Saturday, May 18, 2013
The current ABA President thinks so:
No. It’s not. The answer is so easy. Not achievable. I think it’s actually a misrepresentation. Talking about work-life balance is fraud. Alright. It’s particularly fraud to young women or any, any age woman who thinks there’s somebody out there, they look at me and they say, ‘Oh, you don’t look that tired, how do you do it all, Laurel?’ That question assumes that I do it all. That question doesn’t take into account what it takes to get through a week—but loving it at the same time.
Others may disagree. This posting at Attorney at Work offers the views of several lawyers. I think that the balance is very hard to achieve if you have a demanding job or if by nature, you have a lot of passion for your work. I always find the balancing act to be a challenge.
This week, we have featured two articles by James Moliterno. Here's another one:
Abstract: The legal profession tends to look inward and backward when faced with crisis and uncertainty. Greater advances could be made by looking outward and forward to find in society and culture the causes of and connections with the legal profession’s crises. Doing so would allow the profession to grow with society, solve problems with rather than against the flow of society, and be more attuned to the society the profession claims to serve. The latest in a long line of such backward-looking regulation efforts can be found in the lackluster results of ABA Commission 20/20.
That's the message of Professor James E. Moliterno of Washington and Lee University in an interview with the Wall Street Journal Law Blog in which he says that non-lawyers should be allowed to serve in leadership and regulatory positions with the ABA. The WSJ was interviewing Professor Moliterno in connection with his forthcoming article in the Emory Law Review called The Trouble with Lawyer Regulation. In that article, Professor Moliterno agues that the American legal profession has been "a backward looking, change resistant institution. It has failed to adjust to changes in society, technology, and economics, despite individual lawyers’ efforts to change their own practices and entrepreneurs’ efforts to enter the legal marketplace." The solution, he says, is to allow non self-interested outsiders a shot at fixing a broken system. As he tells the WSJ blog
“Lawyers still function on the state-by-state licensure system. A lawyer cannot walk across the line from Ohio to Pennsylvania and engage in law practice,” Mr. Moliterno tells Law Blog, as an example. “We would either move to a national law license or a very relaxed form of admission-on-motion system, allowing lawyers to much more freely cross borders.”
He also predicts a relaxing of the rules that require law firms to be owned by lawyers. At the moment, the District of Columbia is the only U.S. jurisdiction that allows non-lawyer ownership, according to an ABA news memo from last year. The prohibition stems from concerns about confidentiality and independence. The ABA declined to comment on Thursday.
“If there were some nonlawyer ownership of law firms, or more generally legal services delivery, the owners would find it in their business interests for the lawyers to have insurance and follow the ethics rules,” said Mr. Moliterno, who just wrote a book on a similar theme.
The professor also predicts that non-lawyers would encourage the growth of legal services geared toward middle and low income people. “Entities like LegalZoom and Rocket Lawyer would flourish rather than be sued for unauthorized practice of law. Much more creative systems of service delivery would be pioneered without the resistance of the legal profession,” he said.
Friday, May 17, 2013
Essentially it's because downsizing signals trouble which would hurt the reputational component of the school's USNWR ranking and thus no school wants to make that first move even though reducing the cost of the faculty through downsizing or salary cuts would might significantly help students by enhancing the economic viability of a law degree. From the Becker-Posner Blog:
Some Economics of Higher Education—Posner
. . . .
If legal education were an entirely private activity, neither regulated nor subsidized by government, an economist would describe the situation as one in which a fall in demand required sellers to move down their maginal cost curve in order to charge a price that covered their marginal cost; that is, their demand curve would intersect their marginal cost curve at a lower point, implying a lower price (and also lower output). The demand for legal education is a derived demand from the demand for lawyers; if the demand for lawyers drops, so does the demand for legal education. If law schools fail to make a price adjustment, applications will plummet.
But they can lower price only if they reduce their costs. The problem is that by reducing costs, they reduce demand, because the perceived (though not real) value of a legal education is dependent on those costs as refracted through the lens of U.S. News & World Reports, which publishes a highly influential ranking of law schools. That magazine gives weight in its rankings to factors that actually bear no relation to the quality of a legal education, including the faculty-student ratio (important in some types of education but not in legal education) and the law school’s expenditures per student. In addition, accreditation of a law school depends on such additionally irrelevant factors as the size of a law school’s library even though all research relevant to the study of law by students can be conducted online.
