Monday, November 17, 2014
At the Inspiring Ideas for the Teaching and Learning of Law blog, you can access a 5:33 minute video in which Linda Fraser (McGill) illustrates the working of an actual active learning classroom. It includes as much commentary from the students as it does from the professor.
Sunday, November 16, 2014
The ABA Student Lawyer has an article on how law schools are developing new ways of training their law students. (here)
A few excerpts:
"Schools like Northwestern have expanded their clinic offerings—and other schools have been busy revamping curricula to make them more practice ready—in response to the sea change that has swept over the legal profession in the past several years since the Great Recession. With employers no longer willing or able to provide traditional mentoring in the early years, schools increasingly have come under pressure to infuse the practical skills of practicing law into their offerings."
"Such skills are increasingly becoming less of a luxury and more of a 'must' for graduating law students, Mascherin said. 'There’s more pressure on students to be able to perform quickly,' she explained. 'It’s not as forgiving a profession as it was 5, 10, 20 years ago. . . . Any kind of practical experience that gives a junior lawyer coming into the firm the confidence to know that they can figure out what they’re asked to do—that they’ve done it before, or something close to it, so you don’t have to go through those awkward first couple of drafts' is a plus."
"Clients are in the driver’s seat and demanding efficiency from their law firms, which in turn forces firms to demand the same of their first-year attorneys."
"Scott Schutte, partner at Morgan, Lewis & Bockius LLP in Chicago, said clients with whom he works will sometimes flat out state they don’t want a first-year associate working on their case."
"Other schools also have recognized the heightened importance of practice-ready education and have begun revamping their curricula to meet this new demand."
"Margaret Drew, who has taken over as director of clinical programs and experiential learning at UMass, said employers are typically looking for two things in graduating students: that they research and write well, and that they have had some practical experience."
"Training the Transactional Business Lawyer: Using the Business Associations Course as a Platform to Teach Practical Skills"
Drawing on her own practice background as a business lawyer and her law school teaching experience, the author argues for the importance of introducing transactional lawyering skills into the law school course on business associations. She notes that business law practice is transactional in nature, but that the traditional method of teaching business associations centers on case law analysis. This litigation-focused approach misleads students about the nature of business law practice, which requires lawyers to act as problem solvers and planners and to engage in preventative lawyering. To bolster her argument, the author draws on some of the recent literature onlegal education reform that calls for introducing students to an enhanced range of skills needed for law practice while they are still in law school. She suggests ways in which practical skills relevant to a transactional business law practice can be incorporated into the doctrinal course in business associations or to a transactional skills course tethered to the business associations course. The author also includes a bibliography of selected literature on teaching business law and transactional law and selected studies on reform of legal education.
At 16 Vanderbilt Journal of Entertainment and Technology 857 (2014), Professor Jodi L. Wilson offers an in-depth analysis of the reliability of Wikipedia as a source of authority: Proceed With Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies. With a growing number of citations to Wikipedia by courts and advocates, we can no longer dismiss Wikipedia or rely on it. The citing party has to use discrimination. Here is the abstract:
Courts and advocates have shown an increasing willingness to cite to Wikipedia. This trend has piqued the attention of scholars, who have considered the permanency concerns raised by citations to Wikipedia and critiqued how courts and advocates have used Wikipedia. This Article adds to the growing scholarship on the Wikipedia citation trend by examining the contours of the Wikipedia contributor crowd and the principles underlying Wikipedia’s content in order to better inform the evaluation of Wikipedia as a potential authoritative source. Part I provides an overview of the Wikipedia citation trend in cases and federal appellate briefs. Part II describes the ongoing judicial and scholarly debate about citation to Wikipedia. Part III first examines the size and demographics of the Wikipedia contributor crowd by using systems data and published surveys. Part III then examines Wikipedia’s editorial and content policies, which guide the Wikipedia contributor crowd in creating content. Finally, Part IV considers the Wikipedia contributor crowd and the editorial and content policies discussed in Part III in the context of traditional evaluative criteria. This evaluation calls into question some of the assumptions underlying the justifications for relying on Wikipedia. Thus, despite the trend, legal writers should proceed with extreme caution when considering reliance on Wikipedia.
