Thursday, August 11, 2016
From the International Listening Association:
We are working hard on making the International Day of Listening a reality for this year! But to make it happen, we need activities to post on the website that people can participate in for International Day of Listening, which will be Thursday, September 15, 2016.
For this year, we decided to limit the categories to Personal, Professional, and Education for the activities. Attached is the template for submitting an activity. Would you please submit an activity for the website. This would be something that people could participate in—everything from a simple conversation with one other person to a community group meeting or to a session involving resolving a conflict, learning a new listening skill, or whatever. What we need are the complete instructions for how to conduct the activity. (The template will provide the prompts for the instructions.) International Day of Listening Activity Template.doc
We will also need reference materials, such as suggested reading, bibliographies, curriculum guides for all levels of education, and any listening quotes that you think would be appropriate for the International Day of Listening.
In order to get the website up and running, we need the activities and reference materials by August 5.
Please take the time to fill out the activity template with the instructions for your activity and send them to me (firstname.lastname@example.org). Save them as a word document, and then I will drop them into a template and save them as a PDF file so that they can’t be modified on the website.
Thanks for your help with this, and look for the website launch and other announcements on social media.
International Listening Association
Member-at-Large, Special Projects
Join us for the 38th Annual Convention, June 7-10, 2017
Visit www.listen.org often for updates/details
Thnx to Jennifer Romig
Wednesday, August 10, 2016
The University of Chicago Law School has teamed up with mega-firm Jenner & Block to open a U.S. Supreme Court Clinic giving students a chance to learn appellate advocacy at the heels of "some of nation's foremost litigators" according to U. Chicago Dean Thomas Miles. But as this National Law Journal article points out, U. Chicago is joining an already crowded field of law schools offering Supreme Court clinics (more than a dozen) at a time when the Court seems to be granting review in fewer cases.
Jenner & Block and the University of Chicago picked an odd time to join more than a dozen law schools in launching a Supreme Court clinic.
Their joint announcement Tuesday comes as the high court prepares for a new term in which it has granted review in only 30 cases so far, an unusually small number. The new clinic will have to compete fiercely with other clinics and law firms for a dwindling number of cases—a trend that has had some wondering if the clinic movement has peaked.
Jenner’s move into the clinic space also came long after its other traditionally Chicago-based law firm rivals with longstanding Supreme Court practices. Sidley Austin set up shop at Northwestern University Pritzker School of Law 10 years ago, and Mayer Brown cast its lot with Yale Law School’s clinic about the same time.
So what took Jenner so long? “I didn’t have the idea yet,” Craig Martin, head of Jenner’s litigation department, said in an interview. But once he did, about two years ago, Martin did not hesitate to connect with the University of Chicago Law School to launch what he describes as a “win-win for two great institutions,” namely Jenner and the law school.
Jenner’s entry into the field in a competitive market climate is a testament to the benefits other law schools and law firms have cited, no matter how many cases the clinics actually handle. The increasing allure of practicing at the Supreme Court attracts top students to a potential career in appellate advocacy, and a clinic that allows them to craft petitions for certiorari, merits briefs and friend-of-the-court briefs serves their needs.
. . . .
Continue reading here.
Paul Caron reports that "a committee of the American Bar Association, which regulates law schools, has recommended against granting the University of North Texas at Dallas College of Law provisional accreditation." (here) Since Paul's post extensively covers why the committee recommended against accreditation, I will not deal with that issue. However, I do want to talk about what North Texas is trying to do with its legal education program.
About a year before North Dallas opened, Ellen S. Pryor (Associate Dean for Academic Affairs at UNT Dallas Law School) called me to discuss my views on legal education. Since North Dallas was starting from scratch, she and her colleagues wanted to incorporate the most recent research on education into their program, rather than copying what had not worked well in the past. I was very encouraged about what North Texas was doing, and I hoped that their program could serve as a model for those law schools that wanted to abandon the failed techniques of traditional legal education. Shortly before the school opened, I wrote a post about the new law school. (here)
I stated, "What impresses me most about this law school is its commitment to skills training. Last summer, I had a long phone conversation with North Texas's associate dean, Ellen Pryor. She had been calling legal education experts throughout the country to get their views on how her school could use the lessons of recent legal education scholarship."
I also quoted their website: "We are a new law school, with a fresh emphasis on learning by doing. We utilize the best instructional practices, offer engaged, experiential and collaborative learning, and provide ongoing assessment for our students. Since sound legal judgment is cultivated by experience, we give you ample opportunities to do real law. Most of our upper level courses include a 'lab' component that applies the subject matter while developing practical competencies. And our students actively participate in practice settings while receiving mentoring and guidance." (here)
I concluded, "I look forward to watching how this law school develops in its early years. At this point, it is clear that it has a plan to meet the challenges of 21st-century legal education. Good luck to the administration and faculty of North Texas."
