Saturday, June 17, 2017

High Stakes Testing and Law Schools

I recently read an article about 20 graduating nursing students at Duquesne University who failed to receive diplomas (here). The school selected a minimum score on The Health Education Systems Incorporated exam or HESI, a national test. The students argue that they should not be assessed on a single high-stakes test. Though I have no personal knowledge, flunking 20 out of 156 students at the end of their studies does cause me to raise my eyebrows.

The controversy got me to think about the high stakes tests in legal education. The LSAT is a high stakes test that plays a major role in determining whether a student gains admission or where a student gains admission. US News rankings rely heavily on LSAT scores and thus perpetuate their status as a high stakes test. Law school courses that base grades on a single end-of-term exam also employ high stakes tests. The bar exam is a high stakes test.

Are high stakes tests the best way to assess the ability of law students?


June 17, 2017 | Permalink | Comments (1)

Defining "Reasonable Doubt"

Defining “reasonable doubt” to a jury has always been a difficult endeavor. On Friday, July 15, 2017, the jury in the Bill Cosby case asked the judge to clarify the meaning of this standard. At this point, the jury was deadlocked. The judge responded by giving the jury Pennsylvania’s standard jury instruction on the subject. I think the instruction is quite good.

Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt and to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reasonable doubt must be a real doubt; it may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.

I sometimes have asked my students to draft an instruction on reasonable doubt. They have never been very successful at the task.


June 17, 2017 | Permalink | Comments (0)

Friday, June 16, 2017

Does SCOTUS Misread European Court Cases?

The perhaps surprising answer is yes—and to a shocking degree. According to one study:

The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges' reasoning: laws targeting homosexual conduct; federalism; and the death penalty.

It singles out the relevant passages of each U.S. Supreme Court decision, explores the European sources that it points to, and evaluates how accurately the court depicts them. It turns out that all the references that the U.S. Supreme Court has made to European jurisprudence are either mistaken or misleading. (my emphasis).

There are other areas in which the Court sometimes goes astray, for example “law office history.”

You can read more here. Andrea Pin, "The Costs and Consequences of Incorrect Citations: European Law in the U.S. Supreme Court" Brooklyn Journal of International Law, Vol. 42, No. 1, 2016


June 16, 2017 | Permalink | Comments (0)

Thursday, June 15, 2017

More Women are Heading Fortune 500 General Counsel Offices

From Bloomberg Big Law Business:

More and more women are being hired for the top lawyer jobs in Fortune 500 companies, and more of them are being hired via external searches instead of promoted from within, a new study has found.

In 2016, 35 percent of new Fortune 500 general counsel jobs were filled by women, whereas in 2012, women made up only 24 percent of new hires, according to an advance copy of the study provided to Big Law Business. What is more, the number of women hired as GC from external positions has jumped in the past three years. Traditionally, women have joined the GC ranks primarily through inside promotions, but in 2016, as many women GCs were hired from externally as internally. . . .

[Maria]Green said the structure of corporations can be more meritocratic than law firms, where business is often passed on through relationships.

“Nobody cares who you socialize with or who you play golf with,” she said. “Because you don’t have the pressure of billing hours or bringing in work, it’s just about how well you do the work. It’s a system where it’s easier for the cream to rise to the top.”

You can read more here.




June 15, 2017 | Permalink | Comments (0)

Tracy K. Smith is Named U.S. Poet Laureate

From the N.Y. Times:

Now the Library of Congress has named Ms. Smith its new poet laureate, the nation’s highest honor in that field. With the appointment, announced on Wednesday, Ms. Smith will take on a role held by some of the country’s most revered poets, among them Rita Dove, Louise Glück, Billy Collins, W. S. Merwin, Charles Simic and most recently, Juan Felipe Herrera.

Ms. Smith, 45, said she planned to use the position to be a literary evangelist of sorts, by visiting small towns and rural areas to hold poetry events.

You can read more here and here.


June 15, 2017 | Permalink | Comments (0)

Wednesday, June 14, 2017

5 Things to Do When Your Flight Is Delayed, Canceled, or Overbooked

Off-topic: Tips for rebooking, getting compensation, and keeping comfortable while you wait. Summer is a time for travel and sometimes a time when the weather or your airline lets you down. From AFAR, here is some practical advice for dealing with travel delays. The headlines are:

  1. Go rogue when asking for help.
  2. Lounge while you wait.
  3. Seek trip delay protection from credit cards.
  4. Know your options.
  5. Claim your miles.

You can read much more here.


June 14, 2017 | Permalink | Comments (0)

Tuesday, June 13, 2017

Which Justice is Quickest in Writing Opinions?

The race is between Justices Ginsburg and Sotomayor. From the US Law Week: On the Merits blog:

Though no one can quite remember when it officially began, every term the justices dash to see who can churn out the quickest opinions.

