Monday, February 13, 2017

Judge Gorsuch as the Instant Replay Official


During his 2005 confirmation hearing, Chief Justice John Roberts Jr. likened his role to that of a baseball umpire. Five years later, Judge Neil Gorsuch, weighing a labor dispute, deployed a different sports analogy. He chose football. "Our job is something like the role of the instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call."

You can read more here.


February 13, 2017 | Permalink | Comments (0)

Valentines for Lawyers

From the D.C. Bar blog:

Roses are red  Daisies are plainer  You put my heart  On a permanent retainer 


There is no established precedent For how much I love you! 


SCOTUS may be short one judge  And Congress is brand new  But my heart is filled to full  With Valentine's love for you! 


Blue is the violet  Red is the rose  You’re the special someone I want to depose 


Your objections  Have overruled my senses 


My summary judgment?  You’ve got appeal! 


My Funny Valentine  You make me smile  With your jurisprudence. 


I love you, and so  You love me, dear.  Quid pro quo




February 13, 2017 | Permalink | Comments (0)

Sunday, February 12, 2017

Law School Rankings Still Drive Scholarship Awards, by Deborah Jones Merritt

Deborah Jones Merritt has just written an article for Bloomberg Law on how law schools substantially discount tuition for advantaged students while charging much more for the poor and minorities.  Excerpts:

"It’s an open secret in legal education: Law schools substantially discount tuition for selected students. Classmates sitting side by side pay very different amounts for the same seminars and lectures. Some pay full tuition; some pay a reduced amount; a lucky few pay nothing at all."

"The Law School Survey of Student Engagement (LSSSE), a highly regarded research team, has just focused a spotlight on this practice. The researchers pull no punches: They title their report 'Law School Scholarship Policies: Engines of Inequity.' Aaron Taylor, the group’s director, notes that law schools’ scholarship policies have created a system 'in which the most disadvantaged students subsidize the attendance of their peers.'”

"This 'reverse Robin Hood' pattern arises from two factors. First, schools focus on LSAT scores, rather than economic need, when awarding scholarships. . . .  Almost four-fifths of law school scholarships depend heavily on LSAT scores."

"Second, most of these “scholarships” reflect the reallocation of tuition dollars, rather than the contributions of alumni or other supporters. Schools announce high tuition rates, which they collect from students with the lowest test scores. Dollars from those students help fund discounted tuition for classmates with higher scores."

"This focus on test scores hurts minority applicants, as well as those from economically disadvantaged background. As the LSSSE report documents, applicants from both groups record lower LSAT scores than more privileged applicants. As a result, the most disadvantaged pay higher prices for access to legal education. Compounding the inequity, the disadvantaged subsidize the education of their more advantaged classmates."

"Why do law schools tie so many scholarships to performance on a single multiple-choice test, rather than addressing financial need or rewarding law school performance? Opening doors for disadvantaged students doesn’t raise a school’s rank in the U.S. News sweepstakes. Neither does rewarding excellent performance by students already enrolled in law school. LSAT scores, on the other hand, directly affect a school’s rank. To bolster their rank, law schools offer scholarships to applicants with high LSAT scores."

"Law schools do not award their scholarships in a vacuum; they know that, in our society, wealth correlates with race and family background. By stressing “merit” scholarships — especially those based primarily on LSAT scores — schools aggravate inequality rather than providing opportunity."

The two key paragraphs (emphasis added):

"These facts would be sobering at any time. The LSSSE findings, however, are especially troubling given the ABA’s recent decision to delay — and perhaps forestall — a proposal to make schools more accountable for their bar passage results. Opponents of the proposal argued that greater accountability might reduce the number of minority students attending law school; the ABA House of Delegates seemed to heed those claims.

But appeals to diversity ring hollow when schools pursue scholarship policies that disproportionately burden minority students. Law schools with low bar passage rates invoke diversity to justify admitting students who have little chance of passing the bar. But do those schools award scholarships to these at-risk students? Law schools turn their backs on diversity if they reserve scholarships for the most privileged students in their classes. They openly mock diversity if they force disadvantaged students to subsidize those privileged classmates."

