Saturday, February 25, 2012
From a website called LitReactor:
1. Who and Whom
This one opens a big can of worms. “Who” is a subjective — or nominative — pronoun, along with "he," "she," "it," "we," and "they." It’s used when the pronoun acts as the subject of a clause. “Whom” is an objective pronoun, along with "him," "her," "it", "us," and "them." It’s used when the pronoun acts as the object of a clause. Using “who” or “whom” depends on whether you’re referring to the subject or object of a sentence. When in doubt, substitute “who” with the subjective pronouns “he” or “she,” e.g., Who loves you? cf., He loves me. Similarly, you can also substitute “whom” with the objective pronouns “him” or “her.” e.g., I consulted an attorney whom I met in New York. cf., I consulted him.
2. Which and That
This is one of the most common mistakes out there, and understandably so. “That” is a restrictive pronoun. It’s vital to the noun to which it’s referring. e.g., I don’t trust fruits and vegetables that aren’t organic. Here, I’m referring to all non-organic fruits or vegetables. In other words, I only trust fruits and vegetables that are organic. “Which” introduces a relative clause. It allows qualifiers that may not be essential. e.g., I recommend you eat only organic fruits and vegetables, which are available in area grocery stores. In this case, you don’t have to go to a specific grocery store to obtain organic fruits and vegetables. “Which” qualifies, “that” restricts. “Which” is more ambiguous however, and by virtue of its meaning is flexible enough to be used in many restrictive clauses. e.g., The house, which is burning, is mine. e.g., The house that is burning is mine.
3. Lay and Lie
This is the crown jewel of all grammatical errors. “Lay” is a transitive verb. It requires a direct subject and one or more objects. Its present tense is “lay” (e.g., I lay the pencil on the table) and its past tense is “laid” (e.g., Yesterday I laid the pencil on the table). “Lie” is an intransitive verb. It needs no object. Its present tense is “lie” (e.g., The Andes mountains lie between Chile and Argentina) and its past tense is “lay” (e.g., The man lay waiting for an ambulance). The most common mistake occurs when the writer uses the past tense of the transitive “lay” (e.g., I laid on the bed) when he/she actually means the intransitive past tense of “lie" (e.g., I lay on the bed).
Contrary to common misuse, “moot” doesn’t imply something is superfluous. It means a subject is disputable or open to discussion. e.g., The idea that commercial zoning should be allowed in the residential neighborhood was a moot point for the council.
5. Continual and Continuous
They’re similar, but there’s a difference. “Continual” means something that's always occurring, with obvious lapses in time. “Continuous” means something continues without any stops or gaps in between. e.g., The continual music next door made it the worst night of studying ever. e.g., Her continuous talking prevented him from concentrating.
6. Envy and Jealousy
The word “envy” implies a longing for someone else’s good fortunes. “Jealousy” is far more nefarious. It’s a fear of rivalry, often present in sexual situations. “Envy” is when you covet your friend’s good looks. “Jealousy” is what happens when your significant other swoons over your good-looking friend.
“Nor” expresses a negative condition. It literally means "and not." You’re obligated to use the “nor” form if your sentence expresses a negative and follows it with another negative condition. “Neither the men nor the women were drunk” is a correct sentence because “nor” expresses that the women held the same negative condition as the men. The old rule is that “nor” typically follows “neither,” and “or” follows “either.” However, if neither “either” nor “neither” is used in a sentence, you should use “nor” to express a second negative, as long as the second negative is a verb. If the second negative is a noun, adjective, or adverb, you would use “or,” because the initial negative transfers to all conditions. e.g., He won’t eat broccoli or asparagus. The negative condition expressing the first noun (broccoli) is also used for the second (asparagus).
8. May and Might
“May” implies a possibility. “Might” implies far more uncertainty. “You may get drunk if you have two shots in ten minutes” implies a real possibility of drunkenness. “You might get a ticket if you operate a tug boat while drunk” implies a possibility that is far more remote. Someone who says “I may have more wine” could mean he/she doesn't want more wine right now, or that he/she “might” not want any at all. Given the speaker’s indecision on the matter, “might” would be correct.
