Friday, March 26, 2010

Student who sues over "C" in legal writing class loses on appeal too.

The online ABA Journal is reporting on the appellate denouement of a case we reported on back in November involving a New York Law School student who sued because he received a "C" in his legal writing class.   According to the court:

Plaintiff, a transfer student at defendant law school, commenced this action alleging, inter alia, that defendant breached an implied contract of good faith and fair dealing with him as a result of a grade he received in his Legal Writing II course. Claiming that he was unfairly disadvantaged because he did not take Legal Writing I at the law school, plaintiff seeks to require the law school to change its grading system from letter grades to pass/fail.

And the holding?  Based on first year contract principles as well as the limited review afforded legal challenges to a grade, this student lost for both reasons:

"The rights and obligations of the parties, as contained in the university's bulletins, bec[o]me a part of the parties' contract" (Prusack v State of New York, 117 AD2d 729, 730 [1986]). However, only specific promises set forth in a school's bulletins, circulars and handbooks, which are material to the student's relationship with the school, can establish the existence of an implied contract (see Lloyd v Alpha Phi Alpha Fraternity, 1999 WL 47153, *9-10, 1999 US Dist LEXIS 906, *25-28 [ND NY 1999]; see also Abraham v New York Univ. Coll. of Dentistry, 190 AD2d 567 [1993]). Absent the existence of a contract, a claim alleging breach of the implied covenant of good faith and fair dealing is legally unavailing (see Schorr v Guardian Life Ins. Co. of Am., 44 AD3d 319 [2007]). Furthermore, "although . . . the determinations of educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute" (Matter of Susan M. v New York Law School, 76 NY2d 241, 246 [1990] [internal citations omitted]).

You can read a pdf of the decision here.

Hat tips to brother Mitch Rubinstein of the Adjunct Law Prof blog for first bringing this story to our attention back in November and to the online ABA Journal for apprising us of the follow up.

I am the scholarship dude.

(jbl)

March 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Can YOU Teach Legal Writing While Wearing a Chicken Suit?

A bit of Friday Fun.

A legal writing professor from one of those states out west (it rhymes with Nevada) agreed to teach in a chicken suit if enough students donated to the law school's Public Interest Law Society.  It seems as though enough students did just that, because a colleague of his shared a photo of him wearing a chicken suit in the classroom.  Congratulations to the Public Interest Law Society and hooray for the legal writing professor who isn't afraid of a bit of fun.  We can't tell you who he is (but his name rhymes with George Mader).

Hat tips to Terrill Pollman and George Mader.

(mew) 

March 26, 2010 | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 24, 2010

Another oral argument anecdote - Chief Justice Roberts lets advocates continue past the red light

Among the perennial advice to 1L's prepping for their first moot court arguments this semester is to tell them that when the red light comes on, they need to stop mid-sentence (and ask the court for permission to finish which it may or may not grant).

This article courtesy of Law.com notes that former Chief Justice Rehnquist was a real stickler when it came to the time allotted to argue, routinely "cutting lawyers off in mid-syllable when the red light went on."  'Course, that's not so surprising given how scrupulously punctual the Chief Judge was in his personal life.

Chief Justice Roberts?  Not so much.  He's a much more laid back dude:

It's not uncommon for him to let lawyers finish their thoughts after the red light goes on, and he'll add extra rebuttal time if he feels it's needed for fairness. Roberts' different approach was on display Wednesday during the dense and complex arguments in Samantar v. Yousuf, which asks whether former officials of foreign governments are immune from lawsuits under the Foreign Sovereign Immunities Act.

Patricia Millett of Akin Gump Strauss Hauer & Feld represented victims of torture in Somalia who were suing former Somali defense minister Mohamed Samantar. She was winding up a forceful finish when the red light at her lectern went on, signifying the end of her allotted 20 minutes. She kept talking and when she noticed the light, she said, "Forgive me." Roberts told her, "Finish your sentence." Fourteen lines -- and several sentences -- later, according to the transcript, Millett finished. Perhaps ruing his generosity, Roberts joked, "You made that a long sentence."

You can read the rest of the story here.

I am the scholarship dude.

(jbl)

March 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Google Scholar corrects footnote errors in response to reader's comment

It's nice to know the good folks at Google Scholar read our blog.  A few months ago, legal research scholar and expert Chris Wren brought to our attention a flaw he'd discovered with Google Scholar.  Specifically, he found a discrepancy between the footnote numbers in certain cases indexed on Google Scholar and the "official" versions of those decisions.