Can anybody tell me how the above is incorrect?  I can see no argument against it.  On one hand, law schools say they are helping minorities through their admissions policies, but then they saddle them with massive debt.  If any one can show how Professor Merritt and I are wrong, I will happily publish it here.

(Scott Fruehwald) (

February 12, 2017 | Permalink | Comments (0)

"Skills for Law Students"

Here's a new article on legal skills training in law school by Professor Jonathan K. Van Patten (South Dakota) just published by the South Dakota Law Review at  61 S.D. L. Rev. 165 (2016). From the introduction:

Teaching skills to law students has been an enduring issue in the law school community, as it should be. The recent decline in the number of law school admissions nationally has stimulated a return to discussion of curricular reform. Law schools have been challenged to make legal education more relevant to the practice of law. While not disagreeing with the need to offer “skills” courses, I have been ambivalent about the terms of the debate. There is an implication that traditional classroom teachers are not teaching skills. It is something like the designation of certain football players as “skill players.” What does it mean when it is said that the quarterback, running backs, and receivers are the “skill” positions? What are the rest, non-skill players? Feeling similarly disrespected, my usual response has been to assert that we all teach legal skills.
At times, the debate has also involved mischaracterization of what legal educators do. A typical assertion is that the curriculum, especially in the first year, is grounded in theory: “Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England.” The implication is that theory is not useful. I think that most first year professors would characterize what they teach as foundational, not theoretical. Students are taught what they need to know (terminology and concepts) and what they must be able to do (analytical skills) before moving on to the next level of courses, much like the study of human anatomy comes before the study of surgery.
The mischaracterization is compounded in some quarters. There is a widely held belief that virtually no one in law schools teaches legal skills. Some are bold enough to assert this is because law school professors have no practical skills to teach:
Believe me when I tell you that Georgetown taught me next to nothing about how to be a lawyer. The law schools say it is really about “teaching you to think like a lawyer.” The reason law schools offer up this lie is because the great percentage of “law professors” have never tried a case, have minimal experience in the trenches, or came straight from academia. Look at the resumes of these “law professors.” When I review a “law professor” background, I see such articles as “Law and the 20th Century Application Of Human Gravitational Fields To Mobile Phones.” They almost never write about how to solve getting a temporary restraining order without notice, or how you can file an ex parte application, etc. I'd kick their ass in court. They use the same lecture notes each year, preach from the same casebook of stale cases, and get paid $150K or more to teach six hours per week. What a job!
This sentiment, with only slightly less anger, has been expressed from within the law school community:
So people who have never been trained to teach or to do academic research, and who know almost nothing about the practice of law, are expected to teach other people how to practice law, and spend approximately half their time doing academic research. This by itself is a prescription for disaster, but the situation is made considerably worse by the traditional methods of classroom instruction and evaluation used in law school--methods that most legal academics continue to employ.
The so-called “Socratic method,” which involves a professor cold-calling a randomly chosen student and quizzing the student about the facts of an appellate court case, is an absurdly inefficient way to teach people about law. It fills the first-year classroom with significant amounts of fear and anxiety, which anyone who knows anything about educational theory will tell you are exactly things you want people not to experience when they're trying to learn something. And it fills upper level classes with boredom and detachment, as everyone but the student on the spot zones out and surfs the internet on their laptops.
Strong stuff. And the criticism of how law schools have been going about the business of training lawyers is not new.


February 12, 2017 | Permalink | Comments (0)

Who Are “the Best of Lawyers”?

In her 2005 tribute to John Pickering, a lion of the law, Justice Ruth Bader Ginsberg gave this answer:

The best of lawyers, Judge McGowan said, serve as architects, planners, builders in law. Along with high technical competence, the best of lawyers have a deep understanding of the nature and purposes of the law, which makes them wise and reliable counselors, broad-gauged advocates and planners, sensitive to the requirements of a just and orderly society and to currents of change.

You can access the tribute here.


February 12, 2017 | Permalink | Comments (0)

Ninth Circuit’s Opinion in the Ant-Travel Case

Here is the Ninth Circuit per curiam opinion in State of Washington v. Trump. I find the court’s criticism of the executive order to be quite pointed.