9. Whether and If
Many writers seem to assume that “whether” is interchangeable with “if." It isn’t. “Whether” expresses a condition where there are two or more alternatives. “If” expresses a condition where there are no alternatives. e.g., I don’t know whether I’ll get drunk tonight. e.g., I can get drunk tonight if I have money for booze.
10. Fewer and Less
“Less” is reserved for hypothetical quantities. “Few” and “fewer” are for things you can quantify. e.g., The firm has fewer than ten employees. e.g., The firm is less successful now that we have only ten employees.
Read the remaining ten - including "farther v. further," "since v. because," "disinterested v. uninterested," and my favorite "effect v. affect" - by clicking here.
Hat tip to the Lawyerist blog.
From the San Francisco Examiner:
A series of class-action lawsuits contending that the popular social networking site Facebook illegally tracked members’ Internet activity on other websites has been moved to a federal court in San Francisco.
Friday, February 24, 2012
The only three true job interview questions are:
1. Can you do the job?
2. Will you love the job?
3. Can we tolerate working with you?
That’s it. Those three. Think back, every question you’ve ever posed to others or had asked of you in a job interview is a subset of a deeper in-depth follow-up to one of these three key questions. Each question potentially may be asked using different words, but every question, however it is phrased, is just a variation on one of these topics: Strengths, Motivation, and Fit.
. . . .
Preparing for Interviews
If you’re the one doing the interviewing, get clear on what strengths, motivational and fit insights you’re looking for before you go into your interviews.
If you’re the one being interviewed, prepare by thinking through examples that illustrate your strengths, what motivates you about the organization and role you’re interviewing for, and the fit between your own preferences and the organization’s Behaviors, Relationships, Attitudes, Values, and Environment (BRAVE). But remember that interviews are exercises in solution selling. They are not about you.
Think of the interview process as a chance for you to show your ability to solve the organization and interviewer’s problem. That’s why you need to highlight strengths in the areas most important to the interviewers, talk about how you would be motivated by the role’s challenges, and discuss why you would be a BRAVE fit with the organization’s culture.
You can read the rest of the article here.
Former Education Secretary William Bennett said yes. However the empirical evidence is mixed.
Below is the summary of a recent study. However, the study concludes (p.24) that in the case of law schools, the Bennett hypothesis is correct. But in the case of law schools, I am not sure that the study’s assumptions are correct.
The original Bennett Hypothesis held that increases in financial aid will lead to higher tuition, but the empirical evidence testing the hypothesis is inconclusive. The next generation of the concept, Bennett Hypothesis 2.0, adds three refinements.
1. All Aid is Not Created Equal
2. Selectivity, Tuition Caps, and Price Discrimination are Important
3. Don’t Ignore the Dynamic Story
These three refinements not only help explain the mixed empirical evidence, but also provide a better understanding of the relationship between financial aid and tuition. While the first two refinements weaken the link between the two (lessening our concern about Bennett Hypothesis 2.0), the third refinement strengthens the link, implying that we should almost always be concerned about financial aid leading to higher tuition.
Given the current structure of the higher education system, Bennett Hypothesis 2.0 implies that the government will always be fighting a losing battle to increase access to college or improve college affordability since “additional government [financial aid] funds keep providing revenues that, under the current incentive system, increase costs.”54 As higher financial aid pushes costs higher, it inevitably puts upward pressure on tuition. Higher tuition, of course, reduces college affordability, leading to calls for more financial aid, setting the vicious cycle in motion all over again.
Bennett Hypothesis 2.0 exacerbates rather than causes out of control spending by colleges, the ultimate cause of which is Bowen’s Rule. Nevertheless, that is no excuse for ill-designed financial aid programs to pour fuel the fire. As Bennett noted:
“Federal student aid policies do not cause college price inflation, but there is little doubt that they help make it possible.”
Bloomberg Law released a new video compiling “The 10 Greatest Legal Movie Lines”. Above the Law links to the video in this post.
The movies that made the list include:
- The Paper Chase
- The Firm
- Erin Brockovich
- The People v. Larry Flynt
- A Civil Action
- To Kill a Mockingbird
- A Few Good Men
- My Cousin Vinny
- A Man for All Seasons
- The Verdict
What are some of your favorites? Do you use any movie clips in your teaching?
