Legal Writing Prof Blog

fantasy Supreme Court

 If joining a fantasy football league isn't for you, perhaps you'd prefer the new fantasy Supreme Court game?  It lets you predict the outcome of cases pending before the Court.  If you've always said you know how a case should come out, if only anyone would have asked you, here's your chance. 

hat tip:  Frank Houdek

(spl)

Minnesota bankruptcy judge, cont'd

I love Kressel's admonition to attorneys to stop capitalizing with abandon.  He notes that capitalization should be limited to proper names, and his strict approach to capitalization is even more limiting than the Bluebook's.  I also appreciate his plea to attorneys to use articles. When my 1-L's don't use articles, the cause is sometimes their quoting a headnote rather than the opinion itself.  I have no clue what excuse to offer for others' non-use!

hat tip:  Kay Fletcher, one of our assistant deans at Tech

(njs)

Balance in Legal Education newsletter

 The newsletter for the AALS Section on Balance in Legal Education is now available.  Not only does it mention this blog (thank you!), it also includes:

- a message from Section President Bruce Winick
- a profile of Professor Calvin Pang
- Profsesor Larry Krieger's "ABCs of Clarity and Peacefulness"
- an invitation to Section events at the AALS Annual Meeting in New Orleans, including the business meeting, an informal gathering at the historic Sazerac Bar, and the Section program
- listings of recent conferences, events, and publications
- and lots more!

hat tip:  Amy Bushaw

(spl)

Scholarship alert: "A countervailing elite: the necessity of an effective lawyering skills pedagogy for a sustainable rule of law revival in East Africa"

This one comes to us from Professor Kirsten A. Dauphinais of the University of North Dakota and can be found at 85 N.D. L. Rev. 53 (2009).  From the introduction:  

[T]he lawyer in East Africa has to be much more than a competent legal technician. With the coming of independence, the manifold problems that beset developing countries have to be faced, and in doing this great changes will have to be made in the framework of society. Lawyers have a vital part to play in these developments, for upon them will fall a major share of the work of putting into practice the principles and ideas of their colleagues in the fields of politics, economics and science, and ensuring that the resultant system works fairly and efficiently. Legal education must take account of these facts, and see that students are made aware of and prepared for their future role.
 

Legal Education for East African lawyers must therefore entail more than the accumulation of knowledge about the rules of law-to know much law is not necessarily to be a good lawyer, although it is the foundation upon which most legal education must rest. The good lawyer is the one who knows something of the society in which the law operates and the processes by which the law may change and be changed by that society. Thus we teach the law as it exists in East Africa today, but we do not stop there; we use this law as a firm base upon which future developments may be considered. In this way we hope to be able to produce lawyers who will have thoroughly mastered the techniques of the law; how to search out all the relevant authorities on a particular point and marshall them into coherent form; how to read a case in order to  [*54]  understand it fully; how to analyse and interpret a statute; and how to put across one's point of view in speech and writing. But over and above all this, they will have studied the law against the social and economic background of the East African jurisdictions, and will be in a good position to offer useful contributions to discussion on the problems of the law that ought to be in East Africa. ¹
 
In 1970, one East African law school laid out a bold and ambitious agenda for legal education in East Africa, one equal to the enormity of the demands of the day. The question thirty-nine years later is: to what extent has that agenda been met, that promise been fulfilled? The following article attempts to answer and offers solutions to the challenges that remain arising out of the best practices of the pedagogy of lawyering skills and the scholarship of teaching and learning as it applies to legal education. The focus of this article is on the Anglophone nations of East Africa, Kenya, Uganda, Tanzania, Zambia, and Zimbabwe, although reference will be made to other African nations, in particular Ethiopia, Nigeria, and South Africa, where experiences are illustrative for this article's purposes. This is due to some commonalities among the legal cultures of these countries, as well as to the fact that these nations sent delegates to the March 2007 Conference on Legal Writing Pedagogy for East Africa, an event at which this author presented and gathered qualitative data from East African law instructors, which deeply inspired and informed this article.

This article is meant to be of interest to African legal educators, Western law professors interested in teaching in Africa, and any student or critic of the law and development movement or indeed of American and international legal education.

Part II of this article reviews the history of legal education in East Africa. Part III discusses the law and development movement in Africa and the role of legal education in it. Part IV lays out the major critiques leveled at the law and development movement in the 1970s. Part V discusses the resurrection of the movement in the early 1990s and explores the role that an effective lawyering skills pedagogy can play in that revival. Part VI reviews the status of this pedagogy in East Africa and the challenges its law schools encounter in this regard. Part VII draws on the scholarship of teaching and learning to posit possible solutions for the unique problems facing the implementation of lawyering skills in the East African law school classroom. Finally, Part VIII looks forward to the blossoming of a lawyering  [*55]  skills pedagogy in this region of the world and opines about its impact on the welfare of the region.

