Wednesday, September 10, 2014
There is a brilliant satire on legal education on the Faculty Lounge by Ray Campbell. (here) In the piece, Campbell imagines a golf school, which only teaches putting. He writes, "Imagine that once there was a famous golf school, the dean of which believed that everything that needed to be known about golf could be learned on the putting green. Being the head of a famous school, the dean was able to put into place a theory of instruction based on just that theory. Students arrived, were handed a putter, and were told that they were learning to think like a golfer."
I'll let you read the rest of his description of the golf school, but here is his conclusion: "Golf is just a game, of course, with no important public purpose, and this is just a fable. It is inconceivable to imagine educational institutions in fields of public importance sticking with an educational method that everyone agrees is not training its graduates to play the game."
I have been thinking about writing a similar piece. My piece would be about a driving school, which taught its students only through classroom instruction. At the end of school, the dean would say, "Congratulations! You are now ready to be drivers." Then, the new drivers would drive away, and they would all have accidents as they left the parking lot.
Or, imagine a medical school, which only taught its students in the classroom. Would you like to be that doctors first patient?
In a comment to Campbell's article, Orin Kerr writes, "But how many people think that the way law is taught is a major factor in whether graduates can find high-paying jobs? Most legal academics think that law schools don't create strong demand for legal services; rather, clients do. Further, the schools are in intense competition with each other to have better employment outcomes for their graduates than other schools. The law school curriculum is mostly elective, with schools offering dozens or hundreds of diverse course offerings ranging from theory to practice to clinics to externships to lectures to socratic classes on an incredible range of topics, covering nearly every subject area imaginable and taught in a wide range of teaching styles and methods."
Respectfully Orin, I think you are missing the point of the legal education reform movement. The major purpose of legal education reform is to prepare lawyers to practice in the modern world. The old methods of legal education are not doing this. As Professor Campbell wrote, "It became harder and harder to connect the modern team game of golf to learning to think like a golfer on the putting green, but schools stuck with their tried and true methodology. This was odd, because dozens of articles were written by concerned golf instructors and professional golfers that agreed on one thing – golf students were graduating unprepared for the modern game of golf."
Campbell also warns of new competitors coming in and taking over. We on this blog have warned several times how law schools must change or go out of business. There is competition out there from for-profit schools and on-line instruction, and there will be others. Law schools need to change now.
Tuesday, September 9, 2014
The young entrepre-lawyer, Tim Hwang, who Forbes profiled as the man who wants to "replace lawyers with code" (and here) is featured again here as part of the ABA Journal's "Legal Rebels" column. After graduating from Boalt Hall in 2013, Mr. Hwang spent part of last year working as an associate for Davis, Polk & Wardwell where he tested software that he believes will eventually replace the need to hire lawyers for many routine legal tasks like drafting articles of incorporation, employee contracts and non-compete agreements. Mr. Hwang recently started his own law firm (check out the firm's attorney profile page - his partners are robots) where he continues to test and develop new legal practice software including an open source program called "Top Gun" that he told the ABA will let associates automate some of their workload so they can spend more time on complex client matters that require a more personalized, bespoked approach. Here's an excerpt describing some of Mr. Hwang's plan to automate law practice:
. . . .
Once [Hwang] knew his software worked, he set about his real objective. Hwang set up his own law firm that would use technology to automate as much paperwork as possible, freeing up lawyers to concentrate on more complex matters.
. . . .
. . . .
Continue reading here.
This Article proposes a method of formative assessment that allows the professor to intervene during the learning process without engaging in labor-intensive assessments such as critiquing student memos and conferencing. At the same time, it presents students with the opportunity to self-regulate their learning. We have called this method “Self-Assessment by Comparative Analysis.”
In short, Self-Assessment by Comparative Analysis requires a student to compare his own work to the work of an expert on the same project, analyze the differences, and to identify what he needs to improve and how he will improve it, focusing on both his product and his process. The Article explains self-regulated learning theory and how Self-Assessment by Comparative Analysis applies the theory. Although the Article explains Self Assessment by Comparative Analysis in the context of a legal writing course, its usefulness is not confined to the legal writing classroom. It could be used in large doctrinal courses and in academic support programs.
Writing at Inside Ed, Professor Trish Roberts-Miller says yes, but you have to have the discipline to really work and not waste time:
Can you succeed in academia working 9 to 5? And the answer is yes if that means really working for 40 hours a week, on average. There are other “ifs” — such as whether you’re working on the things on which you should be working — so working 40 hours is not a guarantee of success.
But, and this is the important point, neither is working 60 hours a week.
