Monday, December 26, 2016
From the Wall Street Journal Law Blog:
The recently released results of California’s July bar exam underscored how many law schools are struggling to graduate students qualified to join the legal profession. The passage rate for test takers from American Bar Association-approved schools dropped to 54% from 60% the year before.
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Continue reading here (subscription required).
Sunday, December 25, 2016
A number of schools, churches, and cities are declaring themselves sanctuary campuses, churches, and municipalities. But not Harvard:
On Tuesday, Drew G. Faust, president of Harvard University, announced the school has chosen not to label itself a sanctuary, which would have hypothetically prevented the deportation of undocumented students, according to the Harvard Crimson. She reasoned that, because doing so would offer no legal protections, it could increase government scrutiny of students in need of protection.
"It ... risks drawing special attention to the students in ways that could put their status in greater jeopardy," Faust said. "I believe it would endanger, rather than protect, our students, and that is not something I am willing for this institution to do."
"Sanctuary campus status has no legal significance or even clear definition," she added. "It offers no actual protection to our students. I worry that in fact it offers false and misleading assurance."
From my viewpoint, although there are hypothetical drawbacks, I don’t see any realistic downside to schools adopting this label. On the other hand, it shows support for students who need it.
You can read more here.
Saturday, December 24, 2016
Best wishes to our readers who celebrate the holidays!
From Atlas Obscura, here’s the story of how the Christmas tree first made its way into the White House.
Here’s Judy Garland singing “Have Yourself a Merry Little Christmas.”
Here are the Maccabeats singing about making latkes.
A partner in a major law firm tells me that for the next five years, we can expect much litigation and controversy over issues like mediation and arbitration and locations for such proceedings. In a recent article, Professor John M. Newman identifies the issues that these provisions should consider. The article remains neutral on the pros and cons. Here is an introductory passage:
This is a brief guide to drafting dispute-resolution provisions. Such provisions have gained national attention in recent years. Legal scholars had, as early as 2005, been predicting that contractual dispute-resolution provisions would bring about the near-total end of class-action litigation. But it was a series of U.S. Supreme Court decisions that thrust such provisions into the national spotlight. Beginning with AT&T Mobility v. Concepcion LLC in 2011, and culminating with Italian Colors v. American Express in 2013, the Court lent much greater strength to mandatory-arbitration provisions.
Today, such provisions are likely enforceable even where state law would otherwise render them invalid, due to the preemptive force of the Federal Arbitration Act (“FAA”). This is true even where mandatory-arbitration provisions are coupled with waivers of classwide dispute resolution. This also holds true even where the practical effect of such waivers is to prevent plaintiffs from effectively vindicating their legal rights under both state laws and federal laws. . . . [S]uch provisions ought to be wielded with care and precision.
You can access the article here.
Friday, December 23, 2016
Writing as a companion career. Who would have guessed it? From the Guardian:
Feted as a revolutionary hero and demonised as an enemy of the free world, Fidel Castro also played an unexpected role in global literature. The Cuban president, who died on 25 November, acted as unofficial copy editor for the acclaimed novelist Gabriel García Márquez, providing line-by-line corrections for the writer after the two struck up a close friendship in the late 1970s.
Dr Stéphanie Panichelli-Batalla, lecturer in Latin American studies at Aston University, told the Guardian: “The president was an avid reader. When they met in 1977, they had several conversations about literature and eventually Fidel offered to read his manuscripts, because he had a good eye for detail.”
The Colombian Nobel laureate, who died in 2014, was a supporter of the Cuban revolution, support he never relinquished despite Castro’s record of human rights abuses. Panichelli-Batalla, who co-authored a book about their relationship titled Fidel & Gabo in 2009, said the writer would send completed manuscripts to Havana before submitting them to his publisher.
Castro’s corrections were factual and grammatical rather than ideological, she added.
You can read more here.
According to the article, "As of today’s date, the Charlotte School of Law is still providing information on its Financial Aid webpage as to the types of federal loans that students may access to finance their education at the school." I checked at 3:30 pm on December 23, and this was still true. Charlotte received the notice of the loss of federal financial aid on December 19.
