The law school world is currently enthralled with the idea of "experiential education." The push for experiential education comes from bar associations, accrediting agencies, and especially from lobbying groups of a certain segment of the law professoriat.
I am a big supporter of what I call "practical education" in law schools, which I consider to be education that will prepare law students to be effective early in their careers in their chosen areas of practice. My idea of "practical education" overlaps with, but is not the same as experiential education. A student can have an "experiential" bonanza in The Clinic for the Protection of Left-Handed Ferrets and emerge with no practical skills at all. Indeed, much of what passes for experiential education is not oriented toward imparting practical skills, because it focuses on narrow ideological areas of interest to faculty but not to students who need to get a real job when they graduate.
About a year ago, I put a survey on my blog asking students for the reasons why they did or did not participate in clinics in law school. Although the uptake was somewhat meager with 153 responses, most of them were students who did participate in a clinic, and I think the results are telling. To the extent these responses are representative, it's clear that the main reasons for not participating in clinics are (1) lack of interest in clinical practice areas and (2) scheduling constraints. I don't know how much scheduling constraints can be helped in a clinic, given the nature of the class. The lack of interest in practical areas both can and will be fixed this summer, assuming the ABA acts (more below).
It is obvious from the responses that many students do not participate in clinics because the clinics do not practice in areas that are aligned with the students' goals in achieving practical experience. This is especially apparent when combined with the reasons given for participating in a clinic. . . .
Monday, May 2, 2016
Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility by Tigran Eldred
For the last few years, I have been researching the effects of brain biases on lawyers. This research resulted in chapter 6 (cognitive biases) of my book Developing Your Professional Identity: Creating Your Inner Lawyer (2015). Now, Tigran Elred has written an article on how he teaches behavioral legal ethics in his professional responsibility class.
This is the opinion of the Committee on Ethics of the New York State Bar Association:
A law firm may bill a client for work performed by a student-intern despite the fact that the law firm does not pay the intern, because the intern receives academic credit for the work, as long as (i) the internship program complies with applicable law, (ii) the educational institution does not object to the client charges, and (iii) the charge is not excessive.
Remarkable. You can access the Opinion 1090 here.
Sunday, May 1, 2016
There is an important new study on how individualized feedback affects students in the first year of law school.
The Impact of Individualized Feedback on Law Student Performance by Daniel Schwarcz & Dion Farganis.
"University of Arkansas School of Law Student-run Clinics Yield Policy Insights and Practical Foreclosure Advice to Homeowners"
This is a new article by Nate Coulter, who is an attorney with Millar Jiles LLP in Little Rock, Arkansas and served as a Distinguished Practitioner in Residence from 2012-14 at UALR Bowen School of Law. The article is available at 68 Ark. L. Rev. 551 (2015). From the introduction:
According to Alan Greenspan, the 2008 global recession was triggered by the subprime-lending spree in the United States and the investment banking community's fascination with the higher returns available on mortgage-backed securities. One of the eventual consequences of the crisis was litigation against the five largest mortgage service companies whose reckless practices were exposed in the aftermath of the housing market collapse. The settlement of that lawsuit, commonly referred to as the “National Mortgage Settlement,” created an occasion for states to invest in new programs designed to assist those caught in a mortgage foreclosure vice grip. Some states, including Arkansas, seized this opportunity.
Under the Consent Judgment approving the National Mortgage Settlement, Arkansas's settlement proceeds were earmarked for various institutions situated to educate and support those in housing dilemmas. One particular institution, the University of Arkansas School of Law, combined education and practical relief by establishing student-run legal clinics for persons facing foreclosure on their home mortgages. This article recounts the creation of these clinics, chronicling both their successes and shortcomings.
Part II of this article describes the flow of the National Mortgage Settlement funds to the states, in part outlining how the funds were distributed across Arkansas. Part III profiles the creation of the University of Arkansas School of Law's “Walk-In” Foreclosure Clinics, while also detailing the author's general observations about the clinic operations. Part IV provides an in-depth analysis of Arkansas foreclosure law with a particular focus on the similarities and differences of judicial and statutory foreclosure. Part V details seven distinct observations related to foreclosure practice in the state with hope that these observations will be of utility to lawmakers during future policy debates. Finally, Part VI concludes by offering two real-world examples of how the National Mortgage Settlement and the University foreclosure clinics positively affected distressed homeowners in Arkansas.
