Tuesday, June 28, 2016
Last week, I talked about some of the innovative classes at the University of Colorado. Following this up, here is a report written by the dean and a student concerning a roundtable on legal education reforms and how those reforms are being implemented at UC.
Law School Innovation by Phil Weiser and Bryce Wilson. A sampling:
"On January 4, 2016, as part of its ongoing commitment to exploring law school innovation, Silicon Flatirons brought together thought leaders from academia, private practice, in-house legal departments, and alternative legal service providers to evaluate what is known about this changing education model and what important work lies ahead. Prior discussions hosted by Silicon Flatirons grappled with different elements of the law school innovation opportunity and the “Law 2.0” movement more generally. For this session, in order to develop a foundation for a specific set of reforms to legal education, the Roundtable participants focused on ongoing research efforts and data-driven analyses."
"Law schools and legal professionals have traditionally failed—outside of grades—to articulate specific learning outcomes that predict professional success."
"The Roundtable participants analyzed four principal data sources. First, Alexia Brunet Marks and Scott Moss, Professors of Law at University of Colorado Law School, discussed their findings on holistic admissions and how new metrics can better predict who will succeed in law school. Second, Gallup presented research assessing which educational experiences lead to law school satisfaction and successful career engagement. Third, participants discussed data from the Educating Tomorrow’s Lawyers (“ETL”) initiative of the Institute for the Advancement of the American Legal System (“IAALS”) that focused on the importance of professional skills (as opposed to other competencies) to employers. Finally, Bill Henderson, Professor of Law at Indiana University Maurer School of Law, presented a competency model for how lawyers develop and how law firms should recruit and train lawyers."
"Nonetheless, despite growing evidence that professional skills matter significantly in determining success, too few programs train employees for such skills and too few employers seek to hire employees based on them."
" In short, the research presented and discussed below provides support for the importance of non-GPA-related factors in law school and post-graduation success. Given the importance of experiences that raise the level of professionalism, readiness, and trust with employers, law schools need to think hard about how to design the law school experience."
"This report proceeds in five parts. After this Introduction, Part II reviews the research noted above, highlighting which competencies are most significant in predicting success in law school and the workplace. Part III evaluates strategies for developing key competencies, and Part IV discusses the importance of an ongoing dialogue between law schools and employers. Part V offers a short conclusion."
With a changing legal landscape, the role of legal education needs to change. Unfortunately, many law schools remain locked into a traditional model that is starting to break under growing pressure. Advancements and innovations taking place at Colorado Law and elsewhere are an important phase in the process of bringing legal education in step with developments in the marketplace.
The promise of increased data collection and analysis about the critical competencies that best predict successful careers by law school graduates can point the way to data-driven innovations. The data discussed at the Roundtable suggests that law schools and employers can—and, in some cases, are starting to—determine value by using non-conventional indicators. As Henderson commented at the Roundtable, “It takes just as long to do selection badly as it does todo it well. So just do it well.” In the future, law schools will be able to innovate beyond admissions and developing competency-based learning pedagogies, thereby improving on their ability to select and prepare students for post-graduation employment. This process will take time, but over the next 5-10 years, those law schools and employers who move in this direction will be rewarded for getting out in front of a changing landscape."
Monday, June 27, 2016
Blog Rewind. From 2011l here’s another posting that our readers like and regularly access:
Five Methods of Legal Reasoning
- Rule-Based Reasoning:
Rule-based reasoning is the most important type of legal reasoning. In rule-based reasoning, you take a rule (a statute or a case holding) and apply it to a set of facts. (This is a type of deductive reasoning.) Richard Neumann has stated that rules have at least three parts: "(1) a set of elements, collectively called a test; (2) a result that occurs when all the elements are present (and the test is thus satisfied); and (3) . . . a causal term that determines whether the result is mandatory, prohibitory, discretionary, or declaratory." (Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Structure, Strategy, and Style 16 (2005). In addition, some rules have "one or more exceptions that, if present would defeat the result, even if all the elements are present." (Id.) An example of a rule would be that intentional infliction of emotional harm occurs if 1) the defendant’s conduct is outrageous, 2) the defendant’s conduct is intentional, 3) the defendant’s conduct causes, 4) severe emotional distress. The rule would be satisfied if the facts of the present case satisfies all the elements of the rule. For example, if an ex-boyfriend calls an ex-girlfriend several times in the middle of the night to harass her (outrageous conduct; intentional conduct) and this causes (causation) her severe emotional distress (element 4), intentional infliction of emotional distress has taken place.