Thursday, February 23, 2012
Last week, I noted the difference between learning the rules of ethics and developing a student's professional identity. Here is an article on professional identity.
Abstract: The Carnegie Effect: Elevating Practical Training Over Liberal Education in Curricular Reform. is a critical analysis of the Carnegie Foundation’s 2007 book length report on legal education, Educating Lawyers. Legal education is at a time of crisis, with law students facing increasing costs for their legal education and increased insecurity about employment upon graduation. Many law schools have responded to this crisis by advocating “practical” curricular reform based on the Carnegie Report. The view that the Carnegie Report advocates “practical” curricular reform is, however, only half the story. The Carnegie Report calls for law schools not simply to produce better-skilled practitioners, but rather to infuse law students with a highly-developed sense of morality, which will lead them to reform the legal profession itself. The article engages the important issues of professional identity raised by the Report and argues that, even if one embraces the Report’s call for ethical reform, the Report's perspective is too narrow. The article shows that the Report fails to consider that the erosion of professional ethics is symptomatic of broader trends in higher education as a whole, and of significant changes in the legal profession itself. Colleges and universities have shifted their emphasis from liberal-arts education to professionally-oriented education. Furthermore, there are alternate and conflicting models for the lawyer's role in modern society. The first model is that the lawyer's core role is to protect the rule of law for democratic society as a whole. The second model is that the lawyer is an advocate for private commercial and corporate interests in an increasingly global marketplace. As the article concludes, before law schools engage in curricular reform, they must first determine the model of professional identity for which they are preparing their students.
An interesting interview with a plaintiff and her attorney in the "law school scam" class action suit
An interview broadcast by Chicago PBS affiliate WTTW with one of the named plaintiffs and the attorney serving as local counsel in the suit against three Chicago law schools over allegedly false employment stats. Loyola-Chicago Dean David Yellen provides some commentary.
You can read a copy of the complaint filed against DePaul, with annotations by WTTW, by clicking here.
Hat tip to Brian Leiter's Law School Reports.
Top notch advice from the Volokh Conspiracy:
Effective Self-Promotion in Cover Letters
How do you effectively promote yourself in a cover letter or similar pitch urging someone to hire you — as a lawyer, a law clerk, or whatever else? Law students often ask me about this, so I thought I’d blog some tentative thoughts of mine, and invite suggestions from others.
1. Business manners aren’t social manners, and excessive modesty can hurt you badly in business. You don’t start a conversation in a social context by saying that you were #1 in your law school class, but you often should say this in a cover letter.
2. At the same time, the rule in cover letters isn’t “anything goes”; some self-promotion will indeed be seen as excessive.
3. My tentative sense is that the main peril with self-promotion in cover letters isn’t the reaction “the applicant it too self-promoting” but rather “I’m skeptical of the applicant’s self-promoting claims.” So objectively verifiable credentials are good, but unverifiable claims are often bad: “I got an A+ in my Legal Writing class” works, but “I’m an excellent writer” — without any accompanying evidence — doesn’t. Readers are on guard for what they see as overstatement of one’s abilities, and any unsupported self-promotion will reinforce their initial assumption that the applicant isn’t to be trusted.
4. The same applies, though to a lesser degree, to unadorned claims of enthusiasm. “I’m really excited about the possibility of working at your firm, because I’m very interested in ERISA law” won’t be that effective. “I’m really excited about the possibility of working at your firm, because the Employee Benefits class that I took made me very interested in ERISA law” will be considerably more effective, because it gives concrete evidence of interest that overcomes the reader’s skepticism.
5. Relatedly, framing your concrete accomplishments in the language of enthusiasm is a nice way of promoting yourself while minimizing any visceral disapproval of perceived immodesty that some readers might have (notwithstanding item 1). “I published three articles in law school” is OK in a cover letter seeking an appellate clerkship, but “I’ve long loved legal writing; my experience publishing three articles reaffirmed this for me, and made me realize how much I would enjoy clerking” is better.
