c) participation/interaction engagement (including volunteering in class, talking with the instructor, working with classmates); and (d) performance engagement (doing well in the class, being confident, having extrinsic motivation)." One of the many problems with engagement is "the surprising gaps in the pedagogy employed by many law professors [in] the failure to recognize that instructional objectives are worth consideration and can make a difference in many ways. Effective instruction generally requires setting goals, developing strategies for achieving those goals, and assessment that measures whether goals have been achieved."
Wegner then examines reconceptions of course design. She notes that "increasingly, law faculty members appreciate the potential of various forms of practice-oriented instruction, including live client clinics, externships, and simulation courses." However, she warns of the theory/practice divide: "One of the banes of legal education has been the false dichotomy between theory and practice." She adds, "It has long been common in academia to look down on practice,. carrying forward the Aristotelian preference for the intellectual life (and associated forms of declarative, written knowledge) to which academics commit themselves." To the contrary, she advocates that "many ‘stand up’ [doctrinal] faculty members in courses outside clinics should be less reticent to take to heart the possibilities evident in clinical, externship and simulation pedagogy, or in the increasing possibilities for new models beyond these." "For example, Professor Deborah Maranville has suggested that the traditional categories are misleading and the focus should instead be directed toward educational goals that seek to generate passion within students, provide context for learning, and teach lawyering skills." Another way to rethink pedagogy is through the problem method, which "requires active participation (not just observation); challenges students to develop legal skills in context rather than relying on knowing legal rules; and facilitates self-directed learning." In addition, "doctrinal faculty members might partner with an adjunct or legal writing professor to provide optional writing or skills-related instruction for an additional credit associated with a substantive course, or might consult with such colleagues to develop an practical skills exercise that would be incorporated into a substantive course with or without designated credit." The possibilities are endless.
Wegner’s last strategy is to rebalance teaching and learning responsibilities. "Gradually, many college and university educators have begun to appreciate that there are various mental constructs for what happens in the classroom, and that these constructs entail more teacher-centered or more learner-centered ways of seeing the educational enterprise." Moreover, "learning will occur most effectively if students join forces toward achieving desired learning in the end." Law schools must overcome student alienation to develop more engaged learners. Also, socialization to a professional identity is a significant goal.
There are three ways to try to deal with these problems. "First, schools need to take student advising much more seriously." "Second, students should be helped to visualize and take responsibility for their emerging professional strengths and weaknesses." Finally, "are there other forms of expertise (not just expertise in critical thinking) that should be developed in law school beyond the first year?" This could be dealt with by other forms of assessment. For instance, "students could be given new opportunities to achieve law school honors by opting into the creation of outstanding professional portfolios that document their writing, interviewing, professionalism, problem-solving abilities, ethical commitments, and more."
Summary: I have spent much more time discussing Wegner’s article than I had originally intended, and I have still left out numerous important details. Wegner’s article is worth reading in depth because she incisively recognizes the problems in legal education, and she has suggested creative ways to overcome many of those problems.
February 9, 2012
Friday Fun: "Ten Best Sites for Law Students Who Need a Good Laugh"
This comes to us from our good friends at the Criminal Justice blog. Enjoy!
Con law got you down? Drop the books and check out Lowering the Bar, a legal humor site that’s guaranteed to make you laugh. Author Kevin Underhill keeps readers entertained by posting ridiculous cases, court opinions, and any other absurd legal material that catches his interest.
When you can’t make it to happy hour, kill some time on The Billable Hour instead. This site compiles hundreds of funny legal videos that range from cheesy lawyer commercials and legal cartoons to stand-up bits about jury duty.
Above the Law is a great place to come for any of your law school needs and career quests, but more importantly, it’s the tongue-in-cheek articles and absurd cases that make it such a popular legal website for students and lawyers.
One visit to Lawhaha and you’ll be wishing Andrew McClurg was your law professor. This funny guy puts a unique spin on legal humor with his Spot the Tort and Legal Oddities section that are sure to make your eyes water. There’s even a place where you can share your law school (horror) stories.
In the Jester’s Courtroom you’ll find a collection of case stories that are "stranger than fiction," but surprisingly true. Don’t be surprised if some of these ridiculous cases end up in your textbook, because they’re just that good.