She willingly admits that sometimes the academic job requires more hours in a given week, but emphasizes how we can reduce the hours if we are jealous of our time. You can read more of this valuable article here .
I would think about the work week like this. If we were in a private firm counting billable hours in 6 or 15 minute segments, would we spend much time hanging out or playing on the computer? Probably not. Would we put in a three or four day work week and expect to keep the job? Definitely not. Fortunately, we are not in private firms and can live at a somewhat relaxed pace. Still, if we focus intensely on our work when we are at work, we may find that we have more free time to enjoy other parts of our lives.
Monday, September 8, 2014
Some of our readers will no doubt be interested in this new textbook from Carolina Academic Press due out later this month called U.S. Legal Practice Skills for International Law Students. It is authored by Professors Anne M. Burr and Howard Bromberg, both of whom teach in the Legal Practice Program at U. Michigan School of Law. Here's a portion of the publisher's synopsis:
U.S. Legal Practice Skills for International Law Students is ideal for training international law students in the fundamental practice skills utilized by U.S. lawyers. It functions as a “global legal skills academy” for international students who have or are currently studying American substantive law, but desire a deeper understanding of legal practice basics such as professional responsibility, problem solving, interviewing and counseling, negotiation styles, and law firm and courtroom culture. It focuses on those practice skills necessary to perform the tasks common to international law students and lawyers working with American corporations, law firms, and individual American clients: drafting memoranda, contracts, and correspondence. For international students familiar with their own legal systems, the book systematically explains such distinctive elements of American common law as a dual court system, stare decisis, case synthesis, and case law reasoning.
You can read more of the synopsis here at the Carolina Press websiite.
There is a great post on the Best Practices Blog, Unlearning as Learning Outcome, by Barbara Glesner Fines.
"As the newly revised ABA accreditation standards 301 and 302 now require law schools to clearly articulate and publish their learning outcomes for their students, so individual faculty members must do likewise. Yet it is not uncommon to see these learning outcomes statements that read like the table of contents of the textbook used to teach the course. To truly be effective in driving learning and teaching, learning outcomes must be targeted, concrete, measurable and active (not “learning about” but “learning how to”). (emphsis added)
"One of the most effective ways to uncover these “big ideas’ or ‘hard parts” is to focus first on unlearning outcomes – that is, preventing and addressing predictable misunderstandings in the course. Thus, for example, much of the first year of law school is devoted to “unlearning” the positivist philosophy of students who believe the law is resolutely determinate."
"The power of an “unlearning” perspective on assessment improves student learning, but also quickly leads faculty to a deeper understanding of what assessment of student learning oucomes means."
You can read the rest here.
Many of us, including me, are terrible at making small talk. Social and business events can be uncomfortable as we try to find ways to make conversation. At Attorney at Work, Mary Ellen Sullivan offers help. Here is a list of questions we can use to break the ice:
- What is your connection to this event?
- What keeps you busy outside of work?
- Tell me about the organizations you are involved with.
- How did you come up with this idea?
- What got you interested in … ?
- What do you attribute your success to?
- Describe some of the challenges of your profession.
- Describe your most important work experience.
- Bring me up to date.
- Tell me about your family.
And here are some questions that will bring the conversation to a quick end:
- Are you married? Do you have any kids? (If the answer is no, where do you go from there?)
- How is your husband/wife? (What if he or she left, took all the money, and won custody of the kids and the house?)
- Is that real? Are those real? (If you have to ask why these questions are inappropriate, perhaps you should leave the networking to someone else.)
You can read more here.
My book, Think Like A Lawyer: Legal Reasoning for Law Students and Legal Professionals, is now available from Amazon.
A thorough and engaging introduction to legal reasoning that is perfect for law students setting out to acquire the skills that will make them top performers in their field and for established lawyers who are looking to refresh and improve their legal reasoning and analytical abilities. This book focuses on fundamental skills necessary for legal problem solving, such as rule-based reasoning (deductive reasoning), synthesis (inductive reasoning), analogical reasoning, distinguishing cases, and policy-based reasoning.
The useful exercises that appear throughout the text enable you to practice the skills you are gaining as you progress through the chapters. The chapters in this book present the different types of legal reasoning, the mini-skills that are related to those types of legal reasoning, and how to use these mini-skills in combination.