6. If you have several excellent relevant credentials, focus on them, and don’t dilute them by discussing your more mediocre ones or your much less relevant ones. If you have a degree in German literature from Ohio Wesleyan, you should mention it on your resume, which is supposed to provide a relatively complete summary of your educational career; but you shouldn’t mention it in your cover letter unless you think the reader will for personal reasons find the matter particularly interesting (e.g., because he went to Ohio Wesleyan). Everyone has some undergraduate degree. The point in your cover letter is to show how you’re better than the great majority of applicants, not how similar you are to them.
7. Finally, proofread your cover letter, and your resume, especially carefully. Many readers will assume that if you erred in documents that are so important to your own success, you’ll also be sloppy on other matters.
In any case, these are some quick thoughts of mine; I’d love to hear what others might say.
Paul D. Ceglia claims that, on April 28, 2003, he and Zuckerberg entered into an agreement to develop and commercialize what is now the social-networking website Facebook.
When the court ordered Ceglia to make all computers and electronic media in his possession available to a digital forensic consulting firm, Ceglia failed to comply fully. More litigation resulted, and the court ordered Ceglia to pay Facebook’s expenses, including legal fees of Facebook’s law firm, Gibson, Dunn & Crutcher.
The Gibson Dunn attorneys submitted a fee application to the court, outlining both their standard hourly rates, as well as the claimed rates, which were voluntarily discounted by 25 percent.
The rates ranged from $716.25 per hour (down from $955 per hour) for the senior partner on the team, to $337.50 per hour (down from $450 per hour) for the most junior associate. Four of the five attorneys are located in Manhattan, with the fifth member working out of Gibson's Washington, D.C. office.
The final award of $75,776.70 reflected $176.95 hours of total work.
Your students may be interested in how legal fees mount up and how law firms negotiate their fees. There is more interesting information here. (Bloomberg BNA).
Yesterday, this blog posted some remarks by Peter J. Kalis. Unfortunately, Mr. Kalis does not understand what legal education reform is about.
He states: "As to legal education, there are several reasons why a traditional law school education is advantageous. It thoroughly equips students with the concepts underlying all aspects of our legal system, teaches them how to speak with confidence about those ideas and how to express them and integrate them in spoken and written English—all of which is of enormous foundational value. You can learn skills later, but if those skills are unhinged from the conceptual understanding, they render you, to borrow a phrase, 'a mason and not an architect.'” He concludes, "As for those critics who wish to transform legal education into a trade school, they are seriously mistaken."
Legal education reform is not advocating teaching legal skills unhinged from conceptual understanding. The main reason for this is because you can't. The first step in teaching law is to teach doctrine (conceptual understanding). This is what is done in "traditional legal education." What the legal education reformers want to add to this is applying that doctrine to facts--problem solving. In other words, let's not just learn doctrine, but also the ability to use that doctrine.
Which is better: To learn the statutes of frauds then move on to something else, or to learn the statute of frauds and apply it to a factual situation? When a student has to apply the law to facts, he remembers and understands the law better. He will also be able to use that law to solve clients' problems when he gets into practice.
In an advanced skills course or clinic, a student must have conceptual understanding. You can't handle a case in a clinic without developing conceptual understanding. You can't draft a contract in a drafting course without having conceptual understanding. You can't draft interrogatories without having conceptual understanding. As I have advocated before let's have a class that combines products liability and discovery. Let's teach the students products liability, then have them apply that doctrine through discovery.
The legal education reform movement is not advocating turning law school into a trade school. Is a medical school a trade school because the students treat patients? Is an architectural school a trade school because the students actually design buildings? I don't want to go to a doctor who just learned chemistry and human anatomy; should law be any different?
Wednesday, February 22, 2012
BigLaw managing partner says traditional legal education is best preparation for contemporary law practice
[ABA Journal] What are some ways that U.S. lawyers can position themselves to be more competitive? Is there still value in traditional legal education?
[Peter J. Kalis] It’s out of fashion, but I'm an advocate of traditional American legal education. More generally, I don’t think there are new skills American lawyers need to equip themselves with, but rather they need to find ways and organizational structures that allow them at once to serve their clients around the corner and around the world. It has more to do with the new structure of the industry than with new lawyer skill sets.
As to legal education, there are several reasons why a traditional law school education is advantageous. It thoroughly equips students with the concepts underlying all aspects of our legal system, teaches them how to speak with confidence about those ideas and how to express them and integrate them in spoken and written English—all of which is of enormous foundational value. You can learn skills later, but if those skills are unhinged from the conceptual understanding, they render you, to borrow a phrase, “a mason and not an architect.”