Take a break from torts and contracts and turn your attention to Funny or Die. Whether you want to watch awesomely bad lawyer videos or see Will Ferrell make a fool of himself, there is something for everyone on Funny or Die.
The University of Washington’s Judicial Humor is a comical collection of random, yet hilarious cases involving everything from talking animals, wisecracking judges, and poetic parodies that will have you shaking your head and crying from laughter at the same time.
LawHumor.com is your go-to source for legal humor articles, news, and music written and performed by lawyers. That last part might sound like a joke, but you’ll just have to see for yourself.
What do you get if you put 100 lawyers in a basement? A whine cellar! Get it? OK, so some of the jokes on here are pretty corny, but it might not hurt to learn a few of these for your next interview.
If sarcasm is your first language, then you’ll feel right at home on Bitter Lawyer. This cleverly written site is chock-full of legal humor, news, comics, and podcasts that will leave you feeling brighter and a bit more bitter than before.
Negativity comes naturally to us; is there a lesson here for more effective persuasion?
People are fond of saying "try to be more positive." When I hear that, I often smile to myself thinking that the speaker doesn't realize the irony in her implicit acknowledgement that there's really nothing to be positive about so we've got to instead muster a good attitude. Well, it turns out that from a neuro-psychological standpoint, that's pretty close to the truth. According to this article from Psychology Today, we are all programmed with a "negativity bias." This negativity bias - bad emotions are more powerful and longlasting than "positive" ones - is what helped keep the species alive back in the caveman days. Fear is our most powerful and evolutionary important emotion because it helped us avoid threats and danger that enabled us to pass our genes along to the next generation. The negativity bias is related to this in that it helps us remember the bad experiences longer and more vividly than the good ones. "The brain is like Velcro for negative experiences but Teflon for positive ones. That's why researchers have found that animals, including humans, generally learn faster from pain (alas) than pleasure."
Does this hold lessons for how best to pitch legal arguments to better achieve the desired result? For example, there's a general equitable principle that the law abhors a forfeiture. Is that based in some primal, neuro-psychological fear of loss? Is your argument more likely to persuade the decision-maker if it can be cast in terms of the negative consequences to your client? Is that why those "parade of horribles" arguments, though hackneyed, often work? If we can emphasize the bad things that will occur (whether to our client or "society") if the judge doesn't rule our way, are we more likely to win the case?
Who knows? But this ongoing series from Psychology Today certainly makes interesting food for thought.
Hat tip to the Business Insider.
Facebook is an Increasing Factor in Family Law Cases
From Philadelphia’s Legal Intelligencer:
While Facebook was no stranger to alimony or divorce proceedings — "It makes it easier to have an affair," as one lawyer put it — the biggest forum in which the world's most popular website had found a home was custody cases.
"By and large, we haven't had a custody case where something Facebook-related doesn't come up," said Jonathan Hoffman, an attorney specializing in family law.
In one custody dispute, Weber Gallagher partner Christian V. Badali said, a father created a fake Facebook page pretending to be the mother. It featured pictures of the mother in a bathing suit along with fake posts and status updates.
The advice to give clients: Get off Facebook. Of course, they don’t always take that advice. Social media is so tempting.
Historical Speeches Provide Lessons For Today's Attorneys and Law Students
This post on Law.com by Michael P. Maslanka: “5 Lesser-Known Speeches Hold Lessons for GCs” provides some interesting advice for corporate counsel, but arguably useful for all lawyers and law students.
The speeches include:
“1. Winston Churchill eulogizing Neville Chamberlain (London, 1940)… Today's heroes are tomorrow's goats; today's goats are tomorrow's heroes. Churchill's message: Never gloat, always be magnanimous….Churchill implored listeners to act with character, advised them to be decent and taught them to be gracious. Lawyers fear doing so, worrying they will look foolish, appear weak, be exploited. But Churchill took the long view, and so should attorneys.
2. Hubert Humphrey speaking for civil rights (Philadelphia, 1948)… Here is a first-rate call-to-action speech: Hubert Humphrey, then mayor of Minneapolis, spoke to the Democratic convention and pleaded for inclusion of civil rights in the platform.