Chapter One discusses the types of legal reasoning. Chapter Two will teach you how to be an engaged reader and analyze cases. Chapter Three concerns reasoning by analogy, which involves showing how your case is like a precedent case. Chapter Four examines rule-based reasoning and its connection to syllogisms. Chapter Five involves synthesizing cases, which is an important skill in establishing the law. Chapter Six investigates statutory interpretation, which is a type of rule-based reasoning that fills in the details with analogies. Chapter Seven brings the prior chapters together by demonstrating how the different types of legal reasoning relate to the small-scale paradigm (how to organize a simple analysis). Chapter Eight fills in this paradigm by examining how to respond to opposing arguments and distinguish cases. Finally, Chapter Nine serves as a capstone to this book with its presentation of advanced problem solving and creative thinking.
And, coming soon from ABA Publishing: E. Scott Fruehwald, Legal Writing Exercises: A Practical Guide to Clear and Persuasive Writing for Lawyers.
Sunday, September 7, 2014
Here are the details:
PENN STATE DICKINSON LAW invites applications for entry level candidates for two full-time, multi-year contract Clinical Faculty positions, anticipated to begin in the Fall of 2015. We welcome candidates interested in serving as director of one of two new clinics, a Medical-Legal Partnership Clinic or a Legislative Policy Partnership Clinic, to maximize opportunities for students based at our Carlisle location. Dickinson Law is located in Carlisle, Pennsylvania, near top-quality health care institutions such as Penn State Hershey Medical Center and government centers in Harrisburg and Washington, D.C. In addition to development and supervision of students in a new clinic, candidates will have the opportunity to teach one or more doctrinal courses in their field, such as courses on Health Care Law, Law and Medicine, Administrative Law, Lobbying, State-and Local Government, etc. We seek applicants with excellent academic records, relevant experience and recommendations, and who have specific interest in supervising law students in practice-based clinical settings. Penn State Dickinson Law, with more than 150 years of history in Carlisle, is one of two fully accredited Penn State law schools. The overarching mission of the faculty at Penn State Dickinson Law is to produce lawyers who are equipped with the skills and competencies necessary to practice and excel in an increasingly global legal market. Commitment to an inclusive community is also part of our educational ethos. These two new clinics will supplement our rich experiential learning tradition, including our existing Community Law Clinic and Children’s Advocacy Clinic. Candidates must be a member of the Pennsylvania Bar or willing to become a member as soon as practicable. For general inquiries, contact Carlisle Appointments Chair, Prof. Katherine C. Pearson, Dickinson Law, Pennsylvania State University at 150 South College St, Carlisle PA 17013 (or contact Staff Assist. Anne Porter at email@example.com).
Review of applications will begin immediately and continue until the positions are filled. To apply, please submit your cover letter and CV through the Penn State jobs website at http://psu.jobs.
To apply for the position of Clinical Law Assistant Professor for Legislative Policy Partnership Clinic, apply to vacancy #53101 via this link: https://app2.ohr.psu.edu/Jobs/External/EVMS2_External/currentap1.cfm#53101
To apply for the position of Clinical Law Assistant Professor for Medical-Legal Partnership Clinic, apply to vacancy #53102 via this link: https://app2.ohr.psu.edu/Jobs/External/EVMS2_External/currentap1.cfm#53102
Penn State is an equal opportunity, affirmative action employer, and is committed to providing employment opportunities to minorities, women, veterans, disabled individuals, and other protected groups.
Arthur Pulling was a legendary law librarian. In 2011, I posted this brief biography. He began by shelving books at Harvard’s law library and later ran the place. In the interim, during World War I, he organized the War Department’s library and then moved on to the University of Minnesota’s law library. After retiring from Harvard, he established the library of the fledging Villanova Law School. After retiring from that position, he moved to the University of Maine to build the University of Maine’s law library. What a career!
Saturday, September 6, 2014
And that makes it the single largest job gain since 2013 according to figures released by the Bureau of Labor Statistics as reported in the Wall Street Journal Law Blog. It also reverses the total number of legal sector jobs lost since January (here, here (revised downward here) and here) resulting in a net gain of 3,000 jobs for 2014 so far. The Wall Street Journal reports that this represents the largest overall increase in legal sector jobs since 2009.
In calculating legal sector job losses and gains, the BLS includes non-lawyer legal service occupations such as paralegals, legal consultants, process servers, notaries and patent agents, among other jobs.
Check out the full story in the WSJ here.