As described in our earlier post, "when Chris compared the Google Scholar version of the case, State v. Greene, 2008 WI App 100, 313 Wis. 2d 211, 756 NW 2d 411, to the official one, he noticed the footnote numbers were off."

I received a nice email this morning from a member of the Google Scholar team who thanked the Legal Writing Prof Blog for bringing this discrepancy to their attention and letting me know they've got it licked:

"we have found the source of the errors you identified and I believe we have fixed the underlying problem.  I just wanted to drop you a note thanking you for pointing it out.  Please feel free to pass on any other thoughts you have about Google Scholar."

First off, don't thank me, thank Mr. Wren - legal research legend.  Next, you heard the man, loyal readers.  If you have any suggestions for improving the quality or functionality of Google Scholar please submit your comments below or email me and I'll post them here.  When the Legal Writing Prof Blog speaks, Google Scholar listens.

I am the scholarship dude.

(jbl)

March 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Tips on preparing for oral argument courtesy of SCOTUS Chief Justice Roberts

While looking for some hand-outs on how to prep for oral argument to give to my students, I came across this short article from the New York Law Journal describing how Chief Justice Roberts used to prepare when he was still in practice.  Some have said that before he went on the bench, Roberts "was one of the best, if not the best, advocates in the nation."

In particular, here's a tip 1L's may find really helpful as they prep for their own arguments:

[Roberts] would write his main arguments on index cards, shuffling them frequently to help him answer questions from the Court in whatever order they arose, transitioning smoothly from one argument to the next.

The Washington Post has characterized Robert's approach to oral argument as  “compulsive.”   He spends "countless hours getting ready, including generally running three moot court sessions for each case and on a few occasions actually visiting client factories and property to better understand the facts underlying a dispute."

Read the rest here.

I am the scholarship dude.

(jbl)

March 24, 2010 | Permalink | Comments (0) | TrackBack (0)

kudos, Terry!

Faculty_terrillPollman At the Rocky Mountain regional legal writing conference last Saturday, Terry Pollman, who teaches at UNLV, was honored with the first Rocky Mountain Award.  The conference organizers wanted to do something new to  commemorate the tenth anniversary of the founding of this regional conference.  Terry received a lovely plaque.  Her name is also engraved on a larger plaque that will carry the names of future recipients, to be selected by the host school every year.   Congratulations, Terry!

hat tip:  Suzanne Rabe

(spl)

March 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

How to teach the writing teachers to teach, um, writing

This article from Inside Higher Ed is directed at undergraduate writing instructors but the thrust of it - examining ways to better train writing teachers to handle the challenges posed by students who arrive on campus with progressively weaker writing skills - has some application to our gig too.

"I was incredibly well trained to teach college writing, but only one course at a time. How do you teach five classes when you've only been trained to teach one?"

. . . .

[W]hen describing the skills a community college writing instructor needs, the discussion revolved around attitudes and comfort levels and largely focused on skills that would be needed by anyone teaching in a community college serving a diverse student body, regardless of the subject matter.

The current community college faculty members talked about needing to learn to be flexible, to deal with students with a range of educational needs, and to accept that many classes will include students with "complicated lives." One instructor said that what she wished master's programs provided was "how to have confidence in the face of a guy in your class who is a former prisoner, inked to the max, and wearing chains."

Well, o.k., maybe that last comment doesn't apply to us so much.

You can read the rest here.

I am the scholarship dude.

(jbl)

March 23, 2010 | Permalink | Comments (0) | TrackBack (0)

In a PoMo world, even the definition of "reading" is in play.

That's the message from this article in the New York Times explaining that technology is changing the way we define what it means to "read."  The article profiles a new book by Jaron Lanier called You Are Not a Gadget which observes that "online collectivism, social networking and popular software designs are changing the way people think and process information, a question of what becomes of originality and imagination in a world that prizes “metaness” and regards the mash-up as 'more important than the sources who were mashed.'"

Mr. Lanier’s book, which makes an impassioned case for “a digital humanism,” is only one of many recent volumes to take a hard but judicious look at some of the consequences of new technology and Web 2.0. Among them are several prescient books by Cass Sunstein, 55, which explore the effects of the Internet on public discourse; Farhad Manjoo’s “True Enough,” which examines how new technologies are promoting the cultural ascendancy of belief over fact; “The Cult of the Amateur,” by Andrew Keen, which argues that Web 2.0 is creating a “digital forest of mediocrity” and substituting ill-informed speculation for genuine expertise; and Nicholas Carr’s book “The Shallows” (coming in June), which suggests that increased Internet use is rewiring our brains, impairing our ability to think deeply and creatively even as it improves our ability to multitask.

. . . .

