Legal Profession Blog

Theory and Practice in Contract Law Pedagogy

For those of you interested in how a longtime practitioner tries to dig into the theoretical basis of a legal education in contracts, I'm guest blogging this month over at The Faculty Lounge, and have offered up some thoughts on concepts and metaphors in contract law.   [Jeff Lipshaw]

The Future of the Legal Academy - Redux

Posted by Jeff Lipshaw

There's been a small outbreak in the blogosphere of the practitioner-professoriat wars, and I think we can trace this instance of virulence to a screed by someone named Bruce Newton dispassionately entitled Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.  I suspect our readership tends to the practitioner, so here's a set of links to the academic side of the house, including Paul Caron, Steve Bainbridge, Rick Garnett, Paul Horwitz, Jason Mazzone (HT Solum), Lawrence Solum on Jason Mazzone, Kristen Holmquist, Jonathan Adler, and the Anonymous Law Librarian.

Given as I am, generally, to skepticism about either-or positions, and partial as I am both to practical skills and to impractical scholarship (having done a lot of each), I stick by my dean speech from several weeks ago.  The Mazzone post, which went up today, returns to a theme I'm pretty sure Larry Solum has worked with over the last several years, the idea of a department of legal studies that is part of the university housing sciences and the humanities, requires a Ph.D. for entry, and is separate from the professional training schools.  Nevertheless, as I mentioned to Larry in an e-mail earlier today, the realpolitik of the situation is that the academic reputation of the school is largely the basis for its recruitment of high ability students, high ability students reinforce the academic reputation of the school, and there's a vicious or virtuous circle (depending on your point of view).  What that keeps saying to me is that there really is less "training" than meets the eye, and far more filtering of pure analytical ability, in the same way that college athletics filter pure athletic talent.  Other failure modes, like arrogance, poor judgment, poor social skills, etc., are more difficult to filter in school, and are "later-career" differentiators.  When I was hiring lawyers, both as the member of a committee in a big firm, and as a GC looking for more mature lawyers, the critical thing was talent, not particular skills.  And we (or I) filtered for the other failure modes.

And, notwithstanding the meltdown of the last couple years, the markets for lawyer talent have pretty much worked in that way, at least in Big Law.  Having said that, the markets (students and firms) now seem to be demanding skills training, although I find that evidence to be anecdotal more than compelling.  More importantly, all of us seem to be recognizing that the base level of legal training necessary to identify talented lawyers doesn't extend much beyond the traditional first year curriculum.  So there's a logical focus on revamping the second and third years.

I'm teaching first year contracts for the first time since the fall 2005 at Wake Forest, when I taught a doctrinal class for the first time (and barely knew what I was doing).  The reasons I'm a "stick to doctrine" skeptic for law school became apparent again to me as I confronted the unreality of most of the traditional contract law syllabus.  I started on an article about frames of reference, no doubt far too impractical to concern those focused merely on practical (or doctrinal competencies), but I've excerpted a motivating anecdote below the fold.

Continue reading

Kvelling*

Posted by Jeff Lipshaw

Over the course of a career, I've mentored enough people to be proud when they achieve good things after we've parted company, but I haven't been teaching long enough to get a lot of that yet from my law students.

One of my students (and my research assistant) at Tulane in 2006-07, Matthew Kirkham, is an assistant DA in Orleans Parish (New Orleans), Louisiana.  This story is about the successful prosecution of a guy who stole $500,000 by not providing contractor services to Katrina victims.  As reported, "Assistant District Attorneys Alex Calenda and Matt Kirkham handled the case."

* Per Merriam-Webster, "Yiddish kveln to be delighted, from Middle High German quellen to well, gush, swell."

Becoming a Law Professor: A Candidate's Guide

Posted by Jeff Lipshaw

Several years ago, I published a little essay about making the leap into tenure-track legal academia well after the time in which most long-standing faculty members would have expected one's theoretical and scholarly synapses to have burned away.  Simultaneously, Brannon Denning (Cumberland, left) and Marcia McCormick (St. Louis, right) were preparing a book manuscript on what it would take to become a law professor "the hard way," i.e., if you didn't have the usual elite law school-law review editor-Court of Appeals clerkship pedigree.  Brannon and Marcia invited me to join their project and it quickly turned into an all-purpose guide for aspiring law professors, accumulating much of the wisdom and lore that you can find in various places on the web.

Thanks primarily to Brannon's perseverance, we got the interest of ABA Book Publishing, and Becoming a Law Professor:  A Candidate's Guide will hit the streets in just a few weeks.  Rick Paszkiet, our editor at the ABA, has graciously allowed us to post the Table of Contents and the introductory chapter on SSRN.