Here is the article’s concluding passage:
With respect to Wikipedia in particular, a cursory understanding of Wikipedia as an online collaborative encyclopedia that anyone can edit merely scratches the surface. Before a legal writer embraces Wikipedia as an authoritative source, she must understand, at a minimum, who the contributors are and what the contributions represent. Moreover, based on that knowledge, she must critically assess whether she can reasonably conclude that the Wikipedia article is authoritative for the purpose for which she intends to cite it. As demonstrated in this Article, the contours of the Wikipedia contributor crowd and the content and editorial policies controlling Wikipedia's content call into question some of the assumptions underlying the common justifications for reliance on Wikipedia. Accordingly, the legal writer should proceed with extreme caution when it comes to relying on Wikipedia.
Saturday, November 15, 2014
A student article on the failure of the ABA and law schools to adequately prepare lawyers to handle ethical delimmas
This is a law review note written by Sabrina Narian who graduated last spring from Western State College of Law. It's called A Failure to Instill Realistic Ethical Values in New Lawyers: The ABA and Law School's Duty to Better Prepare Lawyers for Real Life Practice and available at 41 W. St. U. L. Rev. 411 (2014). From the introduction:
You have been with the district attorney's office for less than four years. During this time, you have successfully prosecuted two murder suspects. However, shortly thereafter, the convictions have been called into question. And after further investigation you discover new evidence proving the two murder suspects are innocent. Immediately, you tell the district attorney (DA). The DA's response is, “I do not care. Go into that court hearing on the reversal of the convictions and defend the case.” The DA has admitted that if you do not defend the case, your caseload will be reassessed.
You were the only attorney in the district assigned to this case, and the only one there throughout the trial, and the only attorney for the hearing about the reversal of the convictions. Therefore you are in the best position to know that all of the evidence weighs in favor of overturning the convictions. You have heard of the phrase “throwing a case” to the defense to assist in the reversal, but you have also heard of the repercussions of such conduct including impacts on your salary, bonuses, and most importantly your reputation in the district. What do you do? Did you miss this chapter in your Professional Responsibility course? Unlikely, because it was probably never there.
. . . .
The purpose of this Article is to increase awareness about the lack of ethics courses offered at American Bar Association (ABA) accredited law schools, and the need for the ABA and its members to offer courses that are not solely meant to assist in passing the Multistate Professional Responsibility Exam (MPRE). Aside from a Professional Responsibility course, law schools are rarely paying attention to the social and cultural contexts of the legal practice. In fact, surveyed students have reported that law school did not prepare them well to deal with the ethical dilemmas they face as a practicing attorney. Law students are simply not ready to ethically practice law without such exposure.
The problem became apparent after having taken an ethics course outside of the Professional Responsibility course at my law school. After much research on the issue, it appears that the opportunity to contemplate ethical dilemmas ex ante is not as prevalent as one would expect. Being exposed to such problems ex ante decreases the risk of breaking rules of ethics and possibly causing harm to yourself, the firm, or your client. It has been argued that irrational decisions stem from not having time to fully contemplate situations through or being ethically uneducated and facing powerful organizational pressures, forcing one to balance the individual's sense of right and wrong with pleasing their boss.
This Article begins with an examination of the changes that were made to the legal ethics codes since 1908 and why those changes were important to instilling a code of ethics in attorney work life. The Article will then explain that although the ABA may not have an express duty to require additional ethics courses, the ABA's vigorous establishment as the national representative of the legal profession may give an implied duty to the ABA and its laws schools to require more ethical courses. The ABA should ensure that its lawyers enter into the practice of law with awareness of ethical dilemmas they may face. Some examples in both civil firms and the district attorney's office will exemplify conflicting ethical situations law students would not be exposed to without such courses. The Article will then suggest a resolution to implement in-depth studies on ethics. The resolution proposes that the adoption of an “ethics clinic” is an effective way to fulfill the school's duty to increase exposure, such as the ethics clinics offered at California Western School of Law and Yale Law School. Specifically, an ethics clinic would expose students to ethics by either advising real practicing attorneys who are currently facing ethical dilemmas, or by exposing students to hypotheticals derived from real life situations and requiring students to resolve those dilemmas under pressure taking into account different cultural and personal factors
In June 1995, I was attending a conference in Minneapolis when I went in into cardiac arrest. I remember nothing of that time. Thanks to the firefighters and their defibrillator, I survived. Within a few weeks, I was back in Philadelphia in a hospital bed where I waited four months for a new heart. I expected that a heart transplant would keep me going for a few years. However, here I am, 19 years later, working full time.
