Thursday, November 17, 2016
From the blog O'Connor's Annotations:
Any law school student or graduate can undoubtedly offer an opinion on the effectiveness of the law school examination process. The pressure of grade determination by a single, time-pressured essay exam at the end of the semester is something that will haunt many graduates long after they leave the law school campus behind them. While the extreme pressure on students may alone be sufficient justification for reform of law school exams, a recent study shows that the current examination process also rewards skills that may be detrimental in later professional practice.
In the working paper Speed Matters, evidence shows that students with lengthy essay answers score better on exams than peers with shorter answers. Authored by professors at Brigham Young University, the paper presents the findings of a six-year study of more than 5,000 first-year exam results from over 800 students at BYU’s J. Ruben Clark Law School. This study predicts that students who write “an additional 5.12 words per minute for a total of 923 additional words” over a typical three-hour testing period could increase their grade by 0.1 on a 4.0 scale (i.e., from the study’s median grade of 3.3 to 3.4). Unsurprisingly, data shows that the substantive quality of the additional content still matters. “Although the data points strongly to the grade benefit of saying more on any essay exam[,] [a]dditional strong analysis is more valuable than additional weak analysis.” The paper notes that while this conclusion likely is not earth-shattering to any law school student or professor, it should prompt educators to consider whether writing speed, and consequently the length of the answer, should have such an impact on law school grades.
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Continue reading here.
According to an LSAC study, for law school applicants, it’s Political Science, followed by Criminal Justice.
As for mean highest LSAT scores, they go to Economics, Philosophy, and History, in that order.
For a full statistical breakdown, please click here.
From the Toledo Blade:
Donald Trump’s attorney told a federal judge today he’s open to settlement talks in a class-action fraud lawsuit involving the president-elect and his now-defunct Trump University.
Attorney Daniel Petrocelli also asked during a hearing that the trial be delayed until early next year because Mr. Trump needs time to work on the transition to the presidency.
The lawsuit alleging Trump University failed on its promise to teach success in real estate is currently set to begin Nov. 28 in San Diego.
Mr. Petrocelli said he agreed to an offer by U.S. District Court Judge Gonzalo Curiel to have U.S. District Judge Jeffrey Miller work with both sides on a possible settlement.
You can read more here.
"Perhaps it was the fact that it received a stern rebuke from the Department of Education this summer, or perhaps it was the fact that bar exam passage rates have been on a steady decline for the past several years, but the American Bar Association has finally started to sanction law schools that violate its rules, cracking down on institutions that continue to enroll students who aren’t likely to graduate and pass the bar exam."
"This past summer, the ABA brought the hammer down on the Ave Maria School of Law for being out of compliance with requirements that it have “sound admissions policies and procedures” and admit only applicants who “appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” Ave Maria’s passage rate for the July 2016 administration of the Florida bar exam was 66.7 percent."
"Now, the ABA has taken two more law schools to task: Valparaiso University School of Law has been publicly censured and Charlotte School of Law has been placed on probation, both for failing to comply with the same accreditation requirements for which Ave Maria was disciplined. Valparaiso’s passage rate for the July 2015 administration of the Indiana bar exam was 60.87 percent. Charlotte’s passage rate for the July 2016 administration of the North Carolina bar exam was 45.24 percent."
"Both schools are now at risk of losing their accreditation if they do not improve. Which law schools will be the next to face the ABA’s wrath? There are more than a handful of schools that could use the possible loss of accreditation as incentive to improve the quality of their entering classes, and thus, the lives of their graduates."
Wednesday, November 16, 2016
Westlaw Next v. Lexis Advance: Which is Better?
An empirical study looked at how the two systems performed on basic legal research tasks utilizing key word searches. It found “few significant differences” between the two on speed and accuracy.
The article is Melanie Knapp & Rob Wiley, Comparison of Research Speed and Accuracy Using WestlawNext and Lexis Advance, 35 Legal Research Services Quarterly, Issue 2 (2016). Please see if your library subscribes. Access to the single 10 page online article costs $41.
21st Anniversary of my Heart Transplant
Hard to believe. I never thought I’d last this long. But with good fortune, improved drugs, and improved wisdom on how to use them, there are many long-timers like me.
Still, organs are in short supply, and patients die while waiting. Agreeing to become an organ donor is one of the most generous things you can do.