On December 3, Duquesne Law School will host its fifth annual legal writing conference. The topic is “Drafting Statutes and Rules: Pedaqogy, Practice, and Politics.” The morning plenary session features Professors Richard Neumann and Lyn Entrikin. The afternoon session features former Pennsylvania Governor Tom Corbett and state Senate Minority Leader Jay Costa discussing the state legislative process and politics.
The conference invites presentation proposals from educators and practitioners. The DUQUESNE LAW REVIEW which has published papers from three previous Colonial Frontier conferences, plans to devote space in its Summer 2017 symposium issue to papers from the conference.
For more information, please click here.
Saturday, April 30, 2016
With the advent of the Indigo Book, a new citation manual tracking the Bluebook (here), my thoughts turn to a brief Greenbag 2013 article by Ross Davies. He points out that with most research being performed electronically, lawyers, publishers, and maybe academics will prefer Westlaw’s citation form over the Bluebook’s. Here is the abstract:
As The Bluebook says of itself, “For generations . . . legal professionals have relied on the Bluebook’s unique system of citation. In a diverse and rapidly changing legal profession, the Bluebook continues to provide a systematic method by which members of the profession communicate important information about the sources and authorities upon which they rely in their work.” Generally speaking, this is true and probably always will be, so long as the Bluebook keeps pace with that changing profession. One big change is the technical side of online research services: Westlaw and its competitors cannot afford to conform to the Bluebook’s system when it conflicts with the requirements of their databases for, among other things, unique and recognizable abbreviations of the names of publications. And given a choice between following Bluebook form and following Westlaw form, readers and publishers are likely to follow Westlaw because that is where readers are doing more of their reading and publishers’ products are getting read. The microcosmic experiences of the Green Bag and the Journal of Law may be a sign of things to come, or even of something that has already arrived.
You can read more here.
Friday, April 29, 2016
Lawyers at Carlton Fields point out that with judges reading on mobile devices, they are likely to miss what you include in your appendix. From JD Supra Business Advisor:
Always lay out your motion assuming that the reader has little or no familiarity with the facts of your case or the law that applies. While this does not mean talking down to the reader or belaboring your point, it does mean providing the court with everything it needs to grant relief in your favor.
In modern litigation, with digital records and e-filing, making sure the court is familiar with the necessary facts presents a unique challenge. More judges than ever review filings on a computer or a tablet, which can make it difficult to toggle between the motion and an appendix. While reviewing your filing, the court may not have ready access to the record, or may not have the time (or will) to examine your appendix in detail. To the extent possible, make it easy on the court.
If, for example, an argument centers around a signature on a document, it probably makes sense to include a PDF of that signature in the motion itself. As they say, a picture is worth a thousand words.
You can read more here.
Two hiring partners from Weil, Gotshal & Manges offer their top tips for acing job interviews in this column from the New York Law Journal. Though the article is directed at those seeking summer associate positions (I know OCI has been starting earlier each year but this is getting ridiculous) it's very sound advice that applies to anyone looking for their first law job whether it's with BigLaw or a small firm.
- Be Genuine and Authentic
- You Don't Have to Know Everything
- Do Your Research
- Practice and Prepare
- Know Your Resume and Speak Positively
- Be Professional
- Have Questions
Read the full column here.
Thursday, April 28, 2016
From the Harvard Crimson:
In the most recent wave of activism at the Law School, some students are calling on the school to eliminate tuition completely as part of their new campaign for financial justice.
Members of the group Reclaim Harvard Law published an open letter Sunday addressed to Law School Dean Martha L. Minow and members of the Harvard Corporation—the University’s highest governing body—demanding an end to tuition. . . .
