Thursday, May 11, 2017
This one isn't downloadable, but I am mentioning it here because it is a good model for legal texts for the 21st Century.
Contracts: A Modern Coursebook by Benjamin A. Templin (Aspen 2017).
"This file contain two sample chapters from a new law school casebook titled Contracts: A Modern Coursebook. This casebook is part of a growing trend to modernize the way in which law students are taught, and it is different from the traditional casebook. With most casebooks, students learn the law by extracting the rules out of the case and then organizing the rules into an outline. Although effective, the traditional method is inefficient and can be misleading since no single case can properly summarize the complexity of the law.
The modern approach is more similar to the way attorneys actually learn the law. Students first read an explanation of the rules—a summary that illustrates the scope and parameters of the law. After students have a foundation in understanding the rules, they then read the cases. The real worth of reading cases is to learn how courts reason through a legal problem. If students understand the rule before reading the case, they can focus more on learning how to think like a lawyer.
The book has the following structure to incorporate modern pedagogy to encourage active learning and increase student engagement:
Learning Objectives: Each chapter starts with concise statements of what students are expected to know and be able to do after completing the materials.
Explanations of the Law: A clear explanation of the rules helps students build mastery of the law before reading the cases. Within this explanation, sections are some recurring elements including:
Rule Statements. The primary rules are presented in a box, making it easier to refer back to the rule as students read the explanations.
Examples. Rules are illustrated with examples, providing guidance on different outcomes given a certain set of facts.
Case Illustrations. Cases pertinent to the rule at issue are presented as short synopses.
Test Yourself. Questions are embedded within the explanation section so that you can test your understanding of the principles. The answers are contained in the appendix.
Case Law: The Case Law section contains a mix of classic contracts cases as well as more timely and topical cases that illustrate the principles discussed in the chapter. Each case contains questions that act as prompts to help students understand the court's reasoning.
Key Concepts: The key concepts needed to achieve the learning objectives are listed near the end of the chapter. This allows students to check their understanding of the material before moving onto the Problem Solving and Analysis section.
Problem Solving and Analysis: The Problem Solving and Analysis section provide an opportunity to build critical thinking skills through a series of thought-provoking hypotheticals that are typically based on real-world scenarios. These problems also let students assess whether they have achieved the learning objectives defined at the beginning of the chapter."
Wednesday, May 10, 2017
Podia and Pens: Dismantling the Two-Track System for Legal Research and Writing Faculty by Kristen Konrad Tiscione & Amy Vorenberg
Podia and Pens: Dismantling the Two-Track System for Legal Research and Writing Faculty by Kristen Konrad Tiscione & Amy Vorenberg. (not available for download)
"At the 2015 AALS Annual Meeting, a panel was convened under this title to discuss whether separate tracks and lower status for legal research and writing (LRW) faculty make sense given the current demand for legal educators to better train students for practice. The participants included law professors, an associate dean, and a federal judge. Each panelist was asked to respond to questions about the “two-track” system — a shorthand phrase for the two tracks of employment at many law schools whereby full-time LRW faculty are treated differently than tenured and tenure-track faculty. The panelists represented differing views on the topic. This article grows out of the conversation, information, and ideas that emerged.
Under increasing economic pressure to attract law students, law schools have begun to market their “practice ready” programs aggressively. Legal research and writing, as well as other skills programs, are typically featured in marketing materials and on websites. However, even as they are prominently represented in marketing efforts, LRW faculty continue to be underrepresented as full faculty members and suffer as a result, in terms of lesser job status and lower salary. The vast majority of legal research and writing faculty are women, many with similar credentials, practical experience, and teaching loads as male faculty. However, female law faculty compensation, as a whole, is significantly less than males, and their status is usually less secure."
Some entertainment and maybe insight into pop culture: From the Telegraph:
In April, a 16-year-old from Nevada named Carter Wilkinson sent a speculative tweet to the Wendy's fast food chain asking for free chicken nuggets.
Just two months later, he has become the author of the world's most retweeted tweet, seeing his demand for nuggets shared more than 3.4 million times.