February 12, 2017 | Permalink | Comments (0)

Saturday, February 11, 2017

Best & Worst Law Schools for Financial Debt

Here, SoFi ranks law schools based on Salary-to-Debt-Ratio—comparing salaries of grads with their educational debt.

Top law schools for best return on education

You can access more information and related rankings here.


February 11, 2017 | Permalink | Comments (0)

Friday, February 10, 2017

Women Carry More College Debt Than Men

From CNBC News:

Largely because women outnumber men in college these days and are more likely to pursue a graduate degree, they are the ones who end up with the bigger loan balances.

In fact, 42 percent of women have more than $30,000 in college debt, compared with 27 percent of men. Women are two times more likely than men to think it will take more than 20 years to pay off their loans, according to market research firm ORC International.

You can read more here.


February 10, 2017 | Permalink | Comments (0)

Leontyne Price at 90

Opera singer, Leontyne Price turns 90 today.  Not only was she one of the great opera sopranos of all time, she was a pioneer for African-Americans in the music world.  I only had a chance to hear her once before she retired, but her recordings have brought me pleasure for many years.

WQXR has a couple of articles on Price.  (here and here)  There are links to several of her performances.  I recommend that you listen to her "Song to the Moon" from Dvorak's Rusalka.  It is truly magnificent.  (Note:  The link seems to start the aria in the middle.  Go back to the beginning to savor the true magnificence of this performance.)

Excerpt from the first article:

"Price never accentuated her fame, preferring to give everyone she encountered a sense of inclusion. Young people would meet her and she would immediately tell them, “it is an honor to meet you," drawing out that word to several syllables with her luscious Mississippi vowels. She never played the grand dame, though she has innate grandeur. She would respond to a compliment saying, “you are more than kind,” again giving those vowels a sumptuousness that literally was music to the ears. I remember the day I met her and so does Renée Fleming, who was a young girl."

"Among all the people I have met in my life, few have had a better memory than she. Her recall of events, faces and names was astounding and served to make others feel valued and respected. She has a lively sense of humor but can also be quite reserved. In fact, her sense of privacy is a key aspect of who she is and, in that spirit, I intend to respect that even though I was privy to some extraordinarily moving and emotional events. What she has given us with her voice and artistry is imbued with her innermost self, and that is where I invite you to encounter her."

A close friend of mine worked with Price when she was with BMG.  She was very kind to him, inviting him to opera dinners and the first Kennedy Center Opera Awards.  I never met Price, but I did have the pleasure of meeting her brother (and manager), General Price, at my friend's 50th birthday party.

Happy 90th Leontyne!

(Scott Fruehwald)

February 10, 2017 | Permalink | Comments (0)

Thursday, February 9, 2017

Working with a Law Student

The offers advice to firms. It discusses the pros and cons of hiring a law student. It then offers advice. Here are the headlines:

Work through the school’s placement service. While you could post an ad online looking to hire a law student, you are more likely to get a good match going through a law school’s placement office.

The hiring process. Hiring a law student is not much different than hiring a potential new associate.

Training. It’s critical that you give transparent instructions, especially at first.

Where do you put them? 

 Scheduling. If you hire a law student during the summer, they probably have very flexible schedules. During the school year, law students obviously have classes.

Practice areas. Rohne and Trevelyan Hornblower both say they have seen placements in nearly every area of law. They’ve seen placements in family law, real estate, trusts and estates, criminal and employment law.

I think this advice applies to professors hiring research assistants.You can read more here.


February 9, 2017 | Permalink | Comments (0)

Wednesday, February 8, 2017

Top 10 Lifestyle Law Schools

From The methodology:

Here’s how we compiled the list: We mashed up the latest law school rankings from U.S. News & World Report with the Princeton Review’s best party schools and with Graduate’s ranking of law schools with the best social life. We also threw into the equation those law schools located in or near the most fun cities, according to Expedia. Rankings are based on the schools (and their cities) that had the highest spots on the most lists.

Heading the list is the University of Colorado, followed by the University of Florida. My law alma mater (University of Texas) comes in at number 6. You can access the list by clicking here.

For what it’s worth.