Professor Fred Shapiro is the Associate Director for Collections at Yale Law School's library and for the past 11 years has come up with a list of the top 10 most notable quotes for the year just ending. Professor Shapiro's list has become a tradition that is widely reported by many news outlets including the AP and CNN. Here's Professor Shapiro's top 10 for 2016 courtesy of the National Law Journal:
- "I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters." —Donald Trump, speech at campaign rally, Sioux Center, Iowa, Jan. 23.
- "When they go low, we go high." —Michelle Obama, commencement speech at Jackson State University, Jackson, Mississippi, April 23.
- "You could put half of Trump's supporters into what I call the 'basket of deplorables.'" —Hillary Clinton, remarks at a fundraiser, New York, Sept. 9.
- "And love is love is love is love is love is love is love is love cannot be killed or swept aside." —Lin-Manuel Miranda, poem about Orlando massacre read at Tony Awards ceremony, New York, June 12.
- "[In politics] you need both a public and a private position." —Hillary Clinton, speech to National Multi-Housing Council released by WikiLeaks, Oct. 7.
- "I alone can fix it." —Donald Trump, speech at Republican National Convention regarding America's political system, Cleveland, July 21.
- "Have you even read the United States Constitution? … You have sacrificed nothing and no one." —Khizr Khan, addressing Donald Trump in speech at Democratic National Convention, Philadelphia, July 28.
- "Lucifer in the flesh. … I have never worked with a more miserable son of a bitch in my life." —Former Republican Speaker of the House John Boehner, describing Ted Cruz during a talk at Stanford University, April 27.
- "His life will never be the one that he dreamed about and worked so hard to achieve. That is a steep price to pay for 20 minutes of action out of his 20-plus years of life." —Dan Turner, letter to judge prior to sentencing of his son, Brock Turner, after Brock's conviction for sexual assault of an unconscious woman, June 5.
- "I'm not the next Usain Bolt or Michael Phelps. I'm the first Simone Biles." —Olympic gymnast Simone Biles, interview, Rio de Janeiro, Aug. 11.
Read the full article here.
Thursday, December 22, 2016
I usually write a couple of these each year. I generally agree with Professor Eric Goldman’s ten suggestions. I suggest erring on the side of giving positive evaluations. I would keep in mind that the tenure committee is seeking letters from several people, and some of the evaluators can be very negative and mean spirited or just plain ignorant. I think it important to provide a positive balance, when possible, so that the candidate is not judged unfairly.
You can access the ten suggestions here or a 19 Green Bag 2d 357.
Wednesday, December 21, 2016
Charlotte Observer: Angry students say Charlotte School of Law hid the truth about its problems. Excerpts:
"On Monday, Kocaj and CSL’s 700 other students at the for-profit school learned that the Department of Education will cut off millions of dollars in student loans and other financial assistance on Dec. 31. That’s money that most of the students need to continue their classes."
"The government’s reason: a 'substantial and persistent' failure by Charlotte School of Law to meet admission and curriculum standards while intentionally misleading current and prospective students about the extent of its problems."
"An online series of demands circulating among CSL students calls on the school to submit all grades by the end of the year so students wanting to transfer can apply to new schools. The petition also says students scheduled to graduate in May should be allowed to attend the school for free, and that the administration be restructured and/or replaced."
“We keep being told that the administration was so surprised,” Kocaj said. “Then you read what the government released. How can you possibly have been surprised?”
"Indeed, federal documents indicate that Charlotte School of Law has been the subject of intense scrutiny from the accrediting American Bar Association dating back to March 2014. In the time since, the school has repeatedly been found lacking on admissions, academic rigor and the bar exam pass rates of its graduates. None of these problems were publicly disclosed until the ABA formally put the school on probation in November."
"According to government documents, Conison and the others feared that any announcement would make it harder for Charlotte School of Law to recruit and keep students, who pay some $60,000 in tuition and expenses each year to attend."
"Kocaj, who owns her own tax-preparer company in Charlotte, and attends law classes at night, says she feels misled and exploited."
“We didn’t know the DOE had questioned anything,” she said. “Now we’re waiting to hear from a dean that the student body collectively no longer trusts.”
"Meanwhile, the school’s web page continued to say Wednesday that CSL remains 'fully accredited' by the bar association – a claim that the government says is intentionally misleading."
