Saturday, March 11, 2017
From Harvard Law Today:
Starting in the fall of 2017, Harvard Law School will allow applicants to submit either the Graduate Record Examination (GRE) or the Law School Admissions Test (LSAT) to be considered for admission to its three-year J.D. program.
The pilot program to accept the GRE is part of a wider strategy at Harvard Law School to expand access to legal education for students in the United States and internationally. . . .
In recent years, the Law School has taken other such steps, including: conducting interviews via Skype; eliminating the requirement for a “seat deposit” for accepted students; and launching a deferred-admissions pilot program to encourage and accept applications from Harvard College juniors who commit to two years of post-collegiate work experience prior to starting law school.
You can read more here.
From the Concurring Opinions blog (2011):
From William Wright’s Advice on the Study of the Law, as published by Baltimore’s Edward J. Coale with “additional notes for the American student” back in 1811. (One can view the complete text here, on Google Books.)
The student should commence with a firm resolution to become one of the most eminent attornies [sic] of the age : and though the difficulties which he will at first meet with may be great, he should not despond; because despondency will produce negligence. Let him persevere, and he will succeed.
- Genius is more equally distributed among mankind than is generally allowed. . . . If all men would accustom themselves to reflection, few would be ignorant; and their want of reflection proceeds from their own folly and love of leisure, and not from the insufficiency of their natural endowments.
- Habits of attention and application, properly directed, produce what is commonly called genius.
- The student should make himself most intimately acquainted with the practice which is likely to be the most useful.
- Mankind will undoubtedly form their opinion of the morals and attainments of the young lawyer from those of his companions. . . . If he selects for his confidential friends the libertine, the dishonourable, the malevolent, the trifler, or the uneducated, among such he will himself be classed.
- The companions of a student should be few; if they are numerous, he will probably be induced to sacrifice more time to friendship and pleasure than is consistent with his professional duties, and his hopes of honourable distinction.
- Politeness, says Lord Chatham, is benevolence in trifles. This then is all I require of the student.
- Young men should carefully guard themselves against forming any attachment, even upon honourable principles, till years shall have matured their judgment, and a proper course of study supplied them with knowledge sufficient to enter on the world and to transact their professional business with accuracy. Attachments formed too early in life are commonly of a romantic nature, and tend to dissipate thought and unhinge the mind, and seldom terminate so happily as lively imaginations are willing to expect.
- An attorney should commence his professional labours with the laudable resolution of preventing litigation, as much as possible; for petty suits are always vexatious, and seldom productive of advantage either to the litigant parties or to society.
- When consulted professionally, a young attorney should not, if he can avoid it, give his opinion hastily; but consider and re-consider.
Friday, March 10, 2017
From Top Law Schools, here is part of a young lawyer’s account of getting terminated by a major firm:
I am a junior corporate associate at the office of a top 10 firm. I've been slow for basically the entire time I've been here, except for very sporadic late nights when deals were closing. Mainly, it seemed like people just forgot I existed (it's a smaller satellite office, with no centralized staffing, unlike our factory-like NYC headquarters). I billed probably 1500 hours last year, plus a ton of pro bono for the fun of it and to pad my hours. (Love pro bono. Guess Big Law was the wrong decision.)
At my annual evaluation, the two partners said "We think you should leave" and justified the main reason as my lack of taking "ownership" over my work, i.e., not taking the extra step to ask questions and re-examining the document at hand, but rather just doing what I was told. It was all quite vague. They kept saying the word "ownership" again and again. Out of curiosity, I asked if my work product had been bad, and they admitted it was fine, but not "exceptional enough" to outweigh this so-called ownership problem. I call BS on the firing; I know there must be more to the story that they aren't telling me. They also said it was the Personnel Committee's decision based on my senior attorneys' comments and tried to absolve themselves of the guilt. Whatever.
