Thursday, August 10, 2017

Editing for Concision

In this brief article, Wayne Scheiss illustrates ways to edit writing to be more concise. This is a nice article to pass no to students,

This article from the Michigan Bar Journal Plain Language column offers 14 techniques that can help legal writers retain necessary content but communicate more concisely in writing: assess passive voice, don't fear possessives, remove redundancy, omit needless details, cut throat-clearing phrases, diminish sesquipedalian vocabulary, edit for wordiness, revise unnecessary nominalizations, eliminate excessive prepositions, and more.

You can access it here. Editing for Concision (December 2016). Wayne Schiess, Editing for Concision, 95 Mich. B.J. 34 (Dec. 2016)  Available at SSRN:


August 10, 2017 | Permalink | Comments (1)

Attracting Students to Law School by Adding Value (New Cognitive Skills) to Legal Education

This week, Shima Baradaran Baughman has written a three-part series on why students should go to law school on the PrawfsBlawg.  One of her arguments is that "Law school teaches you how to see both sides of an argument better than any other degree."  In other words, law school gives students a valuable cognitive skill that is hard to obtain elsewhere.

Shouldn't law schools add to this traditional one?  In other words, aren't there more cognitive skills that law schools can teach its students that are not available elsewhere?  Wouldn't they attract more students if they did this.

In 2013, I wrote a book, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013) to give students new cognitive skills and to help them develop more fully the ones they already have.  The book began from the insight that law professors need to explain things in greater detail than they usually do in first-year classes.  No more hiding the ball--instead, full understanding.  The book starts with dividing "think like a lawyer" into its parts--deductive reasoning (rule-based reasoning), analogical reasoning, synthesis (inductive reasoning), distinguishing cases and arguments, and policy-based reasoning.  I organize the book around these five-types of legal reasoning and end it with a chapter on problem-solving.  The book contains many exercises so students can work on these skills.

After introducing the five types of legal reasoning in Chapter One, I discuss legal reading and case analysis (briefing) in Chapter Two.  The main thing that this chapter adds to traditional case analysis is that students should identify the type(s) of legal reasoning a judge has used in an opinion.  This forces the students to read cases more carefully and understand them better.

Chapters Three to Five and Eight each treat one of the types of legal reasoning in depth.  Each includes exercises to help students hone their understanding of that particular skill.  Each chapter also shows students how to write up an argument based on that chapter's type of legal reasoning.

Chapter Six covers statutory interpretation in depth.  It illustrates how each type of legal reasoning is involved in statutory interpretation.

Chapter Seven brings the above together by showing how each type of legal reasoning fits into the small-scale paradigm for organizing a legal argument.  In other words, legal writing is inseparable from the types of legal reasoning.  (Legal writing teachers have always said that legal writing is inseparable from legal analysis.  Now, I have shown this in greater detail.)

The final chapter applies the five-types of legal reasoning in the context of problem-solving.  I give students a detailed problem-solving method, discuss the role of creativity in problem-solving, and ask the students to solve advanced problems, including think-aloud exercises.

The main point of the above is that law schools can attract more students by teaching them more valuable skills.  In particular, professors need to teach legal reasoning in much greater depth.

(Scott Fruehwald)

August 10, 2017 | Permalink | Comments (0)

Wednesday, August 9, 2017

When Your Colleague is a Backstabber

At Vitae, Professor Allison M. Vaillancourt writes that most backstabbers are insecure, maladjusted people who don’t believe they can survive on their own merits. She offers concrete suggestions on how to confront them.

You can read more here.


August 9, 2017 | Permalink | Comments (0)

Legal sector loses 3,400 jobs in June

Before I left for my visitorship at the Air Force Academy last year (and got behind on my blogging responsibilities here), I'd been keeping track of the monthly ebb and flow of jobs in the legal sector based on regular reports from the Bureau of Labor Statistics. I'm going to pick that practice up again with the BLS report for July which shows the legal sector (which is defined somewhat broadly by BLS to include non-lawyer jobs like paralegals and court reporters) lost 3,400 jobs last month which represents a 4.3% drop since June and ends a three month run-up in jobs.  As the ABA Journal is reporting, despite the large drop last month that wiped out the previous gains of the late spring/summer, the legal sector is still ahead a net 600 jobs since January 2017. You can read the BLS July report here and the ABA coverage of it here.