From Attorney at Work, here is advice on dealing with an angry client. Reading it, I realized that the same advice applies to dealing with an angry student. The best advice is to think what an angry client or student wants:
- To be listened to
- To be treated with respect
- To be taken seriously
- An immediate response
- To make sure it doesn’t happen again
- To avoid blame from someone else in your organization
Friday, September 5, 2014
No, says Professor Justin Hansford (St. Louis) in a new article entitled Lippman's Law: Debating the Fifty-Hour Pro Bono Requirement for Bar Admission, 41 Fordham Urb. L.J. 1141 (2014) because the underlying causes of the "justice gap" are structural ones relating to issues of economic justice, racial justice and voting rights inequities. Noteworthy for readers of this blog, Professor Hansford cites to a study from 2004 that found based on a large scale survey of law grads who completed mandatory pro bono service while in law school, 64% said it was "helpful in gaining a practical understanding of how the legal system works . . . . Overall, lawyers believe that they benefited directly from the opportunity to further develop their legal skills through mandatory pro bono." Unfortunately, one of the unintended consequences of a mandatory pro bono requirement, according to the same study, is that it might diminish the students' sense of professional obligation toward pro bono work compared to lawyers who did not participate in a mandatory program.
Here is the abstract for Professor Hansford's article which can also be found on SSRN here.
When the Honorable Jonathan Lippman, Chief Judge of the New York Court of Appeals, made New York the first state to establish a pro bono service requirement for bar admission, he may have sparked a national movement. Others states have quickly moved to adopt similar requirements, and eventually every state in the nation will have to decide whether or not to follow suit. Lippman’s law has three aims: to address the access to justice gap, to strengthen practical instruction so that new lawyers will be more “practice ready,” and to instill in new lawyers a more public service oriented sense of professional identity.
However, it seems clear that the rule as implemented in New York will not achieve its aims. The access to justice gap is not a superficial problem, it’s a structural one. It can be effectively addressed only by engaging the economic justice, racial justice, and voting rights inequities that remain at the root of it. Nor is it effective to implement an overbroad definition of pro bono with few built in measures for monitoring and feedback. This fails to provide a reliable basis for either measuring the progress of the project or ensuring that the new lawyers learn what they are supposed to from the experience.
This Article suggests that, while based on a good idea and a strong grasp of the lawyer’s traditional duty to serve the public interest, Lippman’s law as currently drafted in New York comes up short.
One of the most significant chapters in American history opened on this day, September 6, 1620. After failed attempts to sail from England, leaving behind her sister ship Speedwell, the Mayflower sailed from Plymouth for the New World. Aboard were 101 passengers. By today's standards the ship was little bigger than a yacht. Ninety feet long and twenty-six feet wide, it hardly seemed the vessel to alter world history.
Cramped in so small a space and subject to rough weather, the passengers suffered a good deal. The sailors cursed the pious Pilgrims, whom they detested. Food consisted of dried fish, cheese and beer. The only sanitary accommodation was a slop bucket. There was nowhere to bathe. Seasickness was rampant during storms. With little air below decks, the conditions were nauseating at the best. Despite this, only one passenger died at sea. However bad matters were aboard ship, they would prove far worse in the "hideous and desolate wilderness" which soon confronted them.
You can read more here.
How early should classes begin? Here’s the answer for high school and middle school students, according to the American Academy of Pediatrics.:
High schools and middle schools should start at 8:30 a.m. or later to better sync schedules with students' natural sleep cycles, the American Academy of Pediatrics says in a new policy statement published Monday. At the start of puberty, sleep-wake cycles shift two hours later, making it difficult for students to wake up as early as they did when they were younger, the statement says.
"Studies show that adolescents who don't get enough sleep often suffer physical and mental health problems, an increased risk of automobile accidents, and a decline in academic performance," the statement says. "But getting enough sleep each night can be hard for teens whose natural sleep cycles make it difficult for them to fall asleep before 11 p.m.—and who face a first-period class at 7:30 a.m. or earlier the next day."
Pediatrician Judith Owens, who authored the statement, called chronic sleep loss in children and adolescents "one of the most common—and easily fixable—public health issues in the U.S. today."
You can read more here, at Education Week. I suspect that the same issue arises for our students. Yet, at some law schools (including mine), classes begin at 8 a.m. I don’t know if some schools start even earlier. I wonder if profs are at their best at sunrise. I’m certainly not. Some colleges have recognized the problem with super-early classes and have shifted to a schedule that starts later. We ought to give the matter some thought.