I am the scholarship dude.

(jbl)

 

Does reforming law school curriculum to focus on practice skills lead to increased applicants?

There's an article in today's online ABA Journal discussing the departure after three years of Washington & Lee Dean Rod Smolla for Furman College where he'll serve as president.  The article mentions the curriculum reforms that Dean Smolla implemented which place a heavy emphasis on preparing students to actually practice law.  (We'd previously blogged about the curriculum changes at W & L here and here).  The reforms "eliminate traditional coursework and [focus]  on the practice of law through simulated or real-work situations. More than 50 percent of Washington & Lee’s 3L’s are participating in the currently optional program, which will become mandatory in 2011."

The ABA story states that the curriculum changes have accounted for a 33% increase in applicants this fall.  While the school claims there's a connection between its newly revamped curriculum and an increase in applications, other factors could also explain the change including the poor economy which has led to a significant increase in the number of applications at many law schools.  But it would be nice to think that the applicant market responds this favorably to a school that emphasizes practice skills as much as W & L.  If you know of any other schools that report similar results from implementing a practice-oriented curriculum, please let us know in the comments below.

I am the scholarship dude.

(jbl) 

Scholarship alert: "De minimis curat lex: secrets to success for 1st year law students"

More of the good stuff.  This one is by Professor John H. Scheid of The John Marshall Law School in Chicago and can be found at 37 Cap. U. L. Rev. 631 (2009).  From the abstract:  

The following suggestions that I propose, after having taught first year law students for over thirty years, are probably most applicable to students in the first two or three semesters, where the professors use casebooks rather than other types of materials, such as problems and hypotheticals. ... Restating in one's own words the arguments and reasoning of the court takes work. ... A reversal of a lower court's judgment, by definition, rests on one or more crucial issues of law, which in turn become the principle or principles of the case. ... In short, the third category of legal ideas is the equivalent of footnotes, concepts that are "nice to know" but which are not central to the course. ... Reviewing class notes six times over the two weeks following a class will likely reinforce comprehension to such a degree that one year later the student will have a deep-rooted understanding--not recall, not mere memory, but fundamental comprehension. ... Similarly, ninety percent of learning takes place before anyone briefs a case or attends a class. ... X had a package under his arm, a package that was wrapped in newspaper. ... There is no transferred negligence as "risk imports relation" between defendant and plaintiff. 1. ... X says: This problem arises only when the facts show a "direct" injury to a plaintiff who was not "reasonably foreseeable."

I am the scholarship dude.

(jbl)

Scholarship alert: "Opinion writing and opinion readers"

Co-authored by Judge Ruggero J. Aldisert of the Third Circuit, he was the recipient of of the Legal Writing Institute's Golden Pen Award a few years back.  The article can be found at 31 Cardozo L. Rev. 1 (2009).

From the abstract:

Likewise, harried opinion readers will benefit from a better understanding of opinion structure and opinion writing technique as they struggle to parse - whether as students in a first year classroom or as advocates researching a case to be argued before the highest court in the land - just exactly what these dang opinions are intended to convey and why they are even written in the first place. ... Almost fifty generations of law clerks have served in Judge Aldisert's chambers; the coauthors are the most recent in this long line of apprentice opinion writers and avid opinion readers and researchers. ... Examine the following table for a summary of each element: Greco-Roman George Rose Description Rhetoricians Smith's Primer Opening Exordium Opening Traditional form: paragraph(s); the paragraph explanation of the orientation nature of the action below, of the parties, the judgment, and the issues on appeal; Issue form: also includes major issue to be discussed Summary of issues Divisio Indication of Statement of issues to discussed issues on be discussed appeal Material or Narratio Statement of Narrative or adjudicative facts the facts adjudicative facts

Analysis of the Confirmation Discussion of Proof of case issues presented by a. ... The practical reasons for carefully stating the material facts are enshrouded in the formation of the common law tradition. ... A like case is one where the material facts are identical with or substantially similar to those in the putative precedent: Two cases or decisions which are alike in all material respects, and precisely similar in all the circumstances affecting their determination, are said to be or run "on all fours" with each other, or, in the more ancient language of the law, the one is said to "run upon four feet" with the other. ... If the conflict falls within this category, do not discuss choice of other precepts; discuss only interpretation of the law (category 2), and application to the facts (category 3). (3) Application of the law to the facts. ... Proper "middle ground" footnote use includes: (1) to authenticate a statement where the citation is not important enough to include in the text; (2) to set forth multiple citations in order to support a single proposition in the text; (3) to quote extensive text of a rule, statute, regulation, will, contract, or other document essential to the opinion; (4) to dispose of collateral issues, controlled by precedent, that would disrupt flow or organization of the text; (5) to record related issues not reached; (6) to set forth trial testimony that supports facts in the text; (7) to respond to concurring or dissenting opinions; (8) to incorporate contributions of other members of the court whose ideas interfere with organization of the text or whose writing styles do not conform with the opinion writer's; and (9) to track all contentions in a direct or collateral criminal appeal not discussed in the opinion so that there will be a record of the contentions for res judicata purposes.