In modern times, the race has been dominated by two individuals: "Rapid" Ruth Bader Ginsburg and "Swift" Sonia Sotomayor.

Rapid Ruth has long dominated the competition. But the then-newbie Swift Sonia pulled off an upset during the 2010 term. According to SCOTUSblog statistics, she managed to dash off her opinions in an average of just 84 days from the time of the oral argument. Rapid Ruth put up an uncharacteristically high number that term, taking 95 days on average to finish her opinions.

But Rapid Ruth shot back with back-to-back wins during the 2011 and 2012 terms. In 2012, she walloped the competition, taking just 60 days to turn out a decision. Swift Sonia took 93 days.

You can read more here.


June 13, 2017 | Permalink | Comments (0)

The Comey Hearing: Praise for Good Legal Writing

In case you missed it, many Legal Writing Profs felt their hearts beat more quickly when they heard this exchange:

 Here is the exchange James Comey had with Senator James Risch from Idaho:

RISCH:  Yesterday, I got, and everybody got, the seven pages of your direct testimony that’s now a part of the record, here. And the first — I read it, then I read it again, and all I could think was, number one, how much I hated the class of legal writing when I was in law school.

And you were the guy that probably got the A, after — after reading this. So I — I find it clear, I find it concise and, having been a prosecutor for a number of years and handling hundred — maybe thousands of cases and read police reports, investigative reports, this is as good as it gets.

And — and I really appreciate that — not only — not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes, so we know exactly what happened and we’re — and we’re not getting some rendition of it that — that’s in your mind. So...

COMEY: Thank you, Senator.

RISCH: ... so you’re — you’re to be complimented for that.

COMEY: I had great parents and great teachers who beat that into me.

(Thnx to the Appellate Advocacy blog, June 12, 2017).

For a great examination of James Comey’s prepared testimony, see the analysis of Professor Kirsten Davis at Lady (Legal) Lawyer (here).


June 13, 2017 | Permalink | Comments (1)

Monday, June 12, 2017

Overcoming Cognitive Biases by E. Scott Fruehwald. Sample Chapter.

A couple of week's ago, I wrote that I had just published a book on overcoming cognitive biases.  You can find a sample chapter on SSRN:  Overcoming Cognitive Biases: Chapter One

Here is the table of contents:

Table of Contents

Preface v
1. Understanding Cognitive Biases 1
2. Discovering Yourself 17
3. Optimism Biases 27
4. Negativity Biases 45
5. Biases Concerning Others 57
6. Behavioral Economic Biases 73
7. Other Cognitive Biases 103
8. Other Techniques for Overcoming Cognitive Biases 119
9. Application 131
Epilogue 145

(Scott Fruehwald)

June 12, 2017 | Permalink | Comments (0)

Contracts, Cases, Text, and Problems, 2016 Edition by Charles R. Calleros & Stephen Gerst: Sample Chapter

A few years ago, I mentioned an excellent ecasebook by Charles Calleros and Stephen Gerst.  I liked the book because it did a good job of putting cases and other materials in context and included problem-solving exercises.  Carolina Academic Press has now issued a new edition of this book in hard copy.

The authors have posted a sample chapter on SSRN: Charles R. Calleros & Stephen Gerst, Non-enforcement of Contract Obligations for Illegality, Violations of Public Policy, and Unconscionability


"This chapter, on Illegality, Public Policy, and Unconscionability, is from a first-year textbook that the author first drafted in 2008 and has used many years in electronic format, but which appeared this year in updated form and for the first time in hardcover. The latest version of the book includes two additional chapters from co-author Stephen Gerst.

Entitled Contracts: Cases, Text, and Problems, the book reflects a combination of case method and problem method with an added emphasis on presenting material in the way that an associate would approach a legal problem in a law office: (1) secure a general understanding of the topic by reading from a secondary source, (2) focus on primary authority in the form of case law or statutory text, and (3) apply the newly learned legal principles to facts. Accordingly, the book (1) introduces each topic with legal background to provide general context, (2) moves to specific case law or statutory text, and (3) provides numerous exercises and practice exams for students to apply their acquired knowledge. This student-friendly approach has facilitated learning, helped to reinforce lessons in students' legal research and writing courses, and helped to prepare them for work in a law office.

The chapter on Illegality, Public Policy, and Unconscionability is representative of the book’s method of combining hornbook style orientation and excerpts from scholarly articles, primary law such as case law, and numerous exercises including queries about legislative proposals. Indeed, the topic of noncompetition agreements is presented primarily through text and problems. As a further link to the practice of law, the chapter presents a particularly interesting unconscionability analysis by a trial court and then invites students find the case on appeal to determine its fate (which turns out to be a less interesting tool for teaching and debate)."