"Chuck Spellman said his daughter, a third-year law student at CSL, found out about the pending loss of her student loans on Facebook. He accuses the school of unethically hiding its problems – leaving the students with a devalued diploma and diminished job prospects even as they amass a debt of up to $200,000."
"Some CSL students already have contacted law firms in Charlotte and Raleigh to discuss possible legal action against the school."
"The Department of Education’s findings, Horne [an attorney for some students] said, “indicate there was information that should have been passed along to students before they wrote the tuition checks or took out the loans.”
"Federal documents indicate that the school was the subject of extensive ABA scrutiny dating back to a bar association accreditation visit to the school in March 2014. In January 2015, the bar issued its first report that CSL was failing to meet certain standards."
"The bar’s July report also required Charlotte School of Law to disclose its problems to current and prospective students. The school did not. In fact, the first public announcement of noncompliance came in November, when the ABA announced the formal two-year probation."
"[I]n a 13-page letter sent to CLS President Chidi Ogene on Monday, the Department of Education repeatedly accuses school leaders of deception and dishonesty in how the school described both its ABA standing and the performance of graduates on the bar exam, which on the most recent test was the lowest in the state."
"In July, the bar association homed in on 44 different areas – including the rigor of the school’s curriculum and its admission of students who did not seem prepared for either law school classes or passing the bar exam."
"Two months later, when Ogene and Conison met with the ABA to discuss the latest findings, school leaders pressed to keep its noncompliance hidden from faculty and students, the government letter says."
Disclosure, school leaders said at the time, would “effectively tell applicants to beware of attending the Charlotte School of Law … and inevitably create anxiety on the part of high-performing students and make their transfer more likely.”
Wow!! This story needs no comment. I only hope other schools are paying attention to what's happening at Charlotte. Of course, it might already be too late for some schools.
For Immediate Release
Contact: Victoria Taylor, Director, Community Engagement and Public Relations
Charlotte School of Law Statement on Department of Education Action on December 19, 2016
On December 19, 2016, the Charlotte School of Law was notified by the Department of Education that our application for recertification under Title IV of the Higher Education Act was denied and that our eligibility regarding federal financial aid would end on December 31, 2016. We strongly disagree with this determination and are evaluating all available options to challenge the decision, particularly the Department of Education’s mischaracterization of CharlotteLaw’s academic accreditation from the American Bar Association (ABA) and our representation of that status.
Charlotte Law will continue to work closely with the ABA to seek clarification on this unprecedented decision and we will preserve all avenues of appeal and recourse available to us. We will continue to put the best interests of our students first and foremost as we assess our options going forward.
In response, schools are opening food pantries. From CNN Money (excerpts):
The number of food pantries on college campuses is exploding. While there's no official count, membership in the College and University Food Bank Alliance has quadrupled in the past two years. It currently has 398 members.
"A majority of students who are food insecure were also working and receiving financial aid," said Clare Cady, an author of the report and co-founder of CUFBA.
The study found that 56% of food insecure students were currently employed, more than half received a federal grant, and 18% had received a private scholarship.
Tuesday, December 20, 2016
Though the number of students enrolling in law school has been way down over the past few years (almost 30% since 2010) and remains flat compared to last year, the demographics are changing. As this story from the New York Times DealB%k section reports, for the first time ever, women make up the majority of law school matriculants.
For the first time, women make up a majority of law students, holding just over 50 percent of the seats at accredited law schools in the United States.
The number of men and women enrolled in juris doctorate programs has been nearly equal for a number of years, but this is the first time women have moved past the 50 percent mark, according to data released Thursday by the American Bar Association.
Currently, 55,766 women nationwide are studying for a juris doctor degree, compared with 55,059 men, according to the bar association. First-year students are more than 51 percent women, or 19,032, and 48.6 percent men, or 18,058.
The A.B.A. requires accredited law schools to annually disclose data in a number of areas, including admissions, financial aid and employment outcomes, but law schools do not require students to identify their gender, so there may be some students who are not listed as women or men.
“There are more women than men based on data we have,” said Barry Currier, managing director for accreditation and legal education at the A.B.A.’s Section of Legal Education and Admissions to the Bar. “It is a snapshot in time, and the numbers can be updated by the schools. But it is not likely to be large numbers.”