The shortage of organs is real. People do die because the waiting list is too long. And transplant recipients also survive. Among the thriving survivors are two of my former students—one with a new heart and one with a new kidney. My driver’s license bears the words “organ donor” I hope you will encourage others to offer themselves as potential donors.
According to business educator Mike Periu, here are nine buzzwords and buzz-phrases “that can make you sound dumb,” because they are worn out and often imprecise:
What’s so wrong with these words? You can read more here at American Express’ Open Forum.
Friday, November 14, 2014
The full list of 25 will be published in the January issue of National Jurist Magazine. For right now the magazine has published a list of 20 returning honorees here. The new inductees include Professor Paul Caron (Pepperdine), Dean Eric Janus (William Mitchell), Dean Michael Hunter Schwartz (Arkansas - Little Rock), Dean Maureen O’Rourke (BU) and Dean Philip Weiser (Colorado - and returning honoree after a year's absence) will all be included with the full list published in January. National Jurist solicited nominations from all schools and then narrowed down the list down to 50 nominees whom were voted on by law school deans, the magazine’s editors and "other influential" people in legal education. Again, check out the almost complete list here.
Attorney Teddy Snyder consults Theodore Bernstein’s book, The Careful Writer, and offers these selections:
“Literally” and “veritable” are examples of Bernstein’s law. These words are frequently misused and add nothing. Eliminate them from your writing. See more about why “literally” has turned into a cliché here.
Speaking of clichés, Bernstein advocates their use “with discrimination and sophistication.” Shun them as a substitute for precise thinking.
Avoid exaggeration. When everything is “awesome” or “amazing,” everything is prosaic. Bernstein calls these exaggerations “atomic flyswatters.”
Go ahead and split your infinitive. Bernstein gives this example: The setback was sure to defer further hopes of keeping pace. Does “further” modify “defer” or “hopes”? Clarity is better than ambiguity.
“Bias” can be for or against. If you (or a venire member) have a favorite color, you have a bias in favor of that color. “Prejudice” is a preconceived attitude that is almost always against. We all have bias. Sound out witnesses and potential jurors for prejudice.
Is a “verbal” agreement spoken or signed? It could be either. To avoid confusion, use “oral” for spoken words and “written” for documents.
Bernstein calls the pretentious use of jargon “windyfoggery.” Government or corporate documents might refer to “improved financial support and less onerous workloads” instead of “more pay and less work.” Better to speak and write plain English. Don’t let windyfoggery obscure your message.
You can read more here at “Attorney at Work.”
Thursday, November 13, 2014
My co-blogger Professor Sirico previously posted about the "50 Most Impressive Law School Buildings" according to Best Choice Schools. Now National Jurist Magazine has ranked the 55 "Best Law School Buildings." See if you school made the list and contrast and compare here.
Daily Worth selects the best 25 companies for women based on these factors:
Number of female board members
Number of women with “chief” titles (additional points for a female CEO)
The company’s profitability
On-site childcare/subsidized childcare options
Paid maternity leave
Paid paternity leave
Flex-time/working off-site options
Female leadership/mentor programs
Retention rate of female employees
Here is more on the methodology.
Leading the list are KeyBank, Care.com, Kohl’s, HSN, and Facebook. You can find the full list here.
Wednesday, November 12, 2014
Daniel E. Ho and Mark Kelman have recently published a study that concludes that adoption of smaller class sizes reduces the GPA gender gap of law school graduates.