(Scott Fruehwald)

June 12, 2017 | Permalink | Comments (0)

Low Pass Rates for February Cali Bar

Here the February pass rates for California's ABA accredited and non accredited law schools:

California Western School of Law – 44 percent

Concord University School of Law – 9 percent

Golden Gate University – 36 percent

Humphreys College Laurence Drivon School of Law – 10 percent

Loyola Law School – Los Angeles – 65 percent

McGeorge School of Law – 32 percent

Monterey College of Law – 21 percent

Northwestern California University – 13 percent

Pacific Coast University – 11 percent

Pepperdine University – 53 percent

San Joaquin College of Law – 36 percent

Santa Barbara College of Law – 40 percent

Santa Clara University – 54 percent

Southwestern Law School – 41 percent

Thomas Jefferson School of Law – 29 percent

Trinity Law School – 12 percent

University of California – Los Angeles – 65 percent

University of San Diego – 53 percent

University of San Francisco – 52 percent

University of California Hastings College – 48 percent

University of W. LA-San Fernando Valley – 19 percent

Western State University – 46 percent

You can read more here at JDJournal.


June 12, 2017 | Permalink | Comments (0)

Legal Writing Problem Topic: Implied Warranty Disclaimers

If you’re looking for a new topic for a legal writing problem, you might consider implied warranties.

From the Hudson Cook Law blog, here’s a quick summary of the law:

However, when it comes to disclaiming implied warranties, state law (in most states) simplifies things by providing that a dealer can disclaim the implied warranties of merchantability and fitness for a particular purpose by using the words "as is," "with all faults," or other language that, in common understanding, calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. Even when a dealer uses these words, however, there are times when an implied warranty disclaimer may not be effective. . . .

The lesson here is that a disclaimer of implied warranties can be a strong defense, but only when it is not rendered ineffective by the dealer's conduct.

You can read more here.


June 12, 2017 | Permalink | Comments (0)

Dallas College of Law Gets Provisional Accreditation


The University of North Texas at Dallas College of Law has been granted provisional approval for accreditation from the American Bar Association after initially being denied accreditation last fall.

The ABA Council of the Section of Legal Education and Admission to the Bar announced its decision on June 3 following a positive recommendation from the ABA Accreditation Committee and a review of documents and testimony provided by UNT.

The provisional approval means that the school’s progress will be closely monitored by the ABA, which will determine whether the school should receive full accreditation. Provisional accreditation gives the school and its graduates all of the rights and recognition of a fully approved law school, according to the ABA. But UNT will have to wait at least three more years before it can gain full accreditation, assuming it meets all the standards set by ABA. In years two and four the ABA will visit the school for a full evaluation. . . .

The positive recommendation came less than a year after the ABA denied the school accreditation in August 2016. The ABA released its initial recommendation alongside a 21-page report, citing concerns about the school’s admissions policies and financial conditions.

You can read more here.


June 12, 2017 | Permalink | Comments (0)

Congratulations to UNT-Dallas!

The Council of the ABA Section of Legal Education and Admissions to the Bar has just granted provisional accreditation to the University of North Texas at Dallas College of Law.  I have written about this school's innovative programs several times on this blog.  Deborah Jones Merritt has a detailed list of this school's distinctive features here.

(Scott Fruehwald)

June 12, 2017 | Permalink | Comments (0)

Sunday, June 11, 2017

A Primer for First-Year Legal-Writing Adjuncts

Judge Gerald Lebovits offers us a 33 page guide for new Legal Writing adjuncts. You can access it here. 25 Perspectives: Teaching Legal Res. & Writing 133 (2017).


June 11, 2017 | Permalink | Comments (1)

Saturday, June 10, 2017

Dining Table Etiquette: Some Rules

At Attorney at Work, we get some basic rules on dining table etiquette. You may want to pass them on to your students before they get the big job interviews.

Here’s the rule: solids on the left, liquids on the right. Bread on the left, water on the right.

The classic rule is to use flatware by working your way in from the outside. But what are those extra utensils at the top of the plate? If you see an extra spoon and fork at the top instead of the sides, use those for the dessert course.

That pretty mint sprig on your dessert plate actually has a purpose. Rub the back of your spoon or fork across the mint leaf a few times. When you use your utensil to take a dollop of your crème brulee or ice cream or cream pie, you will taste the mint as part of the dessert as the chef intended.

For fuller explanations, please click here.


June 10, 2017 | Permalink | Comments (0)

Friday, June 9, 2017

Advice on Blogging Strategy

Blog Tyrant” (here) offers detailed advice on how to start a blog and build a readership. Lots of practical guidance.


June 9, 2017 | Permalink | Comments (1)

Thursday, June 8, 2017

Do Students Misconstrue Socratic Teaching?