These new books share a concern with how digital media are reshaping our political and social landscape, molding art and entertainment, even affecting the methodology of scholarship and research. They examine the consequences of the fragmentation of data that the Web produces, as news articles, novels and record albums are broken down into bits and bytes; the growing emphasis on immediacy and real-time responses; the rising tide of data and information that permeates our lives; and the emphasis that blogging and partisan political Web sites place on subjectivity.

. . . .

Even some outspoken cheerleaders of Internet technology have begun to grapple with some of its more vexing side effects. Steven Johnson, a founder of the online magazine Feed, for instance, wrote in an article in The Wall Street Journal last year that with the development of software for Amazon.com’s Kindle and other e-book readers that enable users to jump back and forth from other applications, he fears “one of the great joys of book reading — the total immersion in another world, or in the world of the author’s ideas — will be compromised.” He continued, “We all may read books the way we increasingly read magazines and newspapers: a little bit here, a little bit there.”

You can read the rest of the article here.

I am the scholarship dude.

(jbl)


March 23, 2010 | Permalink | Comments (0) | TrackBack (0)

One writing expert warns against using boilerplate language in briefs

It's our good buddy Raymond Ward from the (new) legal writer blog and his advice comes just in time for moot court season:

One of the rules I follow when writing anything intended to persuade someone else is this: No boilerplate. Here’s why. When I read someone else’s writing, I can tell when I hit a patch of boilerplate—a page or two of generic writing on, say, the standard for granting summary judgment, that could have been (and probably was) cut and pasted from another summary-judgment brief. As a reader, what do you do when you hit a patch of boilerplate?

  1. Read more carefully, making sure you take in every word.
  2. Skim.
  3. Skip ahead, looking for something you haven’t read a hundred times before.

Me, I tend to do 2 or 3. I never do 1. My guess is that most readers react the same way to boilerplate.

The reader who is skimming or skipping is not, at that moment, being persuaded. And “not, at that moment, being persuaded” is the best possible result of skimming or skipping. It’s also possible that the reader is forming the impression that the writer doesn’t have anything worthwhile to say.

Be sure to make the (new) legal writer part of your daily blog feed.

I am the scholarship dude.

(jbl)

March 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, March 22, 2010

SCOTUS does webpage make-over

A few sources have reported to us that the United States Supreme Court website just got an update and is now feeling as fresh and frisky as a new speckled pup. 

As of last week, the website hadn't been updated in ten years.  But now "the new site offers an updated and more user-friendly design. In a press release last week, the Court also highlighted the new site's enhanced search capabilities, an interactive argument calendar, improved graphics and additional historic information, and added that additional updates and features would be coming over time.

You can check it out here.

Hat tip to the Legal Blog Watch.

I am the scholarship dude.

(jbl)

March 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Empire State Legal Writing Conference

ImagesCAPYLLK2 Hofstra Law School is preparing for the inaugural Empire State Legal Writing Conference, which will take place on Friday, May 14, 2010 at the Law School, located in Hempstead, New York, approximately 20 miles east of New York City.  The plenary speaker will be Nancy Soonpaa, Professor of Law, Director, Legal Practice Program, Texas Tech University School of Law. 

This one-day conference will be offered without any registration fee, and lunch will be included.  Registration for the conference is not yet available, but a block of rooms at the Marriott is being held at a discounted rate for May 13th arrival, May 14th departure.  You must mention Hofstra Law Empire State Regional Legal Writing conference to get the discounted rate of $129.  The Law School will provide transportation from the hotel to the conference.  Please note the cut-off date of 4/14, rooms booked after this date will likely go for $179 per night and space availability may  be an issue.

Hotel Info:
 L
ONG ISLAND MARRIOTT HOTEL AND CONFERENCE CENTER
101 James Doolittle Blvd.
Uniondale, NY 11553
Att: Reservations Manager
Tel: (516) 794-3800 or (800) 832-6255
Fax: (516) 794-5936

An ALWD Scholars’ Forum will take place on Thursday, May 13th, the day before the conference. The Scholars' Forum will give legal writing scholars the chance to present their scholarship ideas, works-in-progress, or further developed drafts of legal writing articles to a group of other legal writing faculty. The Scholars' Forum will be available on a first-come, first-served basis to a maximum of 16 individuals who meet the requirements for participation.

