Saturday, August 7, 2010
Michael Higdon is the Treasurer of the Legal Writing Institute. He teaches at the University of Tennessee College of Law at Knoxville. He was recently quoted on the pedagogy of Project Runway. What did he have to say? Click here to find out.
Hat tip to Ruth Anne Robbins.
Friday, August 6, 2010
Thursday, August 5, 2010
Hamline University School of Law announced that Derik Fettig will be joining its faculty as a visiting Legal Research and Writing faculty member. Derik is a Stanford Law School Order of the Coif graduate who clerked for the 9th Circuit Court of Appeals, practiced law with Morrison and Foerster, and prosecuted in the U.S. Attorney’s office in Los Angeles. He joins Hamline as he and his family return to their Midwestern roots.
Hat tip to Mary Trevor
Carolyn Broering-Jacobs, the Director of Legal Writing at Cleveland-Marshall, shared this sad news on the legal writing professors' listserve:
"With a heavy heart, I write to share news of the sudden and unexpected passing of Janice Aitken, a beloved colleague and friend. Janice joined the Cleveland-Marshall faculty as a Legal Writing Professor five years ago, and she previously worked for the school as an adjunct professor teaching a scholarly writing course. Janice also was a graduate of Cleveland-Marshall, so relationships with Janice reach back to long before she became our colleague."
"Janice's commitment to the school and its students was beyond compare. Even at times when her own health made long hours especially difficult, Janice could be found cheerfully keeping late night and weekend hours to meet with students. Janice also worked extensively with several C|M|Law moot court teams, including teams competing in the Stetson International Environmental Moot Court Competition."
Our condolences go out to her family and colleagues.
Professor Ralph Brill of the Chicago-Kent College of Law posted a message this week on the Legal Writing Listserve that has generated a great deal of discussion. With his permission, we excerpt portions of his message and share them with you here. They were written in response to the post by Blog Editor Mark Wojcik, who reported on a session held at the SEALS Conference. Dean Richard Matasar of New York Law School was one of the speakers at that session. Click here to read that earlier post.
Here are excerpts from the comments from Professor Brill:
Dean Matasar as chair of ALDA is the prime mover for removing the provisions on job security from the current ABA Standards, and, if passed, there will be major impact at some schools on how and by whom Legal Writing is taught. Specifically, the current draft 405 would repeal 405(c) and 405(d), and would provide all full-time faculty (including LW and clinical faculty) and even some part-time faculty "academic freedom." Academic Freedom is a vague standard, with which organizations such as the AAUP have struggled for many years. The proposed standards will stress as the chief component of accreditation a school’s outcomes assessment. However, outcome assessment issues are very much tied up with the security of position and academic freedom/governance issues -- because if LW and clinical faculty don't have an equal vote, how can they shape the curriculum to focus on outcomes assessment, specifically outcome assessment in Legal Writing courses?
In his response [to the Legal Writing List Serve earlier this week], Dean Richard Matasar of New York Law School explained his position on the proposed changes to the ABA Standards, as they affect Legal Writing teachers, and the future of the profession.
“My position on security of position is only that it should not be an accreditation requirement. That is true of tenure or long-term contracts for full-time faculty, deans, librarians, LRW faculty, or other full-time faculty. I am in favor of assuring academic freedom to all of the above and making sure that the Standards for Accreditation include such protections. Further, I believe each school has the responsibility to ensure that it can attract a faculty sufficiently talented to teach the curriculum that students need to be effective at their jobs. This means job security for many, perhaps all, full-time faculty at some schools. At others it does not. The core of the talk I gave was that the full faculty is responsible for teaching all of the skills, that they need to divide this responsibility and cannot delegate it to a small portion of the community, that this responsibility cannot be outsourced, and that doctrinal and skills faculty must coordinate their efforts to focus on student outcomes, not on themselves and their perks.”