At Vitae, college professor Rob Jenkins has encountered situations where students have misunderstood what he what he was doing when he played devil’s advocate. Now-Justice Gorsuch apparently ran into a similar situation when he taught as an adjunct at the University of Colorado Law School (here).

In the future, Professor Jenkins plans to explain his socratic teaching method fully at the beginning of the term. In the current hypersensitive atmosphere, he may find the task difficult. You can read more here.


June 8, 2017 | Permalink | Comments (0)

The Ethics of Legal Education: Some Guidance from Peter J. Markie, Part 2

Yesterday, I discussed Peter J. Markie's views on the ethics of what to teach.  Today, I will discuss his views on the ethics of how to teach.

Peter J. Markie, A Professor's Duties: Ethical Issues in College Teaching (1994).

Professor Markie first discusses the obligation of preparation.  He writes, "we are obligated to prepare the course and each class so as to establish a structure in which students can best proceed, as free inquirers, to form their own rationally based truth beliefs about the subject." A professor should pick the text, choose the topics, set the course requirements in light of the requirement to further the professor's commitment to guide students to knowledge.  Markie asserts, "Topics must be selected in terms of what students need to learn to progress, rather than our own personal interests."   Further, "Assignments must be made in terms of what will best guide students, help them develop the necessary skills, and provide effective measures of their progress, rather than how much time we wish to spend on grading."  "[S]o long as we are going to invite our students to the university with the understanding that we will guide them to knowledge . . . we must prepare our classes so as to teach well."  Finally, "once we prepare our course, we have a duty to share our plan with our students in a syllabus, and we must be ready to explain the reasons behind it."

Second, professors have a duty of accurate representation.  He writes, "what we teach has been created by others who cannot be present to explain their work, and when we assume that task for them, we assume a duty of accurate representation."  Of course, this does not preclude criticism of the material, but students should be allowed to make an informed evaluation of the material.

Third, professors should adopt teaching techniques that promote student interest.  "Teaching techniques that inspire student interest do not require us to turn our class into a circus, and they can be learned."

Fourth, professors should "create an environment conducive to inquiry for all students."  "Every student deserves equal attention and support."  We must also avoid racism and sexism in our classes.

Fifth, Professor Markie deals with offensive conduct in selection of topics and texts.  He writes, "What obligation, if any, do professors have to avoid offending their students?" He answers, "We have no obligation to avoid offensive conduct per se. . . .  professors cannot teach without offending some students in some ways.  Teaching requires exposing students to new and different ways of thinking, and new and different ways of thinking can offend."  He declares, "our obligation concerning offensive conduct per se is to guide students beyond any feelings of offense to an honest, objective appreciation of whatever they find offensive."  Of course, "we must avoid offensive conduct that needlessly interferes with a student's learning, but we may certainly teach works that offend students to distraction."  Above all, "we must never drop any work from a course simply because it offends."

Sixth, concerning neutrality, Professor Markie thinks "a professor should present the various alternatives in a neutral way, encouraging and assisting each student's own evaluation of the options relative to the evidence.  To shun neutrality is to encourage students to avoid their own rigorous investigation by simply accepting 'the professor's view.'"

Finally, Professor Markie looks at examinations and grades.  He believes that, in giving examinations, professors are more concerned with giving grades than guiding knowledge.  Grades do serve a purpose by grouping students by ability, knowledge, and interest.  For example, a student who receives a D in a core course of her major should might consider another career.  Of course, with graded papers, professors should do more than just give the paper a grade.  We must evaluate papers properly.  With ungraded assignments, professors can assess how far their students have actually progressed and not worry about a grade. 

In sum, Professor Markie's book gives us a great deal of guidance in how the legal education profession should think about the ethics of teaching.  With law teaching undergoing so many changes recently, such questions are of vital importance to all law school professors and administrators.

(Scott Fruehwald)

June 8, 2017 | Permalink | Comments (0)

Wednesday, June 7, 2017

Advice to Writers by Poet Billy Collins

“Spotlessness is the niece of inspiration.” Here is advice that I regrettably have failed to follow:


Even if it keeps you up all night, wash down the walls and scrub the floor of your study before composing a syllable.

Clean the place as if the Pope were on his way. Spotlessness is the niece of inspiration.

The more you clean, the more brilliant your writing will be, so do not hesitate to take to the open fields to scour the undersides of rocks or swab in the dark forest upper branches, nests full of eggs.

When you find your way back home and stow the sponges and brushes under the sink, you will behold in the light of dawn the immaculate altar of your desk, a clean surface in the middle of a clean world.

From a small vase, sparkling blue, lift a yellow pencil, the sharpest of the bouquet, and cover pages with tiny sentences like long rows of devoted ants that followed you in from the woods.

From Brain Pickings (here).


June 7, 2017 | Permalink | Comments (0)