- Reasoning by Analogy
Reasoning by analogy concerns finding similarities. Reasoning by analogy in the law occurs when one argues that the facts of the precedent case are like the facts of the present case so that the rule of the precedent case should apply to the present case. (A is like B, so the rule from A applies to B.) An example of reasoning by analogy is that the rule that one who keeps a wild animal, like a tiger, on her property is strictly liable for any damage caused by that animal also applies to pit bulls because a pit bull, although not a wild animal, is inherently dangerous just like a wild animal. The two cases are never exact; reasoning by analogy is a question of degree. The writer must convince the reader that the facts of the two cases are similar enough that the rule from the precedent case should apply to the present case.
- Distinguishing Cases
Distinguishing cases is the opposite of reasoning by analogy. In distinguishing cases, one argues that the facts of the precedent case are not like the facts of the present case so that the rule from the precedent case does not apply to the present case. For example, a toy poodle is not like a wild animal because toy poodles are not inherently dangerous so that the rule from the wild animal cases that an owner of a wild animal should be strictly liable for any damage caused by that wild animal should not apply to toy poodles.
- Reasoning by Policy
With policy based-reasoning, the writer argues that applying a particular rule to a case would create a precedent that is good for society. For instance, in early products liability cases, lawyers argued for strict liability when a product injured a consumer because manufacturers could better spread the cost of injuries than consumers. Policy-based reasoning can also be combined with reasoning by analogy. For instance, one can argue that the policy behind the rule in the precedent case also applies to the present case so the rule in the precedent case should also apply to the present case.
- Inductive Reasoning
Inductive reasoning is reasoning from the specific to the general. Lawyers use inductive reasoning to synthesize rules. In other words, lawyers take the holdings from several cases and by synthesizing those specific cases, they come up with a general rule. To synthesize a rule look at the similarities among the facts of the precedent cases and the differences among the facts of the precedent cases. Also, look at the reasoning behind the holdings.
Case 1 holding: A person who owns a tiger that escapes and causes personal injury is strictly liable for that personal injury.
Case 2 holding: A person who owns a tiger that escapes and causes property damage is strictly liable for that property damage.
Case 3 holding: A person who owns a pit bull that escapes and causes personal injury is strictly liable for that personal injury.
Case 4 holding: A person who owns a toy poodle that escapes and causes personal injury is not strictly liable for that personal injury.
Synthesized rule: A person who owns an inherently dangerous animal that escapes and causes personal injury or property damage is strictly liable for that personal injury or property damage.
Reasoning: Tigers, which are wild animal, and pit bulls, which are breed to be aggressive, are inherently dangerous, while toy poodles are not. When two innocent parties are involved, the law usually holds the party liable that keeps dangerous things, like wild animals. The rule applies to both personal injury and property damage.
Update: ABA Publishing has issued my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals, which includes many exercises on the Five Methods of Legal Reasoning. It is available from ABA Publishing, Amazon, and many other outlets.
(Edwin Scott Fruehwald)
You can access the posting here.
Sunday, June 26, 2016
Blog Rewind: Because we have been posting daily since 2010, we have a rich archive. Our readers frequently explore the archive and find some favorites. Here is the posting that receives the most “hits”:
The other day, I posted a very helpful article of typing shortcuts. Please see below. Here's another one that comes in very handy for those who write law review articles and have to deal with large and small caps. Just type the relevant part of the citation, shade it with your mouse, and click Control+Shift+K.
To get out, just reclick that formula. Of course, none of this goes to the real question: Why in heaven's name do law reviews still use large and small caps?