The Empire State Legal Writing Conference Planning Committee
Amy R. Stein, Conference Chair, Hofstra University School of Law [email protected]
Robin Boyle-Laisure, St. John’s University School of Law
I
an Gallacher, Syracuse University College of Law 
Tracy McGaugh, Touro College Jacob D. Fuchsberg Law Center 
John Mollenkamp, Cornell University Law School 
Marilyn Walter, Brooklyn Law School    

(spl)

 

 

March 22, 2010 | Permalink | Comments (0) | TrackBack (0)

George Washington University Student Wins Scribes Legal Writing Award at National Conference of Law Reviews

NCLR 2010 photo A student from George Washington University School of Law has won the prestigious Scribes Law Review Writing Award for the best law review article published during 2009.  This marked the second time that George Washington University has won the award, a feat matched by only two other law schools in the 24-year history of the student legal writing award.

Scribes, the American Society of Legal Writers, presents an annual award for the best student-written law review note or comment. After initial selections are made from the nominations submitted, the final winner determined by a Scribes selection committee chaired by Professor Richard Wydick of the University of California at Davis (and whom most of you know as the author of Plain English for Lawyers).  Other members of the committee include Professor Glen-Peter Ahlers (Barry University), Professor Mary Bowman (Seattle University), Steven Feldman (legal advisor for the U.S. Army Corps of Engineers), Daniel Karon (Goldman, Scarlato & Karon PC), and Professor Richard Leiter (University of Nebraska at Lincoln).

This past weekend, 270 law review editors were in attendance at the National Conference of Law Reviews, where Otto Stockmeyer (Emeritus Professor at Thomas M. Cooley Law School) announced that the winner of the prestigious Scribes Award for the Best Law Review Note or Comment published during 2009 is Mike Wagner of the George Washington University School of Law.  Professor Stockmeyer made the announcement at the Scribes Law Review Dinner held during the National Conference.  Mr. Wagner is pictured here with Alexandra Brazier, the Senior Notes Editor of the George Washington University Law Review who wisely selected his article for publication.

The winning article was Mr. Wagner's article, Warrantless Wiretapping, Retroactive Immunity, and the Fifth Amendment, 78 George Washington Law Review 204 (2009). 

Why did he win?  Professor Wydick (who chaired the committee) told Professor Stockmeyer (who delivered the award) that his article was chosen because it was a perfect choice of topic for a student-written piece.  It was a single, manageable issue.  His constitutional analysis was first-rate.  And the committee was impressed by the clarity and directness of his writing style.

Mr. Wagner will graduate from George Washington University Law School in May.  He will clerk next year for a federal district court judge in Maryland before joining the D.C. office of Covington & Burling LLP.

Founded more than 50 years ago, Scribes is the oldest organization in the United States dedicated to improving legal writing and honoring legal writers.  It does so by conducting legal writing programs (such as the one recently held in Chicago), publishing the first law journal devoted exclusively to legal writing, and by sponoring awards for legal writing. Individual membership is open to all members of the legal profession (including law students) who have written one book or two articles on legal topics, or who have edited a legal publication.

Click here to read Professor Stockmeyer's comments at the Scribes Law Review Dinner.  His comments also explain the complex process of how the award winner is selected, with a special acknowledgment to the legal writing professors at Thomas M. Cooley School of Law.  Download Scribes Law Review Dinner Remarks.

Hat tips to Scribes and Professor Otto Stockmeyer.  Congratulations to Mike Wagner and George Washington University School of Law.

(mew)

March 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

Emerging "best practices" for online writing courses

As undergraduate freshmen writing courses begin to move online, the Conference on College Composition and Communication is beginning to develop "best practices" to ensure quality instruction in that arena.  As Inside Higher Ed reports:

Leaders of the association, gathered [in St. Louis] for the group's annual meeting, on Thursday presented preliminary results of national surveys and in-depth focus groups that they have conducted with online writing instructors.

Here are some of the preliminary results of the survey:

  • Class sizes range from 11 to 30, with most respondents on the high end of the scale. (The 4C's, as the composition group is known, recommends no more than 15 students in a section so that instructors can both assign a lot of writing and grade it promptly, although that standard was developed with in-person classes in mind.)
  • Most of the instructors said that they considered the ideal size for their writing courses online to be in the range of 11-20.
  • Dropout rates in the courses are generally being reported at below 20 percent, which would make attrition rates lower than in typical online courses at most of the institutions surveyed.
  • Most of the instructors reported that the impetus for shifting some writing sections completely online came from the administration, not from the faculty.
  • Most instructors reported that their online writing courses do not include some features that are common and generally considered central to introductory writing instruction: student presentations, student conferences with the instructors and collaborative writing exercises. On the other hand, the instructors said that they made considerable use of asynchronous discussions.
  • Training of instructors to teach online -- if it exists at all -- tends to focus on the technology involved, not the educational issues.

You can read the rest here.

