Saturday, March 25, 2017
In his more than 10 years as a judge on the U.S. Court of Appeals for the Tenth Circuit, U.S. Supreme Court nominee Neil Gorsuch was recused in more than 1,000 cases, according to documents submitted to the Senate Judiciary Committee in advance of his March 20 confirmation hearing.
The high overall number of recusals appears to reflect the rigorous recusal procedures of his court, as well as Gorsuch’s stated desire to avoid even the perception of bias when it comes to cases involving a wide range of friends, former clients and colleagues. Only a sliver of the recusals were triggered by financial interests, according to his responses.
You can read more here.
Friday, March 24, 2017
In a recent article, Ira Robbins says yes. “And/Or' and the Proper Use of Legal Language (March 6, 2017).” Maryland Law Review, forthcoming. His argument:
And/or, however, is not ambiguous at all. It has a definite, agreed-upon meaning: when used properly, the construct means “A or B or both.” In most areas of law, there simply is no compelling reason to avoid using and/or. The term is clear and concise. It derives criticism mainly from the inability of people to use it correctly. Pleadings, contracts, statutes, and patent claims all allow for a cogent use of and/or.
My problem with his argument: Not everyone gives “and/or” the meaning that Professor Robbins ascribes to it. Hence, ambiguity arises.
You can read the article here.
The Real Legacy of American Legal Realism by Hanoch Dagan.
"Brian Leiter famously described the legacy of American legal realism as a ‘naturalized jurisprudence predicated on a pragmatic outlook’. This essay offers a critical analysis of Leiter’s ambitious and provocative account of legal realism. I argue that, beside many insights, Leiter makes several related mistakes that, eventually, obscure the most important promise of the realist legacy. Leiter understates the realist indeterminacy critique of pedigreed sources, misses the realist distinction between doctrine (or pedigreed sources) and law, and is wrong in classifying the legal realists as tacit hard positivists. Studying these mistakes reveals why Leiter must be incorrect in reducing legal realism to a descriptive theory of adjudication. A further contribution is the return to the realist robust understanding of law as an ongoing institution (or set of institutions) distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: between power and reason, science and craft, and tradition and progress."
Thursday, March 23, 2017
Last week, I wrote a post criticizing Professor Jason Yackee for his lack of awareness of the role and importance of legal writing professors in law schools, as expressed in his two comments on the TaxProf Blog. (here)
Now, I have just found two youtube videos in which Professor Arthur Miller stresses the importance of research (and other skills) to law school graduates and lawyers. In other words, he does exactly the opposite what Professor Yackee did by recognizing the central importance of skills training to legal education. As you watch these videos, pay attention to Professor Miller's comments on the doctrine/skills divide.
As we continue to reform legal education, we need to start from Professor Miller's comment that 90% of law school graduates will become practicing lawyers, not philosophers.
What these videos also demonstrate is that doctrinal professors and skills professors need to work together to create the best law graduates.
(Scott Fruehwald) (hat tip: Ralph Brill)
The U.S. ranks 14th. From the Washington Post:
Norway is the happiest country on Earth, according to the 2017 World Happiness Report, an annual ranking of 155 countries published by the Sustainable Development Solutions Network, a United Nations initiative. The Scandinavian country unseated Denmark for the top spot on this year's list, published Monday in conjunction with the U.N.'s International Day of Happiness.
Not far behind Norway are Denmark, Iceland, Switzerland and Finland. Tied for ninth are the Netherlands, Canada, New Zealand, Australia and Sweden.
The Central African Republic, a landlocked nation that has seen increasing violence between warring factions, came in last.
The United States fell in at No. 14, down a spot from last year. The U.S. has never cracked the top 10 since the rankings were first published in 2012, when it came in at No. 11.
You can read more here.
In this interview, attorney Timothy Lambert discusses the benefits he gained from practicing mindfulness. Here is part of his answer to the first question, “What prompted you to practice mindfulness?”
I came to mindfulness or "insight meditation" because there were patterns in my thinking and behavior that I wanted to change, and a general sense that, for all my effort and many successes, life remained, at some basic level, somewhat unsatisfactory and unfinished. I found that mindfulness offered both a short-term solution and a longer-term path. In the short term, by awakening to the ease and openness of the present moment through meditation, my problems sometimes scattered, and I was left shaking my head wondering what all the trouble was about. In the simple words of Ram Dass, all I needed to do was "be here now."
You can read the rest of the interview here at the D.C. Bar blog.
Wednesday, March 22, 2017
"Charlotte School of Law is on its way to becoming a non-profit. It's part of the plan to get the law school's federal loan money re-instated."
"MT: How would this work?
LW: The school's new dean, Scott Broyles, says the plan is to partner with a university in the northeast. InfiLaw, the company who now owns Charlotte School of Law, wouldn't make academic decisions, but, instead, deal with the school's day-to-day operations.
MT: How much of a difference would this change make? Is it a smokescreen?