. . . .
The obvious solution for the law schools is to reduce the size of their faculties and/or reduce faculty salaries. Although most law faculty are tenured, and so their salaries cannot be reduced, they can be laid off for economic reasons and, in lieu of being laid off, can agree to a salary cut. Law professors tend to be paid very generous salaries, especially relative to the amount of work demanded of them compared to the sweatshop hours of practicing lawyers and the intense competitiveness and resulting employment uncertainty in the law firm market nowadays. And law professors derive greater utility from their academic careers, quite apart from working conditios, than they would as practicing lawyers.
If law schools were permitted to cartelize, they might well embrace the downsizing that I have described as a solution to their economic dilemma. But they are not permitted to cartelize, and this creates hesitancy. The first law school to downsize will attract unwanted attention and, if none or only a few follow suit within a short time, its rankings in U.S. News and World Reports will nosedive. Law schools also have to worry about the possible adverse reactions of the accreditation authorities. Then too there is the hope that if enough law schools do take substantial measures to balance supply and demand, the law schools that do not will benefit, for example in being able to attract more of the affluent applicants to law school plus the applicants (often the same people as the affluent) who by virtue of native ability or a superior college education are likely to do well even in a very challenging legal marketplace.
Read Judge Posner's entire essay here.
Thursday, May 16, 2013
We'd previously blogged about reviews, both positive and negative, of Steven Harper's new book The Lawyer Bubble. Mr. Harper, a former BigLaw partner and a current adjunct professor of law at Northwestern, is also author of the blog The Belly of the Beast which covers issues related to the fundamental changes overtaking the legal profession as well as the so-called "law school scam" movement. Now the PBS NewsHour has interviewed with Mr. Harper on the topic of legal education. Interestingly, despite the fact that Mr. Harper has been such an outspoken critic of the current state of legal education, he says that if he were graduating from college today, he would go to law school all over again. For him and others like him, it still represents the right choice. Here's an excerpt of his interview with PBS:
NewsHour: Knowing what you know now, and writing this book, say it was 2008 and you just graduated college, would you go into law school?
Steven Harper: Yes I would. As I mentioned, I really had a great career. It was for me something that seemed like the right thing to do. What I would've done coming out of law school is less clear to me although frankly when I went into law school as I was going in, I wasn't sure what I was going to do coming out anyways. So I'm not sure where any of that would ultimately land now. But I certainly would be a lawyer if I had to do it over again, no question about it.
NewsHour: What do you say to those graduated and who are in school now reading this book?
Steven Harper: Well, first of all that would depend where you're in school because there is a dramatic difference between, for example, employment rates for those who are graduating from say the top 10 or 15 or 20 law schools compared to those who are graduating from way further down the food chain. But what I would say to them is if you really want to be a lawyer and it looks like it's the right fit for you, then by all means be a lawyer, go for it. Figure out a way to make it work for you and do the best you can and just persevere through it. On the other hand, if you're someone who's kind of gotten yourself into it and you're looking around saying 'What am I doing here? I don't even enjoy any of this,' then don't be afraid to admit a mistake. We all make mistakes. And find whatever it is you can do with your life that you're passionate about.
Read the entire interview here.
When Harper Lee help Truman Capote write "in Cold Blodd," he gave her no credit. Now, someone else is trying to rip her off--not her reputation, but her royalties.
Harper Lee, 87, the author of Pulitzer Prize-winning book, “To Kill A Mockingbird,” has sued her literary agent Samuel Pinkus, alleging that he tricked her into assigning him the copyright of her book. Published in 1960, “To Kill A Mockingbird,” is known as a classic, and is the only book published by the author.
Harper-Lee, who lives in Monroeville, Alabama, has alleged that Samuel Pinkus took advantage of her old age and transferred the rights to the book to secure “irrevocable” interest in the income from Lee’s book. To date, the novel has sold more than 30 million copies.
You can read more here.