August 9, 2017 | Permalink | Comments (0)

Tuesday, August 8, 2017

A Rival to SSRN?

When Elsevier acquired SSRN, the vast research repository, academic antennae went up. Would a commercial owner make unfortunate changes? From the Scholastica blog    :

Concerns quickly came to the fore regarding the potential of the mammoth Elsevier threatening the open access nature of SSRN by inhibiting the free dissemination of papers. Additionally, a red flag was raised when Elsevier announced that SSRN would soon be migrated to its academic network Mendeley.

Scholars remain wary of the SSRN takeover and many, especially those in the legal community, have been hopeful for an alternative scholar-led repository to emerge so that they could move their papers away from SSRN. In May of 2017 this hope became a reality when a group of legal scholars and law librarians launched LawArXiv, a new community-led legal scholarship preprint repository. In the interview below members of the LawArXiv Legal Scholarship Advisory Board​​ share how they got the repository started and how they’re working to expand it in order to encourage researchers to keep their papers within the legal scholarship community.

You can read more here.


August 8, 2017 | Permalink | Comments (0)

7 Things You Need To Know As A First-Year Attorney

Some great advice from Above the Law:

7 Things You Need To Know As A First Year Attorney by Kerriann Stout.  Comments mine.

    1. You are going to feel insecure all the time. Everybody feels insecure their first few weeks as an attorney.  Just realize that all first years feel the same way and it will get better.
    2. Substance over form.  The attorneys you are working with are looking for solid analysis and clear writing.
    3. Mentors are everything.  I had some great mentors in my first job.  The associates who failed to find a mentor didn't last very long in my firm.
    4. Legal assistants and paralegals should be your best friends.  Essential advice.  I would add secretaries and all support staff.  One of my fellow associates was severely criticized by our general managing partner for her treatment of the support staff.
    5. Your going to be poor for a while longer.  This gets better, too.
    6. No one is going to set boundaries for you.  Your employers will expect you to be a full adult, who understands the legal profession.
    7. You are going to have to shallow your pride.  This is very true, but it's important.  You are going to have to earn respect.  You may have a J.D. and a nice office, but your secretary knows more than you do.

(Scott Fruehwald)


August 8, 2017 | Permalink | Comments (1)

Monday, August 7, 2017

How to dictate using a pc or mac

The "personal tech" section  of today's NYT has a short column on how to verbally dictate documents using Windows 10 if you've got a pc or using Apple's desktop operating system if that's your workstation set-up.  When I was in practice, I was never especially good at, nor liked to dictate. I found it harder to dictate my thoughts in a cohesive, well-organized manner than to write them out long hand. But if you happen to be good at it, this voice-to-text feature could be a real time-saver for law profs when it comes to providing students written feedback on their assignments.

Apparently the speech recognition programs for both Windows and Apple's OS also let users issue voice commands sort of like Amazon's Alexa or the feature built into many smartphones like Apple's Siri. Related to that, I just bought a new iPhone 7 myself after my previous phone died and noticed there's a pretty nifty, new feature that provides a written transcript of  all voicemail messages - including a hyperlink to the caller's phone number. So far I've found this to be extremely helpful when it comes to callers who speak so fast, or run their words together, that I have a hard time deciphering the message. I can also see it being useful to lawyers for record keeping purposes as it provides an automated transcript of each such communication.

Here's the link to the NYT column describing how to use the new voice-to-text commands for Windows and Apple products.



August 7, 2017 | Permalink | Comments (0)

The Most Anthologized Essays over the Past 25 Years

At Lithub, Emily Temple surveyed twenty anthologies to create this list of most anthologized essay. Here are the top ones. For the rest of the list and more, please click here.


Nine inclusions:

“Once More to the Lake,” E. B. White

Seven inclusions:

“Letter from Birmingham Jail,” Martin Luther King, Jr.