Here's the abstract from SSRN:

This is the Table of Contents and the Introduction to a forthcoming book from the American Bar Association. The authors provide detailed advice and resources for aspiring law professors, including a description of the categories of law faculty (and what they do), possible paths to careers in the legal academy, and "how to" guides for filling out the AALS's Faculty Appointments Register, interviewing at the Faculty Recruitment Conference (the "meat market"), issues for non-traditional candidates, dealing with callbacks and job offers, and getting ready for the first semester on the job.

We have had a nice response from the pre-publication readers, and Larry Solum has contributed an insightful forward, which he has posted separately on SSRN:  The New Realities of the Legal Academy.  Here's Larry's abstract:

This short paper is the Foreword to Brannon P. Denning, Marcia L. McCormick, and Jeffrey M. Lipshaw, Becoming a Law Professor: A Candidate's Guide, American Bar Association, Forthcoming.

One of the great virtues of Denning, McCormick and Lipshaw’s guide is that it reflects the changing nature and new realities of the legal academy. Not so many years ago, entry into the elite legal academy was mostly a function of two things—credentials and connections. The ideal candidate graduated near the top of the class at a top-five law school, held an important editorial position on law review, clerked for a Supreme Court Justice, and practiced for a few years at an elite firm or government agency in New York or Washington. Credentials like these almost guaranteed a job at a very respectable law school, but the very best jobs went to those with connections—the few who were held in high esteem by the elite network of very successful legal academics and their friends in the bar and on the bench. The not-so-elite legal academy operated by a similar set of rules. Regional law schools were populated by a mix of graduates from elite schools and the top graduates of local schools, clerks of respected local judges, and alumni of elite law firms in the neighborhood. In what we now call the “bad old days,” it was very difficult indeed for someone to become a law professor without glowing credentials and the right connections.

But times have changed. When the Association of American Law School’s created the annual Faculty Recruitment Conference (or FRC) and the associated Faculty Appointments Register (or FAR), the landscape of the legal academy was forever changed. The change was slow in coming. For many years, candidates were selected for interviews at the FRC on the basis of the same old credentials and connections, but at some point (many would say the early 1980s), the rules of the game began to change. In baseball, a similar change is associated with Billy Beane, the manager of the Oakland Athletics, who defied conventional wisdom and built winning teams despite severe financial constraints by relying on statistically reliable predictors of success. The corresponding insight in the legal academy (developed by hiring committees at several law schools) was that the best predictor of success as a legal scholar was a record of publication. It turns out that law school grades, law review offices, and clerkships are at best very rough indicators of scholarly success. But those who successfully publish high quality legal scholarship are likely to continue to do so.

This foreword explores the implications of the new realities of the legal academy for candidates seeking to become law professors.

Take a peek at the SSRN teasers and look for the book!

Mercer Announces New Moot Court Competition in Legal Ethics

Announcing the First Annual Mercer Law School Moot Court Competition in Legal Ethics & Professionalism
 
Mercer University Walter F. George School of Law, home of the Mercer Center for Legal Ethics and Professionalism, will host the only national moot court competition focusing on legal ethics and professionalism.  The competition will take place November 12-13, 2010 at Mercer Law School in Macon, Georgia.
 
The competition will consist of the submission of an appellate brief, as well as several rounds of oral argument.  Rounds will begin on Friday November 12, with a reception Friday night at the Georgia Music Hall of Fame.  The competition will conclude with a final round late Saturday afternoon.
 
The competition rules will be posted by September 1, 2010.  The problem will be released on September 15, 2010, and briefs are due (by e-mail and postmark) by midnight on October 15, 2010. 
Early registration deadline is August 23, 2010.  Early registration is $300 for one team, or two teams may register for $500.  After August 23, registration will be $350 for one team and $600 for two teams.

[Alan Childress, from the AALS Section on PR listserv]

Holmes' The Common Law in Annotated form; summer reading before law school begins

Posted by Alan Childress

A brief follow-up to my post last week on The Common Law, in which I trashed current online and digital versions of the book for being poorly scanned and never proofread, incomplete and unusable. So I published a cheap one that is in fact the words Holmes wrote, mainly for Amazon Kindle and its free apps for iPad, PCs, Mac, BB, and smart phones. 