The speech had four key elements. He identified the problem ("vicious discrimination"). He told the delegates what he wanted them to do ("state clearly and without qualification" that the party supported civil rights for African-Americans). He explained why this was important ("to get out of the shadow of states' rights and to walk forthrightly into the bright sunshine of human rights"). And he dealt directly with objections ("To those who say that we are rushing the issue of civil rights, I say to them we are 172 years late")….
3. President John F. Kennedy advocating for space funding (Houston, 1962)… The United States and the Soviet Union were locked in a race to the moon. Kennedy spoke at Rice University, a center of engineering excellence. His job: to persuade the nation to invest the dollars it would take to win the race. He did, but how? His speech was a model of persuasion against resistance….
Want to motivate? Be vivid and detailed. Need to focus others? Provide a specific goal with a deadline to achieve it. Seek common ground? Speak to the best in each person in the legal department and the company.
4. George Washington addressing his officers (Newburgh, N.Y., 1783)…. America had won the Revolutionary War, but the officers who had served with Washington had not been paid. They were in a rebellious mood and met in Newburgh to discuss possible military action against Congress. Hearing of the meeting, Washington strode in unannounced and gave a speech.
It was factually correct, and it flopped. He then reached into his pocket to retrieve and read a letter from a congressman on why the officers couldn't be paid. But he also pulled out reading glasses, which few in attendance knew he used. "Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray but almost blind in your service." (Accounts of exactly what Washington said differ, but this version comes from "American Crisis: George Washington and the Dangerous Two Years After Yorktown, 1781-1783.")
Seeing their leader show this vulnerability, evoking their long period of hardship, created a wellspring of emotion and loyalty in the men. The incipient rebellion was snuffed out. Lesson No. 1: The GC should not hesitate to act like a quarterback and call an audible, changing the play — his message or style — at the line of scrimmage when the initial plan doesn't work. Lesson No. 2: Facts don't move people; emotions do.
5. Dr. Martin Luther King, Jr., addressing economic rights (Memphis, Tenn., 1968)… Emotion works, but only if the speaker tethers it to a rhetorical structure. So, here is what King did. He picked one line — "we are tired" — did an extended riff on it and closed with it. He tied that one sentence to vivid examples: "tired of our children having to attend overcrowded, inferior, quality-less schools"; "tired of being emasculated" so that a man's wife "must work in the white lady's kitchen"; "tired of smothering in an airtight cage of poverty." His repeated use of being "tired" created parallelism that drew in listeners and linked them to the situation, engendering hunger for change.”
I agree with Mr. Maslanka about why these speeches resonate – “Each speaker spoke directly from the heart. That's what makes them works of art, yesterday and today.”
February 8, 2012
Apps for law students and lawyers
From the website OnlineCollege.org:
Nobody envies law students, paralegals, or lawyers for their reams upon reams of paperwork, save perhaps masochists of certain inclinations. So, to this particular professional demographic, nifty little gadgets such as the iPad and its ilk are touted as a godsend. These digital devices significantly cut back on the amount of time hunched over books as thick as [Insert Name of Personally Disliked Public Figure Here]'s head, laptops, or desktops, freeing up time for more pressing matters. The following applications just make things that much easier in some way or another.
Lawyers and law students living and working in the United States should probably familiarize themselves with the Constitution, seeing as how it only serves as the cornerstone of American law and everything.
Another wholly necessary legal document available via a completely free iPad app, so there really isn't any too much of an excuse to completely forgo downloading it.
LawLibe allows users to load up necessary legal documents on an as-needed basis for the quickest possible reference — with specific state codes beyond the already-available Texas, California, and New York on the docket.
When cramming for looming bar exams, supplement those sessions with this free resource perfect for self-quizzing on the go.
Lexis Nexis, purveyors of many a fine legal-oriented application, consulted numerous law professors when whipping up the Q&A Series study guide, which provides a basic overview of 22 different areas.
No matter where a user may roam, he or she can set up tracks and alerts related to new cases, legal news, changes in current courtroom activities, and more.