His tweet, which simply read "HELP ME. A MAN NEEDS HIS NUGGS" overtook the previous record, Ellen DeGeneres' famous selfie taken backstage at the Oscars in 2014.
You can read more here.
The Hollywood Reporter has listed the 100 top “power lawyers” in Hollywood circles. It introduces its list this way:
Extortion. Messy divorces. Nine-figure deals with Chinese media conglomerates. It's been a busy year for Hollywood's power attorneys, who once again gather in THR's pages for the magazine's annual Power Lawyers issue. The men and women on this list handle a range of cases, from simple talent contracts to complex corporate mergers that take months to iron out, but they all have things in common. They all love working in the entertainment industry. They all play a vital role in keeping Hollywood's wheels turning. They're all at the very top of their field. And — judging from THR's survey — they all drink too much coffee (an average of 5.5 cups a day, if calculations include the guy who claimed to down 97 cups).
Below, the Power Lawyers of 2017 discuss their biggest cases, reveal their private political beliefs (only 14 percent think Donald Trump will get impeached) and answer the age-old question, "Which superhero would you most want to represent?"
To access the list, which includes bios, please click here.
Tuesday, May 9, 2017
Former dean Jennifer Bard of the University of Cincinnati College of Law settled with the school after suing the school for being placed on administrative leave.
Jennifer Bard sued the University of Cincinnati College of Law after being placed on administrative leave by Interim Provost Peter Landgren. The law school dean experienced problems with members of the law faculty when she proposed budget cuts, resulting in Landgren placing her on administrative leave.
She claims she was improperly reprimanded. The settlement will require her to resign as dean in exchange for two years of academic pay at her dean salary of $300,000.
You can read more here.
American poet and clinical psychologist Hala Alyan offers these seven pieces of advice
I. You are different
Take what makes you different and tell that story. The people who need to read it will resonate and those that don’t, well, they weren’t going to sit next to you in the cafeteria anyway.
II. Community helps.
III. Writing is work.
IV. You are going to hear NO a lot.
V.Self-doubt is part of the process.
VI.Fear and bravery a different sides of the same coin
Every sentence about courage begins with fear. If you do something you’re not afraid of, it doesn’t count as brave. It might be reckless or spontaneous or illegal, but it’s not courage.
VII. Books will remind you who you are.
You can read more on each of these seven pieces of advice here.
Monday, May 8, 2017
Off topic, maybe on topic: As some of you know, in 1995, I went into cardiac arrest and came within minutes of dying or becoming a vegetable. Fortunately, the firefighters in Minneapolis were able to revive me. Shortly after I returned to Philadelphia, I spent four months in the hospital waiting for a heart transplant. The transplant proved successful, and I continue to work full time. To be clear, I was not responsible for my condition; I was the victim of a sarcoid from some external source.
Fortunately, because Villanova provided me with good health insurance, my bill was $15. Without that coverage, it would have been far, far more—as I recall, three-quarters of one million dollars (I know that hospitals inflate the numbers, but the amount would still have been huge). Every year, I undergo expensive testing. Again, I have good coverage and have a small co-pay.
If I had not had coverage, the hospital might have arranged for me to pay some affordable amount each month, or it might have told me that the doctors could monitor and keep me “tuned up” so that I could last another five years. Because I was married with two small children, I wanted to stay alive.
If today I needed to buy coverage under the proposed health care plan, I would end up in a high risk pool and would have to pay an exorbitant rate. Of course, there are people like me who do not have the coverage I have and would have to find the money to buy health insurance or go without it and die.
It is heartless to deny coverage to those with serious preexisting conditions or to expect them to pay much more than they can afford.
Sunday, May 7, 2017
At the Mississippi College of Law, Jonathan Will has given some thought to this question. He focuses on three areas:
1) advancing the understanding and development of the law; (2) providing learning opportunities for law students; and (3) promoting institutional reputation.
Through the lenses that these areas provide, he explores: (a) using annual symposia to attract scholars with timely topics, (b) deciding whether to institute a peer-review process, and (c) striking the appropriate balance between print and online presence.
As for the question of peer review, he suggests dedicating an issue to the actual practice of law and using practitioners to help identify topics and serve as peer reviewers.