In his talk, Dean Matasar also said that the best model he had been exposed to was the Iowa model, in which the regular doctrinal teachers taught legal writing as part of their doctrinal courses, which he thinks is the best way to coordinate skills and doctrine.
I should first like to point out some facts relevant to Dean Matasar’s position.
The Iowa model is no longer the model at Iowa. Since his departure from Iowa, where he was Professor and Associate Dean, Iowa has adopted the classic full-time Legal Writing teacher model, using long-term, renewable contracts for its very capable staff of dedicated Legal Writing teachers. At both Chicago Kent and Florida, the schools at which Matasar served as dean before New York Law School, he eventually was induced to implement the long-term, continuous contract model now the predominant model in legal education. They today continue to be staffed by highly competent and dedicated professionals at those two schools.
Matasar recently has converted the New York Law School Legal Writing program from adjunct- taught to a program taught by full-time, long-term, continuous contract professionals. Thus, even though he had the opportunity at Florida, Kent and NYLS to implement the Iowa program, for some reason he backed the format of hiring competent legal writing professionals and giving them the prevalent form of job security.
However, as pointed out above, he now is the prime mover, along with other deans in the ALDA, advocating the abolition of the ABA standards which have helped bring about the present situation at most law schools – i.e., the full-time, continuous legal writing professionals, either on continuous contracts or with tenure.
The easy answer is that models based on job security are much more expensive than adjunct- taught programs, or programs similar to the old Iowa model where the doctrinal teachers integrate legal writing training in their doctrinal class. What are the dangers of doing away with the present standards? The easy answer is that these standards have stimulated law schools across the country to adopt long-term security programs to teach Legal Writing. As the annual survey shows, the vast majority of schools now have such programs in place. Accreditation teams were able to ask what steps an individual law school had taken to attract and keep qualified legal writing teachers?
What would be the dangers of adopting the model Dean Matasar thinks would be best – the doctrinal teachers absorbing skills training in their doctrinal courses? Obviously, the quality of any program depends on the people who teach it. Most of us would surely agree that the present doctrinal first-year faculty at our schools are excellent or even superior teachers, who work hard at their jobs of teaching 1Ls.
Obviously he also is correct that one can’t teach legal writing in a vacuum, that the necessary skills must be tied to legal analysis and legal reasoning and synthesizing legal doctrine, which doctrinal courses are supposed to do. So, what would the program be like at your school if your department were abolished and the job of teaching legal writing skills were turned over to the full time doctrinal faculty?
My guess is that at some schools, that system would work fine – for a while. The competent, dedicated teachers would give sufficient assignments, instruction, feedback, etc. for the group they would supervise.
(1) But, we know there can be burnout over time in grading so many papers, and having conferences and keeping up with the best methods of teaching and grading the skills we teach in Legal Writing courses – that’s quite a lot for a Torts teacher or Contracts teacher to add on to the already difficult job of teaching the first year students Torts or Contracts.
(2) I am afraid that some doctrinal teachers would not be quite so diligent or proficient. What I fear is that some Torts teacher, for example (I teach Torts), will give one memo assignment, treat the grade on it as part of the course grade for Torts, turn over legal research training to the library staff or a teaching assistant, make very few comments on papers, hold no individual student conferences, merely pass back to the students a sample of an excellent paper, and spend most of her/his time on Torts.
(3) While Matasar advocates abolishing tenure for all teachers, it would be unthinkable to assume that the doctrinal teachers would nevertheless be freed from obligations to publish scholarly articles in order to keep their jobs, earn promotions, and obtain salary increases. Would these teachers really have time to devote to grading multiple legal writing assignments in the same way that most of us now do in our Legal Writing courses?