Several years ago, I wrote an article about my experience as a transplant patient. Reading it now, it sounds a little gloomier than I meant it to be. You can find it on JStor (here) and at the Real Property Probate and Trust Journal, Vol. 37, Fall 2002.
Drafting for Dispute Resolution: A Concise Guide by John M. Newman.
In light of the growing importance of contractual dispute resolution, this guide seeks to concisely identify — from a transactional perspective — the relevant questions, considerations, and law surrounding dispute-resolution provisions. The target audience includes practitioners, scholars, businesspersons, and other analysts exploring how to plan and draft for dispute resolution.
Tuesday, November 15, 2016
Monday, November 14, 2016
From Bernie Burk:
"The Institute for Law Teaching and Learning will be holding its Summer 2017 Conference July 7-8, 2017 at my current (and wonderful) academic home, the University of Arkansas at Little Rock William H. Bowen School of Law. This year’s conference is entitled “Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302.”
From the Source:
The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,” such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.” The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills. The deadline to submit a proposal is February 1, 2017."
Sunday, November 13, 2016
At least one law school, Albany, saw a double-digit increase in its pass rate from the summer administration of the bar exam, the first time the Uniform Bar Exam was given in the state. The New York Law Journal has the story:
Graduates of New York law schools who took the July bar exam—the first time the Uniform Bar Examination (UBE) was administered—improved the state's pass rate by 4 percentage points, to 83 percent, bouncing back from its lowest rate in a decade.
There were 3,120 graduates from New York's 15 law schools sitting for the exam for the first time this year, which is 171 fewer than in 2015 and 640 fewer than in 2014. The exam was conducted on July 26 and 27.
. . . .
In 2015, Albany Law School, New York Law School and the Touro College Jacob D. Fuchsberg Law Center had the largest declines in pass rates. But this year, they reported the largest pass rate increases, and all but five schools saw improvement.
Albany Law's pass rate rose 14.5 points, to 82.7. There were 133 Albany Law grads taking the test for the first time, down from 151 last year, when it posted the third-worst pass rate in the state.
In an email, Alicia Ouellette, Albany Law's president and dean, attributed the increase to the work of test takers themselves as well as the school's faculty, who she said help to prepare students for the exam with weekend review sessions, one-on-one bar coaching, academic advising and "further integrating bar preparation throughout the curriculum."
"This is a faculty that cares about its students, and the results this year demonstrates our commitment to students," she said. "This was an effort by the entire school."
Touro Law, which last year saw a 15-point slide in its pass rate, the largest in the state, boosted its rate back up by 9.6 percentage points, to 62.1 percent. The school said it added supplemental sessions to its bar prep classes, ensured that the classes were focused on preparing students for the UBE, increased one-on-one tutoring with faculty and added a required writing practicum designed to prepare students for essay questions.
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Continue reading here.
We are moving into an era in which, legal scholarship, mostly liberal, will have little influence on courts, agencies, and legislatures.
Will academics continue to write aspirational articles designed to effect liberally-oriented changes or will they focus on incremental proposals that have some chance of gaining attention beyond the academic walls? We’ll see.
From the Morvillo, Abramowitz Grand Iason & Anello blog:
Two weeks ago, as reported by Howard Bashman at How Appealing, the Second Circuit joined the Seventh, Ninth, and Federal Circuits on an issue that is dividing the Courts of Appeals: Whether to reduce the word limits for federal appellate briefs by 1,000 words.
In particular, these circuits have all indicated their intention to opt out of a change to the Federal Rules of Appellate Procedure, which otherwise goes into effect on December 1 this year, reducing the word limit for principal briefs on appeal from 14,000 to 13,000 words.
As mundane as this dispute may sound, the fact that these particular circuits—some of the country’s busiest—have gone to the trouble to deviate from the impending rule change in order to continue to allow for longer briefs deserves careful attention for what it may signal.
You can read more here.
In Memoriam: Leonard Cohen
Poet, song writer, singer Leonard Cohen has passed away at age 82. Three of his songs very often drift through my mind—Suzanne, Bird on a Wire, and Tower of Song. Here is an article from the Philadelphia Inquirer. It has videos of Leonard Cohen singing seven of his songs.
Saturday, November 12, 2016
The holiday season is just about here. From Attorney at Work:
Do encourage your firm’s party planner to have “mocktails” (non-alcoholic) and cocktails equally available and encouraged.
Do ask to have tray-passed water as well as drinks and appetizers.