Wednesday, May 15, 2013
A new study by Amsterdam researchers concludes that hardcopy text is the superior medium for learning and digesting complicated material while electronic text is better for skimming a lot of information quickly. The findings are included in an article called Reading and Learning From Screens Versus Print: A study in Changing Habits Part 1. Reading Long Information Rich Texts by Judith Stoop, Paulien Kreutzer, Joost G. Kircz and available in 117 New Library World 7/8 (2013). From the abstract:
Purpose - The aim of the paper is to research the difference in reading and learning from print versus electronic media in a professional and educational setting. To what extent does the materiality of the medium influence the efficiency and effectively of the reader? What is needed to create ‘digital born’ information rich texts? In Part 1 sustained reading of information and knowledge rich texts is addressed.
Design/methodology/approach - In-depth comparative tests with a great number of subjects between print-on-paper, e-ink screens and LCD screens. In Part 1 the results of tests with sustained reading of information and knowledge rich texts are reported.
Findings - All tests show that print-on-paper is still a superior medium for learning and digesting complicated and elaborate texts, whilst electronic screens are appreciated for quick information gathering, communication and navigation. Electronic representations of information and knowledge demand that the structure of the writing has to change.
Research limitations/implications - Given the rapid development in electronic displays, many issues – in particular ergonomical – become a "moving target". An important limitation – which is one of the quests of this research - the lack of sufficient genuine digital born texts.
Practical implications - The need to start and review the writing process; the appearance but also the structure of information and knowledge rich texts. A second issue is the need to develop easy capabilities to make an electronic texts as easy a "tool" as the print text with underlining, comments and notes.
Originality/value - Deep qualitative research in comparison with quantitative tests. Comparison between professional information acquisition and learning.
Several years ago, researchers in emotional intelligence studied how successful emotionally mature business executives are. “Emotionally mature” includes such characteristics as self awareness and empathy. Their findings:
We found that of all the elements affecting bottom-line performance, the importance of the leader’s mood and its attendant behaviors are most surprising. That powerful pair set off a chain reaction: The leader’s mood and behaviors drive the moods and behaviors of everyone else. A cranky and ruthless boss creates a toxic organization filled with negative underachievers who ignore opportunities; an inspirational, inclusive leader spawns acolytes for whom any challenge is surmountable. The final link in the chain is performance: profit or loss.
From this body of research, we discovered that emotional intelligence is carried through an organization like electricity through wires. To be more specific, the leader’s mood is quite literally contagious, spreading quickly and inexorably throughout the business.
Common sense tell us that these findings apply to the academic world as well. Emotionally intelligent professors create a climate in which learning and creativity flourish. Emotionally intelligent administrators create a climate in which the best qualities of academia flourish.
Tuesday, May 14, 2013
Professor James Moliterno has posted an article on SSRN concerning the resistance to change in legal education.The Future of Legal Education Reform
Abstract: "The history of the legal profession’s self-regulation during self-identified crisis times (such as the present) is not a happy one. The profession has resisted change. When it has instituted change, such change has been directed not at the existing members of the profession, but at new entrants. Mostly, the change that has come has been forced by the influence of society, culture, economics, and globalization — not by the profession itself. These change agents include Watergate, communist infiltration, the arrival of waves of immigrants, the litigation explosion, the civility crisis, and the current economic crisis that blends with dramatic changes in technology, communications, and globalization. In every instance the profession has held fast to its history and its ways long after those ways have become anachronistic. The profession seems to repeat the same question in response to every crisis: How can we stay even more the same than we already are? Legal education has fared little better in this mode."
Some key excerpts:
"The short story is that the legal profession is ponderous, backward-looking, and self-preservationist."
"Albert Einstein taught us, 'You cannot solve a problem from the same consciousness that created it. You must learn to see the world anew.' The American legal profession tries to solve problems with the same thinking that created them. It clings to the past and precedent. It 'protects, preserves, and maintains.' It acts as if preserving the status quo will solve all, when in fact it will solve nothing. This backward thinking, the same thinking that preceded the crisis, exacerbates the impact of the crisis."
"Often justified for its 'gatekeeper' function of protecting the public from incompetent lawyers, the profession has lost sight of the function of the bar exam as a gatekeeper. To be a rational gatekeeper, passage through the gate must be related to what is on the other side of the gate—in this instance the practice of law."
"I have met lots of lawyers in my thirty-two years since law school. So far I have never had a lawyer say that she solved a client’s problem solely based on what she learned during a particular Tuesday afternoon session of the Torts or Contracts class. Client problems are more complex than that, and almost always require some measure of synthesis of topics."