Tuition at the Law School this year is $57,200 and will rise to $59,550 for the 2016-2017 academic year. Students in the Law School's Class of 2015 graduated with an average of $149,754 in debt, according to the Law School’s website
You can read more here.
I just received the latest newsletter from CEFLER (the Center for Ethical Formation and Legal Education Reform), which contains a good description of professional identity:
What is Professional Identity?
Professional identity challenges law students and lawyers to internalize principles and values such that their professional conduct flows naturally from their individual moral compass.
See the following excerpt from the The Emperor Has No Clothes, But Does Anyone Really Care? How Law Schools are Failing to Develop Students' Professional Identity and Practical Judgment, pages 344-45:
The concept referred to as "professional identity" needs to be clarified before one can appreciate its significance to a lawyer's development and its connection to the ancient concept of phronesis, or practical wisdom. Scholars have already had difficulty agreeing on a definition of "professionalism." It should be no surprise, then, that "professional identity" has required clarification. The phrase is not clearly defined even within the seminal reports introducing the concept. (Download the article here.)
The Center for Ethical Formation & Legal Education Reform coordinates the programs and resources Regent Law has committed to developing students' professional identity. Read more »
For additional updates on all the work CEFLER is doing, please visit our social networks and website. And be sure to let us know what you think.
L. O. Natt Gantt II
Also, thanks to Natt & Ben for mentioning my professional identity book in their newsletter.
Wednesday, April 27, 2016
Mostly, they read. That is the conclusion of an extensive three year study. Ann Sinsheimer & David Herring, Lawyers at Work: A Study of the Reading, Writing, and Communication Practices of Legal Professionals.
From the abstract:
The findings suggest that lawyering is fundamentally about reading. The attorneys observed for this study read constantly, encountering a large variety of texts and engaging in many styles of reading, including close reading and also reading broadly, skimming and scanning texts for information. Their writing processes typically began by reading and rereading the information they used to substantiate their written work. They functioned in stressful environments in which they felt pressed for time and had to juggle multiple tasks.
This paper explores the implications of these findings for a variety of audiences, including legal educators, law firms training junior associates, and those doing research on legal pedagogy. For legal educators, the results of this study can be used to develop classroom exercises and to train new teachers. Notably, legal educators should consider devoting more time to teaching reading skills. Although legal educators often assume that law students possess the necessary reading skills, this study indicates that this assumption is faulty and that instruction in this area is likely a key component in the successful transition to practice. For law firms, this study sheds light on the tasks with which new attorneys struggle and reveals the areas in which new attorneys require the most facility. In terms of legal research, this ethnography provides a model that can be expanded to study these same practice areas and other practice areas at law firms of all sizes throughout the country.
You can access the article here.
Tuesday, April 26, 2016
The executors of the papers of the late U.S. Supreme Court Justice William Brennan Jr. are blocking public access to the justice’s file on high court nominee Merrick Garland, who clerked for Brennan in 1977 and 1978.
The file, along with other documents relating to law clerks, case histories and correspondence, are part of the closed portion of Brennan’s extensive collection of papers at the Library of Congress, and will not be opened to the public until July 2017, the 20th anniversary of Brennan’s death.
Jeffrey Flannery, head of reference and reader services in the manuscript division of the Library of Congress, where the papers are housed, on Tuesday identified Stephen Wermiel, a professor at American University Washington College of Law, as the executor of the Brennan papers. Wermiel is co-author of Justice Brennan: Liberal Champion, a 2010 biography of the justice and not been known to be an executor until now.
You can read more here.
That's one of the conclusions reached by Professor Professor Robert Anderson (Pepperdine) based on the results of a survey that queried students about their reasons for participating, or not, in a law school clinic. From Professor Anderson's blog Witnessesh: Law, Deals, & Data:
Continue reading Professor Anderson's survey results (with some snazzy charts) here.
Hat tip to the TaxProf Blog.