Now, I also published to Kindle (and also ePub for Nook and Apple, a Sony one, and active PDF and simple rtf formats for just computers without apps, all at Smashwords) a much-expanded version, annotated, which includes some 200 of my notes inserted to explain what Holmes meant and underlying legal terms he uses. There is a need for noted-and-demystified versions of many old but still-great books in law, philosophy, and social sciences, and so I welcome manuscript ideas a reader may have. For example, I know Jeff could take some great work by Kant and insert his decoding notes into it, and Patrick S. O'Donnell could do the same for other works of classic philosophy and religion (yes, P, we'd do it in paperback too and kill trees). Mainly this involved my sharing with a reader what I already knew but would be foreign to college students and 1Ls. In the case of Holmes, sometimes that was just translating his words from older dialect that I recognized from growing up with old Southern people!  You see annotated Shakespeare and Cervantes, so I welcome proposals for the same in law, etc.

This is also a follow-up to the post we had a couple years back , The Summer Before Law School?, on good books to read the summer between college and the start of 1L. Lots of school websites and others have such lists, including a really extensive and insightful one by Tulane's Susan Krinsky to incoming law students, which includes fun fiction: Download ReadingList2008.

To the extent such lists do not include The Common Law, even though it's one of the best law books ever and Holmes surveys the field of basic 1L classes like crim, torts, and contracts (still great on consideration, on versions of crim and tortious intent, and on the reasonable person test), I think it is because the work is considered a tough read. It uses dated language plus some Latin and even Greek, while assuming a familiarity with legal concepts that 1L readers would not yet have (e.g., what's "an action in case"? a law-bound student would wonder).  I hope that I have decoded it and accessibilized it for that use, and for others in college and law school classes, as the book is actually very helpful and understandable to a wide audience if there are just some little insertions and pointers along the way.  The annotated edition is cheap, too, and includes simple PDF and online versions.

UPDATE: Since this site is linking all the front matter and into chapter one as a free sample, have at it. It includes my foreword and the bio of Holmes, his extensive plan for the book, and three of my annotations in ch. 1 so you can see what they do for it. 

Also now out at Smashwords are three great books I have brought back from paperback purgatory to go ebook:  Jerold Auerbach, Jacob's Voices: Reflections of a Wandering American Jew; Joel Handler, Law and the Search for Community; Kitty Calavita, Inside the State: The Bracero Program, Immigration and the INS.  These will be on Amazon by next week. UPDATE 2: They are now on Amazon and links are Auerbach . . . Calavita . . . Handler.  See also Lisa Webley and her Dissertation on legal profession in UK in divorce cases, at Amazon and Smashy.

It Is, Sir, As I Have Said, A Small College...

The New Hampshire Supreme Court affirmed the grant of summary judgment to the trustees of Dartmouth College in a breach of contact dispute brought by a tenured faculty member in the theater department. The department had been placed in "receivership" because of the "contentious atmosphere within the department." A confidential letter suggested that the professor was a "corrosive influence." The professor was offered an early retirement package and a change in teaching assignment. She then filed an EEOC complaint, which was dismissed.

Here, the court agreed with the trial court that the professor's reassignment in duties was not a "major change" in employment and not a disciplinary action that triggered procedural rights. The professor had been neither terminated nor placed on involuntary leave. Rather, she had been assigned to teach writing courses.

The First Circuit affirmed the dismissal of the EEOC claim.

Here's a post on the dispute from the Dartmouth Review. Their take on the situation in January 2006:

Perhaps most stunning, however, is the disdain that both Prof. Sabinson and the administration share for the First-Year Writing Program. Sabinson, who herself is the first to admit that “I am not an expository writer and cannot competently teach the First-Year Writing Seminars,” was forced in 2005 to accept a course-load of three writing seminars for this academic year. Sabinson regards the writing seminars as “harassment” that were designed to “humiliate” her—hardly the way one would expect a member of the faculty to approach one of Dartmouth’s most important tasks, that of teaching undergraduates basic writing skills. Moreover, she is by no means the only one with such an opinion. More grave, though, is the fact that writing seminar assignments are fobbed off on professors who adamantly maintain that they are not capable of teaching them. The administration’s action towards Mara Sabinson shows nothing less than a callous disregard for the writing program, furthering the already-existing impression among many faculty members: that writing classes are a pain to teach and detrimental to professional advancement.