Handy Keyboard Tricks for Word
A good way to increase your typing efficiency is to keep your hand off the mouse as much as possible. In an article on Attorney at Work, Deborah Savadra shows us how with a number of “Hotkeys.” Here are a few examples:
- Boldface: CTRL+B
- Italicize: CTRL+I
- Underline: CTRL+U
- Increase font size: CTRL+SHIFT+.
- Decrease font size: CTRL+SHIFT+,Finally, if you memorize no other key combination, remember this one: CTRL+S to Save Document. Although you can have Word automatically save an AutoRecover version of your document every few minutes, it never hurts to save the document yourself frequently.You also can access this posting and readers’ comments by clicking here.
- Here’s one that she especially recommends:
Finally, if you memorize no other key combination, remember this one: CTRL+S to Save Document. Although you can have Word automatically save an AutoRecover version of your document every few minutes, it never hurts to save the document yourself frequently.
You also can access this posting and readers’ comments by clicking here.
Saturday, June 25, 2016
Recently, we interviewed a candidate for a job, and I asked a question that I thought the candidate should have expected. The poor guy froze for almost 30 seconds. At the risk of stating the obvious, students applying for jobs should anticipate predictable questions and prepare responses to them. From JDJournal, here are five predictable questions:
- Tell me about yourself.
- Why are you interested in this job?
- Tell me about a problem you faced at work and how you handled it.
- How would your boss and coworkers describe you?
- Do you have any questions for me?
For guidance on answering these questions, please click here.
ABA threatened with 1-year suspension of law school accreditation powers by Stephanie Francis Ward.
"A Department of Education panel on Wednesday recommended that the ABA’s accreditation power for new law schools be suspended for one year, on the basis that the organization failed to implement its student achievement standards and probationary sanctions, while also not meeting its audit process and analysis responsibilities regarding students’ debt levels."
Friday, June 24, 2016
The AALS Clinical Section’s Technology Committee is gathering signatures to petition the AALS to establish this section. From Best Practices for Legal Education, here is a prospectus:
The Leveraging Technology Section will provide space for legal academics to consider and shape how evolving technologies are impacting and could impact law and legal systems. It will encourage law professors to engage in cutting edge research and scholarship that can help to craft the new normal and create a space to share that scholarship with the broader community.
The Section hopes to address how law school faculty can understand the rapid and profound technological change that could well remake law practice and how they can be at the forefront of framing a “new normal” for legal practice and lawyering. The section will also help law professors access materials that will assist them in preparing law students using emerging technologies in the practice of law.
You can read more here (May 24, 2016).
Thursday, June 23, 2016
ABA Journal: Why law schools need to teach more than the law to thrive (or survive) by Chad Asarch & Phil Weiser
Why law schools need to teach more than the law to thrive (or survive) by Chad Asarch & Phil Weiser.
"The ongoing discussion on the future of legal education all too often misses the opportunities for innovation and re-invention."
"At Colorado Law, we are working to engage a range of employers and to develop experiments—on both the curricular and extracurricular fronts—to help students build key competencies and a portfolio of skills that will be valued by employers, including those who traditionally never hired from law schools. This strategy, as explained in this report (PDF), led the two of us to work together to create new nontraditional real estate transactions courses that developed important competencies. The results of this collaboration provide important lessons for the way forward."
"The two new courses—Real Estate Transactions and Advanced Real Estate Transactions—underscore the range of opportunities open to law schools willing to experiment. These courses are important not only because they enabled students to learn through experiences with real-world situations, but also because they were designed to enable students to develop a number of valuable competencies, including how to work well in teams, learn from feedback, and approach their work with a positive attitude."
"In designing both courses, the starting place was that actual real estate deal documents and issues would be front and center. In the foundational class, students began developing the skills necessary to read a real estate transactional document effectively, including an understanding of how the various provisions of the document work together and an appreciation for how different document revisions and additions were necessary to advance the cause of their client."
"In the advanced class, students learned to take their burgeoning understanding of real estate deals to the next level by working on negotiation projects in teams. With respect to both classes, the goal was to build on the traditional “issue spotting” and critical thinking skill set developed in the first year and to focus on practical legal skills (drafting contracts), contextual knowledge (how real estate development works in practice), and professional skills (including working effectively in teams). In so doing, the courses helped students develop as more complete professionals and build key competencies sought after by employers."