By studying law cases in a variety of disciplines, law students gain insight into healthy norms, accepted social behaviors, deviations from those behaviors and how the legal system categorizes and treats those deviations. It’s not an overnight process, but rather an accretive process over the years of gaining knowledge, intuition, insight and, eventually, judgment. If you accomplish this, you are a better human being as well as a better lawyer.
As for those critics who wish to transform legal education into a trade school, they are seriously mistaken.
You can read more here.
Step into just about any courtroom on day one of trial, and you will see attorneys and consultants using their own particular systems for managing the flood of critical information coming from the panel during oral voir dire. We’ve long since given up on paper as the medium for writing briefs or for organizing spreadsheets, yet we still generally cling to paper methods—usually Post-It notes arranged in a grid—when it comes to note-taking during jury selection. That is partly because viable electronic tools for the task are only just coming on to the market, and partly because it is hard to switch methods during the stressful moments of jury selection.
Video Review: Jury Box Version 3.03
The new tools, however, are doing a lot to address the stress. And, while much of the focus has been drawn to the iPad’s jury selection apps, one of the most promising new programs is for the good old laptop. Jury Box is designed by Adam Gordon, a Deputy District Attorney for San Diego County, and it aims to aid attorneys and consultants in collecting and organizing information during voir dire. In the video below, I took up the task of reviewing Jury Box’s latest update, Version 3.03, and commenting on some of the advantages the program offers over others on the market.
The U.S. Supreme Court has granted cert. to a case challenging the University of Texas’s method of affirmative action. From Bloomberg BNA:
Fisher v. University of Texas at Austin
Case History :
Filed: 09/15/2011 (80 U.S.L.W. 3144)
Ruling Below: (5th Cir., 631 F.3d 213, 79 U.S.L.W. 1941)
Summary of Ruling Below: The University of Texas at Austin's affirmative action plan, modeled in light of the U.S. Supreme Court's ruling in Grutter v. Bollinger, 539 U.S. 306, 71 U.S.L.W. 1788 (2003), is constitutional. The Supreme Court rejected the notion, presented by the United States as amicus curiae in Grutter, that facially race-neutral percentage plans, such as Texas's Top Ten Percent Law, were a workable alternative and therefore not a constitutionally mandated replacement for race-conscious admissions programs. The court appeared, however, to imply that if the state law provided a "critical mass" of minority students, then the Grutter-like program may face constitutional concerns.
Question(s) Presented: Do this Court's decisions interpreting the Equal Protection Clause of the 14th Amendment, including Grutter v. Bollinger, 539 U.S. 306, 71 U.S.L.W. 1788 (2003), permit the University of Texas at Austin's use of race in undergraduate admissions decisions?
Attorneys: Petition for certiorari filed 9/15/11, by Bert W. Rein, William S. Consovoy, Thomas R. McCarthy, Claire J. Evans, and Wiley Rein LLP, all of Washington, D.C.
Here is a fuller explanation from the SCOTUS blog.
This post from the Gov Docs Guy summarizes the “first steps toward more trustworthy online state legal materials.”
“The years-long effort to address the reliability of online primary legal materials at the state level finally reached the floors of statehouses across the country when bills to enact the Uniform Electronic Legal Material Act (UELMA) were introduced in Tennessee, Colorado, and California over a three week period from late January to mid-February. “
You can read the UEMLA here.
Hat tip @ErrolAdamsjdmls
If only we could get the Bluebook editors to improve the rules for citing electronic sources!
Tuesday, February 21, 2012
Of course, of course. From the Washington Post:
Barnes & Noble has just announced an 8GB version of its Nook Tablet, pricing it in direct competition with the Kindle Fire at $199. The Nook Color has also been reduced in price, down to $169. The new Nook Tablet is the same Android slate as the $249 offering that's been available since November, only with its onboard storage halved to 8GB. Today's price alterations leave B&N with a portfolio starting at $99 with the Nook Simple Touch, then stepping up to $169 with the Nook Color, $199 with the Nook Tablet 8GB model, and finally $249 with the 16GB Tablet.