You can access this short article here, Jonathan F. Will, Finding a Purpose: Perspective from a “Non-Elite” Journal, 33 Touro Law Review (2017).
Not according to Professor Robert Kuehn. He bases his conclusion on empirical evidence:
I recently published the results of a study comparing the reported tuition of schools that mandate or guarantee a clinical experience with the tuition of the remaining ABA accredited law schools — Universal Clinical Legal Education: Necessary and Feasible.
Using a regression model and controlling for public-private status, U.S. News ranking, and cost of living in the area, there is no statistically significant difference between schools with a clinical mandate and those without. Likewise, there is no statistically significant difference between the tuition charged by schools that guarantee a clinical experience and those that do not.
In addition, there is no statistically significant difference in the tuition charged by the fifty-six schools that mandate or guarantee a clinical experience with the schools that do not. Substituting a discounted tuition estimate for the published tuition amount did not change the results—there were no statistically significant differences in the discount tuition charged between private schools requiring or guaranteeing a clinical experience and those that did not.
You can read more at the Best Practices for Legal Education blog (May 4, 2017) (here).
Saturday, May 6, 2017
Off topic, but interesting. Anyone with an Apple device knows Siri, the system’s vocal digital assistant. But who is she, really? She’s Susan Bennett, who has served as the voice for many enterprises, including, McDonald’s, Coca-Cola, Cartoon Network, Waze and Delta Airlines.
At OZY, you can read an interview with her and see her face (here).
The bar exam, the last hurdle before an individual becomes a member of the legal profession, is greatly outdated. It is a test for the 1950s. Deborah Jones Merritt has written an article, which shows how the bar exam can be fixed.
"The bar exam is broken: it tests too much and too little. On the one hand, the exam forces applicants to memorize hundreds of black-letter rules that they will never use in practice. On the other hand, the exam licenses lawyers who don’t know how to interview a client, compose an engagement letter, or negotiate with an adversary."
"This flawed exam puts clients at risk. It also subjects applicants to an expensive, stressful process that does little to improve their professional competence. The mismatch between the exam and practice, finally, raises troubling questions about the exam’s disproportionate racial impact."
"In the language of psychometricians, our bar exam lacks 'validity.' We haven’t shown that the exam measures the quality (minimal competence to practice law) that we want to measure. On the contrary, growing evidence suggests that our exam is invalid: the knowledge and skills tested by the exam vary too greatly from the ones clients require from their lawyers."
"The bar exam defines the baseline of our profession. If the exam tests the wrong things, we have a professional obligation to change it."
"NCBE’s job analysis, however, also reveals important gaps in our measure of minimum competence. New lawyers reported that knowledge of research methods was more important than knowledge of most subjects tested on the bar. Similarly, they stressed the importance of fact gathering, negotiating, and interviewing; more than 85 percent of new lawyers used each of these cognitive skills."
"These competencies matter to clients. A lawyer who doesn’t know suitable research methods won’t find the regulations, legislative history, and data that will help her client. One who lacks knowledge of negotiation principles won’t get the best outcome for his client. Unskilled negotiators cost their clients money, business opportunities, family relationships, and even days in jail."
"A recent study by the Institute for the Advancement of the American Legal System (IAALS) illustrates how many new lawyers lack essential practice skills."
"Why doesn’t our definition of minimum competence include cognitive skills that are essential for effective client representation?"
"The primary reason we don’t test bar candidates on these skills is that law schools don’t stress them."
"The IAALS study, like many others, confirms that law schools can teach these cognitive skills to students."
"At the same time that the bar exam tests too little of the competencies new lawyers need, it requires too much memorization."
"I propose creation of a National Task Force on the Bar Exam. This group would study current approaches to the bar exam, develop a more realistic definition of minimum competence, and explore best practices for measuring that competence. AALS, the Conference of Chief Justices, ABA Section of Legal Education and Admissions to the Bar, and NCBE could jointly sponsor the task force."
"Some legal educators have raised concerns about the bar exam because an increasing number of their students are failing. I am not part of that group. Law schools have an obligation to prepare students to satisfy our profession’s definition of minimum competence. We cannot change that definition simply because graduates find it harder to meet."