And at the same time that Parkhurst is playing politics with First-Year Writing seminars, the Departmental Editing Program has fallen by the wayside. Created by the always-querulous Joe Asch ’79 in 2002, the DEP provided a common-sense solution to Dartmouth’s writing program: hiring professionals (mainly former high school English teachers) for each department who have knowledge of its unique needs and writing style and are solely dedicated to improving student prose. Asch himself funded the editors as a pilot program for four years, to rave reviews from students and faculty alike. But now the administration has told him thanks, but no thanks—they have no desire to fund the editors themselves; they’ve got the Student Center for Research Writing, and Information Technology (RWiT) already. Never mind that RWiT’s method of student writing tutors suffered a “scathing” outside review by professors from other Ivy League professors in 2002. The administration’s writing program policy thus boils down to forcing professors who don’t know writing to teach it, while turning away talented editors who do want to teach writing. And they wonder why student prose is so tortuous?

The root problem of much of the Sabinson case, as it is for so many other problems at the College (chief among them the recent budget imbroglios), is the administration’s culture of secrecy. A certain amount of secrecy obviously needs to be preserved in the administration’s decisions—tenure decisions, for instance, are best kept under wraps. But simple matters like student complaints about professors, dissatisfaction with teaching styles, and the determination of how writing at the College will be taught can and should be made in the open. If administrators spent a little more time explaining their decision-making processes to the public, they might save themselves a lot of future embarrassment and lawsuits.

(Mike Frisch)

Camille Nelson Appointed Dean of Suffolk University Law School

Posted by Jeff Lipshaw

Camille Nelson is our new dean.  Here's President David Sargent's message to the law school community:

I am pleased to announce the appointment of distinguished legal scholar Camille A. Nelson as the 12th dean of Suffolk University Law School. She will come to us Sept. 1 from Hofstra University School of Law, where she has been a professor of law.
 
Professor Nelson joins us in sharing a longstanding conviction that the potential for excellence is unlocked when doors are opened to people of ability from all backgrounds and circumstances, and I am confident that she will continue Suffolk University Law School’s mission of opportunity.
 
She is committed to public service and the pursuit of social justice, and we expect that the Law School will flourish through her energy, collaborative leadership style, and vision.
 
Her appointment follows a nationwide search and strong faculty support.
 
Since September 2009, Nelson has been a faculty member and Professor of Law at Hofstra University School of Law, where courses she taught included Comparative Criminal Law and Transnational Law.  Before joining Hofstra, she served as a visiting professor at Washington University in Saint Louis School of Law, where she became the Dean’s Distinguished Scholar in Residence. From 2000 to 2009, she was a Professor of Law at Saint Louis University School of Law, where she taught Contracts, Criminal Law, Critical Race Theory, Legal Profession, and Sports Law Ethics.
 
Following her undergraduate education at the University of Toronto, Nelson received her law degree from the University of Ottawa Faculty of Law and went on to receive a Master of Laws from Columbia Law School in New York. She clerked for Justice Frank Iacobucci of the Supreme Court of Canada and then worked as an associate at McCarthy Tetrault in Toronto, the largest law firm in Canada.
 
Nelson is widely recognized for her writings and lectures, which have focused on the intersection of critical race theory and cultural studies. Her writings are respected for both their insights and creativity. Nelson has published nearly two dozen journal and law review articles, including articles in the Iowa Law Review, the Yale Journal of Law & Feminism, the Southern California Interdisciplinary Law Journal, the University of Florida Journal of Law and Public Policy, and the Wisconsin Law Review.
 
As a gifted teacher, Nelson was named Faculty Member of the Year at Saint Louis University School of Law in 2004. In 2006, she received the university-wide Faculty Excellence Award from Saint Louis University. Nelson was honored with an Extraordinary Service Award from the National People of Color Legal Scholarship Conference at George Washington University School of Law in 2004. In 2005, she received the Derrick A. Bell Jr. Faculty Award from the Association of American Law Schools, Section on Minority Groups, for her activism, mentoring, colleagueship, teaching, and scholarship. In 2010 she was elected to the American Law Institute.
 
I look forward to your joining me in welcoming her as she joins the Suffolk community in September.
 
David J. Sargent

My "Dean Speech" on the Future of the Legal Academy

Posted by Jeff Lipshaw

The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students.  I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here.  I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.

How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.

1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.

2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?

My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).

Final Final Jeopardy

[I enjoyed reading Shubha Ghosh's trip in TV Land, and it looks like a lot of other blogs or forums pointed their way to his posts; here is his Epilogue.--Alan]

The recent Jeopardy posts may have come across as somewhat of a light hearted lark. But in my desire to show rather than tell, some of the parallels between games shows and legal education and legal profession may have come across as elliptical. The lottery mentality of games shows, the organization of economic power in terms of managers, workers, and contestants, and the implied promise of the contests do parallel, in my view, how legal education and legal process are structured. My emphases and perspectives in the posts were meant to draw out these parallels without being too obvious or strident.