LW: It's hard to say at this point. It's not clear how that agreement between the non-profit board and InfiLaw would work, nor how much the school would pay InfiLaw. But the plan also calls for faculty to play a bigger role in making academic decisions, starting with admissions standards."
"MT: Is this enough to persuade the Department of Education to begin cutting federal loan checks again to Charlotte School of Law?
LW: That remains to be seen. A letter from the Department of Education in January didn't mention the option of re-instating federal loan money to the school back. It simply noted because the school hadn't agreed to close, students wouldn't have their federal loans forgiven. But Broyles [the new dean] says a few things have changed since then."
"MT: How many students are at the school now?
LW: The school has lost a lot of students over the past few months. Before the ABA placed the school on probation, enrollment was around 750. Now, it's down to 220. So even if the school regains its federal loan money and it gets off probation, it faces significant challenges in enticing students and still being partnered with InfiLaw."
At Vitae, we find advice on how to complain successfully. Here is an abridged version.
Gather your facts. Make it easy to research and resolve your concerns.
Think Twitter, rather than War and Peace. Multi-page missives are rarely effective, so get to the point quickly in your complaint and keep your message brief.
Ask for help. Do it politely: "I'm hoping you can help me understand …," is often a good way to start.
Be curious, not furious. Express surprise and curiosity rather than outrage about your situation.
Don't make things worse by hurling insults
Ask for what you want. Be specific about your desired remedy.
Target your message. When seven people receive a complaint, each assumes the other six will handle it.
Don't start with social media. In general, it is prudent to reserve social-media rants for situations in which all other avenues have been exhausted.
Start in the right place. Send your concern to the person best positioned to handle it.
Be judicious in copying the next level up. If the first level won't or can't help you, then travel up the chain, but give people a chance to fix your problem.
Don't think threatening us with legal action will make us move faster. Sure, go ahead, hire a lawyer if you want.
You can read the full version here.
Many people today are proclaiming the enormous advances of technology in education. Here, at the Legal Skills Prof Blog, we have been more cautious. We acknowledge the importance of technology in legal education, but we also recognize that it has a downside; technology may hinder learning because it does things the brain should be doing for itself. This is demonstrated by a study by the University College London, which was published this week. (here)
"Previous UCL research has shown that the hippocampi of London taxi drivers expand as they learn 'the Knowledge', memorising the streets and landmarks of central London. The latest study suggests that drivers who follow satnav directions do not engage their hippocampus, likely limiting any learning of the city street network." [Note: by expand they mean gets physically larger; the brain actually grows. This is true of all learning. Learning grows the brain.]
"The study, published in Nature Communications and funded by Wellcome, involved 24 volunteers navigating a simulation of Soho in central London while undergoing brain scans. The researchers investigated activity in the hippocampus, a brain region involved in memory and navigation, and the prefrontal cortex which is involved in planning and decision-making. They also mapped the labyrinth of London's streets to understand how these brain regions reacted to them.
When volunteers navigated manually, their hippocampus and prefrontal cortex had spikes of activity when volunteers entered new streets. This brain activity was greater when the number of options to choose from increased, but no additional activity was detected when people followed satnav instructions."
In other words, when drivers did not use a gps, their brains were more active; they were learning. However, when they used a gps, they did not engage their hippocampi; they did not grow their brains. Significantly, when drivers used gps, they turned off all alternatives except the one given by the gps so they were also not using their prefrontal cortexes. They had switched off part of their brains. They lacked critical thought.
While this is an isolated study, it has enormous consequences for learning. Before the gps, cabbies learned the streets of London, and, in the process, they grew their brains. Now, cabbies just follow gps with no real thinking involved. Are London cabbies better off today, or, were they better off with no technology? Without the knowledge in their hipocampi, cabbies can no longer do the problem-solving of their profession. Does this extend to other parts of their lives?
I can think of similar examples. Students today use calculators and computers to do math, instead of learning it step-by-step, as we did when I went to elementary school. Have today's students lost anything? How can they understand math if they have never actually done it? How can advances be made in math and science if practitioners don't understand math?
One thing that all education scholars agree upon is that learning is hard; there are no shortcuts to effective learning. While technology can help us enormously, we must first do the hard work of learning the basics. Only then will we be able to use technology in the most effective manner.
Tuesday, March 21, 2017
In Kolbe v. Holmes, the Fourth Circuit considered a challenge to a Maryland statute banning assault weapons. It held that strict scrutiny—not intermediate scrutiny--was the proper standard of review, thus creating a burden on the defenders of the statute.
Over at Lady (Legal) Lawyer, Megan Boyd contrasts the opening paragraphs of the majority opinion and the dissent.
Here is the opening of the majority’s opinion:
On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR-15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom's sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.
In contrast, here is the opening of the dissent’s opinion:
Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.
For her rhetorical analysis of these contrasting openings, please click here (March 2, 2017).
Monday, March 20, 2017
“Ask not what your country can do for you; ask what you can do for your country.” This sentence from President Kennedy’s inaugural address is today the best known example of antimetabole.