Six inclusions:

“How it Feels to be Colored Me,” Zora Neale Hurston
“A Modest Proposal,” Jonathan Swift
“Mother Tongue,” Amy Tan
“The Death of the Moth,” Virginia Woolf

Five inclusions:

“Stranger in the Village,” James Baldwin
“No Name Woman,” Maxine Hong Kingston
“Shooting an Elephant,” George Orwell

Four inclusions:

“On Keeping a Notebook,” Joan Didion
“The Search for Marvin Gardens,” John McPhee
“The Way to Rainy Mountain,” N. Scott Momaday

August 7, 2017 | Permalink | Comments (0)

Scaramucci’s Advice to Harvard Law Students

However one may view Anthony Scaramucci’s current words and conduct, I think many of us appreciate the sound advice he gave to Harvard law students a few years ago.

Bravado may be Scaramucci’s calling card, but during a 2016 campus visit he advised law students to downplay their educational pedigrees and not allow their Harvard Law degrees to go to their heads. “I have one piece of advice I want all of you to take with you when you leave this school: immediately quit acting like you went to Harvard Law School,” Scaramucci said, according to an article in The Harvard Law Record. “The sooner you stop acting like a Harvard alumnus, the better off your career will be.”

I agree. Degrees from very elite college and professional schools may initially open doors for you, but then, you have to prove yourself or get washed out.

You can read about Scaramucci’s days at Harvard Law School here and here.


August 7, 2017 | Permalink | Comments (0)

A Guide to the Opioid Crisis

If you keep hearing about the opioid crisis but aren’t quite sure what it’s all about, The Skimm offers a brief, but comprehensive guide. You can access it here.

I suspect it won’t be long before the crisis starts invading our academic world.


August 7, 2017 | Permalink | Comments (0)

Sunday, August 6, 2017

Employment rate for new law grads increases slightly despite decrease in number of available jobs

That's the conclusion of a recent report by the National Association for Law Placement; the overall employment rate for the law school class of 2016 showed a modest increase from the previous year (from 86.7% in 2015 to 87.5% in 2016 ) though the overall number of positions available to graduates actually decreased by 2,000 from the previous year. The explanation is that the number of total law grads decreased in 2016 by 2,800 which makes the employment picture seem a wee bit rosier despite the decrease in jobs available. Another caveat in the report is that it was the nation's 500 largest law firms that increased the number of new graduates they hired while smaller firms, where most graduates outside the elite law schools find work, actually hired fewer new associates. We've heard before about the so-called "hollowing out of the middle class." Are we starting to see the same phenomenon when it comes to the legal job market?

You can read the full NALP report here and read a related story from here.


August 6, 2017 | Permalink | Comments (0)

What Assessment Tools Don't Measure

I am no fan of the current trend toward requiring assessment measurements in courses. I suspect that I am not alone. Here, I want to explore what assessment measures do not measure. At the Chronicle of Higher Education, Professor Raymond Shaw gives some examples of unmeasurables in college courses:

Do my statistics students understand that those measures of variability are signs of the perhaps inexplicable and yet marvelous differences between people? That people who fall far from the mean should not be marginalized? Do my positive-psychology students understand that a life of meaning and purpose is more than the right answer to an essay question?

As an undergraduate many years ago, I learned to distinguish Reims cathedral from Chartres in a "Gothic Art and Architecture" course. But ever since, I have contemplated the ineluctable beauty that must have overwhelmed the minds of 12th-century peasants, and the spiritual significance of light. I learned to interpret plays by Tennessee Williams and Eugene O’Neill in another elective course, but have found that their storytelling helped me be more sensitive to and more accepting of the messiness of life as I have experienced the challenges of adulthood.

And I remember, from my freshman year at college, our professor telling us that the purpose of his version of the "Problem of God" course was to make our midlife crisis easier to manage. At 18, I was puzzled by the relevance of Dag Hammarskjöld to my grandfather’s uncharacteristic new convertible. At 48, I was finally and unexpectedly grateful to that professor for improving my life.

You can read more here.

Here are four examples of insights in gained in my law school courses that current assessment tools do not address. In Property, I learned to think in terms of legal realism. In my Remedies course, I gained the freedom to think about devising remedies that went beyond damages and injunctions. In my Constitutional Law course, I began the challenge of trying to understand why some rights receive more protection than others. In a discussion with fellow students after my poorly-taught Criminal Procedure course, I gained  better understanding of how judicial decision making relies on more than parsing precedent.