You can read the rest here. There’s a lot here, much of it between the lines. Was the lawyer insufficiently pro-active? Is the lawyer still trying to place the blame on the firm instead of being accountable? Was the firm insufficiently attentive to its young associates? Was the firm in the process of downsizing and the lawyer became an expendable? In any case, what can a graduating law student learn from this story? Be sure to read the comments following the Top Law Schools posting.
In conjunction with International Women’s Day, two groups representing legal writing instructors on Wednesday called for pay and job protections equal to those of traditional law faculty.
Organizers of the effort argue that clinical faculty, legal writing instructors, and academic support faculty—areas of the law faculties that generally skew female—should have the same opportunity to earn tenure, if they so choose, as their doctrinal colleagues.
The debate over the second-class status of non-doctrinal faculty on law campuses is not new. But organizers of the so-called Full Citizenship Project for Law Faculty said they launched their latest effort on International Women’s Day to draw attention to the fact that the lower pay and weaker job security that comes with clinical, legal writing, and academic support positions disproportionately affects women.
They estimate that 70 percent of legal writing instructors and 63 percent of clinical faculty are women, while women fill only 36 percent of tenure and tenure-track positions.
You can read more here.
Thursday, March 9, 2017
Please read this tale by Professor Josh Blackman:
The Harvard Law Review invited me contribute to its annual Supreme Court issue, with a comment concerning two cases I had previously written about. I did what I suspect most other scholars would do: preface my new analysis with earlier writings. The Review objected. Thus began my crash course with a concept I had never before considered: “self-plagiarism.”
This essay analyzes the ethical, legal, and professional implications of copying from one’s prior work, including “recycled text,” “reporting,” and “arguments.” Legal scholarship has largely ignored this important issue, which has been developed by other disciplines.
You can read his analysis here. But the problem is so easy to solve: “Here, I borrow from by previous article ….”
The Health Affairs blog offers a detailed analysis of the proposed American Health Care Act. The summary:
In summary, the legislation’s tax cuts will be very attractive to wealthy Americans and health insurers and providers, who would get a trillion dollars in tax breaks. It could cause consternation for Medicaid recipients and state Medicaid programs, which would see federal funding for Medicaid steadily diminish, potentially thinning out coverage. The legislation could be bad news for recipients of current tax credits who are older, sicker, and poorer, and who live in areas where care is expensive. They may be able to afford low actuarial value coverage with the tax credits the bills would provide them, but they are unlikely then to be able to afford the cost sharing that coverage will impose.
Higher-income younger people, on the other hand, would find coverage much more affordable than it is now under the legislation—the tax credits might fully cover their premiums and leave extra for their health savings accounts. Some insurers could find the state reinsurance money and continuous coverage requirement enough of an incentive to stay in the market, but others may not
Finally, one cannot know without a CBO report how this all works out. But it is hard to see how the bills pay for themselves, and they could result in significant losses in coverage.
You can read more here.
Exam-Writing Instruction in a Classroom Near You: Why it Should Be Done and How to Do it by Joan Malmud Rocklin
Exam-Writing Instruction in a Classroom Near You: Why it Should Be Done and How to Do it by Joan Malmud Rocklin.
"As law schools struggle with declining enrollment, lower bar passage rates, and the likelihood of more stringent accreditation standards related to bar passage, law schools will be forced to re-assess how they prepare their students for the bar exam. One way to address those issues is to think more deeply about why law schools should teach exam-writing skills and how to teach those skills.
To that end, this article first explains the benefits of teaching exam-writing skills in the law school classroom. Most importantly, teaching exam-writing skills promotes the very skill that is at the heart of legal education: structured, coherent thinking. In addition, the same skills that are necessary to write a structured law school exam are essential to passing the bar exam and are foundational to the practice of law. Finally, teaching such skills explicitly in the doctrinal classroom provides important support to minority students and will likely mitigate mental distress for all students. Despite the many reasons for doing so, few law professors teach exam-writing skills — at least not explicitly.
The lack of exam-writing instruction in law school classrooms is a missed opportunity. A number of recent studies have demonstrated that merely taking practice exams and receiving some feedback improves exam performance.