Thursday, September 4, 2014
Some of our readers will no doubt be interested in this new ABA publication by Carole A. Levitt (President of Internet for Lawyers and a former law librarian) and Judy K. Davis (law librarian at USC) called Internet Research on a Budget: Free and Low Cost Resources for Lawyers. You can buy a copy at the Internet for Lawyers website, from the ABA here or on Amazon here. From the publisher's synopsis:
With cost-conscious clients scrutinizing legal bills, lawyers cannot afford to depend on expensive legal research databases, especially when reliable free resources are available. Internet Legal Research on a Budget will help you quickly find the best free or low-cost resources online and use them for your research needs. The authors share the top websites, apps, blogs, Twitter feeds, and crowdsourced resources that will save you time, money, and frustration during the legal research process. This book will help you locate and use:
- Legal portals and directories (government, academic, and commercial)
- Case law databases (government and commercial)
- Casemaker and Fastcase
- Cite-checking cases
- Federal Statutory research
- Federal, legislative, and congressional materials
- Starting points for state, local, territorial, and tribal law
- Practice area research using websites, blogs, Twitter, and more
- Background information about attorneys, judges, and legal professionals
- Foreign, international, and comparative law resources
From IAALS Online:
"In a recent opinion issuing discovery sanctions, a federal district court judge in the Northern District of Iowa denounced modern discovery practice in the United States. Judge Mark W. Bennett began the opinion with a reference to Hamlet: “Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal civil litigation right here in the United States.” The court went on to discuss the current state of discovery, how it is too often “mired in obstructionism,” and how such inappropriate conduct is “born of a warped view of zealous advocacy.”
The court did not lay all the blame on lawyers, recognizing that judges often ignore such conduct, thereby reinforcing and incentivizing such tactics. With that, the court sua sponte issued sanctions against defense counsel for coaching witnesses and excessive interruptions during depositions."
Read the rest here.
The “Your ABA email” offers a thorough discussion of the subject, including the results of disciplinary proceedings against lawyers who fought back. The problem is that the lawyer’s obligation of confidentiality prevents disclosing facts that undermine the truthfulness of the client’s assertions.
The memo advises caution. It offers one response, suggested in a Pennsylvania bar opinion, that a lawyer might post:
A lawyer's duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.
You can access the memo here.
Wednesday, September 3, 2014
"Grit" does not correlate with creativity including intellectual creativity and creative problem solving
Those are the findings from two separate studies conducted by researchers at U. Texas and Yale, respectively, according to Education Week. While previous studies have shown that "grit" - defined as conscientiousness and perseverance - predict success in "everything from graduation rates at West Point to National Spelling Bee champions," it does not correlate with creative achievement including intellectual creativity and creative problem solving (both of which separate good lawyers from the most talented). Here's an excerpt from Education Week summarizing both new studies:
. . . .
Well-known studies by developmental psychologist Angela L. Duckworth and colleagues at the University of Pennsylvania have found that a person's "grit"—a measure of conscientiousness and perseverance—could predict everything from graduation rates at West Point to National Spelling Bee champions. . . .
But Magdalena G. Grohman, the associate director of the Center for Values in Medicine, Science, and Technology at the University of Texas at Dallas, argues that grittiness is not the end-all, be-all for student success. "When you look at it, these [areas studied by Ms. Duckworth] are well-defined areas and the rules for achievement are well-defined in those areas," she said. "We know what to do to get good grades, what to do to stay in military school, and what to do to win in contests such as spelling bees. The rules are pretty clear on what the achievement is and what success is in these domains. But what about creative achievement?"
In two separate analyses of college undergraduates by Ms. Grohman and her colleagues, students filled out detailed questionnaires on personality, extracurricular activities, and grades, as well as data on prior creative activities and accomplishments. Students' ratings on field surveys of grit and openness to experience were compared to their academic and extracurricular records.
Ms. Grohman found that neither grit nor two related characteristics of consistency and perseverance predicted a student's success in various types of creative endeavors, including visual and performing art, writing, scientific ingenuity, or even creativeness in everyday problem-solving. "These are 'no results' that we are actually excited about," Ms. Grohman said during a presentation on creativity. "Creative achievement and grit, intellectual creativity and grit, everyday creativity and grit: no effects whatsoever."
Rather, a student's openness to new experiences was most closely associated with his or her likelihood of accomplishing creative works, she found.
In a separate study, Zorana Ivcevic Pringle, an associate research scientist at the Yale Center for Emotional Intelligence, at Yale University in New Haven, Conn., compared the academic records and the reports of high school students, their peers, and teachers.
. . . .
Ms. Pringle found that neither students' individual scores on tests of grit nor their teachers' ratings of high persistence were related to how creative they were on group projects.
However, as in the previous study, individual ratings of students' openness to new experiences and teachers' ratings of students with passion for their work did predict who would be the most creative.
Ms. Pringle said she is still studying whether grit may come into play later on, when students' creative ideas must be built out into long-term projects.
"There's a difference between creative potential and achievement," she said. "We all know people who have great ideas but never end up doing anything with them, and I'm really interested in what happens in that process," she said.
. . . .
Continue reading at Education Week here.