(4) Moreover, his premise is not correct. Legal Writing is not currently taught in a doctrinal vacuum. We all assign problems that involve interesting issues of legal doctrine. For example, students who work on an Informed Consent problem in first semester Legal Writing will learn that subject so much more deeply than they will in a one hour discussion in their Torts class, which will be based on one main case and a few note cases and a hypothetical posed by the teacher; for Legal Writing assignment, the student will have read perhaps twenty cases on the subject, with varying fact situations, and differing viewpoints, and seen the historical development of the applicable rules, and then had to apply their analysis and the courts’ reasoning to a new situation to predict the result, distinguish apparently contrary views,
I apologize if I sound like I am beating this horse to death. But I hope that more Legal Writing Professors can take an active interest in the course of the ABA Standards Review Committee’s hearings on whether to make the changes that Matasar and his friends are proposing. I know that ALWD ‘s Task Force is preparing a document to weigh in on the issues. CLEA and SALT and several individuals have filed statements as well. And I know this is a difficult time, getting ready for the oncoming semester. But my fear is that this Standards Review Committee process will speed up and there is a need for greater participation, if by nothing more than discussing the issues with your colleagues, legal writing or doctrinal, at your schools
Chicago Kent College of Law
Wednesday, August 4, 2010
Jamie Abrams at
“The First ‘Colonial Frontier’ Legal Writing Conference, held at Duquesne University School of Law, focused on Engendering Hope in the Legal Writing Classroom: Pedagogy, Curriculum, and Attitude. This conference built on the foundational work of Allison Martin and Kevin Rand in which these scholars call for educators to engender hope in law students to prepare them for practice. Martin and Rand conclude that hope is a predictor of students’ academic performance and psychological health during the first semester of law school and recommend that law professors ‘maintain and creat[e] hope in law students’ by embracing five core principles. Martin and Rand’s core principles recommend that law faculty ‘(A) help law students formulate appropriate goals, (B) increase law student’s autonomy, (C) model the learning process, (D) help law students understand grading as feedback rather than as pure evaluation, and (E) model and encourage agentic thinking.’ Martin and Rand’s work provides concrete recommendation on how to ‘engender hope’ in the legal writing classroom in particular.
“Martin and Rand’s frame for approaching legal education is both timely and responsive considering the rapidly evolving legal market and the ongoing calls for reform in legal education. As the Carnegie Report highlighted: ‘Critics of the legal profession, both from within and without, have pointed to a great profession suffering from varying degrees of confusion and demoralization. A reawakening of professional élan must include, in an important way, revitalizing legal preparation.’ Martin and
“This article uses Martin and
The AAUP is hosting a conference on shared governance, November 12-14, 2010, in
• corporatization and challenges to shared governance;
• principles, structures and effective best practices of shared governance;
• faculty governance, pedagogy, curriculum and curricular reorganization;
• the relationship of faculty governance to central administrations;
• motivating faculty to participate actively in governance structures;
• the role of tenured faculty, contingent faculty, junior or untenured faculty in shared governance;
• faculty participation in budgeting, financial exigency or strategic planning;
• shared governance and assessment, accountability and accreditation;
• governance and faculty hiring, promotion and tenure;
• faculty governance and collective bargaining or governing boards;
• shared governance and individual faculty or departments.
These are just suggestions to get you thinking; you are not limited to the listed topics. Send your one or two page proposal to Lenore Beaky, firstname.lastname@example.org, by the September 1st deadline.
Tuesday, August 3, 2010
Boldly eschewing the standard law journal format, Lorie Graham and Stephen McJohn, both professors at Suffolk U. Law School, have written "Thirty Two Short Stories About Intellectual Property".
In their own words, here's why they took the storytelling approach:
"In the United States, intellectual property law is usually viewed as serving economics, by providing an incentive for authors and inventors to create works. The incentive policy, however, ill fits the actual contours of intellectual property law and how artists and inventors use it. Adding other approaches offers a fuller explanation. Intellectual property plays a greater role than economic theory suggests in disclosing technology, and in serving to coordinate cultural values in technology. Intellectual property can serve human rights (similar to the moral rights approach in some jurisdictions), by allowing people to control the way that their works are publicly exploited, and by allowing groups (such as indigenous peoples) to implement rights of self-determination, education, and media.