August 6, 2017 | Permalink | Comments (0)

A Negotiation Exercise that You May Want to Use

Professor George Siedel at the University of Michigan’s Ross School of Business is generously offering a (free) negotiation exercise that has proven successful:

 George J. Siedel

I teach negotiation in the MBA program at the Ross School of Business at the University of Michigan.  I have also guest lectured on negotiation at the Harvard, Michigan, and  Stanford law schools, and have taught negotiation in many ABA and other programs for participants that have included general counsel,  law firm partners, and judges.

I recently learned about a law school legal writing program that incorporates skills development, including negotiation. If you teach in a similar legal writing program or in a separate skills development program, I have developed a package for your consideration that includes (1) a Teaching Note, (2) two roles, and (3) slides.  This package could also be used to introduce negotiation in the Contracts course.

These materials are based on an exercise called “The House on Elm Street,” which involves a transaction that everyone can relate to—the sale of a house.  The twist in the exercise is that, unknown to the seller, the buyer is a secret agent representing a large multinational company.  Each student receives a short (two-page) role as either the buyer or seller, and they negotiate for 30 minutes, followed by an instructor-led debriefing. 

The exercise is designed to achieve several learning goals.  Students will learn how to:

  1. understand the different types of negotiations;
  2. prepare for negotiations using a negotiation analysis that includes a reservation price, most likely outcome, stretch goal, and zone of potential agreement;
  3. recognize and decide ethical issues, using law-based (fraud, fiduciary duty, and unconscionability) and general ethical standards;
  4. develop and use their negotiating power through the concept of BATNA;
  5. apply contract and agency law concepts to negotiations; and
  6. create value in a manner that benefits both sides.

The Teaching Note is divided into three sections.  Section I explains how to set up the negotiation exercise.  Section II provides a script, with slides, for debriefing the exercise. 

Section III discusses a document titled “Self-Assessment and Feedback for the Other Side” that students can use to evaluate their negotiation skills and develop a plan for skill improvement.  This plan could be used as a writing assignment. 

I hope that these materials, which are available without charge, will be useful to you. 


August 6, 2017 | Permalink | Comments (0)

Saturday, August 5, 2017

Senators Propose Congressional Clerkship Program for Law Students & Lawyers

From JDJournal:

Four bipartisan senators introduced a bill today that seeks to “improve the business of Congress and increase the public’s understanding of its work by establishing a structured congressional clerkship program for recent law school graduates and young lawyers.”

In a press release from Senators Mike Lee, Lee (R-UT), Patrick Leahy (D-VT), John Hoeven (R-ND), and Ted Cruz (R-TX) announced that they had introduced the Daniel Webster Congressional Clerkship Act, a bill that Lee said would provide a structured program for recruiting and hiring law school graduates.

This bill is named after Daniel Webster, a lawyer and legislator.

 “Unlike the Executive and Judicial branches, Congress currently lacks a structured program for recruiting and hiring recent law school graduates,” Senator Lee said. “Too often this means that new attorneys, who are otherwise qualified and eager to work for Congress, do not even consider a congressional career and are instead pursuing other opportunities.”

You can read more here.


August 5, 2017 | Permalink | Comments (0)

Friday, August 4, 2017

Tips for breaking through writer's block

Talking about overcoming the artistic equivalent of writer's block, the artist Chuck Close famously said "inspiration is for amateurs, the rest of us just show up and get to work." Many experts say that writer's block is often about perfectionism resulting from an overly harsh inner critic that thinks nothing one does is good enough so, as a result, nothing gets done. The best way to overcome it, therefore, is to follow Chuck Close's advice by just sitting down and getting to work. Don't worry or even think about whether what you're saying is "good enough" - just write. Lynn Gaertner-Johnston's excellent Business Writing blog offers several additional tips for overcoming writer's block many of which revolve around the central strategy of forcing oneself to put aside the harsh inner critic and just do it. Among those tips:

  • Imagine you are talking with your reader.  Think about the things your reader wants or needs to hear from you. Then "tell" (write) any part--beginning, middle, or end. Don't worry about the perfect opening or a knock-'em-dead awesome close. Just start and keep going.
  • List the questions your reader would want answers to, such as "What do you want me to do?" and "What do you recommend?" and "Why should I care about this topic?" Answering those questions will get you started and help you continue.
  • Ask yourself the question "Why am I stuck?" Focus on writing the answer to that question; then transition to the real writing when you have a clear answer. 