With videos, digital flash cards, glossaries, and other amazing resources, graduates and lawyers gearing up for the Multistate Bar Exam have a vital study guide available to them completely gratis — but only for a limited time!
Seeing as how Black's Law Dictionary carries a $54.99 price tag, it might not prove a fiscally prudent choice for students; pros, however, might find it a valuable investment to have every term they may or may not encounter available at their fingertips.
Any iPhones with Legal-Ease can tap together and instantly exchange important contact information and — like it says right there in the title — non-disclosure agreements.
No matter the state, Fastcase hosts a handy-dandy digital notebook for finding relevant statutes and court cases; users requiring information at the federal level are not left out, either!
Check out the remaining 15 by clicking here.
Is it better to have a one or two page resume?
Career services offices have traditional told law students to boil down their resume to a single page. Does that advice still make sense when almost all resumes are now submitted electronically? The Lawyerist blog says "no."
Law students and attorneys alike are looking for more experience to flesh out their resumes. Ideally, this experience will set people apart when applying for a job. But after building this experience base, people try to cram everything they’ve done on one page. To fit everything on a single page, people use small fonts, no spaces, and omit relevant information. If you’ve got relevant experience, why not put it on your resume? The purpose of a resume is to get you in the door for an interview. But if yours is cramped and tough to read, nobody will read it. That means nobody will invite you in for an interview.
Benefits of a Two Page ResumeImprove Readability
When you allow yourself to stretch onto a second page, you can be more liberal with the spacing. Lines between sections will set your various jobs apart from each other. A minimum twelve point font should be used throughout your resume. Anything smaller is difficult to read whether it’s on a screen or in print form. Ideally, your headings should be slightly larger than the body text to set it apart. But don’t go overboard. Breaking onto a second page doesn’t mean you can put your name in a thirty point font.
Once all of your relevant experience goes onto a second page anyway, you can use some of the extra room to showcase yourself. When you’re trying to cram your entire resume onto one page, you probably won’t have room for a summary section or list of accomplishments. Your summary section can be one or two sentences that give the reader a snapshot of who you are. After you’ve explained your experience in a summary section, you can set yourself apart with a list of accomplishments. I’m using accomplishments as a general term. The section could include non—legal certifications, personal accomplishments (I have one of my marathons on my resume), or even interests. After spending a month reviewing resumes, I can say that these types of things really round out a resume and shed some light on who the person is, not just what they’ve done.
Cautionary InstructionsOnly Include Relevant Information
Going onto a second page doesn’t give you liberty to throw whatever you want on your resume. You still have to keep all the information relevant to the job you’re applying for. Unless you did something extraordinary, you shouldn’t have anything listed from your college career. The longer you’ve been out of law school, the more you can cut from your school days. If you’re more than five years out of school, a CALI award in a subject area you don’t practice probably isn’t relevant anymore. Similarly, if you have no plans to step foot in a courtroom your moot court experience probably isn’t relevant.
Three Pages is a CV
A two page resume will help you showcase your relevant experience. But once you get onto a third page it starts to resemble a curriculum vitae. Unless you have numerous publications or you’ve been in the business a long time, you’re probably including irrelevant information.
Legal Ethics Forum: Law School Has A Legal Research Mission Too
Earlier this week, I mentioned the forum on Legal Education's Response to Economic Realities Facing the Profession. Brad Wendel has an interesting post on law schools' legal research mission on that forum.
Professor Wendel argues, "it’s a good thing that law professors conduct theoretical research, for two reasons." "First, a society is better off if it supports institutions in which scholars can explore ideas for their own sake. In a pluralist, relatively secular liberal democracy, the law is one of the most important means of social control and even a thicker sense of citizenship and solidarity. Not only is a great deal of public policy enacted through legal institutions such as courts and administrative agencies, but the law also serves as a resource for understanding our rights and duties as citizens. Accordingly there is a need for sustained reflection on the role of law, including concerns that are within the purview of humanities scholars, such as legal history, the normative status of the claims the law makes on us, and literary considerations such as the multiple levels of meaning contained within trials, judicial opinions, and other legal texts."