Concerning the accreditation recommendation, Dean Pryor told the Tax Prof Blog: "Pedagogically, we have embraced the insights of the Carnegie Report and other great sources for best practices in legal education. We had the advantage of being able to 'bake in' these practices at the outset throughout the curriculum. These include multiple assessments and frequent feedback to students in every course; and skills interwoven throughout upper-level substantive law courses (we require 8 writing segments, 8 research segments, and 8 skills segments after the 1L year, spread through substantive courses). We’ve invested in tracking and analyzing the extensive data from student assessments across the curriculum (our director of assessments and outcomes is a nationally known expert on measurement and legal education). And, because bar readiness is critical, our required curriculum includes almost every 'bar course' and a 6-hour bar-readiness 'capstone' sequence."
While I believe that law schools should not be allowed to exploit their students, the ABA must permit law schools to experiment with new legal education techniques. The law school's goal is to education a group of students who are diverse in age, ethnicity, race, and background, using educational techniques that have succeeded impressively in other areas. The ABA should permit them to do so.
At the National Law Journal:
As the Supreme Court relies more and more on the specialized Supreme Court bar, criminal defendants are still represented mainly by “novice” advocates making their first and possibly only argument before the court—creating what critics see as an imbalance that favors the prosecution side.
Some dispute the magnitude of the problem, and any possible remedy may run up against the long-standing culture of resistance by criminal defense lawyers who are loath to give up cases they have handled for years.
In a recently published article, Harvard Law School professor Andrew Crespo wrote that the problem is “stark and troubling.” Tallying the criminal cases in the 10 years of the Roberts Court, Crespo found fully two-thirds are argued on the defense side by newcomers to the Supreme Court lectern, while in civil cases, just below a half are argued by novices.
You can read more here.
Over at “The Transactional Lawyer” (June 2016), Steve Sepunick offers advice on how to avoid contextual ambiguity in transactional documents. What is “contextual ambiguity?”:
Contextual ambiguity can arise in two distinct ways. First, it is created when two or more statements or clauses in the same agreement or in related agreements are inconsistent. For example, consider an agreement that calls for “payment of $75,000 in six monthly installments of $15,000.” Six payments of $15,000 will, of course, total $90,000. So, does the agreement require payment of $75,000 or $90,000?
The second method in which contextual ambiguity is created is through the juxtaposition of terms, so that the language of one affects the meaning of another. Put simply, context matters. Courts have long recognized that the meaning of words and terms can be affected by those around them. Indeed, this recognition underlies the classic interpretive canons of noscitur a sociis and ejusdem generis.
The article offers full explanations and a number of examples. You can access it here.
Tuesday, August 9, 2016
The summer’s not over yet, and there’s still some good reading time left. From Powells.com, here is the third annual annotated list. “[W]e sought to highlight literature that exposes readers to cultures and ways of life that may be different from their own.”
Not my title, but I can certainly understand why Ms. Cho is using it. When I was in practice, most of my colleagues and I dreaded CLE. While theoretically it was supposed to keep us up on the latest trends, for the most part it was useless and boring.
Why Do CLEs Suck So Badly? by Jeena Cho.
Here is a little of what Ms. Cho has written about CLE:
"I loathe continuing legal education (CLE) classes. Inevitably, you’re sitting in a conference room, passively listening to some lawyer (likely a white male), talking or reading from his notes. Behind him is the screen with PowerPoint presentation slides with way too much text."
"Yet, we’re still using teaching techniques from the industrial revolution age. Sitting in a classroom and passively listening has been shown to be one of the worst ways to teach and learn. Everything we know about adult learning shows that we learn best by engaging with the materials. We learn best when we take the material, apply it, and meaningfully digest it in some way."
"The California rules require that in order to obtain one hour of CLE credit, the speaker must talk for 50 minutes. Actually, let me state that more clearly — the speaker will talk at the attendees for 50 minutes. The audience will only engage in the last 10 minutes, which can be used for questions."
"This is a horrible way to learn! The only thing the CLE measures is whether your butt was in a seat in the room for one hour or you were able to click the “I’m still watching” button every 10 minutes."
"I think it’s time to rethink and reimagine how we continually educate lawyers to maintain competency. Let’s move away from what we know is a very poor way to learn — listening to a talking head — and incorporate what researchers have discovered about how adults learn best."