Monday, April 25, 2016
I have posted a new legal education article to SSRN:
An important part of reforming the first year is to adopt text books that have been written with the new purpose of the first year in mind and that are based on general learning theory. This article discusses the lessons I learned about writing texts for first-year students from writing an experiential torts text, A Companion to Torts: Think Like a Torts Lawyer (2015). I believe that the keys to writing a first-year text are to 1) start the students out slowly and explicitly, 2) break legal reasoning (thinking like a lawyer) into its essential parts (deductive reasoning, reasoning by analogy, distinguishing, synthesis, and policy-based reasoning) and have students do exercises in each of these types of legal reasoning, 3) teach students how to apply law to facts, and 4) have the students solve increasingly harder problems using these skills.
The first half of this paper will present the theoretical basis for the exercises I used in my torts text. Part II will discuss the neurobiology of learning, which must be the foundation for any effective approach to education. Part III will examine the effectiveness of particular learning techniques in relation to the neurobiology of learning. Part IV will lay out “Bloom’s Taxonomy,” a description of the six stages of cognitive learning. The second half of this paper will then present how I wrote my torts text, based on the theory of the first half. Part V will discuss how to organize the text. Part VI will give the types of exercises that should be included in such a book. These exercises comprise retrieval exercises, issue-spotting exercises, legal reasoning exercises on rule-based reasoning, analogical reasoning, distinguishing cases, rule synthesis, and policy-based reasoning, reflection exercises, metacognitive exercises, professionalism and professional identity exercises, and extended problem-solving exercises.
We are celebrating the 400th anniversary off the death of William Shakespeare’s death. Here is an interview with Shakespeare scholar David Scott Kastan. In the interview, he answers the central question:
Why are Shakespeare’s plays still relevant today?
The plays brilliantly stage the most urgent questions we have about our own lives. Shakespeare embeds the questions in such densely imagined and linguistically fashioned characters and plots that every age has at once felt the necessity and discovered their own ability to refashion them in whatever terms they need to stay in touch in with him.
The Legal Services Corporation (LSC), the country’s largest funder of civil legal aid programs for low-income people, is announcing today the development of online, statewide “legal portals” to direct individuals with civil legal needs to the most appropriate forms of assistance. LSC will partner with Microsoft Corporation and Pro Bono Net to develop portals for up to two statewide pilots intended to demonstrate how this approach can be replicated as widely as possible in an economic fashion.
There is no right to counsel in civil disputes in the United States, and each year as many as 80 percent of low-income people who face civil legal problems that can threaten home, family stability and livelihood are unable to obtain assistance in resolving their problems. The portals are intended to help the legal aid community, courts and other state justice partners to provide some form of effective assistance to everyone with a civil legal problem.
You can read more here.
The Counterintuitive Costs and Benefits of Clinical Legal Education by Richard E. Redding.
Sunday, April 24, 2016
Here are the top ten. Notice which prominent schools are not here, but are further down the list. I see that employer dissatisfaction with the grads worked against some schools. Bloomberg has decided not to rank undergrad B schools in the future.
|Rank||School||Employer survey rank (40%)||Student survey rank (35%)||Salary rank (15%)||Internship rank (10%)||Ranking index score|
|2||Notre Dame (Mendoza)||18||1||13||31||99.86|
|3||Boston College (Carroll)||5||5||17||12||98.57|
|6||Texas at Austin (McCombs)||12||12||15||7||93.34|
|7||North Carolina (Kenan-Flagler)||28||8||9||17||90.34|
|8||Michigan - Ann Arbor (Ross)||27||15||6||3||89.49|
You can access the full list here.
The most recent issue of The Bencher, the official magazine of the American Inns of Court is devoted to practical legal skills training. Articles include:
- Preparing, Briefing and Arguing Your Case with a Judicial Opinion in Mind.
- Making Mediation Work.
- Effective Written Advocacy.
- The View From WAY Behind the Bench.
- Endgame at the Witness Stand.
Read the whole issue here.
Saturday, April 23, 2016
Colleges and universities are beginning to face the reality that a fair number of their student are so strapped for cash that they have trouble affording food. These institutions are setting up food banks and joining the College and University Food Bank Alliance (CUFBA).