"Most important, we must develop a definition of minimum competence that tracks the real work of new lawyers."
I have argued for several years that the bar exam should be changed to test for what lawyers actually do in practice. (here, here, here) Professor Merritt's article is an excellent example of what the bar exam can be. As she points out, the bar exam sets out minimum competencies for the legal profession. If the bar exam changed, so would legal education.
Friday, May 5, 2017
Legal Headhunter Harrison Barnes recently published a column that some denounced as sexist. He has since deleted the controversial passage. Decide for yourself. Here’s the passage, from the American Lawyer:
If you have not noticed by now, most legal recruiters are women, and most are quite attractive and fit. This is because they are in positions that involve public relations--sort of like an on-air television newscaster. There is nothing wrong with the fact that most law firms put people like this in these positions because they are the public face of the law firm. What is problematical, though, is that some of these people can also--occasionally--be a little ditzy and not have the other sorts of qualifications that would make them qualified for the job. Not only do they sometimes have more beauty and fewer brains, but they also have more beauty and less interest in people, less ability to connect with people, and similar negative characteristics. This means they expect people to treat them as if they are special and sometimes are more focused on themselves than their jobs.
“It is not uncommon for recruiting coordinators to use their workspaces as a hunting ground for mates--and it works. Many recruiting coordinators marry (or get married to) associates and partners inside of the law firm. This is what happens when attractive and successful people are put in confined spaces 10 hours a day. Once a legal recruiting coordinator gets close to an associate or partner in the firm, the recruiting coordinator may start playing favorites--and often does. People who are close to the associate or partner may get special treatment when applying to the firm, for example. If there is tension in the job of the associate or partner (i.e., getting fired, getting a bad performance review, or leaving), this can affect the performance of the recruiting coordinator a great deal.”
The article then explained how his company can get the attention of recruiters at firms.
Reached on Friday, Barnes said he regretted his language and apologized for offending legal recruiters and others. He said he may take the revised post off LinkedIn.
“My point with the article is to help attorneys understand why they’re not hearing back from law firms,” Barnes said. “It wasn’t to attack anybody, it wasn’t to be sexist, it was to make sure that people understand different reasons.”
He said he meant to highlight that lawyers and others often meet in the workplace and marry or date one another, and that can affect their work. He noted that he met his own wife at work.
From the Washington Post:
Facebook now has 1.94 billion users, an increase driven by mobile growth, the company said Wednesday as it released another strong earnings report. But questions loom about whether the social network can adequately deal with some of the content posted by its growing audience.
The company reported $8 billion in revenue for its first quarter of 2017, but its success was overshadowed by an earlier announcement that it will nearly double the number of workers charged with monitoring Facebook Live videos. That hiring spree is supposed to boost efforts to catch violent live streams before they spread across the network.
You can read more here.
Thursday, May 4, 2017
In 1990, the late Judge Roger Miner, then of the Second Circuit, gave a speech on Appellate Advocacy from the Viewpoint of an Appellate Judge at New York Law School. In the speech, he deplored doubletalk and offered examples:
Doctors at a Philadelphia hospital described a patient's death as a "diagnostic misadventure of a high magnitude."
Five thousand workers at a Chrysler plant found out that a new "career alternative enhancement program" meant their plant was closing and they were out of jobs.
A stockbroker described the October 13th stock market crash as a "fourth quarter equity retreat."
United States Senator referred to capital punishment as “our society's recognition of the sanctity of human life."
The judge wondered: “What I do not understand is why lawyers tolerate doubletalk and inarticulateness in speech and writing.”
Judge Miner’s speech is worth reading. You can access it here at Digital Commons.
The sophisticated attack appeared to come from a trusted source asking you to open a Google Document. If you clicked, it took you to a page to open the "Google Docs" app with your Google(GOOG) account. This granted access to your email account and contacts.
Google said it stopped the attacks in one hour.
Eva Galperin, director of cybersecurity at the Electronic Frontier Foundation, says anyone who clicked on the link should check their Google App permissions and remove the one called "Google Docs." You can do that by clicking this link.