Do keep your “thinking business cap” on, comport yourself professionally and adhere to company policies — including harassment prevention and the dress code.
Do be mindful that you are still interacting with co-workers, and possibly their guests, so be respectful of different perspectives.
Don’t bring up hot button topics, politics or religion in an effort to be chatty or make conversation. Remember, there is a time and place for everything. End-of-year parties are about being thankful for everyone’s hard work throughout the year, and to raise morale.
Don’t give in to liquid courage. The holiday party is not the time to finally tell your co-worker how much you like him or her, or your boss how much you don’t.
Don’t be the innocent or unintentionally offensive or insensitive partygoer. If you are not the best at small talk, practice getting others to talk about themselves. They’ll love you!
Don’t wear anything too flashy or too revealing. Festive yet professional is the key.
You can read more here.
In my early teaching days at another school, I remember a party at which faculty members hid the car keys of a colleague who had a reputation for drinking too much. We newbies weren’t supposed to catch on. A very uncomfortable situation.
Friday, November 11, 2016
Several law schools have started clinical programs to help students gain practical experience while providing much needed legal representation to veterans (here, here, here, here and here). This popular trend has also taken hold within Biglaw as Jones Day has partnered with the ABA and local bar associations - see VetLex.org for more details - to provide a variety of legal services to veterans in need. The American Lawyer reports:
On Tuesday, the nation elected a new president, and on Veterans Day, it pauses to thank those who enabled that to happen.
In that vein, major law firms are extending their own style of gratitude through pro bono programs designed to provide legal services to veterans and help them transition from military to civilian life.
On Friday, Jones Day will announce the start of a lawyer recruitment effort to build the nation's first legal service referral network. The firm hopes to recruit hundreds of lawyers across all areas of practice over the coming months to build its network, known as VetLex. Once the network of attorneys is established, VetLex will begin piloting its program to veterans in the spring of 2017.
Jones Day initially developed the concept after it saw a national need for a network for veteran services through the firm's pro bono work in Pittsburgh, said Laura Ellsworth, partner in charge of global community service initiatives at Jones Day.
"Someone needed to get out of the echo chamber and get it done, so we sat down and rolled up our sleeves," Ellsworth said.
In January, Jones Day collaborated with the American Bar Association, local bar groups and veteran associations to create a prototype net portal ( VetLex.org) where veterans will eventually input their specific legal issues such as landlord-tenant disputes, family law matters and business startup needs. Jones Day, as well as the bar organizations, will provide training and certification to the attorneys.
VetLex then will use the information to match the veterans with a trained pro bono attorney in their geographic area. They'll also get a directory of social service providers, Ellsworth said.
"I'm really excited to do this as someone who is a veteran and a lawyer," said Miguel Eaton, a partner at Jones Day and head of its Veteran Initiative. Eaton was called into active duty during his first year at Duke Law School to serve in the U.S. Marine Corps during the 2003 invasion of Iraq. "It's a daunting endeavor to find a lawyer," he said. "What I'm hoping VetLex can do is ease that angst a little bit."
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Continue reading here.
Over at the Best Practices for Legal Education blog Oct. 19, 2016), one counterintuitive suggestion is creating empathy with the speaker—convey understanding and sympathy with the speaker and invite reciprocal empathy:
While it may be tempting to directly characterize others’ statements – such as saying, “That’s sexist! [racist, a lie, etc.]” – that approach risks stimulating escalation and defensiveness. It may stop the immediate behavior but it may also lead to counterproductive arguments, cause resentment, and actually reinforce problematic attitudes.
Lawyers not only have to deal with their own personal reactions but also have to manage their professional responsibilities to be respectful. This may be especially difficult when they encounter problematic attitudes from their own clients. Lawyers often worry that clients will doubt that the lawyers will fight hard enough, so it can be particularly difficult for lawyers to challenge their clients.
While it may seem counter-intuitive to demonstrate empathy with people who express ideas that feel offensive, it may be an effective tactic. And it may open people to be more empathetic with others. This approach may also be helpful strategically by getting people to consider their situation more realistically, recognizing the other person’s perspective as well as that of potential third party decision-makers.
You can read more here.