"... In assessing doctrine and theory, deductive reasoning from economic or legal principles is no more important than literary tools, like interpretation and narrative. These points can be illustrated by some stories."
Monday, August 2, 2010
- On Friday, August 6, 2010, the committee will hold an open business meeting at 2:30 at the Grand Hyatt, Portrero, Theater Level.
- On Saturday, August 7, the committee will have a happy hour at 5:30 the Grandviews Lounge at the top floor of the Hyatt.
- And on Sunday, August 8, the committee will co-sponsor a CLE, "Voir Dire in Bits and Bytes," at 2:00 at the Moscone Center West, 2nd Floor, Room 2005.
The Southeastern Association of Law Schools (SEALS) is holding its 2010 Annual Conference at The Breakers in Palm Beach, Florida. On Sunday, one of the best-attended panels was “The Status of Legal Writing Faculty in the Academy.”
Stephanie Vaughan (Stetson University College of Law) served as moderator of the panel.
Dean Richard Matasar (New York Law School) began the panel by challenging the audience to change fundamental thinking on legal education. He urged a shift from the question of “what about me” to “what about our students” and suggested that the focus of the discussion on the future of legal education needs to shift to the needs of students.
Dean Matasar noted that law schools have a number of different models for teaching legal writing. After some of these models, he concluded that he was not interested in any particular format as much as actually delivering skills education to students. His mantra is the question: “what are we trying to do for our students?” He stated that the idea that we can treat research and writing as a separate course is not optimal and that the entire law school must embrace a shared responsibility for education (including skills education). He said that we need to challenge assumptions and challenge the separation of teaching research and writing from substantive learning.
He said that all professors should see themselves as members of a team and that we should examine “the degree to which we outsource [the teaching of legal writing] within our institutions.” He encouraged new thinking on a shared responsibility among all faculty and all of courses. He noted that advances in new technology allow us to do achieve greater integration of teaching and learning. Dean Matasar also emphasized that research and writing are not separate from the other skills needed. He noted that the recent proposal put forward by the Standards and Review Committee of the ABA Section of Legal Education had “been greeted with open-mouthed fear.” That proposal would not require schools to offer tenure.
Dean Matasar challenged the assumptions of privilege and said it should not be the case that “if we are mediocre we cannot be removed.” Returning to a focus on students, he noted that the cost of legal education is going up because faculty salaries constantly increase. He noted that only a handful of schools in the country now charge less than $10,000 a year in tuition, and that tuition at some schools can be as high as $39,000 a year, $43,000 a year, or even $50,000 a year. He noted that even in this economy, schools will cancel books before removing faculty. He wondered how that affected the education that students receive and that students deserve the best education they can receive. He said that his institution (New York Law School) had engaged in a multi-year discussion on how to improve legal education and that the institution’s primary objective was “to do right by our students.”
Linda Barris (University of Louisville, Louis D. Brandeis School of Law) described her experience teaching in capped legal writing programs, in long-term contract programs, and as a visiting professor of law. She described the challenges and pressures of having to teach an ever-increasing collection of skills, a situation compounded by the need to master and teach all of the latest technological developments. She explained that some schools handle this pressure to teach more skills by adding advanced level courses for research and writing, but noted that many schools simply dump additional requirements into the existing first-year legal writing curriculum. Additionally, these first-year classes have students who today need even more training in skills training and analysis, but there is no additional time or resources given to those classes. Professor Barris stated that the dumping of additional skills requirements has the greater impact on the group of professors who, because of their status within the academy, have the weakest job security.
He lamented a decline in basic writing skills of entering law school graduates and suggested that elementary and secondary schools have abdicated responsibilities to teach writing. He suggested that the legal academy should anticipate potential demand-side pressure for stronger writing programs. Law firms will demand stronger research and writing skills of graduates. Law firms need to earn a profit earlier from the work product of their associates and will insist that law school graduates have reliable credentials to demonstrate strong research and writing skills. He suggested that law firms may start using writing tests as part of the hiring process. (For example, a law firm could give a writing problem and a couple of cases to job applicants and ask them to write a memorandum under controlled situations that allow the firm to see the person’s actual writing skills.) He predicted that law firms will pressure law schools to do a better job of teaching legal writing.