The studies that document the relationship between practice, feedback, and performance do not, however, provide a method for teaching exam-writing skills. This article adds to those studies by recommending an underlying method for teaching exam-writing skills. As explained in the article, the work necessary to provide explicit exam-writing instruction need not be overly burdensome, and the payoffs can be great."
Wednesday, March 8, 2017
From the Sedgwick law blog, we have data from Illinois:
The most active bench with respect to appellants – leaving aside the small groups of contract cases (25.67 questions per case) and election law cases (24.14 questions per case) – is employment law, where appellants were asked an average of 21.46 questions.
Wills and Estates cases averaged 19.43 questions to appellants, and domestic relations, property and public employee pensions were all just behind (18.95, 18.33 and 18.09, respectively).
Taxation averaged 17.64 questions to appellants, constitutional law averaged 16.74, and insurance averaged 16.06.
Interestingly, three of the most common areas of law on the Court’s docket, tort law, civil procedure and government and administrative law, were less active on the appellant’s side. Tort appellants averaged 14.29 questions, civil procedure appellants averaged 14.64, and government and administrative law appellants averaged 14.36.
In nearly all subjects across the entire nine year period, appellants averaged more total questions than appellees.
More data here.
President Donald Trump will nominate Washington lawyer Noel Francisco to be solicitor general, the government's top advocate before the U.S. Supreme Court, the White House said on Tuesday.
Francisco, who has been serving in an acting capacity in the job, is a lawyer with strong conservative credentials who previously worked at the Jones Day law firm.
You can read more here.
Tuesday, March 7, 2017
According to a compilation presented by the Chronicle of Higher Education, here are all the major statements on higher education that President Trump and Secretary DeVos have made since October 2016 (abridged) (Predictable, and nothing new):
October 13, 2016: Mr. Trump suggested his own income-based repayment plan, and says he will “reconsider” tax-exempt endowments.
January 17, 2017: During a contentious confirmation hearing, Ms. DeVos speaks at some length about topics ranging from student debt to Title IX. "For too long a college degree has been pushed as the only avenue for a better life. The old and expensive brick-mortar-and-ivy model is not the only one that will lead to a prosperous future," she tells the senators. "President-elect Trump and I agree we need to support all postsecondary avenues, including trade and vocational schools, and community colleges."
February 2: A riot breaks out at the University of California at Berkeley after the cancellation of a speech by Milo Yiannopoulos, then a Breitbart editor. The following morning, President Trump twitters to ask whether the university should continue to receive federal funds.
February 16: Ms. DeVos praises community colleges and says President Trump’s 100-day plan “notes the importance of expanding vocational and technical education, the types of career and technical education that community colleges excel at.”
February 17: In an interview with Axios, Ms. DeVos acknowledges that her policy views are “very aligned” with President Trump’s, saying that the administration believes four-year colleges are not serving students well and hopes to trim the federal education budget.
February 23: During an appearance at the Conservative Political Action Conference, Ms. DeVos takes aim at university faculty members, criticizing them for “ominously” telling students what to think. On the Obama-era transgender bathroom guidance: “Let me just say this issue was a very huge example of the Obama administration’s overreach,” she says. The night before, Ms. DeVos issues a strongly worded statement proclaiming the “moral obligation” to protect students and investigate claims of discrimination.
February 27: Following a “listening session” with leaders of historically black colleges and universities, Ms. DeVos issues a statement saying HBCUs were “pioneers of school choice.” Many people quickly note that HBCUs were not founded to promote school choice but out of necessity, as black people were barred from attending many white colleges in the aftermath of the Civil War.
February 28: President Trump signs a long-awaited executive order on HBCUs flanked by several leaders of black colleges. In prepared remarks, President Trump says the administration will make HBCUs “an absolute priority.” The order moves the White House Initiative on Historically Black Colleges and Universities from the Education Department to the White House, but does not include targets for increased funding, as many HBCU leaders had hoped.