The work comes from the Greek, meaning “turn about.” Another example, this from President Obama speaking to Iraq War veterans: “You stood up for America; now America must stand up for you.”
A formal definition (from Wkipedia): “the repetition of words in successive clauses, but in transposed order; for example, "I know what I like, and I like what I know"
I am not sure many students would be adept at handling this device. However, it might worth introducing it to them to increase their awareness and admiration of the tools of wordsmithing.
How to Con Black Law Students: A Case Study by Elie Mystal.
"But encouraging African-American students to attend Arizona Summit will not help them achieve their goals. It will hobble them. Going to a law school that doesn’t prepare most of its students to pass the bar is not an “opportunity,” unless “opportunity” means being saddled with debt that you’ll spend the rest of your life trying to pay back."
"For-profit schools like Arizona Summit prey on students with high aspirations but little knowledge about how the postgraduate system really works. Many black students aren’t just the first people in their families to go to graduate school — they are the only people they know in the game. Information passed down from family, friends or mentors is hard to get when you don’t have people in your life who have been there. Too many aspiring black students are trying to piece together education plans based on career fairs and Google searches."
"The best thing any historically black college could do to “disrupt” exclusionary legacies in legal education would be to arm its students with the very information from which they have been excluded, information that would help them get into good schools — or at least keep them out of predatory ones. Anything less is a hustle."
The above is why the ABA needs to set minimum percentages for bar passage. Actually, the Council did last year, but the proposal was rejected by the House of Delegates at the urging of more than 90 law school deans. I ask the question again: how does having minority students fail the bar help diversity in the legal field? As I've said before, my answer is that, if law schools are going to admit students with questionable indicators, they need to concentrate on educating those students once they are admitted. See How to Help Students from Disadvantaged Backgrounds Succeed in Law School.
Sunday, March 19, 2017
In this column from U.S. News and World Report, several law school admissions officers weigh-in on how applicants hoping to increase their chances of admittance can write a resume that gets attention (including an example that helped the author gain admittance to Harvard). One expert consulted for the article advises law school applicants to shape their resume in a way that differentiates themselves from the pack since "one hundred percent of admissions is differentiation." That same consultants says that applicants should also try to find a way to give admissions officers a strong sense of who you are as an applicant. And if you can also demonstrate that you have a commitment to public service as well as a familiarity with the legal system, that's even better. You can read the full column here.
Trial lawyer John Balestriere advises us to layer our writing. I think his metaphor encapsulates what many of us teach. The metaphor may help improve our ability to send our message to students. Here are the high points:
We should write our advocacy writings in layers, summarizing the main points as quickly as we can in early layers and building on the layers in the document.
This means in a typical trial court brief, we should exploit thoroughly the first advocacy layer of a table of contents. If done well, all the reader has to know is your table of contents in order to know your entire argument (if not the nuances of it or the entire story of the case).
In a brief the next layer to exploit is the preliminary statement. By the time the reader is done with that — and hopefully it is only a few pages — the reader should not only know your argument, but some of the key support for it, and the story of the case (told truthfully but from your perspective).
This layering rule doesn’t simply apply to complex memoranda of law which have these discrete sections. It applies to letters, even emails: the first line or two of shorter and less structured documents should state succinctly what you’re looking for and why you deserve it. Then layer as appropriate, but assume your busy clerk or judge or arbitrator may only have time to read the first few sentences of whatever you write.
You can read the full posting here.
Professor Catherine Baker presents her method: a five point method for organizing your abstract and making it inviting to the conference committee. You can access her advice here. Much of it will seem familiar to those of us who have studied how to write introductions to arguments.
Saturday, March 18, 2017
How to respond? At Vitae, we find the varying advice of a variety of professors. The article offers its own advice (here).
My thoughts: I try to abide by the distinction that some professional make between empathy and compassion. Empathizing with a student’s plight rarely improves the student’s coping skills. However, compassion calls for helping the student decide how to solve or cope with a problem. Compassion is more constructive.
From the GreaterGood website (here):
Compassion is not the same as empathy or altruism, though the concepts are related. While empathy refers more generally to our ability to take the perspective of and feel the emotions of another person, compassion is when those feelings and thoughts include the desire to help. Altruism, in turn, is the kind, selfless behavior often prompted by feelings of compassion, though one can feel compassion without acting on it, and altruism isn’t always motivated by compassion.
By the way, this is one excellent website.
Friday, March 17, 2017
Thursday, March 16, 2017
From the Associated Press:
The State Bar of California approved an ethics rule that would subject lawyers to discipline for having sex with their clients.
California currently bars attorneys from coercing a client into sex or demanding sex in exchange for legal representation.
The new rule would completely ban sex between lawyers and clients with some exceptions.
As of May 2015, 17 states had adopted a blanket sex ban drafted by the American Bar Association, according to an ABA committee that looked at implementation of the group's ban.
Still, California's proposal was divisive.
You can read more here.