The magazine, a National Jurist publication, sought nominations from law schools nationwide based on innovative subject matter, structure or community service and then narrowed down the list to 25 which will be formally recognized in the winter issue. For now, here are the top 15. Go here to check out the remaining 10 runners up.
The Top 15 honorees
Benjamin N. Cardozo School of Law, Yeshiva University Indie Film Clinic
Duquesne University School of Law’s Veteran’s Clinic
Georgetown University Law Center’s Social Enterprise & Nonprofit Law Clinic
Indiana Tech Law School, Law Clerk Clinic
Lewis & Clark Law School, Animal Law Clinic
Marquette University Law School, Mobile Legal Clinic
New York Law School’s Clinical Year
Seattle University School of Law, The Incarcerated Parents Advocacy Clinic
University of Akron School of Law’s Reentry Clinic
University of California, Berkeley School of Law, Death Penalty Clinic
University of California, Irvine School of Law, International Justice Clinic
University of Memphis – Cecil C. Humphreys School of Law, Housing Adjudication Clinic
University of the Pacific, McGeorge School of Law, Legislative and Public Policy Clinic
Washington and Lee University School of Law’s Black Lung Legal Clinic
Wayne State University Law School’s Legal Advocacy for People with Cancer Clinic
At a recent meeting of Harvard’s Arts and Sciences faculty, Professor Harry Lewis opened his remarks in this way:
Madam President, I learned recently from two of my faculty colleagues that students in their courses had been surreptitiously photographed throughout the past spring term using cameras trained on the seats in the lecture hall. This was done under the cloak of research on class attendance. A senior university official called in these professors and explained that by means of this electronic monitoring, images of all the students in attendance had been captured at each class. These faculty colleagues, neither of them tenured, first learned that their classes had been under surveillance when this senior central administration official called them in without informing the computer science area dean, and asked them to comment on the attendance data. And contrary to a basic principle of research involving human subjects, the students who were subjects of this study still, I believe, have not been informed that their images were captured and analyzed.
You can read more here at the Harvard Magazine.
The project had the approval of Harvard’s Institutional Board. Having dealt with my university’s board, I know that it never would have given its approval.
In any case, my law school has a cumbersome method of taking attendance. At the beginning of a semester, I apologize to my students for having them pen their names on a sign-up sheet. I am told there was a time when university students had to show up only to take their exams. Classes were only one means they could use for pursuing their studies. (Not that I necessarily agree with that approach.) Times have changed.
Tuesday, November 11, 2014
There has been a great deal written recently on Langdell’s pernicious influence on legal education. However, Christopher Columbus Langdell’s influence went beyond legal education. His ideas also affected how scholars viewed law; it affected the basis of jurisprudence.
Dennis Patterson has recently written an article on the harmful effects of Langdell’s influence on jurisprudence and how contemporary jurisprudence can escape it.
What is at Stake in Jurisprudence?
“Dean Hellman, Mrs. Quinlan, distinguished faculty, students, and friends of the Oklahoma City University School of Law. My topic this afternoon is the subject of jurisprudence. As a subject of study, jurisprudence occupies a unique place in the law school curriculum. Jurisprudence is simultaneously both its own subject matter and an aspect of every area of law. We are all familiar with phrases such as ‘criminal law jurisprudence’ and ‘the jurisprudence of remedies.’ When it is mentioned in these ways, ‘jurisprudence’ identifies the most general aspects of legal doctrine.”
Here are some excerpts:
“The first thing we need to do is bury Langdell. Yes, I told you earlier that Langdellian formalism is dead as legal philosophy. While that is true, the picture of law given to us by Langdell lives on. Langdell was, at bottom, a reductionist. He thought legal argument was reducible to a few principles that lie beneath the surface of law and do all the normative work. In the same spirit, one need only look at the work of economists, critical legal theorists, and even some forms of analytic jurisprudence to see the same aspiration at work. Reductionism is a deep-seated affliction of the academic soul. While its most noticeable form is classic Marxism and the theory of dialectical materialism, the explanatory picture offered by modem day legal reductionists is no different. The lesson of Wittgenstein is that the task of philosophy is not to theorize. The task of philosophy is to gain a clear view of how, in our practices, we go about the business of making assertions and adjudicating claims. For jurisprudence the lesson is clear: everything we need for our work lies on the surface.”