From the ABAjournal.com:
Juries try less than 1 percent of civil cases in the federal court system, and U.S. Supreme Court nominee Neil Gorsuch has a plan to do something about it. Gorsuch has joined with Circuit Judge Susan Graber to propose changing federal procedural rules to make civil jury trials the default, the Wall Street Journal Law Blog reports.
Gorsuch and Graber are proposing that jury trials be held in any case in which a party is entitled to one, unless the party specifically waives a jury. The judges suggested the idea in a June 2016 letter (PDF, page 73) to the federal judiciary’s Advisory Committee on Rules of Civil Procedure.
“Several reasons animate our proposal,” Gorsuch and Graber say in the letter. “First, we should be encouraging jury trials, and we think that this change would result in more jury trials. Second, simplicity is a virtue. The present system, especially with regard to removed cases, can be a trap for the unwary. Third, such a rule would produce greater certainty. Fourth, a jury-trial default honors the Seventh Amendment more fully.”
I would think that the litigating lawyers ought to be in control of such an important decision and not be pushed into a format that may not be best for the client. You can read more here.
Monday, March 6, 2017
The National Law Journal has published this article by a couple of Biglaw partners involved in associate recruiting who offer advice to law students trying to size up which law firm to join. Among the questions you should consider asking:
- If you join the firm, when will you be expected to choose a practice area to join?
- How is work assigned to associates within the firm?
- How is compensation, including bonuses, determined?
- What kind of clients does the firm have?
- Where do the firm's alumni now practice?
- What are the firm's values, including diversity, pro bono work and associate morale?
Read the full column here.
In her article, Bridging the Reading Gap in the Law School Classroom, Patricia Grande Montana examines the problem of students who lack the skills to read and analyze the complex materials that they encounter in law. She also suggests solutions:
Specifically, it proposes that professors use more guided reading exercises to ensure that students master these skills, which are so critical to not only performing in law school, but also to becoming practice-ready attorneys. Thus, by demonstrating for students how expert legal readers read, professors can help tremendously in closing the reading gap for beginning law students.
The article provides illustrated examples of how to guide the students.
You can access the article here. (45 Capital University Law Review, forthcoming).
Congratulations from all of us at the Legal Skills Prof Blog!!!
Sunday, March 5, 2017
A Case Study: Teaching Legal Research and Writing in a Fully Integrated Way by Liz McCurry Johnson.
This Article outlines the past model of legal research and writing at Wake Forest School of Law, the problems it presented and the redesign methods implemented over the course of two academic years. It details student evaluations and evidence of better student learning when legal writing and research is taught together, in an integrated fashion, rather than in two paralleling courses. Most importantly, this Article provides evidence to support an argument that legal research should never be taught outside the context of a legal writing, or a doctrinal, problem set. Collaboration among faculty is the key to successful student learning.
There has recently been a great deal of discussion in the legal blogosphere concerning whether there is ideological discrimination in law school hiring. (here) A related question is whether diversity of viewpoints is important for the quality of scholarship. Does viewpoint diversity enhance creativity, discovery, and problem-solving?
There has been considerable discussion of this question by psychologists. Here is a representative article:
Political Diversity Will Improve Social Psychological Science by José L. Duarte, Jarret T. Crawford, Charlotta Stern, Jonathan Haidt, Lee Jussim, & Philip E. Tetlock.
"Psychologists have demonstrated the value of diversity–particularly diversity of viewpoints–for enhancing creativity, discovery,and problem solving. But one key type of viewpoint diversity is lacking in academic psychology in general and social psychology in particular: political diversity. This article reviews the available evidence and finds support for four claims: (1) Academic psychology once had considerable political diversity, but has lost nearly all of it in the last 50 years. (2) This lack of political diversity can undermine the validity of social psychological science via mechanisms such as the embedding of liberal values into research questions and methods, steering researchers away from important but politically unpalatable research topics, and producing conclusions that mischaracterize liberals and conservatives alike. (3) Increased political diversity would improve social psychological science by reducing the impact of bias mechanisms such as confirmation bias, and by empowering dissenting minorities to improve the quality of the majority’s thinking. (4) The underrepresentation of non-liberals in social psychology is most likely due to a combination of self-selection, hostile climate, and discrimination. We close with recommendations for increasing political diversity in social psychology."
