Saturday, August 14, 2010
hat tip: Richard Cohen
Friday, August 13, 2010
Thursday, August 12, 2010
Earlier this summer, I was reading a weekly small town newspaper in New England. That town happens to have a cricket team that is doing very well in its league this summer. I read the newspaper’s account of the team’s latest success, in English, my first language, but I had no clue what the news report was talking about. The familiar syntax was there, most of the vocabulary was ordinary English, but the key words that described the action were meaningless to me. I might as well have been reading Jabberwocky. Or Pierson v. Post for the first time.
That’s when it struck me that this is exactly what it’s like to be a brand new 1L reading legal cases in the first week of law school. You can read the words that explain the procedural posture of a case, but you don’t know what they mean or what’s being described. You don’t know the context, the jargon, or the players. It’s just like me reading a news account of cricket.
To see what I mean, try googling "cricket news." Click on any link and read a few paragraphs. If you are training new legal writing professors or teaching assistants, you could create a simple exercise for them. Have them read a paragraph from a news report of a baseball game. Then have them read a paragraph from a news report of a cricket match. Then compare these two reading experiences to the first time they read Pierson v. Post. (Of course, if you are a legal writing professor in the U.S. who happens to know the game of cricket, you will need to pick a different sport.)
For other tips on creating an exercise to help teachers get back in the mind set of new 1Ls, see Being a Beginner Again: A Teacher Training Exercise, 10 Perspectives: Teaching Legal Research & Writing 87 (2002).
Wednesday, August 11, 2010
For those of you who want to see more scholarship on the use of narrative (not thinking of anyone in particular here, just sayin'), Mary Anne Becker (at DePaul) has helpful ideas in her new article on "What is Your Favorite Book?: Using Narrative to Teach Theme Development in Persuasive Writing". Here's how she sums it up:
"This article explores new theories in the area of narrative, applied storytelling, and literature as a means to teach persuasive writing. Students, even upper level ones, often cannot answer the question: 'Who cares what happens in this case?' While part of a student's perplexity as to how to apply the theory of the case arises from a lack of experience, part of it also arises from the fact that students are not able to identify with the client's story. Because good writers come from good readers, I developed a technique using students' favorite books in order to give them a concrete example of what constituted good writing and to help them answer the question of 'who cares.' This article analyzes the three points of view broadly presented in a narrative text and how this literary technique uses those three points of view to remedy the disparity between the abstract concepts of the theory of the case and its concrete application in a persuasive brief. By using students' descriptions of their favorite books to illustrate the underlying theme in something familiar to them, students implicitly identify the three points of view in a narrative text: the character's, the teller's, and the reader's. My article posits that these three points of view are necessary to understand and develop the theme of a brief, which makes them better able to transport a reader and control the outcome of their client's case. Further, this literary technique comports with constructivist learning theories because it is a means of connecting prior educational experiences with new ones to better teach new skills."
As time allows, we continue to bring you news of helpful scholarship. Kathy Stanchi (at Temple) explains how lawyers and law students alike can strengthen their persuasion in her new article on "The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader". Here's her abstract:
"While legal advocates have long understood that first impressions can strongly influence the decision-maker's view of their cases, so far legal scholars have not explored in any depth the growing body of research on the science of first impressions. This article remedies that by looking at the scientific studies of a psychological phenomenon called "priming." These studies reveal the subtle and surprising ways in which first impressions can be shaped to the legal advocate's advantage.
"Priming is a phenomenon through which a person's reaction to information is influenced by her exposure to prior material. For example, priming studies show that if a person reads about golf, her first thought will tend to be "golfer" if someone later mentions Tiger Woods to her. Her first thought is likely to be quite different if someone has previously spoken to her about marriage or adultery. Because priming can change a person's reaction to information by exposing her to different introductory material, it has significant implications for legal advocacy.
"This article examines the major studies on priming, with the goal of showing how legal advocates can use the lessons of the studies to make more persuasive arguments. The article also demonstrates how the psychological data on priming offer new and unique insights on how to use emotion in legal advocacy. Throughout the article, concrete examples show how legal advocates can use the science of priming to make strategic decisions. In sum, the article represents a first, serious step in studying this powerful tool that has potential application to all facets of legal advocacy."
Tuesday, August 10, 2010
In the range of skills we need to teach law students, they also need to know "Thinking Like a Librarian: Tips for Better Legal Research", as explained by author Richard Buckingham:
"When it comes to conducting legal research, being able to think like a lawyer is a good start. A researcher needs to be able to identify issues, read and analyze primary sources like cases and statutes, and determine which materials are relevant. But in order to find those primary sources, a good researcher needs to think not just like a lawyer, but also like a librarian; in particular, a law librarian.