“There is no algorithm for the correct employment of forms of argument. I am fond of saying that in any given case one form or another is ‘actuated.’ When it comes to education and legal argument, the task of law professors is clear: teach students how to use these forms to make good legal arguments.”
“There is a sense in which my conception of jurisprudence is consistent with Langdell's project. I do think law exhibits unity and structure, but it is a unity and structure different from that to which Langdell aspired.”
“I want to suggest that for we lawyers, ‘progress’ in law should be measured not by the degree to which we are able to force the law to conform to our preconceptions, be they political or otherwise. Rather, I want to suggest that progress in the law comes when we reconfigure the vocabulary of law in ways that allow us to see more clearly how our current notions might be recast to give us a more satisfactory account of legal practice.”
My question is: if the jurisprudential basis of Langdell’s approach to legal education is faulty, why are law schools still using it as the basis of legal education? Can modern science advanced if it uses a Ptolemaic conception of the universe?
The Wall Street Journal Law Blog is reporting that a "war of words" has broken out between the Dean of Brooklyn Law School and the President of the National Conference of Bar Examiners over her suggestion that a sharp decline in bar passage rates for the July administration of the exam is the result of "less able" law graduates. Some states reported a sharp drop in bar pass rates including Texas which saw a decline of 11% from the previous year. The bar pass rate for Brooklyn L.S. was down 10% from July, 2013. Brooklyn's Dean responded by asserting that the median LSAT scores for the class of 2014 had not declined from the previous year suggesting that the drop in bar pass rates was the result of administration and scoring errors by the NCBE. Check out the full story here.
From Findlaw here they are:
Beginning October 6, the nation's highest court will hear appeals involving issues of criminal law, prisoner's rights, labor law, class-action claims, and patent law.
Here's a preview of the Supreme Court's first 10 cases of the October 2014 Term:
- Heien v. North Carolina (October 6): Police need reasonable suspicion to pull over a vehicle for a traffic stop, but the Court will tackle whether an honest mistake about traffic law will suffice for Fourth Amendment purposes.
- Public Employees' Retirement System of Mississippi v. IndyMac MBS Inc. (October 6): This case may clear up when the deadline is for filing a class-action suit for securities-based fraud claims.
- Holt v. Hobbs (October 7): A Muslim man is fighting an Arkansas prison policy preventing him from growing a half-inch beard -- a policy already upheld by the Eighth Circuit.
- Dart Cherokee Basin Operating Company LLC v. Owens (October 7): When removing a class-action suit to federal court, what proof do you need? This case may provide a clearer answer.
- Integrity Staffing Solutions Inc. v. Busk (October 8): Both Amazon and Apple employees have complained about not being paid for time spent during security screenings, and now the Supreme Court may decide whether this time is covered under the FLSA.
- North Carolina Board of Dental Examiners v. FTC (October 8): The Court is set to decide whether entities like this state dentists' board can share in a state's immunity from federal antitrust claims.
- Kansas v. Nebraska and Colorado (October 14): Battle of the Plains States! Kansas claims Nebraska is hogging all the water from the Republican River, violating a deal between the three states.
- Warger v. Shauers (October 14): If a juror lies during voir dire, can you get a new trial by introducing collaborating evidence from jury deliberations? The High Court will debate whether the Federal Rules of Evidence allow this in the face of alleged juror misconduct.
- Teva Pharmaceuticals v. Sandoz (October 15): The Supreme Court will decide whether the Federal Circuit Court of Appeals can independently review an inventor's patent claims despite what happened in the district court.
- Jennings v. Stephens (October 15): When a prisoner wins his or her habeas petition in district court, can he or she raise new issues when the state appeals?