Of course, what Ms. Cho is saying is exactly what we have been saying about legal education on this blog for several years. Active learning is the most effective learning; students quickly become bored with lectures. Both CLE and law schools should adopt the best teaching methods. Otherwise, we are just wasting the students' time.
Monday, August 8, 2016
The Bureau of Labor Statistics has released the monthly job report for July and despite positive news for the economy at large, the legal sector suffered a loss of 200 jobs offsetting a small gain in jobs the previous month. Law 360 has the details:
Legal sector jobs in the U.S. continue to stagnate, with employment in legal services declining slightly in July following a monthslong plateau, according to the U.S. Bureau of Labor Statistics’ monthly jobs report, released on Friday.
The number of seasonally adjusted jobs in the sector tallied up to 1,123,900 in July, an almost negligible decline of 200 from a preliminary count of 1,124,100 jobs in June, and a final count of 1,124,200 in May, according to Friday’s report.
While June appears to have been relatively stable, gains and losses in the thousands have been typical for the legal industry sector so far this year, while still hovering around the 1.2 million mark since the start of the year.
Year-on-year change has also been sluggish. Last July, the bureau reported there were 1,118,900 jobs in the legal sector, which means this month’s numbers represent a smaller than one-half percent increase.
. . . .
Continue reading here.
Sunday, August 7, 2016
A pair of companion articles by Professors Eric Bergsten (Pace) and Ronald Brand (Pittsburgh) discuss the history and value of the Vis Moot Court Competition as an experiential learning opportunity that helps train law students to be more effective arbitrators. Professor Begsten's article is called Experiential Education Through the Vis Moot' and is available at 34 J.L. & Com. 1 (2015). Professor Brand's article, Building on the Bergsten Legacy: The Vis Moot as a Platform for Legal Education, is available at 34 J.L. & Com. 16 (2015). Both have been posted together on SSRN here. From the joint abstract:
Recent discussions of experiential education have at times considered the role of moot opportunities in legal education. Many, if not most, moot courts and related activities have been designed primarily as competitions. One moot, the Willem Vis International Commercial Arbitration Moot, is different in that it was designed, and has been consistently administered, as a tool for educating future lawyers. That education has included both skills training of the highest order and the development of a doctrinal understanding of important international legal instruments, especially those created and administered by the United Nations Commission on International Trade Law (UNCITRAL). This pair of essays begins with a description of the history and purpose of the Vis Moot, provided by the person who created and administered the Moot for its first twenty years. Professor Bergsten explains how what started as a small gathering has become an educational gathering of thousands each year, and a principal training ground for future arbitrators and arbitration counsel. Professor Brand follows with a description of how the Vis Moot platform has been used by the Center for International Legal Education at the University of Pittsburgh School of Law to aid law school curriculum development in transition countries and to provide new legal education opportunities.
Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop An Integrated Professional Identity (Professional Formation)
In this article, Professors Neil Hamilton and Jerry Organ look to scholarship in law and other disciplines to help the student
1) reflect on the story, experiences and passions that brought her to law school and that she develops during law school as a means of both (a) identifying what she wants to do with her law degree and (b) proactively taking ownership over her growth toward meaningful post-graduate employment; and
2) make progress moving through developmental stages regarding these two professional formation learning outcomes; so that
3) she can begin to define and to live out who she wants to be as a lawyer in the context of what clients and the legal system expect of her.
A thoughtful and well-developed contribution. You can access it here. Forthcoming in the Tennessee Law Review.
Saturday, August 6, 2016
An excellent article on learning and legal reasoning:
Cognitive Emotion and the Law by Harold A. Lloyd.
Abstract: "Many wrongly believe that emotion plays little or no role in legal reasoning. Unfortunately, Langdell and his “scientific” case method encourage this error. A careful review of analysis in the real world, however, belies this common belief. Emotion can be cognitive and cognition can be emotional. Additionally, modern neuroscience underscores the 'co-dependence' of reason and emotion. Thus, even if law were a certain science of appellate cases (which it is not), emotion could not be torn from such “science.”
As we reform legal education, we must recognize the role of cognitive emotion in law and legal analysis. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways. We shortchange the very basics of true and best legal analysis. We shortchange at least half the universe of expression (the affective half). We shortchange the importance of watching and guarding the true interests of our clients, which interests are inextricably intertwined with affective experience. We shortchange the importance of motivation in law, life, and legal education. How can lawyers understand the motives of clients and other relevant parties without understanding the emotions that motivate them? How can lawyers hope to persuade judges, other advocates, or parties across the table in a transaction without grasping affective experience that motivates them? How can law professors fully engage students while ignoring affective experience that motivates students? Finally, we shortchange matters of life and death: emotions affect health and thus the very vigor of the bar.