It's unclear how widespread the attack was, but reporters at publications including BuzzFeed, CNN and Motherboard tweeted that they'd receiving the phishing email, as had many of their sources.
You can read more here.
Wednesday, May 3, 2017
"The dean of Florida A&M University’s College of Law was dismissed this week after less than 18 months on the job.
Angela Feleccia Epps was replaced on an interim basis by LeRoy Pernell, a FAMU law professor who previously served as the school’s dean, the Tallahassee Democrat reports. . . .
The law school’s bar passage rate for Florida’s February 2017 exam was 46.2 percent, according to the article. For July 2016, the pass rate was 52.9 percent, the Florida Board of Bar Examiners reported. The school’s median LSAT score is 145, according to its 509 report from 2016 (PDF)."
Law deans are being dismissed because of low bar passage rates. Law schools are being put on probation because of low bar passage rates. Law schools are closing because of low bar passage rates.
Isn't there something that can be done?
E. Scott Fruehwald, How to Help Students from Disadvantaged Backgrounds Succeed in Law School
E. Scott Fruehwald, Think Like a Lawyer- Legal Reasoning for Law Students and Business Professionals
Deborah Jones Merritt, Ruth Colker, Ellen E. Deason, Monte Smith & Abigail B. Shoben (Ohio State), Formative Assessments: A Law School Case Study, 95 U. Det. Mercy L. Rev. __ (2017)
Carolina Academic Press, Context and Practice Series
From Inside Higher Ed:
In an unprecedented move, a public research university, Indiana's Purdue University, is buying Kaplan University, a large for-profit chain with a mostly online footprint.
The deal will lead to the creation of a new nonprofit institution, which under some as yet undetermined form of Purdue's name will offer credentials ranging from certificates to doctoral degrees, online and at 15 campus locations.
Kaplan currently enrolls 32,000 students and employs 3,000 faculty members and other staff. All will transition to the new Purdue subsidiary. Kaplan's parent company, Graham Holdings, is publicly traded and, until a few years ago, was the owner of The Washington Post.
Neil W. Hamilton, Professional-Identity/Professional-Formation/Professionalism Learning Outcomes: What Can We Learn About Assessment From Medical Education?
Neil W. Hamilton, Professional-Identity/Professional-Formation/Professionalism Learning Outcomes: What Can We Learn About Assessment From Medical Education?, 13 University of St. Thomas Law Journal (forthcoming 2017).
"The accreditation changes requiring competency-based education are an exceptional opportunity for each law school to differentiate its education so that its students better meet the needs of clients, legal employers, and the legal system. While ultimately competency-based education will lead to a change in the model of how law faculty and staff, students, and legal employers understand legal education, this process of change is going to take a number of years. However, the law schools that most effectively lead this change are going to experience substantial differentiating gains in terms of both meaningful employment for graduates and legal employer and client appreciation for graduates’ competencies in meeting employer/client needs. This will be particularly true for those law schools that emphasize the foundational principle of competency-based learning that each student must grow toward later stages of self-directed learning - taking full responsibility as the active agent for the student’s experiences and assessment activities to achieve the faculty’s learning outcomes and the student’s ultimate goal of bar passage and meaningful employment.
Medical education has had fifteen more years of experience with competency-based education from which legal educators can learn. This article has focused on medical education’s “lessons learned” applicable to legal education regarding effective assessment of professional-identity learning outcomes. The principal lessons learned in Part III with respect to assessment are:
1. realize that structural differences require legal educators to adopt a “bottom up” and more focused strategy regarding assessments;
2. choose one or two competencies from the faculty’s professional-identity learning outcomes for a pilot project;
3. create a stage development model (milestones/benchmarks) for the one or two competencies selected for the pilot program;
4. create formative assessments (including self-assessments) for the competency selected for the pilot program;
5. select assessments that foster the habit of self-reflection and self-evaluation;
6. emphasize mentoring and coaching in giving feedback and guiding student reflection;
7. create a progression of curricular modules and assessments to foster each student’s growth toward the next stage of development of the competency; and
8. consider student portfolios as an effective formative assessment."