February 8, 2017 | Permalink | Comments (0)

Above the Law, Charlotte Administration Pens Lame Response to Alumni Demands

The Growth Mindset

We on this blog have often advocated the use of the "growth mindset" (along with other techniques) to help students from minority groups become better students and lawyers.  Now, there is a study that shows the growth mindset can help women lawyers.

 ABA Journal, Having grit and a growth mindset goes a long way for women lawyers, according to ABA study.

"One of the myths that the program aimed to dispel was that talent alone determines success. “It’s more like Talent + Deliberate Practice + Motivation + Circumstance + Other Important Variables=Success,” according to a slide in the presentation."

"There’s a statistically significant relationship between grit, mindset and various measures of success for lawyers in all practice areas, the study found, and lawyers are 'pretty gritty.' The research also shows that women attorneys tend to think that grit and growth mindset are important for success, and that while many successful lawyers show growth-mindset traits when dealing with difficult situations, there’s 'significant room for improvement.'"

"The study asserts that whether someone has a growth mindset predicts his or her seniority in an organization."

"The Grit Project’s study findings are expected to be published in August in a book titled Grit, the Secret to Advancement: Stories of Successful Women Lawyers."

(Scott Fruehwald)

For more on the growth mindset, see E. Scott Fruehwald, Developing Your Professional Identity: Creating Your Inner Lawyer (2015), pp. 21-23.

February 8, 2017 | Permalink | Comments (0)

Tuesday, February 7, 2017

New York Times on Charlotte Law School

For-Profit Law School Faces Crisis After Losing Federal Loans.


"The for-profit school, with hundreds of students, remains in business, even without the lifeline of federal student aid. It is counting on the Education Department under the Trump administration to reopen the loan spigot that the agency turned off last month after the American Bar Association, the law school accreditor, found that the school did not satisfy its admissions and curriculum standards."

"Charlotte Law’s struggles and its dispute with the government highlight the questions being raised over for-profit law schools and the sky-high amounts that students are borrowing for their education. Law school debt alone, when counting interest, has risen to about $175,000 per student, said J. Jerome Hartzell, a lawyer in Raleigh, N.C., who has studied the debt issue.

'It would require an income of over $122,000 to be able to afford just the interest on a student loan of that size,” Mr. Hartzell said. “Most North Carolina lawyers don’t earn that much.'"

"Critics of Charlotte Law say it has enticed unqualified students. Many graduates, they say, have racked up considerable debt but failed to find higher-paying legal jobs. According to A.B.A. data, only 26.3 percent of recent Charlotte Law graduates had full-time jobs that required passage of the state bar and another 10 percent were in jobs where a law degree was preferred."

"Some of those schools, like Charlotte Law, promote themselves as providing opportunities for students who might not be able to attend law school elsewhere. Charlotte Law says it has offset lower admissions scores with preparatory classes, a second 'fresh start' if there is a first-time failure to pass classes and intensive bar preparation. Its first-year attrition rate is 49 percent, according to A.B.A. data."

"Mr. Ogene said the school was seeking to reverse the aid cutoff decision so it could receive payment for the second semester of tuition for students who qualified for federal student loans, and had a disbursement last fall. The Education Department declined to comment."

"Any new arrangement would have to battle Charlotte Law’s recent poor record of bar success. In July only 45.2 percent of its graduates passed the North Carolina bar, which is necessary to practice as a lawyer in the state. In an expletive-laced recording, aired last month by the National Public Radio station WFAE, in Charlotte, a Charlotte Law official said that its July 2015 bar pass rate would have been in the low 20-percent range if the school had not convinced struggling students to defer taking the exam."

(Scott Fruehwald)

February 7, 2017 | Permalink | Comments (0)

Law Schools Paid Judges Nearly $2M to Teach, Lecture in 2012

From the Legal Intelligencer and Lexis Advance:

Law schools paid federal appeals judges anywhere from several thousand dollars for a lecture to nearly $278,000 for full-semester teaching in 2012 — at once buying prestige and giving students a direct line to some of the judiciary's top legal minds.

Senior Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit was the top earner, receiving $277,906 from New York University School of Law, according to the most recent financial disclosure reports judges must file under federal law. NYU Law paid $190,528 to D.C. Circuit Senior Judge Harry Edwards.