Using insights from practice, modern neuroscience, and philosophy, I therefore explore emotion and other affective experience through a lawyer’s lens. In doing this, I reject claims that emotion and other affective experience are mere feeling (though I do not discount the importance of feeling). I also reject claims that emotion and other affective experience are necessarily irrational or beyond our control. Instead, such experience is often intentional and quite rational and controllable. After exploring law and affective experience at more “macro” levels, I consider three more specific examples of the interaction of law and emotion: (i) emotion, expression, and the first amendment, (ii) emotion in legal elements and exceptions, and (iii) emotion and lawyer mental health. To provide lawyers and legal scholars with a “one-source” overview of emotion and the law, I have also included an Appendix addressing a number of particular emotions."
Excerpts: "People lacking emotions cannot rationally make decisions."
"Not only do we see emotion and reason linked in the brain, we know that we are trapped in a state of inertia unless we have 'arousal and desires to act' that emotion provides."
"This example also shows how parsing between emotions such as hatred and disgust can make a practical as well as a purely rule-based difference."
"Emotion is cognitive and law is inextricably intertwined with emotion as well as reason. As we work on reforming legal education, we must recognize this fact and give affective experience its due in legal education and in practice. If we fail to do this, we shortchange law schools, students, and the bar in grievous ways."
Leaving academia or moving on to a new institution requires giving notice, often difficult. The best advice: Don’t burn your bridges. At Vitae, Professor Natalie Tindall gives more detailed advice. Here are her point headings and a little more.
Make sure you have somewhere to go.
Check the faculty handbook for separation guidelines.
Know which benefits you will lose and gain.
Have a contingency plan to carry you through until your next paycheck.
Guard your professional reputation as you leave. [H]ow much of your reputation do you want to risk in resigning? Among the questions to ponder before you start writing any resignation letter: Do you really want to burn bridges? Do you want to maintain ties with your soon-to-be-former colleagues? Do you ever want to return? Do you want the department to collapse into itself like a black hole? Will your letter be forwarded to others in your field? Do you give a damn? Your answers will guide your next steps.
Write the letter. Resignation letters should generally be short and sweet. Indicate when your last day will be, but save the long list of grievances for Festivus. Fresno State offers a template that is three sentences long:
I am writing to inform you that I am resigning my position as [classification title/job title] in [name of department] effective [insert date]. I am resigning my position because [state reason why resigning position]. Thank you for the opportunity to work at California State University, Fresno.
Break the news. Leaving behind graduate mentees, trusted colleagues, work friends, and undergraduates is difficult. However, your work friends will appreciate the heads up, and your students deserve advance notice so they can either plan for your absence on their committee or work out a way to keep you as a shadow adviser/mentor.
Above all, be gracious about the good, the bad, and the ugly of the whole process.
You can read more here.
Friday, August 5, 2016
The Legal Skills Prof Blog is proud to announce that our colleague and fellow blogger Scott Fruehwald is now a regular columnist at the grand-daddy of all law school blogs, the Tax Prof Blog, where he is responsible for publishing the Weekly Legal Education Roundup every Friday.
If you've got an interest in law school pedagogy in general and the teaching of legal skills in particular, you should be subscribing to the Tax Prof Blog, if you're not already, to get Scott's weekly, comprehensive post on all things relating to legal education.
Congrats again to Scott.
(The Legal Skills Prof Blog).
At the Wisconsin Lawyer (June 2016), we find a helpful article on protecting yourself against scammers and hackers. It includes one story that emphasizes the need for caution:
A Texas firm was recently working on a real estate closing for a client. Shortly before closing, the insured received an email from the client’s account that they had used previously in the transaction indicating the proceeds should be sent to a bank in Malaysia. The client’s email accounts had been hacked.
An IT expert testified that the hacker emails came from a computer in Malaysia. He verified that the hack was not of the law firm’s system. He also testified as to the insecurity of the client’s email: the account was on Yahoo and the password for the email was too simple, part of the client’s name and birthdate. Still, the firm was considered negligent for following the phony instructions.
You can read more here.
Thursday, August 4, 2016
We have written about the myth of multitasking several times on this blog. Here is another article on the myth of multitasking.
Your Brain on Multitasking by Dr. Sanjay Gupta. Excerpts:
"Our brains on multitasking aren't nearly as good as we think they are."