"Second, it is good for the legal profession that the training of lawyers take place in the university. Law school is a time not only for learning practical skills but for reflecting on one’s chosen career. Lawyers love to say they belong to a learned profession, and in my experience many practicing lawyers do return over the course of their professional lives to the kinds of questions a graduate education, with a healthy dose of the liberal arts, encourages reflection about."
He concludes, however, "just because university-based legal education is justified in general terms does not mean we should not be concerned about its ever-increasing cost."
I basically agree with Professor Wendel. While we need much reform in legal education on both the macro- and micro-levels, as I mentioned in a post a few weeks ago, this does not mean that we should discard legal education's research mission. Our universities, including our law schools, have a duty to advance knowledge, as they have for centuries. Law professors who write articles on esoteric subjects can still teach basic courses, as do professors in other university departments.
I also agree that law students should be exposed to "humanistic and social-scientific perspectives on law." However, this should not be done at the expense of learning basic skills that students will need in practice. Law schools can do both, especially considering that law school is three years.
In Drafting a New Constitution, Where Would Justice Ginsburg Look for Models?
Not to the U.S. Constitution, but to post World War II Constitutions. Last week in Egypt, Justice Ginsburg gave advice to the country’s revolutionaries:
"I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012," Ginsburg said in an interview on Al Hayat television last Wednesday. "I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done."
She then pointed not only to South Africa's constitution, but to Canada's 1982 Charter of Rights and Freedoms and the European Convention on Human Rights.
"Why not take advantage of what is else there in the world? I'm a very strong believer in listening and learning from others," Ginsburg added.
Justice Ginsburg also noted several positive aspects of the U.S. Constitution, particularly separation of powers, checks and balances, and an independent judiciary in which the judges have fixed salaries.
Here is a link to the article.
February 7, 2012
Wegner on "Naming" and "Thinking Like a Lawyer" (Wegner 5)
Professor Wegner’s article, Reframing Legal Education’s "Wicked Problems," next discusses the power of "naming," offering an in-depth look at the nuances of "thinking like a lawyer" as understood by students and faculty members interviewed in connection with the Carnegie Report. She stresses the specific ways that first-year case-dialogue instruction forces students to deal with uncertainty, one of the critical dimensions of professional practice, and she unpacks the notion of "thinking like a lawyer."
Wegner begins with an examination of what thinking like a lawyer means to faculty and students: "the notion of thinking like a lawyer has more significance than most beginning students appreciate. It involves a certain kind of thinking (a form of reasoning that is situated in the legal context reflecting the needs and purposes of lawyers). It involves certain kinds of content and dynamics (case-based precedent, a changing society, and the interventions within the legal system). It also involves particular players (lawyers) with associated roles, responsibilities, and norms."
Based on the above examination, Wegner believes "that the traditional names associated with these strategies may blind many legal educators to the virtues and limitations of first year pedagogical practices." She thinks, "More conscious use and supplementation of the case-dialogue method can help students to master thinking like a lawyer more effectively, illuminate important aspects of law school assessment practices, and open space for innovation beyond the first year."
Wegner states that "To underscore the relationship between the raw materials (cases) and teaching techniques (dialogue), a new way of naming the traditional pedagogical process is needed." She argues that the "‘case-dialogue method’ more effectively captures the core learning and teaching dynamics that are at the heart of things." "First, instruction in traditional case-based forms of legal reasoning involves helping students master a set of key intellectual tasks associated not only with the law but also with higher-order thinking outside of the law (the intellectual tasks theme). Second, classroom dialogue involves a complex dance in which teachers bring to bear an array of subtle instructional tactics that render visible tacit understandings and misunderstandings much as a skilled artisan might guide an apprentice in the early stages of mastering a craft (the instructional tactics theme)."
Wegner first discusses Intellectual Tasks, Legal Reasoning and the Dynamic of Cases. Karl Llewellyn articulated the core tasks of legal reasoning in The Bramble Bush: 1) knowing and 2) comprehending what a court had decided, 3) analyzing the rule of the case and the court‘s interpretation of evidence, 4) applying precedent to other cases, and fathoming its impact on the real world, 5) relating and synthesizing cases as part of an evaluation of doctrine, and 6) evaluating a court‘s decision in terms of its desirability in broader terms. These correspond to psychologist Benjamin Bloom’s core cognitive capacities: 1) knowledge, 2) comprehension, 3) analysis, 4) application, 5) synthesis, 6) evaluation. Wegner declares, "These distinctive cognitive tasks and associated ‘levels of discussion’ are implicitly dynamic, since each step along the chain of thinking involves a cognitive process in and of itself."