Ginsburg and Edwards were among five senior judges who reported law school salaries of at least $100,000, according to the disclosures.


February 7, 2017 | Permalink | Comments (0)

Reminder to submit a micro essay on "the legal skills law schools aren't teaching but should."

Here's your chance to get a publication credit while also reaching a large audience of professors, law librarians, practitioners, judges and others interested in legal skills pedagogy. Perspectives: Teaching Legal Research and Writing (with a circulation of approximately 4,800) is soliciting micro essays on the following topic:
Perspectives is looking for shorter submissions for the next in our series of micro essays (examples). For the micro essays, we want to hear what you (and your students, law clerks or attorneys) have to say about our next micro essay prompt:"Curriculum Gaps: What topics or skills aren't being taught but should be?  Ideally, who would teach them and when?" We welcome multiple submissions and will publish the best selections in our Spring issue. Be honest; be creative; let us know what these words provoke or inspire!
Submit your micro essay by March 1 to Board Member Amy Stein at  For the current issue of Perspectives, archive, Author’s Guide, and other details, please go to:

February 7, 2017 | Permalink | Comments (0)

Charlotte Alumni Demand Resignations Of Law School Leadership

Monday, February 6, 2017

Trump Immigration Order Affects Moot Court

The International Law Students Association [ILSA] is confronting the effect of the anti-immigration order on the Jessup International Moot Court Competition, one of the most prestigious student competitions:

Some of the consequences of President Trump’s Executive Order will affect the Jessup and ILSA directly. Two teams – the University of International Relations in Iran and the winner of the Iraqi National Rounds (which have not yet taken place) – will almost surely not be permitted to attend the White & Case International Rounds in Washington in April. We are aware of at least four teams (representing Jordan, the UAE, Saudi Arabia, and Palestine) one or more of whose members are citizens of the (temporarily) blacklisted countries; those students and coaches will in all likelihood be denied entry visas. We do not yet know whether there may be other individuals in a similar situation.

ILSA is deciding what course to take. It notes:

ILSA is aware of the seriousness of the current situation, and we express our support for those directly affected by it. Of course, we are painfully aware of the ironies implicit here: one of the victims of President Trump’s new policy – which we believe to be illegal under both U.S. domestic and international law – will be an organization whose mission is to expand the study, teaching, and practice of international law around the world.

Amen to that. You can read the full ILSA statement here.


February 6, 2017 | Permalink | Comments (0)

What States Allow Concealed Weapons on College Campuses?

From the National Conference of State Legislatures:

Currently, there are 17 states that ban carrying a concealed weapon on a college campus: California, Florida, Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, South Carolina and Wyoming.

In 24 states the decision to ban or allow concealed carry weapons on campuses is made by each college or university individually: Alabama, Alaska, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Indiana, Iowa, Kentucky, Maine, Maryland, Minnesota, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Vermont, Virginia, Washington and West Virginia.

Because of recent state legislation and court rulings, eight states now have provisions allowing the carrying of concealed weapons on public postsecondary campuses. These states are Colorado, Idaho, Kansas, Mississippi, Oregon, Texas, Utah and Wisconsin. Not included in above list, Tennessee allow faculty members with licenses to carry weapons on campus but the law does not extend to students or the general public.  

You can read more here.


February 6, 2017 | Permalink | Comments (0)

Amendments to Standard 316 fail


(Scott Fruehwald)

Update: Dean Vikram Amar: "Even though the measure is deferred for now, there is reason to think that, on reconsideration, the Council will move forward to put it or something similar into effect eventually."  (here)  In other words, law schools should be making changes in their educational programs now because the resolution will eventually be adopted.  The Council has been pushing this standard hard, and they have the power to enact it!  Also, as mentioned below, the ABA did adopt significant changes to Standard 501.

Further update from the ABA Journal: "Under ABA rules, the house can send the proposed rule, Resolution 110B, back to the Council of the Section of Legal Education and Admissions to the Bar twice for review with or without recommendations, but the council has the final decision on Standard 316 and other matters related to law school accreditation."

February 6, 2017 | Permalink | Comments (0)