"You're not actually doing both activities at the same time, in fact, you're now diverting your attention from one part of your brain to another part of your brain. That takes time, that takes resources, that takes brain cells. What happens on the other side of the brain is that you're starting a brand new activity, so in fact you're probably slower and not nearly as good at doing both activities at the same time."
"We can shift our focus really fast, sometimes it takes just a 10th of a second. But the time doesn't matter as much as the bandwidth the brain requires to move back and forth. Now that might affect your performance, and might also affect the quality of the work that you finally produce."
"Take an everyday activity like driving. When you look at the MRI of someone who is in driving mode, see how much of their brain is activating there? Now if you just layer in one more thing—if person is listening while they are driving—and all of a sudden the amount of attention, the amount of brain bandwidth going toward driving decreases by about 37%. So you're not multi-tasking, you've in fact reduced the amount of attention you're now paying to your driving."
"[P]eople who thought they were the best at multitasking are almost always in fact the worst. Perhaps they were multitasking too much when they thought they were good at multitasking."
We all have our favorite movie about lawyers, the law or perhaps movie lawyer character like "My Cousin Vinny," Tom Cruise in "A Few Good Men," or Paul Newman as down-and-out lawyer Frank Galvin in "The Verdict" (or maybe you prefer James Mason as the "Prince of Darkness"). And using clips from movies featuring lawyers or law-related themes is a very popular classroom technique since students can relate to them so well. In this column from the ABA Journal blog,the author has organized movies featuring lawyers based on "themes." See if you agree with these categories and whether your favorite lawyer movie (or movie lawyer) made the "list."
- The "crusading" lawyer (e.g., Gregory Peck in "To Kill a Mockingbird");
- The "heroic" lawyer ("The Lincoln Lawyer");
- The "obtuse" lawyer ("A Civil Action");
- The "disillusioned" lawyer ("The Firm" or "12 Angry Men");
- The "vengeful" lawyer ("The Shawshank Redemption" or "Unforgiven");
- The "buffoon" lawyer ("Legal Eagles" or "Animal House").
See the full article here.
Wednesday, August 3, 2016
One line of thinking answers yes—they add unpersuasive hyperbole. Another answers is to use your judgment—employ them selectively. At Lady (Legal) Lawyer (June 24, 2016), Megan Boyd gives examples from a brief by renowned appellate advocate Paul Clement. Here are a few:
When the Government starts picking favored speakers, First Amendment values are in grave danger.
The inclusion of the modifier “grave” takes the sentence up a notch—First Amendment free speech rights aren’t just in danger (which is bad enough)—they’re in gravedanger (even worse!).
Clement uses other descriptors strategically throughout the Allergan brief with similar results:
“It is perfectly lawful for physicians to prescribe Botox® for [spasticity] and other off-label uses.”
The Government opens its brief by ominously warning that Allergan has launched a “sweeping assault” on the framework for new drug approval that the Kefauver-Harris Amendments to the FDCA established in 1962
You can read more here.
As this blog has recently noted, a federal panel has recommended suspending the ABA's accreditation powers for one year. Two blogs have extensive posts on this issue: the Law School Cafe and the Tax Prof Blog.
Leading legal education expert Deborah J. Merritt wrote on the Law School Cafe: "It’s clear that the panel intended its action to 'send a signal' to the ABA Council that accredits law schools. All of us in legal education need to hear that signal: It affects the standards we adopt for accrediting law schools, as well as the eligibility of our students to take the bar exam."
She declared, "But the future might not be that bright. Our profession has a particularly poor record of serving low- and middle-income clients. Will we really improve that service at the same time that students pay (and borrow) more than ever for their legal education? Twenty years from now, we might find that a significant number of law graduates have not recouped the cost of their education; that government lenders are not recovering their loans; and that individuals and small businesses are more desperate than ever for affordable legal assistance."
You can find a transcript of the panel's meeting here.
Paul Caron wrote on the Tax Prof Blog, "The transcript for that meeting has now been released, and it is an extraordinary shot across the bow of legal education and the ABA. I encourage folks to read the riveting back and forth, beginning at page 168. The committee essentially accused the ABA of being Nero, fiddling while much of legal education burns down."
He added, "On its own, the committee raised virtually every hot button issue facing legal education: rising tuition and student debt, declining bar passage and job placement rates, accreditation standards that drive up costs and for which the ABA admitted it had no data to support the educational benefit, protecting faculty at the expense of students, and the ABA's failure to punish law school perfidy."
Stay tuned for updates.