Excerpt: "“In this article, we suggest that one largely overlooked cause of failure [in social psychology science] is a lack of political diversity. We review evidence suggesting that political diversity and dissent would improve the reliability and validity of social psychological science.”
It’s pretty clear that professors lean to the liberal side. The big question is what difference does it make to students and aspiring academics? An article in Inside Higher Ed surveys a number of studies and seems to find not much bias. Here are two of the studies. The first took place at the time of the Obama-McCain election:
Posing as undergraduates getting ready to apply to doctoral programs, they sent email messages to graduate program directors in top sociology, political science, economics, history and English departments. The inquiries were similar in describing their academic preparation, their undergraduate institutions and their interest in applying. Some of the emails made no mention of politics, but some mentioned having previously worked on either the Obama or McCain presidential campaigns.
The researchers then had independent (and politically mixed) observers rate the responses from the graduate directors on frequency, timing of replies, information provided, emotional warmth and enthusiasm. In a few cases, the researchers found "traces" of a political impact, but "no statistically or substantively significant evidence of bias."
Here is a recent study:
And what of students who do complain of political bias? A study published last year, in the journal Teaching in Higher Education, surveyed undergraduates at two unnamed institutions -- one in the United States and one in Australia (where allegations of professorial political bias are also much discussed). The study asked undergraduates a series of questions about their perceptions of bias, and also of other qualities. The study found that students with certain characteristics -- a sense of entitlement and an orientation to focus on grades -- are much more likely than other students to perceive their instructors as being biased.
To read about more studies, please click here.
Saturday, March 4, 2017
From the Telegraph:
For the first time, students caught cheating could be criminalised amid fears that a burgeoning “essay mills” industry is threatening the quality of a British university degree.
Last month The Telegraph revealed that upwards of 20,000 students enrolled at British universities are paying up to £6,750 for bespoke essays in order to obtain degrees.
Now the Department of Education has announced it is consulting with universities over how to crackdown on cheating students
The DfE is currently consulting on a number of proposals with higher education bodies, ranging from fines, academic blacklists, and even criminal records for students found submitting professionally-written essays.
You can read more here.
Friday, March 3, 2017
So much for tales of reverse discrimination. From NPR:
The study found that job applicants in Canada with Asian names — names of Indian, Pakistani or Chinese origin — were 28 percent less likely to get called for an interview compared to applicants with Anglo names, even when all the qualifications were the same. Researchers used data from a previous study conducted in 2011 where they sent out 12,910 fictitious resumes in response to 3,225 job postings. The previous study, also in Canada, similarly found that applicants with Anglo first names and Asian last names didn't fare much better than applicants with Asian first and last names.
You can read more here.
Thursday, March 2, 2017
From the Graydon Head & Richey law firm blog (here), here is an illustration of using a narrative to describe a visual experience and make a formal legal analysis more persuasive:
In American Atheists v. Davenport, Judge Gorsuch used in his dissent the literary persuasion tool of anthropomorphism. In disagreement that Utah’s roadside crosses are unconstitutional, he takes an otherwise abstract legal test known as the “reasonable observer” and creatively visualizes the existence of such an observer (he calls “our observer”) as he drives down a Utah highway. Does our observer see, Judge Gorsuch asks, the name of a fallen trooper’s name on the crossbar? He includes a picture of it in his dissent to point out you can’t miss the trooper’s tribute unless our observer is presumed to have “selective and feeble eyesight.” Our observer, he goes on, would have to be not only blind but also a speeding “hot-rodder” to miss the e to acknowled name. In other words, this isn’t an unconstitutional establishment of religion. It’s a roadside tribute to fallen trooper.
I’m not sure that I agree with his argument, but I have to acknowledge his skill as a wordsmith.