Next, she discusses Instructional Tactics and The Dynamic of Dialogue. The dialogue of professor and students and its underlying dynamic of question and answer, comment and response, have rarely been explored. "The dialogue is part of an ongoing conversation between expert and novice, between master artisan and journeyman who seeks to learn." "In a sense, the dialogue of the legal case-dialogue method is embedded in the context of an apprenticeship system ." "Although the process of development parallels that found in traditional craft apprenticeships, it is less obvious because the complex cognitive patterns of teacher-experts are generally not explicit and are thus difficult for their student-novices to observe." Methods employed by expert teachers include: "‘Modeling’ by making cognition visible; ‘Coaching’ by providing guidance and feedback; ‘Scaffolding’ by providing support for students who have not yet reached the point of mastery; and ‘Fading’ by encouraging students when ready to proceed on their own." Student strategies include: "‘Articulating’ by providing explicit descriptions of their understanding so that it is no longer invisible; ‘Reflecting’ by pausing to consider what they know; and ‘Exploring’ by testing their understanding in next settings in which it might apply."
Bringing the two parts together, "The distinctive dynamics of case-based legal reasoning and dialogue-based instructional interaction come together in important and energizing ways. As professors determine how best to use key cases, they take into account the context of their material, their particular day‘s objectives, and the extent of student mastery given the progress of the academic year. At each step in the process of discussion teachers may adopt different stances of interaction with their students (modeling, coaching, scaffolding, fading), calling forth different student responses as appropriate to an individual‘s or the class‘s overall understanding and needs." Thus, "A deeper understanding of the dynamics of the case-dialogue method provides important insights about the role of that pedagogical approach in encouraging student learning."
Important questions, however, remain. First, "thinking like a lawyer involves an array of sophisticated intellectual tasks that are generally not named or described explicitly, but which correspond to widely-recognized cognitive tasks associated with higher-order thinking often familiar to those students with strong earlier academic preparation and less well-known to others with more non-traditional backgrounds. Would explicitly naming and addressing these issues make a difference in student performance?" Second (analysis), what are the implications of the case-dialogue method with regard to students‘ understandings of other aspects of the law (such as statutes)? Third, (application), "if students are not afforded opportunities to develop skills relating to application of legal principles in complex scenarios, what are the implications for the legitimacy of law exams?" Fourth (synthesis), "students generally receive little formal instruction about or practice in synthesizing complex ideas. . . . [However,] students are often expected to engage in complex synthesis of ideas in order to perform well on law school exams. What is the significance of this disjunction?" Fifth (evaluation), students "are rarely asked to engage in external critiques of the law emphasizing such considerations as fairness or justice, leaving the impression that these topics are of little concern or importance, and providing little chance for them to develop their abilities to evaluate such matters on their own." Sixth (assessment), "faculty members need to give careful attention to how their assessment techniques actually correspond with the intellectual tasks that they expect of students in their first year classrooms."
Wegner concludes that "law schools have historically been weak in articulating their institutional goals, recognizing and confronting comprehensive educational challenges facing their students, and committing to ongoing assessment of the effectiveness of their instructional programs. If it becomes possible to confront wicked problems associated with naming and taking responsibility for student learning, year-by-year and throughout the complete three-year law school program, significant results might be gained. Until law schools are willing to recognize that they must find and name the invisible dimensions of the educational process (as Millie had to name Rumpelstiltskin because her humanity and child‘s welfare depended upon it), it is unlikely that significant improvements in legal education will result."
Before concluding, I would like to stress three of Wegner’s points. First, we need to make legal reasoning explicit. Second, we need to emphasize case synthesis considerably more than we have. Finally, Wegner's analysis shows the need to teach miniskills in order to help students attain expertise.