"By pressuring students to be prepared for a dizzying number of subjects, the bar exam impedes reforms that would assist students in being prepared to practice law."
"But rather than abandon the opportunity for education in the third year, legal education should produce value in the third year."
"The most advantageous answer for this kind of education is sophisticated experiential education. The legal education system should abandon the term 'skills education,' because its usual meaning has become too narrow and too pejorative in some circles. So, adding to experiential education means more clinics, to be sure, and now-traditional skills courses (legal writing, trial advocacy, negotiation, etc.), but it means far more. This 'far more' should come in the form of sophisticated, practice-setting, sensitive simulation courses taught by a mixture of professors and expert practitioners. In these courses, students are urged to make the transition from student to lawyer. Students continue to learn law, but now do so as lawyers do, with a client’s need as the driver, rather than as students do, with a three-hour exam as the driver. In such circumstances, students transition to the thought processes of lawyer-problem-solver and away from learning for no more reason than acquiring knowledge. This kind of third year could be a year with one foot in the academy and one in the practice. Far from being exclusively skills courses, these courses develop habits of the lawyer’s mind that are not developed in the traditional courses aimed at appellate legal analysis. The third year should be a kind of “'mental pathways’ transition time.'”
This study suggests that if your goal is physical conditioning, you're better off hitting the gym in the morning rather than after a tough day at the office. For me, a lot of the reason for going to the gym is about stress relief which means I feel like I get more out of it by going after work rather than before. So your specific exercise goal may dictate whether you become a morning or evening person when it comes to scheduling your gym visits. From The Journal of Applied Physiology:
Mental fatigue is a psychobiological state caused by prolonged periods of demanding cognitive activity. Although the impact of mental fatigue on cognitive and skilled performance is well known, its effect on physical performance has not been thoroughly investigated. In this randomized crossover study, 16 subjects cycled to exhaustion at 80% of their peak power output after 90 min of a demanding cognitive task (mental fatigue) or 90 min of watching emotionally neutral documentaries (control). After experimental treatment, a mood questionnaire revealed a state of mental fatigue (P = 0.005) that significantly reduced time to exhaustion (640 ± 316 s) compared with the control condition (754 ± 339 s) (P = 0.003). This negative effect was not mediated by cardiorespiratory and musculoenergetic factors as physiological responses to intense exercise remained largely unaffected. Self-reported success and intrinsic motivation related to the physical task were also unaffected by prior cognitive activity. However, mentally fatigued subjects rated perception of effort during exercise to be significantly higher compared with the control condition (P = 0.007). As ratings of perceived exertion increased similarly over time in both conditions (P < 0.001), mentally fatigued subjects reached their maximal level of perceived exertion and disengaged from the physical task earlier than in the control condition. In conclusion, our study provides experimental evidence that mental fatigue limits exercise tolerance in humans through higher perception of effort rather than cardiorespiratory and musculoenergetic mechanisms. Future research in this area should investigate the common neurocognitive resources shared by physical and mental activity.
Here’s a short video from Bloomberg with an optimistic slant. Most job statistics are based on the number of law grads who have or don’t have jobs 9 months after graduation. If you look at the numbers 12 or 18 months out, you may find that many more have law jobs. Some viewer comments after the video take issue.
At the annual Scribes Dinner at the National Conference of Law Reviews, plain English guru Professor Joe Kimble offered the law review students some tongue-in-cheek advice on how to perpetuate bad law review writing. (Now published in the Michigan Bar Journal) His words reminded me of the well-known quote from Fred Rodell:
There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature--and I by no means except those fancy rationalizations of legal action called judicial opinions--is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style.
I hope Joe made some impression on his audience. I can attest to the difficulty of trying to modernize the dowdy world of law reviews.
Monday, May 13, 2013
For any new law grad starting a law firm, whether you're hanging a shingle or you've decided to form a small firm with some law school buddies, here are some good tips for finding and registering an appropriate domain name courtesy of attorney@work.
- It must be short, easy to remember and easy to spell.
- It must conjure up an image of you (as in your smiling face) or of your brand—and by “brand” I mean one or two simple keywords that will lead to you every time: your name, your location, your practice specialty.