Over all, law school enrollment remains flat, with only a tiny increase of a few dozen first-year students offering an encouraging sign. Enrollment is stabilizing after dropping almost 30 percent since 2010.
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Continue reading here.
Every once in a while, a former student breaks ethical rules and I am disappointed. In this instance, the former student, a trial judge, has a son who owed $5000 in state back taxes. She asked another judge to intervene by contacting the judge who was hearing her son’s case. The judge hearing the son’s case apparently was influenced. All three judges are now off the bench and the intervening judge has suffered criminal conviction related to a variety of incidences. Appeals are pending.
I am always surprised when a former student gets in trouble. I never suspect that a student would behave so badly. In this case, I last saw the former student when she was the speaker at our big minority law student dinner. There, she related a compelling narrative of how she had succeeded despite a difficult, impoverished youth. There, she served as a model for the student audience.
I don’t think I could have done anything to further improve her moral compass when she was my student. Still, I am disappointed.
From Delaware Online:
Presidents of eight private colleges in the U.S. were paid more than $2 million in 2014, the most ever to hit that mark, according to a new study.
They join a total of 39 chiefs who made more than $1 million that year, passing the previous high of 32 the year before, according to new annual rankings released Sunday by the Chronicle of Higher Education.
Overall, pay across the industry has continued to climb. For presidents of private colleges who worked in 2013 and 2014, average yearly pay rose by 8.6 percent, to $513,000.
Topping the list was Jack Varsalona, president of the 15,000-student Wilmington University, in Delaware, whose salary and benefits totaled $5.4 million.
He was followed by Chancellor Mark Wrighton, of Washington University in St. Louis, who was paid $4.2 million, and President R. Gerald Turner, of Southern Methodist University in Texas, who was paid $3.3 million.
Other private colleges with presidential salaries topping $2 million in the new rankings are the University of Pennsylvania, Columbia University, Northwestern University, Belmont University and the University of Chicago. Previously, the highest number of schools to hit that mark was five, in 2013.
You can read more here.
Monday, December 19, 2016
Quoted in the ABA Journal:
“This is potentially a cataclysmic event for legal education. The Department of Education’s reasoning could easily be extended to other law schools,” Paul Caron, an associate dean and professor at Pepperdine School of Law, wrote in an email to the ABA Journal.
“Hopefully, today’s action by the DOE will finally cause law schools to confront the existential crisis facing legal education,” says Caron, who writes at Tax Law Prof Blog.
I think that Paul is right that this could be cataclysmic. This could cause major changes in the legal education world, hopefully for the better.
P.S. This from Paul Campos:
"As to how damaging this will be, nearly 100% of Charlotte’s income, like that of the other Infilaw schools, comes from tuition dollars, and the overwhelming majority of those dollars are funneled into the school’s coffers in the form of federal student loans. So unless this decision gets reversed (Charlotte has a couple of weeks to file an appeal.) . . . . Charlotte will be going out of business almost immediately, which is actually great news for its current
victims students, since that means their student loans will be forgiven."
Above the Law: Law School DENIED Access To Federal Student Loan Dollars.
"Today, the Department of Education announced that on December 31, 2016, it will end access to federal student financial aid for the Charlotte School of Law, a for-profit InfiLaw institution. Charlotte Law owes its inability to secure federal loans to its non-compliance with American Bar Association standards and to its own misrepresentations to students regarding the likelihood that they’d be able to pass the bar exam."
Denial of Recertification letter here.
Let’s look at the upcoming generation. According to a survey, Scholastics Kids and Family Reading Report:
But most students still opt to turn actual pages. In the Scholastic survey, 65 percent of children ages 6 to 17 agreed they would always want to read in print, up from 60 percent in 2012. And 77 percent who had tried e-reading said that the majority of the books they read were in print. That was especially true for younger readers when reading for pleasure: 84 percent of 6- to 8-year-olds read mostly on paper, compared with 62 percent of 15- to 17-year-olds.
What does this finding suggest about the periodic efforts of legal education publishers to move us to digital books?
You can read more here at Education Week.