What are the implications when a state stops publishing hardcopy case law reporters in favor of an "official" digital database?
That's one of the questions raised by Cornell Professor Peter W. Martin in Abandoning Law Reports for Official Digital Case Law, available at 12 J. App. Prac. & Process 25 (2011) and on SSRN here.
From the abstract:
In 2009, Arkansas ended publication of the Arkansas Reports. Since 1837 this series of volumes, joined in the late twentieth century by the Arkansas Appellate Reports covering the state's intermediate court of appeals, had served as the official record of Arkansas's case law. For all decisions handed down after February 12, 2009, not books but a database of electronic documents “created, authenticated, secured, and maintained by the Reporter of Decisions” constitute the “official report” of all Arkansas appellate decisions.
The article examines what distinguishes this Arkansas reform from the widespread cessation of public law report publication that occurred during the twentieth century and this new official database from the opinion archives now hosted at the judicial websites of most U.S. appellate courts. It proceeds to explore the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted. Speculation about which other states have the capability and incentive to follow Arkansas’s lead follows. That, in turn, requires a comparison of the full set of measures the Arkansas Supreme Court and its reporter of decisions have implemented with similar, less comprehensive, initiatives that have taken place elsewhere. Finally, the article considers important issues that have confronted those responsible for building Arkansas’s new system of case law dissemination and the degree to which principal components of this one state’s reform can provide a useful template for other jurisdictions.
Tips for backing up desktop data (but lawyers need to be more judicious)
Here's an interesting juxtaposition of articles. This one, Losing Is for Losers: It’s Easier Than Ever to Back Up Your Work from the Chronicle of Higher Ed, reminds us that when it comes to our desktop work files, backing them up is like flossing; we need to do it everyday but sometimes don't (and that can cost us big time later on).
Then there's this somewhat related post from the Law Technology News blog that when it comes to preserving electronic files that may become the subject of discovery requests during litigation, lawyers need to develop a cost and time efficient strategy that doesn't waste resources on unnecessary over-preservation while still making sure you're saving enough to avoid possible court sanctions. The post, What Causes Lawyers to Over-Preserve?, discusses the pros and cons of several e-file preservation strategies from saving it all to taking a more surgical approach.
It's time we change the maxim from "preserve broadly" to "preserve carefully." Many preservation efforts are thoughtless and mechanical, designed by those loath to turn a discriminating eye to the task. While no approach to email preservation is wholly without risk or cost, knowing your options helps you to "right size" the approach.
Continue reading about e-file preservation strategies at LTN by clicking here.
The market for BigLaw summer associates may be bouncing back just a bit
Especially for aspiring litigators and transactional attorneys. While graduates from top-tier law schools will benefit from the modest growth of BigLaw summer programs, there likely won't be any trickle down to schools outside the T-14. Thomson Reuters reports:
The worst of the summer-hiring slump for law students may be over, according to law school administrators and management consultants.
A pickup in litigation and transactional work over the last year, along with projections of modestly better revenue and earnings for 2012, is prompting some law firms to reinvigorate their summer hiring plans, said Paula Alvary, principal of consulting firm Hoffman Alvary, which advises law firms on strategy and management.
The good news started to gather in 2011. A new assessment found that several top schools saw an increase in law firms' summer hiring of their students last year, confirming previous reports that summer-associate hiring has begun to recover.
"Firms are making a very, very cautious return to summer hiring," said Alvary. "They are treading carefully, but they don't want to be caught short two to three years from now."
While students should not count on a return to the eye-popping numbers of the boom era -- when larger firms hired dozens of associates every summer -- the market has been showing positive signs, said Douglas Rush, a professor of education at Saint Louis University in St. Louis, Missouri.
"Firms are again starting to hire for summer positions, though not in the numbers they did before the recession," he said.
Last August, The American Lawyer released the results of its 2011 survey of law-firm hiring, which found that the average summer class size at more than 100 law firms was up 25 percent from 2010.
MID-LEVEL FIRMS REASSESSING
To get a better sense of the hiring impact on individual law schools, Reuters asked a group of top-rated law schools for their most up-to-date year-to-year data.