Those of you who read this blog regularly might already know the answer: human cognitive biases. Daniel Kahneman and Amos Tversky have identified scores of cognitive biases, which affect how humans think. (Daniel Kahneman, Thinking Fast and Slow (2011)) As I have written elsewhere, "Humans evolved to survive and pass on their genes. This occurred over millions of years in diverse environments. Most of these environments are very different from our modern world. However, our brains still contain many of the survival mechanisms from earlier times. Some of these mechanisms are cognitive biases–faulty ways of thinking–that we need to be aware of."
Kahneman begins with the notion that our minds contain two interactive modes of thinking:
"System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control.
System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of System 2 are often associated with the subjective experience of agency, choice, and concentration."
In other words, System 1 is unconscious, intuitive thought (automatic pilot), while slower System 2 is conscious, rational thinking (effortful system).
When we are awake, most of our actions are controlled automatically by System 1. The mind cannot consciously perform the thousands of complex tasks per day that human functioning requires. System 2 is normally in a low-effort mode. System 2 activates when System 1 cannot deal with a task–when more detailed processing is needed; only System 2 can construct thoughts in a step-by-step fashion. In addition, it continuously monitors human behavior. The interactions of Systems 1 and 2 are usually highly efficient. However, System 1 is prone to biases and errors, and System 2 is often lazy.
These biases, identified by Kahnemen and Tversky, help explain, why so many experts wrongly predicted that Trump would lose the election:
- Confirmation bias: “The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions.” Under this bias, those experts who started out thinking that Trump could not win, unconsciously interpreted the evidence as supporting that preconception, even when the evidence didn't support it.
- Bandwagon effect: “The tendency to do (or believe) things because many other people do (or believe) the same.” Many experts strongly disfavored Trump, and this reinforced how the experts thought.
- Bias blind spot: “The tendency to see oneself as less biased than other people, or to be able to identify more cognitive biases in others than in oneself.” This is a bias we all suffer from. Many of the experts viewed Trump's supporters as biased, and they thought that the unbiased majority would vote for Clinton.
- Empathy gap: “The tendency to underestimate the influence or strength of feelings, in either oneself or others.” Many of Trump's supports felt very strong emotions about Trump, and these strong emotions led to a greater turnout of Trump supporters. The experts missed the emotional aspect of the election.
- Expectation bias: “The tendency for experimenters to believe, certify, and publish data that agree with their expectations for the outcome of an experiment, and to disbelieve, discard, or downgrade the corresponding weightings for data that appear to conflict with those expectations.” This is like the confirmation bias. The experts unconsciously emphasized the data supporting their conclusion that Clinton would win, while they discounted the evidence that suggested a Trump victory.
- Optimism bias: “The tendency to be over-optimistic, overestimating favorable and pleasing outcomes.” The experts were too optimistic that Clinton would win because they supported her. (Also note here that Trump overestimated his chances of winning, too. At one point, he said that he would win New York. This obviously would never have happened. Similarly, Romney was shocked when he didn't win in 2012.)
- Semmelweis reflex: “The tendency to reject new evidence that contradicts a paradigm.” Paradigm: Clinton will win. New evidence: Trump is rising in the polls. Trump's support is more enthusiastic than Clinton's.
There are other cognitive biases that I could include here, but I think I made my point.
The experts who were wrong about the election should not beat themselves up. All humans have these biases, and they are hard to overcome. In fact, Kahneman has declared that even he struggles with his cognitive biases.
As I wrote in a post earlier this week (here), some scientists argue that we can overcome our cognitive biases to some extent with training. I included exercises on overcoming cognitive biases in Chapter Six (Overcoming Cognitive Biases) in my book Developing Your Professional Identity: Creating Your Inner Lawyer (2015). These exercises are just a beginning; much more research is needed in this area. In any case, the research of Kahneman and Tversky help us understand why so many experts got this election wrong.
Thursday, November 10, 2016
At the Georgetown Law Journal Annual Review of Criminal Procedure, Judge Alex Kosinski reviews twelve statements about criminal law that he says are either false or only partially correct:
- Eyewitnesses are highly reliable.
- Fingerprint evidence is foolproof.
- Other types of forensic evidence are scientifically proven and therefore infallible.
- DNA evidence is infallible.
- Human memories are reliable.
- Confessions are infallible because innocent people never confess.
- Juries follow instructions.
- Prosecutors play fair.
- The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
- Police are objective in their investigations
- Guilty pleas are conclusive proof of guilt.
- Long sentences deter crime.
Wednesday, November 9, 2016
Client as Subject: Humanizing the Legal Curriculum by Eduardo R.C. Capulong.