Boise & Morriss: The Shameful Truth Is That Many Law Schools Have Admitted Students With Low LSAT Scores To Prop Up Tuition Revenue And Now Seek To Avoid Accountability For The Ensuing Poor Bar Passage Results
Boise & Morriss: The Shameful Truth Is That Many Law Schools Have Admitted Students With Low LSAT Scores To Prop Up Tuition Revenue And Now Seek To Avoid Accountability For The Ensuing Poor Bar Passage Results (Tax Prof Blog). Excerpts:
"Standard 301 of the ABA Standards, titled 'Objectives of Program of Legal Education' requires that a law school 'maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to the bar and for effective, ethical, and responsible participation as members of the legal profession.' Bar passage and membership in the legal profession are at the heart of the mission of legal education, and it is the responsibility of the ABA to ensure that mission is fulfilled. The ABA would be failing miserably in its duty as the accreditor of the nation's law schools if it adapted its standards to ensure their survival rather than the success of law students."
"The ABA is correct in expecting law schools to do right by the students they admit and adequately prepare them to pass the bar exam and engage in the profession for which they are pursuing a legal education."
As the readers of this blog know, my position is that law schools should not be admitting students who are unlikely to pass the bar. They need to raise their admissions standards and educate their students better. As Deans Boise and Morriss note, law schools exist for the students, not the administration and faculty.
"While the University of North Texas Dallas College of Law is pursuing ABA accreditation, the state supreme court on Tuesday granted a request from the dean that its graduates be able to sit for the July 2017 bar exam."
The is a very encouraging development. As I have noted before, North Texas has been using teaching and learning techniques based on recent general education scholarship, such as active learning, frequent formative assessment, experience-based learning, etc. The Texas bar now gives them a chance to prove whether these techniques result in improved bar pass rates. (As I have also mentioned before, FIU used a similar approach to raise its bar rate to the top of the Florida bar results.) With the recent disastrous bar results in many states, especially California, law schools need to be using these new techniques.
From the UNT website:
Our goal is to be a teaching law school, concentrating on student learning, but with a different vision of what that means. For one thing, in the first year and beyond, your courses will include periodic feedback and assessments during the course, not the usual single test at the end of each semester. This will help you know how well you are learning the material, and how to improve. It also will help us monitor how effectively we are teaching. We don’t want anyone to fall behind if we can prevent it. So we will be challenging you, but we will also be supportive.
Another goal is for you to spend as much time as possible "doing" law, and not just studying law. Most of our upper level courses will have a "lab" component in which you will apply the subject matter of the course through activities that law practice involves. We also will have opportunities for you to work with and be mentored by practicing lawyers. And because we have a terrific location right in downtown Dallas, we are in proximity to many of the most outstanding lawyers in our region. While you may not leave our law school or any law school with all the skills of an experienced lawyer, we will do our best to get you as close to that objective as we can.
Sunday, December 18, 2016
The billable hour is very much alive and well according to a new study by legal consultant The Blickstein Group Inc. which conducted a survey of more than 100 law department representations and found that the billable hour is still the most prevalent billing arrangement compared to alternative fee arrangements ("AFAs"). Corporate Counsel has more details.
While alternative fee arrangements are gaining popularity, data recently collected by the consultancy Blickstein Group Inc. shows that discounted hourly billing rates are still much more common than AFAs.
The Ninth Annual Law Department Operations Survey, produced by Blickstein in cooperation with the legal consulting and services company Consilio, looks at feedback from more than 100 law department professionals. A supplement to the report is available here. The full 45-page report, which was provided to Corporate Counsel, is available by request to Blickstein.
The majority of respondents—70 percent—said that between zero and 30 percent of their outside legal work is done through AFAs. Less than 2 percent of respondents said that between 71 and 100 percent of their outside legal work is done through AFAs.
A number of impediments to using alternative fee arrangements were offered by respondents, including a law firm's unwillingness, not knowing which AFA to use and no internal impetus to change the current system. The greatest number of respondents, 36 percent, said the unpredictable nature of matter activity is the biggest thing standing in the way of using an AFA. The second-most-cited reason was a lack of data.
Law departments that want to use AFAs are in a position to make it happen, Josh Rosenfeld, vice president of legal services at legal services provider QuisLex, said in a Dec. 14 webinar about the results from the study. "Clients have way more leverage than I think they realize they do with respect to negotiating AFAs with their law firms," he said. "And each of these impediments can be overcome and it is not a terribly high bar."
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Continue reading here.