At New York University School of Law -- currently ranked No. 6 by US News & World Report -- preliminary data show that about 70 percent of incoming third-year students got summer associate positions in 2011, up 15 percentage points from 2010. At No. 5-ranked University of Chicago, the number was 77 percent, up eight points from 2010. The increase was three percentage points at No. 1-ranked Yale, and four percentage points at No. 7-ranked University of Michigan.
Students at top-tier schools may be experiencing more of a improvement in summer hiring than those at lower-tier schools, which tend to send fewer students to the top firms, Alvary said.
"Top-end firms continue to rely heavily on summer associate programs, but mid-level firms are reassessing their processes for training lawyers," she said. "There's a differentiation in the market."
Summer associate jobs -- long sought-after for serving as feeders to well-paid jobs after graduation -- became tougher to get in the wake of the recession, even for students at the most elite law schools, as firms slashed their summer programs.
The dropoff was steepest between the summers of 2009 and 2010, according to data compiled by Harvard. In 2009 the top 100 law firms offered approximately 6,123 summer-associate positions. One year later, that number fell to 3,211 -- a reduction of nearly 50 percent.
"The impact of 2008's financial crisis wasn't really felt at law schoolsuntil the following year," said Irene Dorzback, assistant dean of career services at NYU. "Students interviewing in 2009 for summer associate jobs in 2010 ... were hit the hardest."
JOBS 'DIDN'T FALL INTO ANYONE'S LAP'
The sudden decline is reflected in the experiences of top-ten-ranked law schools. At NYU, 55 percent of incoming third-year students held summer positions in 2010, down from 80 percent a year earlier. At Michigan, the drop was to 51 percent from 75 percent; at the University of Chicago the numbers were 69 percent and 89 percent, respectively.
Among the elite of the elite, however, the dropoff was not as steep. At Harvard Law School -- ranked No. 2 -- approximately 77 percent of incoming third-year students had summer associate jobs in 2010, a drop from 85 percent in 2009, according to Mark Weber, Harvard Law's assistant dean for career services.
"We have very good employment numbers, but the jobs didn't fall into anyone's lap," said Weber. "Students had to work harder and expand the scope of their searches. So, many landed (summer associate) work at firms, but was it at the firm they wanted, in the location they wanted, doing type work they wanted to do?"
At Yale, there was no perceptible dropoff between 2009 and 2010: 72 percent of rising third-year Yale students took summer associate jobs each year.
Hat tip to ATL.
Mining Data From Last Semester’s Exams
Recently (Jan. 17), at the Best Practices for Legal Education Blog, Barbara Glesner Fines (UMKC) offered helpful advice about how to get some value out of last semester’s exams. She suggests mining them for data and using the data to improve your teaching:
1. Improve your data collection. Examine the distribution of performance on individual questions or issues (a few issues, not all of them).
2. Analyze your data. Look for patterns to determine why students did well or poorly on an issue.
3. Plan for the next class. Next time, plan how to do a better job teaching these issues. During the semester, include some student assessments (e.g., quizzes) to help identify learning deficiencies.
Professor Glesner Fines illustrates this process by showing how she mined and used data from her Professional Responsibility exam.
Of course, you can use the same method to mine data from Legal Writing papers and clinical experiences. Worth reading.
February 6, 2012
Legal sector added 1,000 jobs in January
The legal sector kicked off 2012 on an upbeat note by adding 1,000 jobs in January, according to the preliminary employment report released Friday by the U.S. Bureau of Labor Statistics.
The gains mark a near-complete reversal from December 2011, when legal employers cut 1,100 positions, according to the BLS's seasonally adjusted data. (The agency initially reported a loss of 1,800 jobs in December.)
Last month's job growth represents the legal industry's greatest one-month uptick in employment since July 2011, when the sector's job rolls swelled by 4,100. January's positive numbers come on the heels of a poor fourth quarter that saw the legal sector suffer a net loss of 300 jobs.
With January's gains, the legal sector appears headed in the same direction as the broader economy, which outpaced analysts' expectations by adding 243,000 jobs in the first month of this year. The nation's unemployment rate fell from 8.5 percent in December to a three-year low of 8.3 percent, according to the BLS.