You can read the rest of Ms. Gaertner-Johnston's helpful tips here



August 4, 2017 | Permalink | Comments (1)

Hamilton, Madison and the Beginning of Partisan Politics

With the current popular attention to Alexander Hamilton, our readers may be interested in this 14;17 minute TED talk by Professor Noah Feldman. Here’s a discussion of how, during Washington’s administration, Madison and Hamilton went their separate ways and developed two competing political parties.

The divisiveness plaguing American politics today is nothing new, says constitutional law scholar Noah Feldman. In fact, it dates back to the early days of the republic, when a dispute between Alexander Hamilton and James Madison led the two Founding Fathers to cut ties and form the country's first political parties. Join Feldman for some fascinating history of American factionalism -- and a hopeful reminder about how the Constitution has proven itself to be greater than partisanship.

You can access the talk here.


August 4, 2017 | Permalink | Comments (0)

Harvard’s 2017 Class: Majority Nonwhite

From the BBC:

More than half of Harvard University's next student intake will not be white, for the first time in its 380-year history, official figures show.

The varsity, which has educated more US presidents than any other, will take 50.8% of its freshmen from minority groups.

That compares to 47.3% last year.

Asian Americans make up 22.2%, followed by African Americans at 14.6%, Hispanic or Latino students at 11.6%, and Native American or Pacific Islanders at 2.5%.

The milestone figures come just days after Harvard was drawn into a row over affirmative action between the US justice department and the New York Times. . . .

Rachael Dane, a spokesperson for Harvard, said the university was "committed to enrolling diverse classes of students".

"To become leaders in our diverse society, students must have the ability to work with people from different backgrounds, life experiences, and perspectives," she said.

"Harvard's admissions process considers each applicant as a whole person, and we review many factors, consistent with the legal standards established by the US Supreme Court."

You can read more here.


August 4, 2017 | Permalink | Comments (0)

Have Smart Phones Destroyed a Generation?

A major concern for legal education has been the use of electronic devices in class.  Since attention is limited, how do these devices affect how much our law students learn?  (The answer is a lot.)

The use of electronic devices also has an effect on our students outside our classrooms.  The use of these devices have changed how our students interact with the world.  Now, a troubling new study shows that the problem is even worse than we had previously imagined.

Have Smart Phones a Generation? by Jean M. Twenge (The Atlantic).

Here are a few excerpts:

"I’ve been researching generational differences for 25 years, starting when I was a 22-year-old doctoral student in psychology. Typically, the characteristics that come to define a generation appear gradually, and along a continuum. Beliefs and behaviors that were already rising simply continue to do so."

"Around 2012, I noticed abrupt shifts in teen behaviors and emotional states. The gentle slopes of the line graphs became steep mountains and sheer cliffs, and many of the distinctive characteristics of the Millennial generation began to disappear. In all my analyses of generational data—some reaching back to the 1930s—I had never seen anything like it."

"The biggest difference between the Millennials and their predecessors was in how they viewed the world; teens today differ from the Millennials not just in their views but in how they spend their time. The experiences they have every day are radically different from those of the generation that came of age just a few years before them."

"But it was exactly the moment when the proportion of Americans who owned a smartphone surpassed 50 percent."

"Born between 1995 and 2012, members of this generation are growing up with smartphones, have an Instagram account before they start high school, and do not remember a time before the internet. The Millennials grew up with the web as well, but it wasn’t ever-present in their lives, at hand at all times, day and night."

"But the impact of these devices has not been fully appreciated, and goes far beyond the usual concerns about curtailed attention spans. The arrival of the smartphone has radically changed every aspect of teenagers’ lives, from the nature of their social interactions to their mental health. These changes have affected young people in every corner of the nation and in every type of household. The trends appear among teens poor and rich; of every ethnic background; in cities, suburbs, and small towns. Where there are cell towers, there are teens living their lives on their smartphone."

"Psychologically, however, they are more vulnerable than Millennials were: Rates of teen depression and suicide have skyrocketed since 2011. It’s not an exaggeration to describe iGen as being on the brink of the worst mental-health crisis in decades. Much of this deterioration can be traced to their phones."

"But the allure of independence, so powerful to previous generations, holds less sway over today’s teens, who are less likely to leave the house without their parents."