"Law librarians make excellent legal researchers for two reasons: (1) their knowledge of general (non-law specific) research techniques, and (2) their knowledge of legal resources and law-related research tools. By applying traditional research techniques to the legal field, law librarians are able to research more efficiently and effectively.
"This article will offer four research tips for thinking like a librarian that will improve one’s legal research. Everyone in the legal profession – law students doing research for a paper or as a faculty research assistant, summer associates and new attorneys doing research for more senior attorneys, and law professors and seasoned attorneys researching for themselves – can benefit from the ideas covered in this article."
While the legal academy is busy patting itself on the back for the one positive result of the Carnegie Report, the finding that law schools do a good job of teaching 1Ls to "think like a lawyer," Doug Rush is not so sure. He's written a new article entitled: "If You Think Law Schools Teach Students to ‘Think Like a Lawyer’...Think Again!"
So, in his own words, here's his premise:
"Law school faculty and deans have been claiming for over 100 years that law schools teach students to 'think like lawyers.' The Socratic method of instruction using case law text books have been the accepted law school pedagogy in the core bar examination subject matter courses to teach students the 'think like a lawyer'' skills. However, there has been little or no empirical evidence to test whether attending law school improves students’ ability to 'think like a lawyer.' This paper reports two studies conducted at ABA accredited law schools which examined whether taking more of the 'think like a lawyer' bar courses improved students’ ability to pass state bar examinations.
"The findings of both studies indicate that taking more of the '“think like a lawyer' bar courses do not improve the bar passage rate for first, second or fourth quartile law students or for students who ranked in the bottom ten percent of their law school class after controlling for incoming Law School Admission Test (LSAT) scores and undergraduate grade point averages (UGPA). Taking more bar course resulted in a small improvement in bar examination passage for third quartile graduates but the effect was small (ή² = .014).
"The author concludes that law schools do not teach students to 'think like a lawyer.' Instead, students with pre-existing 'think like a lawyer' skills self-select to attend law schools. Law schools also pre-select law students with high 'think like a lawyer' skills using index scores which combine LSAT scores and UGPA."
Monday, August 9, 2010
For some insights into what our newest Supreme Court Justice did while at Harvard Law School, take a look at Kevin Washburn's new article on "Elena Kagan and the Miracle at Harvard".
Here's how he describes her impact as an academic administrator, in his abstract:
"For most of the past fifty years, attending Harvard Law School was a miserable experience. Though students were happy to obtain a Harvard degree, they regretted the great personal cost of earning it. Harvard Law School was widely viewed as irreparable because the obstacles to changing the culture of the hide-bound, ivy-covered walls of an elite law school seemed too great. Student anomie at Harvard appeared to be structural, an inevitable by-product of admitting more than 550 law students each year and pitting them in a three-year competition for grades, elite law review membership, and, ultimately, jobs in fancy law firms. While a handful of students reaped vast rewards, others were scarred for life. A person looking for a challenge could scarcely have found a greater one in the Harvard deanship.
"During Elena Kagan’s tenure as dean, a miracle occurred. Harvard Law School was transformed. Today, students embrace the institution. The professors engage with one another. And the school’s widely discussed dysfunctions are distant memories. Kagan accomplished this miracle by modeling two important and traditional American values: hard work and community. Kagan was known for walking the halls tirelessly to learn the views of her bright and independent colleagues and to seek consensus. She broke the gridlock between faculty political factions that had atrophied the academic life of the institution. Even more importantly, she transformed the student experience. This essay seeks to describe Kagan’s transformational leadership and provide insight as to the specific changes Kagan made to accomplish the miracle."
The Legal Research Series is a series of state-specific guides to legal research. Many legal writing professors are the authors of these books. Suzanne Rowe wrote the first book in the series and now serves as the series editor. The most recent additions to the series include North Carolina Legal Research by Scott Childs, Minnesota Legal Research by Suzanne Thorpe, Colorado Legal Research by Robert Michael Linz, Wisconsin Legal Research by Patricia Cervenka and Leslie Behroozi, and Massachusetts Legal Research by Joan Blum. Another seven books are in various stages of production, so all fifty states will be covered before too long.
Sunday, August 8, 2010
Santa Clara University School of Law is welcoming two new legal writing professors this fall. One is Courtney Huizar, a former clerk to Judge Walker. The other is Michael Flynn, formerly an adjunct at Hastings College of Law.
Two of Santa Clara’s previous legal writing professors have moved elsewhere: Jay Messenger to Willamette, and Rachel Smith to the University of Miami.
Good luck to all in your new digs!
hat tip: Stephen Smith