- If you buy a domain with an extension other than .com, be certain to investigate who owns the .com version. If it’s a person or business that could be confused with you, don’t buy. If there’s a published website offering the same or similar services as you, you need to find new keywords and the .com to go with them. Otherwise, you’re already starting in a hole SEO-wise. The established site will likely always rank higher than you because it has been live longer using them. (Sometimes the SEO stuff is just plain old common sense.) I’m no lawyer, but when I worked in the litigation department of a trademark/patent firm, the words “confusingly similar” were the ones that I recall never wanting to hear.
Word to the wise; the "confusingly similar" language the author refers to has to do with potential liability for trademark infringement if your domain either bears a visual similarity to a distinctive or famous mark (i.e. you might be cybersquatting under Section 1125(d) of the Lanham Act) or if it causes consumer confusion because the public might mistakenly believe your website is affiliated with the owner of a registered mark under Section 1125(a). You want to make sure you avoid both of those situations when you're selecting a domain name.
Educating Tomorrow's Lawyers has uploaded Law Jobs: by the Numbers tm to their website. This employment rate calculator is "an interactive online tool that gives prospective law students the most transparent and complete law school employment rate information available." It "empowers prospective students to build, analyze, and compare rates among law schools based on 2011 and 2012 data released by the American Bar Association, all with just a few clicks of a mouse. Users can 'choose their own' formulas to tailor employment rates and prioritize the jobs that are valuable to them."
You can read the rest of the press release here.
Sunday, May 12, 2013
Do you know when to use one versus the other? Below is a quiz on the difference between "fewer" and "less" courtesy of Lynn Gaertner-Johnston's Business Writing blog. After you take the quiz, click here for the answers along with some helpful pointers on keeping the two straight.
- He would like to be able to express himself using fewer/less words.
- Would you like to receive fewer/less email?
- This checkout lane is for people who have fewer/less than 15 items.
- Fewer/Less than 30 percent of participants could identify passive verbs.
- Next time please give me fewer/less strawberries.
- Can someone who is fewer/less than 44 inches tall ride this attraction?
- She had fewer/less commuting problems when she lived in Seattle.
- I leave for San Jose in fewer/less than two weeks.
- He had fewer/less than $40 in his wallet when he arrived in New York.
- I have fewer/less miles on my rewards program than I thought I had.
The University of Pennsylvania has issued “for comment” a policy for professors interested in teaching online beyond the confines of the university. Here are the main policy principles:
- A faculty member’s primary professional obligation is to the University. This includes both a primary commitment of time and effort to University activities and a commitment not to compete with the University without advance permission.
- The scope of this obligation is broad, in that it includes not engaging in extramural activities that conflict with the University’s “outstanding or prospective commitments for teaching and research.” (Policy II.2; emphasis added.)
- With regard to teaching, this has always meant that faculty members may not teach elsewhere without advance permission.
- With regard to faculty business engagements with outside firms or groups, the Policy makes clear that a faculty member may not take on outside assignments that might be “suitable and appropriate activities for execution within the University” (Policy III) without first offering that opportunity to the University and receiving University permission.
- Because of the broad scope of the Policy, it is critical that faculty members make early and full disclosure to their department chair and dean of any situation or proposed engagement that potentially raises a conflict of interest.
You can read more here. The policy fails to make any mention of a central consideration: money. This proposed restrictive policy limits the ability of professors to supplement their salaries. To what extent will the university compensate the profs for their online efforts in house? Beyond that question, I think that online education is about to explode so massively that universities will not be able to contain it within the traditional institutional model of academia.
Sometimes, a coworker’s conduct or inaction forces you to respond and even bring the problem to an administrator. How do you raise the issue in a professional manner that doesn’t make you look like a whiner? Here’s advice from Nancy Mulloy-Bonn, the Director of ALI-CLE:
- Your boss’ time is scarce, and she does not relish a visit from a complainer.
- What exactly is your complaint?
- What action are you asking your boss to take?
- Speak in the affirmative, not the negative.
- Focus on facts, not speculation or opinion.
- Speak for yourself and no one else. You
- Don’t preface your remark with, “Please don’t tell anyone I spoke to you about this.”
- Use your best ammo, and discard the petty stuff.
You can read more here.