"Today’s teens are also less likely to date."

"Even driving, a symbol of adolescent freedom inscribed in American popular culture, from Rebel Without a Cause to Ferris Bueller’s Day Off, has lost its appeal for today’s teens."

"Beginning with Millennials and continuing with iGen, adolescence is contracting again—but only because its onset is being delayed. Across a range of behaviors—drinking, dating, spending time unsupervised— 18-year-olds now act more like 15-year-olds used to, and 15-year-olds more like 13-year-olds. Childhood now stretches well into high school."

"So what are they doing with all that time? They are on their phone, in their room, alone and often distressed."

"All screen activities are linked to less happiness, and all nonscreen activities are linked to more happiness."

"What’s the connection between smartphones and the apparent psychological distress this generation is experiencing? For all their power to link kids day and night, social media also exacerbate the age-old teen concern about being left out."

"Girls have also borne the brunt of the rise in depressive symptoms among today’s teens. Boys’ depressive symptoms increased by 21 percent from 2012 to 2015, while girls’ increased by 50 percent—more than twice as much."

"It may be a comfort, but the smartphone is cutting into teens’ sleep."

"The correlations between depression and smartphone use are strong enough to suggest that more parents should be telling their kids to put down their phone."

"The constant presence of smartphones is likely to affect them well into adulthood. "

The above excerpts just begin to show the problems revealed in the above article.  Every parent and educator needs to read it in detail.

(Scott Fruehwald)

August 4, 2017 | Permalink | Comments (1)

Troubling Action by ABA Legal Education Council

Jerry Organ reports on the TaxProf Blog about a troubling decision the ABA Legal Education Council took in June, which rolled back law school employment transparency.

"At its June 1-2 meeting, the ABA Council for the Section of Legal Education and Admissions to the Bar approved a proposal to completely eviscerate the steps it approved in 2015 to assure greater transparency in reporting law-school-funded positions.  Indeed, the Council went even further, changing the rules to make it impossible for anyone to discover what number/percentage of a law school’s graduates are in law-school-funded positions, so long as those positions pay $40,000. 

The Council did this with no notice, no chance for comment, and no presentation of possible concerns associated with this change.  Rather, it simply approved a proposal purporting to simplify reporting of employment outcomes that was submitted by one Council member, Paul Mahoney, whose law school was among several that would benefit from the reclassification of law-school-funded positions.

More significantly, in approving the proposal, the Council also approved several other changes in reporting of employment outcomes that merit much more discussion. These changes, discussed below, were not meaningfully discussed in the proposal, nor do they appear to have been meaningfully discussed by the Council in approving the proposal. Once again, there was no notice of these changes, no chance for comment, and no presentation of possible concerns associated with these changes.

It pains me to write this, as I hold the members of the Council in high regard and believe the Council has done a very good job over the last several years navigating legal education through uncharted waters, particularly with its emphasis on increased transparency regarding conditional scholarships and employment outcomes.

In this instance, however, the Council’s laudable desire to support simplification in reporting of employment outcomes meant that a number of other policy considerations that merit much more attention and thoughtful deliberation did not get due consideration prior to the Council taking action that effectively erodes transparency.

The Council should rescind its action, and send out the proposed changes for notice and comment and for consideration by the Standard’s Review Committee, which can give due consideration to intended and unintended consequences in recommending an appropriate set of changes regarding the reporting of employment outcomes."

You can read the rest of the article here.

(Scott Fruehwald)

August 4, 2017 | Permalink | Comments (0)

Thursday, August 3, 2017

Group Can’t Hand Out Jury Nullification Pamphlets in Denver


From the Courthouse News:

“Very disturbed” by testimony that court workers were harassed, a federal judge dissolved a preliminary injunction that protected a jury nullification advocacy group’s right to distribute pamphlets outside a Denver courthouse.

U.S. District Judge William Martinez found that the Fully Informed Jury Association appears to have changed its goal from educating the public to insulting and taunting judicial employees.

His July 27 order cites testimony from court employees who said that after the injunction was issued, the advocates became “needlessly combative, aggressively intimidating, gratuitously vulgar, and intentionally disruptive.”

 You can read more here


August 3, 2017 | Permalink | Comments (0)