Barnes & Noble launched the Nook Tablet late last year with 16GB of memory and a $249 price tag. The device has its advantages over the Kindle Fire — a better screen for reading, for example — but hasn’t taken off in the same way, likely because of its higher price point.
The new model of the Nook goes on sale on Barnes and Noble’s Web site today.
You can continue reading here.
From the ABA Journal Blog:
A law firm given a F grade last year by the Better Business Bureau of Central Florida for a claimed pattern of unresolved client complaints is firing back.
The KEL law firm has filed a federal lawsuit in Orlando against the local BBB and related defendants, contending that its business has been damaged by a biased review, reports the Orlando Sentinel.
The firm, which handles a high volume of foreclosure defense and loan modification matters, says the client complaints on which the BBB focused represent only a tiny fraction of its 25,000 cases. "Many of the complaints forwarded to the BBB were baseless in nature and only lodged as an attempt by clients to harass KEL for situations in which the clients had unreasonable expectations," the suit contends.
It seeks compensatory, special and punitive damages for business defamation or disparagement and false advertising, contending that the F grade resulted from a biased review in contravention of the BBB's claimed policy in its promotional material.
The article doesn't include any comment from the defendants. However, Joseph W. Little, an emeritus law professor at the University of Florida, said the BBB review is likely to be viewed as opinion, rather than a false statement for which defamation damages can be awarded, unless the law firm can show the defendant acted with reckless negligence.
"The BBB has [a] common-law right to express fair comment and honest opinion based on true facts," he told the newspaper. "If it does that, then it is protected speech and opinion, even though it is not the opinion the law firm would want them to have."
You are the editor. You confront this text:
Sal Friday took a drag on her cigarette and, keeping an eye on the alley, she felt again for her .38. When she heard the switchblade open against her neck, she froze but, for the first time in her life, she knew what to do.
You might let it pass untouched or revise it this way:
Sal Friday took a drag on her cigarette, and keeping an eye on the alley, she felt again for her .38. When she heard the switchblade open against her neck, she froze, but for the first time in her life, she knew what to do.
Or you might revise it this way:
Sal Friday took a drag on her cigarette, and, keeping an eye on the alley, she felt again for her .38. When she heard the switchblade open against her neck, she froze, but, for the first time in her life, she knew what to do.
So, which choice do you make? At the Chronicle of Education online, Carol Fisher Saller, a senior manuscript editor at the University Chicago Press, offers arguments favoring each choice. The lesson: the rules aren’t all that hard and fast—even when it comes to punctuation.
Personally, I would choose the second revision.
The Supreme Court will hear a major case on affirmative action next term. (New York Times)
"The new case, Fisher v. Texas, No. 11-345, was brought by Abigail Fisher, a white student who said she was denied admission to the University of Texas because of her race. The case has idiosyncrasies that may limit its reach, but it also has the potential to eliminate diversity as a rationale sufficient to justify any use of race in admissions decisions."
"The court’s decision in the new case holds the potential to undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer way to ensure academic diversity."
“There thus seem five votes — Roberts, Scalia, Kennedy, Thomas and Alito — to overrule Grutter and hold that affirmative action programs are unconstitutional,” Erwin Chemerinsky, dean of the law school at the University of California, Irvine, wrote in a recent book, “The Conservative Assault on the Constitution.”
Monday, February 20, 2012
What would you do if you could develop the curriculum at a new law school? Here is what one law school did:
Abstract: Fulfilling the UC Irvine mission to prepare students for the practice of law at the highest levels requires providing every UCI Law student opportunities to learn, as part of their formal legal training, what it means to be a lawyer by actually practicing law. The most important of these opportunities is a student's participation in a substantial clinical course, in which the student, under the close supervision of a member of the UCI Law faculty and, as appropriate, another supervising attorney, represents real clients, addressing their legal problems in an environment that includes continual feedback, skills practice, and time for learning and reflection. This essay describes the UCI Law School blueprint for the development of a well-coordinated experiential learning program that begins in the first year and continues through all three years of the Law School's curriculum. The essay describes how experiential learning is a central goal of the UCI Law School mission and explains how it is implemented through real-world, live client work in each of the three years of law school.