"Through this class (and complementary efforts), Colorado Law students discovered the importance of professional skills (including emotional intelligence) that they might not have previously viewed as important to their success."
"The world of legal education needs to move beyond a traditional model that has never worked for many of our students. In that sense, today’s challenging environment for law schools is an overdue wake-up call to ask ourselves what competencies matter for our students—that is, what competencies will help them add value as lawyers, policymakers, and leaders—and how can we best teach and deliver those competencies. With a range of promising experiments in new curricular and extracurricular offerings (some prompted by the ABA’s call to articulate key competencies developed by law schools), there are compelling reasons to believe that a reimagined law school experience is a worthwhile alternative to simply shrinking down the traditional law school model."
Wednesday, June 22, 2016
In the June 2016 issue of the Michigan Bar Journal, attorney Kenneth Oettle offers sound advice on persuasive lawyering. To confirm his views, he asked his “polling group”:
The following answers are representative: (1) “use compelling facts, ordered clearly and rationally, that lead the reader to a moral judgment in your favor” (this answer comes very close to home base); (2) “provide good law”; (3) “tell the reader in the first three paragraphs why you should win”; (4) “use nouns and verbs” (as opposed to adverbs and adjectives, which are editorials); (5) “be concise”; (6) “sound authoritative”; and (7) “don’t bad-mouth the adversary.” This last item is more about what not to do, but in this age of incivility, a respectful, low-key brief is like a breath of fresh air and thus is likely to have affirmative persuasive value.
The article discusses these “tactics.” The take-away message:
The synergy of all these tactics produces clarity, which gets the point across and gives you credibility. If you are willing to be clear, then you probably aren’t hiding anything. Basically, you earn credibility by telling the truth clearly, crisply, and with conviction. The more credible you are, the more persuasive you are because courts need to rely on your presentation of facts, caselaw, and argument.
You can access the article here.
Tuesday, June 21, 2016
Ben Owens is a high school science and math teacher. Here are the highlights of his advice to new teachers. Needless to say, the advice applies to new and experienced law professors as well.
- Avoid, like the plague, teaching in isolation. Build a vibrant network of peers and then use it to share ideas, give and receive constructive criticism, and learn new ways to improve your teaching.
- Know what you are teaching, as well as your limits.
- Teach more than just the curriculum. Leverage your knowledge to teach the skills that students will need and be expected to use for the rest of their lives – even if they are not formally included in your curriculum.
- Know your students. It has been said that the three most important things to truly reach students are relationships, relationships, and relationships.
- Know & use teaching best practices. We know what works and what doesn’t. Student-centered classrooms, enabling technologies, inquiry-based instruction, problem and project-based learning are all examples of proven instructional methods that work.
- Be a visible leader for your students in and outside your school.
- Focus on continuous improvement.
- Be a role model to your peers – even as a new teacher.
- Find the balance.
- Lastly, share your story. Find that one thing that you love the most or that is working and share it. You can read more here.
Monday, June 20, 2016
From Jason H. Beehler at the blog of the Kegler Brown Hill & Ritter law firm:
Law school deans from all over the country have written an open letter to the Law School Admissions Council, expressing support for the University of Arizona, which recently began accepting law students based upon GRE scores rather than LSAT scores.
The row began earlier this spring, when Arizona made the decision to give applicants the option of taking the GRE instead of the LSAT, which is administered by the Law School Admissions Council. Upon hearing of Arizona’s plan, the Council warned Arizona in April that the school could be expelled from the Council’s network of law schools.
On Wednesday, May 4, nearly 150 deans of law schools all over the country (including those of Harvard and Yale) wrote a letter to Council president Daniel Bernstine, supporting Arizona’s “experiment” with admissions criteria, and expressing “great concern over LSAC’s threat to expel the University of Arizona Law School.”
You can read more here. As far as I know, studies suggest that grade point averages are better predictors than LSATs.