Monday, November 10, 2014
Here are the books that shaped his mind and music. You may be surprised. I, for one, am humbled. From Brain Pickings:
In a recent New York Times interview, marking the release of his charming picture-book Outlaw Pete (public library), Springsteen shares the books that shaped his music and his mind, from poetry to philosophy to children’s books — an eclectic reading list spanning numerous genres and sensibilities, life stages and moods. (Favorite childhood book: The Wonderful Wizard of Oz; last book that made him laugh: Richard Ford’s The Lay of the Land; last book that made him cry: Cormac McCarthy’s The Road).
- Moby-Dick (free download; public library) by Herman Melville
- How to Live: Or A Life of Montaigne in One Question and Twenty Attempts at an Answer (public library) by Sarah Bakewell
- Lonely Hearts of the Cosmos: The Scientific Quest for the Secret of the Universe (public library) by Dennis Overbye
- Love in the Time of Cholera (public library) by Gabriel García Márquez
- Anna Karenina (free download; public library) by Leo Tolstoy
- Leaves of Grass (public library) by Walt Whitman
- The History of Western Philosophy (public library) by Bertrand Russell
- Examined Lives (public library) by Jim Miller
- American Pastoral (public library) by Philip Roth
- I Married a Communist (public library) by Philip Roth
- Blood Meridian (public library) by Cormac McCarthy
- The Road (public library) by Cormac McCarthy
- The Sportswriter (public library) by Richard Ford
- The Lay of the Land (public library) by Richard Ford
- Independence Day (public library) by Richard Ford
- A Good Man Is Hard to Find and Other Stories (public library) by Flannery O’Connor
- Mystery Train: Images of America in Rock ‘n’ Roll Music (public library) by Greil Marcus
- Last Train to Memphis: The Rise of Elvis Presley (public library) by Peter Guralnick
- Chronicles (public library) by Bob Dylan
- Sonata for Jukebox (public library) by Geoffrey O’Brien
- Soul Mining: A Musical Life (public library) by Daniel Lanois
- Too Big to Fail (public library) by Andrew Ross Sorkin
- Someplace Like America: Tales from the New Great Depression (public library) by Dale Maharidge
- The Big Short (public library) by Michael Lewis
- The Brothers Karamazov (free download; public library) by Fyodor Dostoevsky
- Great Short Works (public library) by Leo Tolstoy
- The Adventures of Augie March (public library) by Saul Bellow
- The Wonderful Wizard of Oz (public library) by L. Frank Baum
Putting Skills Into Practice: Legal Problem Solving and Writing for New Lawyers by Daniel L. Barnett (Wolters Kluwer 2014).
This concise book can be used either as the main text for an advanced legal writing course focused on preparing practice-ready documents, or as a reference for new associates. The author, Daniel L. Barnett of the William S. Richardson School of Law, University of Hawai'i, has consulted at a variety of law firms. He has found that new lawyers often struggle to complete the projects they are assigned, often because they do not understand how to apply the skills and knowledge they acquired in law school. This step-by-step guide leads advanced legal writing students and new associates through the process of completing typical assignments. It begins with the essential legal process question of determining the law that applies to the issue at hand and then guides readers through sophisticated questions of how to handle unclear analysis in different types of legal documents.
Sunday, November 9, 2014
Competition for students among law schools has grown fiercer in recent years, as enrollment numbers nationwide hit their lowest point since the 1970s.
These schools aren't just vying to attract the most talented 1Ls, however. Even the relatively small number of students who transfer schools after their first year are sought after.
"One of the things that's happening more and more in legal education is the competition for students," said Donald Tobin, dean of the University of Maryland Francis King Carey School of Law. "As law schools shrink, some law schools are working harder to make their enrollments larger by taking transfer students, and so there's been more of a move to try to entice students away."
UM Carey Law recorded 29 students transferring in during the 2012-2013 academic year, the most recent year for which data were available, while 21 students transferred out. While that was still a net gain for the school, the prior year saw a much more favorable scenario: 34 transfers in, 8 transfers out.
At the University of Baltimore School of Law, the 2012-2013 academic year saw five students transfer in and 36 transfer out. The year before, the figures were much closer, at 17 students in and 22 out.
The disparity with other law schools in the region is striking.
. . . .
Continue reading here.