Jane E. Cross (Nova Southeastern University Shepard Broad Law Center) presented data from the LWI Survey on Legal Writing Programs and showed an increase in the number of tenure-track programs in the legal academy. She noted, however, that outside the legal academy there is a trend away from increasing the number of tenured positions. She quoted the following statement from the Society of American Law Teachers (SALT) on the impact on faculty diversity, which identified a risk of creating a two-tier system within the academy:
Because those who already have tenure will likely retain it, the impact of removing a presumption of tenure-track hiring will fall primarily on new faculty. Because the legal academy remains insufficiently diverse, a change now will risk creating a two-tier system in which people of color may be disproportionately relegated to untenured positions, while the still predominantly white and male tenured professoriate will retain privileged positions.
She presented statistics on the ethnic diversity of legal writing professors and noted favorably the Diversity Initiative recently undertaken by the Legal Writing Institute. She referenced statistics from the Association of American Law Schools on the large number of minority women who want to enter the legal academy and noted relative difficulties that minority women experience in achieving tenure. She related this to the increasing number of minority students entering law school. She also quoted the 2000 preliminary report on Law School Faculty Views on Diversity in the Classroom and Law School Community:
Overall, the survey results show that law school faculty members value racial and ethnic diversity and believe that it is also valued by their law schools . . . . Faculty feel strongly that having both a diverse student and faculty population is important to the mission of law schools. Diversity is seen by faculty to have positive effects in the classroom, contributing to the educational experience of their students in a variety of ways. It is interesting that law faculty respondents felt that white students in particular, as well as the student population in general, benefit from diversity. Very few see any negative effects of diversity and there is little support for the assertion that diversity has lowered the quality of their law schools or the quality of students admitted to their schools.
Jane Cross’s mother opened the questioning. She was vice chancellor at CUNY and spoke about her experience in writing across the curriculum. When she tried to institute a similar program at another university where she was the university president, she recognized that not all of the professors were able to teach writing. Dean Matasar agreed that not all professors can teach writing but said that the entire faculty had to assume responsibility for writing.
Dean Matasar answered that without any competitive pressures to make changes, the legal academy will not improve legal education for students. He spoke against expanding positional privilege without giving back to the educational mission.
The questioning continued for a while until a dean from a school in Georgia said that the panel sounded like a labor union meeting and the topic had been discussed each year without advancing the discussion. Jane Cross and others took strong exception to that view and other professors in the audience pointed out that they did not fully realize how student perceptions of faculty status affected how students approach their legal writing classes.
Dean Matasar noted the monumental shift being proposed in legal education to measure outcomes rather than inputs. He concluded that merely dumping additional teaching responsibilities into the first year writing course was not an answer because “it would not improve the output.”
Legal writing professors and others who attended the session are invited to post additional comments about the program.
Mark E. Wojcik (mew)
The John Marshall Law School
Here's a reminder abou the Association of American Law Schools Section on Legal Writing, Reasoning and Research, which sponsors posters every year to be displayed at the AALS annual conference in January. These posters provide a great opportunity for authors to present their research or innovative teaching ideas in an informal manner.
The deadline for poster proposals for the 2011 AALS Annual Meeting in San Francisco is September 3, 2010. By this date you must submit a short description of the poster and an actual copy of the proposed poster. The submission guidelines are available on the AALS website by clicking here.
Hat tip to Samantha Moppett and members of AALS Poster Committee (Susan Chesler, Kendra Fershee, Lara Freed, Andrea Funk, Nancy Modesitt, Daphne O’Regan, Myra Orlen, and Amanda Smith).