I am the scholarship dude.

(jbl)

Word of the day - and it's apropos to grading season

Because I've been behind in my blogging, it's actually the word of last week.  Technicalities aside, this one comes to us from from wordsmith.org and is particularly relevant during the month of December when most LRW profs are working through a pile of student papers.

The word is "periphrastic" meaning:  1. Using a roundabout form of expression; wordy.  2. Formed by the use of two or more words instead of inflection

Examples include:  "daughter of John" (compared with "John's daughter);
 "It did happen" (compared with "It happened");
 "more stupid" (compared with "stupider"); and 
 "Do you have" (compared with "Have you").

You can read the rest of the wordsmith.org entry, and subscribe too if you like, right here (or is it better to just say "here?")

Hat tip to Professor Mary Beth Beazley.

I am the scholarship dude.

(jbl)

teaching to different learning styles

 Much has been made in the last decade about teaching to different learning styles, and legal writing professors have certainly been at the forefront of that movement.  But now some researchers are questioning how much we really know about the effectiveness of this approach, in an article in the Chronicle of Higher Education.

hat tip:  Lou Sirico

(spl)

Write like a man

 That's the title of a Salon article that's got some legal writing professors thinking:

For centuries in print and more recently on-line, women who adopted male pseudonyms have fared better than they did writing under their own, female names.  So what happens when a law journal sees a male versus a female name on a submitted manuscript?  And given how prevalent and readily acknowledged elitism is in the selection of manuscripts for the top U.S. law journals, how likely is it that sexism is absent?  Why don't student-edited U.S. law journals use blind reviews, like the peer-reviewed J. ALWD and J. Legal Writing do? 

hat tip:  Mary Beth Beazley

(spl)

ever edit a law journal contract?

Maybe it's just me, but every time I publish an article in a student-edited law journal (for our non-U.S. readers, student-edited law journals are the norm in the U.S.), I find myself editing the publication contract before it even comes close to something I can sign.  As a legal writing professor, I naturally want to put it in plain English.  I also change the content of the ridiculous indeminity clauses, which often would make me liable for things entirely outside my control or responsibility.  And then there's the matter of copyright, a topic I also teach occasionally.  Sometimes student editors actually seem surprised that I don't want to sign away my entire copyright forever, but I stand my ground.   

Now Ben Keele at Indiana-Bloomington has studied these copyright provisions.  His new article is:  "Examining Law Journal Publication Agreements for Copyright Transfers and Self-Archiving Rights".  And here's his description of his study: 

"This study examines 78 law journal publication agreements and finds that a minority of journals ask authors to transfer copyright. Most journals also permit author to self-archive articles with some conditions. The study recommends journals make their agreements publicly available and use licenses instead of copyright transfers."

(spl)

new articles on teaching legal research

Thanks to LWI and LSN, we have news of two new articles that offer innovative ideas for teaching legal research:

"Teaching Legal Research Online"

Susan Herrick, University of Maryland - Thurgood Marshall Law Library

Sara Kelley Burriesci, Georgetown University Law Center - Edward Bennett Williams Law Library

"Online instruction has great potential for accommodating the learning styles and preferences of Millennial law students, as well as for the effective teaching of legal research in the digital age. While integrating instructional technology into a face-to-face classroom legal research course is highly desirable and relatively easy, designing and teaching a purely distance or hybrid distance course provides some unique challenges as well as some distinct benefits for both instructors and students. This article will first evaluate individual instructional technologies independently of each other, since any of them could be used to supplement traditional face-to-face research instruction, whether formal or informal. Consideration will then be given to special problems of teaching a graded legal research course entirely or predominantly online. Legal research instruction presents some opportunities for experimentation and innovation with online learning techniques that may serve students better, accommodate the librarian’s technology skills and abilities and her time constraints, and inspire others at our law schools to follow suit."

"Introducing and Integrating Free Internet Legal Research Resources into the Classroom."

Jootaek Lee, University of Miami Law Library

"The Global financial crisis has been discouraging legal researchers and practitioners from accessing high-cost databases such as Westlaw and Lexis. On the other hand, internet legal research provides great benefits to researchers in that it is free or less expensive than Westlaw and Lexis. The necessity of teaching law students internet legal research skills is imminent.

"The cons and pros of internet legal research will be discussed along with the effective ways of approaching and evaluating internet legal resources in terms of coverage, currency, accuracy, authority, appropriateness, perspective, presentation and usability, and cost. Additionally, a garden variety of authoritative internet legal resources for different primary and secondary sources will be introduced."

(spl)