Sunday, June 19, 2016
In the June 2016 issue of The Transactional Lawyer, Stephen Sepinuck identifies the three types and focuses on contextual ambiguity. Here are the definitions:
Semantic ambiguity exists when a word or phrase has multiple meanings and more than one of those meanings could reasonably apply. One classic contracts case involved semantic ambiguity in the word “chicken”: was the term in an agreement between a domestic seller and a foreign buyer limited to only young birds suitable for broiling and frying or did it also include older – and less expensive – fowl, best suited for stewing?
Syntactic ambiguity arises from sentence structure, most frequently from the misplacement of a modifier so that it is unclear to what word or phrase a modifying word or phrase refers. For example, a settlement agreement that releases “all claims for the avoidance or recovery of transfers in the amount of $59,999.99 or less” is ambiguous: the specified amount might modify “claims” or “transfers,” and that distinction can matter if a single claim concerns multiple transfers.
Future articles in this series will return to these types of ambiguity and strategies for avoiding them. This article focuses on the third type of ambiguity: contextual ambiguity. Explaining 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. . . .
You can access The Transactional Lawyer here.
Saturday, June 18, 2016
I have often talked on this blog about humans' limited attention, and how students must focus their attention on the learning task to learn properly. In particular, I have mentioned that surfing the internet or texting during class causes students to miss most of what is going on in class. As this article demonstrates, cell phones can have even more serious consequences.
Our Cell Phones Are Killing Us by Maureen Callahan.
"According to the CDC, over 8 people are killed and 1,161 are injured each day in the US by distracted driving. Texting while driving is now the leading cause of teenage deaths in this country. Anecdotally, emergency rooms are seeing an uptick of injuries to “petextrians” — people who text while walking and have, say: run into a 300-pound bear (California, 2012), fallen into a fountain at the mall (Pennsylvania, 2011), or fallen on to train tracks (Pennsylvania, 2012)."
Susan Chesler and Karen Sneddon have written a very interesting article on including narrative in transactional documents. Once Upon a Transaction: Narrative Techniques and Drafting, 68 Oklahoma Law Review No. 2 (2016)
Here is the introduction:
A granddaughter joins the family business as a partner. An entrepreneur
licenses his newest product. Two parties decide to settle a dispute. A
charitable idea materializes as a private foundation. A parent's belief in the
power of education is perpetuated by a trust agreement. Each of these
events forms a narrative. A transaction is more than the scratch of pens
across signature pages or the click of keys to email an executed document.
A transaction is itself a story. These stories, made with provisions and
clauses, result in the formation of contracts, agreements, and wills.
Conceptualizing transactions as narratives benefits the negotiation, drafting,
implementation, interpretation, and, ultimately, enforceability of the
Here is a passage from the article giving specific reasons for including narrative:
Once these misconceptions are removed, drafters can see yet another
benefit narrative techniques offer: opportunities and strategies to engage
clients. Narrative techniques further the attorney-client relationship by
promoting a closer examination of individual client goals and designing
documents to further those goals.21 It should be remembered that not only
the drafting but also the negotiation, implementation, interpretation, and
enforceability of a transactional document may benefit from
conceptualizing transactions as narratives. After all, at the heart of all
transactions is a client’s story.22 Deliberate use of narrative techniques in
the drafting of transactional documents acknowledges the presence of this
story and leverages its presence to further the intent of the parties.
You can access the article here.