I am the scholarship dude.

(jbl)

March 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Scholarship alert: "Ten necessary myths of law school" (and legal writing is one of them)

The article is authored by Professor David Crump of the University of Houston Law School and can be found at 10 J. Law Soc'y 33 (2009).  Among the top 10 "myths" are:

  • That the study of lawyering strategies (sometimes called skills is intellectually inferior to the court-opinion method.
  • That it does not matter whether the professor knows about the actual practice of the subject matter.
  • That today's scholarship enhances law school teaching.
  • That law school teaches legal ethics.
  • That most law students don't need to study practice management.
  • That law school teaches legal writing.
With respect to the latter "myth," the author has this to say:

Most law schools require courses in legal writing during the first year. These courses may be titled differently and may be combined with other subjects. The course typically involves writing, and it may concentrate on expository writing, often of the kind that appears in a hypothetical memorandum. It is debatable, however, whether its coverage really is of legal writing, as distinguished from writing generally.

Imagine a lawyer who is asked to analyze a proposed contract and to advise the client on whether to sign it. The kind of writing used in a contract is rarely taught in a legal writing course, even though a lawyer who hangs out a shingle will encounter the task early on and for many years thereafter. The issue is not whether what the lawyer writes is persuasive, as it might be in the case of an appellate brief. It is not even whether the underlying document, the proposed contract, is written felicitously, with topic sentences and proper grammar. It is a word-engineering issue: whether the contract covers what it should, in a manner sufficiently favorable to the client, and with no unreasonable concessions to the other contracting party. It is a question not of expository writing, but of whether the contract legally serves its purpose and sufficiently protects the client.

Can these things be taught? They definitely can. Preparation of litigation complaints or motions, wills, deeds, and other kinds of legal documents also can be taught. The good news is that there are a few specialty courses that teach these strategies. The unfortunate news is that few students take very many hours of them, although they could be taught to most or all students.

While Professor Crumb's point about memos and briefs being the bread and butter of the 1L legal writing course generally still holds true, many legal writing courses nowadays also cover "drafting" skills too. The problem is that it's difficult, if not impossible, to cover predictive writing, advocacy writing, and drafting skills with any real depth within the usual 2-3 credit hours per semester that most faculties allocate to these courses.  And while the thrust of Professor Crumb's article is very supportive of "skills" training in law school, to the extent he is suggesting that predictive and advocacy writing assignments are merely descriptive rather than analytical, he's incorrect.

I am the scholarship dude.

(jbl)

March 21, 2010 | Permalink | Comments (2) | TrackBack (0)

What's the best online research engine outside Wexis?

According to the 3 Geeks and a Law Blog, Casemaker is the best research engine for state law among the second-tier contenders which also includes Fastcase, Loislaw and Google Scholar

When I started this project, I assumed that Loislaw would be the hands down winner.  After all, they have the huge backing of Wolters Kluwer for a few years now, and you'd hope that they'd want to compete with Westlaw, LexisNexis and now Bloomberglaw.  However, I quickly learned that I was wrong in my assumption.  Turns out that the low-cost legal research provider that has the most state case law coverage, based on years of coverage, is Casemaker.

Here's how I broke down the research:
  • Looked at coverage for all 50 states, plus the District of Columbia
  • Established the year that the each state published its first official state court decision (highest court)
  • Reviewed the scope of coverage for each research provider
  • Graphed who had the best pre-1950, pre-1920 and pre-1899 coverage
  • Graphed who had the most states where there was complete coverage of all decisions
  • Finally graphed the overall percentage of state case law decisions for all 50 states and the District of Columbia

In all categories but one, Casemaker had more coverage than Fastcase, Loislaw or Google Scholar.  Loislaw had five more states with pre-1950 coverage than Casemaker, but the further back you go the better Casemaker starts to look.  Casemaker had over twice as many pre-1920 states than Loislaw (28 vs. 13); Casemaker had four times as many states with pre-1899 coverage than Loislaw (28 vs. 7); and Casemaker had over twice as many states with complete case law coverage (11 vs. 5).  Fastcase and Google Scholar ran a distant third and fourth place with Fastcase only having 10 states with pre-1950 coverage, and Google Scholar having zero.  The overall percentage of case law coverage for all states and the District of Columbia also went to Casemaker (68%).

A big hat tip to the Legal Blog Watch where you can read more coverage about this story here.  Also, a hat tip to 3 Geeks for coining the phrase Wexisberg to refer to the top tier research engines which now includes Bloomberg Law.

I am the scholarship dude.

(jbl)

March 21, 2010 | Permalink | Comments (0) | TrackBack (0)