Friday, June 17, 2016
Sometimes lawyers draft legal documents for people who can’t afford a lawyer and who are ineligible for legal services. The lawyer does not place his or her name of the document. Thus, “Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution.” In her article, Characterizing Ghostwriting, Deborah Lyn Basset discusses the ethics and the pros and cons of this practice. Here is the abstract:
It is well known that legal services are costly and that existing pro bono services are inadequate to help every individual who would benefit from legal assistance. Compounding this unmet need are various restrictions on the types of clients and types of cases that qualify for pro bono services. For example, Legal Services Corporation lawyers may not represent undocumented individuals, and may not undertake a representation in an abortion, desegregation, or assisted suicide matter. One attempt to mitigate this unmet need is ghostwriting. Analogous to presidential speechwriting, ghostwriting in the legal context occurs when a lawyer drafts a pleading or brief for a pro se litigant without attribution. Ghostwriting offers a practical contribution to the shortage of affordable legal services by increasing the number of individuals who are able to receive some, albeit limited, legal assistance. Despite its practical utility, ghostwriting implicates several ethical concerns, and courts have reached conflicting conclusions as to its ethical propriety. This Article, invited for the February 2015 St. Mary's Journal on Legal Malpractice and Ethics Symposium, analyzes the criticisms of legal ghostwriting and concludes that these concerns have been overstated; legal ghostwriting is consistent with the ethical rules.
You can access the article here. St. Mary's Journal on Legal Malpractice & Ethics, p. 284, 2015. Good topic for class discussion.
This article makes an important contribution to existing clinical scholarship generally, and, more specifically, to scholarship about transactional lawyering and transactional law clinics. It is one of the first articles to detail transactional clinic design and is particularly important as the number of transactional clinics continues to increase and more articles about transactional clinical scholarship are published. This article serves as a blueprint for the start or redesign of a transactional clinic. Drawing from the author’s start-up expertise, this article identifies the concepts that are unique to and essential for effective transactional clinic design. In addition to proposing best practices for transactional clinic design, this article focuses on the unique utility of transactional law clinics to teach professional development and identity to law school students — an articulated apprenticeship in the oft-cited 2007 Carnegie Foundation Report. The article demonstrates these points through an analysis of teaching law school students the reflective skill of self-regulated learning, which emphasizes for students the way they learn as opposed to what they learn.
Thursday, June 16, 2016
Wednesday, June 15, 2016
The Food and Drug Administration is offering us a chance to help students learn about using visuals. From the Jones Day law firm:
Effective July 26, 2016, FDA is amending its labeling regulations for conventional foods and dietary supplements to provide updated nutrition information on the label to assist consumers in maintaining healthy dietary practices. The results of this regulation will be very visible to consumers, since it will change the format and content of the familiar "Nutrition Facts" panel that appears on all packaged foods. The changes are intended to reflect new knowledge of nutritional science, to better reflect the amounts of food people commonly eat per "serving," and to better inform consumers to help them achieve nutrition and weight-loss goals. The new rules were publicized by an announcement from First Lady Michelle Obama.
The final rule: (i) updates the list of nutrients that are required or permitted to be declared; (ii) provides updated Daily Reference Values ("DRV") and Reference Daily Intake values ("DV") that are based on current dietary recommendations from consensus reports; (iii) amends requirements for foods represented or purported to be specifically for children under the age of 4 years and pregnant and lactating women, and establishes nutrient reference values specifically for these population subgroups; and (iv) revises the format and appearance of the Nutrition Facts label. Some of these suggested changes include larger type calorie counts and serving sizes, and the declaration of the gram amount and percent DV of "added sugars" in a serving of a product. FDA stated the updated information is consistent with current data on the associations between nutrients and chronic diseases, health-related conditions, physiological endpoints, and/or maintaining a healthy dietary pattern that reflects current public health conditions in the United States, and corresponds to new information on consumer understanding and consumption patterns.
For a visual comparison of the old and new labels, please click here.
Students might compare the type size for different items and consider what information was omitted and what was excluded.
I recently stumbled upon a new (to me) blog called Word Counter Blog when a post called "How much writing do you have to do in law school?" turn up in my weekly news feed (the author correctly advises aspiring law students that it's not the length of the assignments in law school that's a killer but the time and effort required to hone and polish them). A quick skim of a few, random posts since the blog was first launched in 2014 indicates it's definitely one lawyers and law students alike may want to regularly check-out since it covers many topics relating to both the process of writing as well as stylistic pointers. Pertinent posts include "How to find time to write" (hint: cut way on watching TV), "How to write a persuasive essay," "What is an average typing speed?" "How many words are there in a 10 minute speech?" and "What is the best font for a business proposal?"
Check out Word Counter Blog here.