At the risk now of being strident, I have to say that the experiences on the game show (and some of the aftermath) reminded me of what our students go through as they quest for the right answer in order to get whatever rewards the profession has to offer and what many clients, whether well-healed or, more often, not, progress through in the quest for justice. To look for these points in a game show may seem misguided, but the larger point of the posts is to show that the tournament for reward and justice has common roots with other parts of our culture and society.

Finally, to end this commentary on a game show note, during the taping, one of my contestants had toured the set for the show "Wheel of Fortune" and told me how surprisingly small the wheel was when compared to how it appeared on television. I pointed out that the Wheel has to be just large enough to allow the average American to spin it. Constraints of practicality, which often mask those of power, define market society and the legal profession that services it.

Update on Bill Threatening La. Student Clinics: SALT Weighs In

Posted by Alan Childress

[The Society of American Law Teachers has a list of past presidents and board members that reads like a who's who of the law prof world. A letter sent to Dean Griffin of Tulane today, by its presidents, Profs. Raquel Aldana and Steven Bender, reads in its body as follows --ed.]

Since 1974, the Society of American Law Teachers (SALT) has been an independent organization of law teachers, deans, law librarians, and legal education professionals working to make the profession more inclusive, to enhance the quality of legal education, and to extend the power of legal representation to under-represented individuals and communities. We write to you on behalf of SALT to express SALT’s opposition to SB 549, which undermines academic freedom and interferes with an essential public service provided by the clinical programs at the four Louisiana law schools. SB 549 threatens to prevent law school clinics from meeting their professional obligation to expand access to justice for their clients by seriously limiting the types of representation they can undertake.

SALT is particularly concerned with Section 2 of SB 549. Section 2 of the bill prohibits law clinics from filing any action against a government agency or filing a suit for monetary damages against any individual or business. It also prohibits law clinics from raising challenges to the Louisiana constitution.

These prohibitions would eliminate law student representation of clients in most civil law actions. Should this bill become law, future Louisiana lawyers would suffer from the lack of litigation skills training necessary to the effective practice of law, and clients would suffer from not having access to lawyers to take their cases through the justice system using the most relevant legal theories available. Legal representation without the ability to pursue applicable claims does not constitute meaningful representation for either the students trying to learn or the clients which they serve.

Furthermore, our system of checks and balances, a necessary component of good government, values the ability of lawyers to challenge governmental action – this right is protected in the federal and Louisiana constitutions and statutes. Law clinic clients should be guaranteed the same constitutional and statutory rights as everyone else in Louisiana.  . . .

The importance of the ethical principle at the heart of the legal profession, the duty to represent those who otherwise would not have access to justice, is a core value that students are taught in the classroom, but often experience and internalize only in their representation of clients in a clinic. ...

[The rest of the letter, a powerful one, follows in full by pdf: Download SALT Letter]

"A Serious Blow to Legal Education": La. to Effectively End Clinics? (Or Dialysis Patients Will Suffer?!)

Posted by Alan Childress

Law School clinics in several states, notably in Maryland and Louisiana now, are under fire.  Real people may be hurt beyond imagination -- from indigent clients and neighborhood assocations to law students and ordinary medical patients (the latter because the pending La. bill would cut off funding for their treatments at Tulane).  Here is the story by Nick Marinello at Tulane about a pending bill in La. which would effectively kill most clinics at our four law schools.

A pending bill in the Louisiana Legislature that would restrict the roles of university law clinics could "deal a serious blow to legal education in our state," according to a letter written by law school deans from Tulane and Loyola universities to members of the state senate. In that letter, Tulane Law School interim dean Stephen Griffin and Loyola University Law School dean Brian Bromberger describe the essential role of clinical legal education and decry the chilling effect that the bill would have on university law clinics.  

The bill purports to regulate legal clinics but would in fact cripple them, write Griffin and Bromberger.  
Senate Bill 549 by Sen. Robert Adley, R-Benton, would prohibit law clinics at any state or private university that receives state funding from suing government agencies. In addition, the bill would forbid clinics from suing individuals and businesses for financial damages and curtail the ability to raise constitutional challenges.  

As stipulated in the bill, any violation of the law will "result in the forfeiture of all state funding to the university for that fiscal year."  

In an interview, Griffin said that he believes the restrictive language of the bill is targeting a particular clinic. "Although the bill is aimed at the Environmental Law Clinic, the target it actually hits is far more broad and affects nearly all of our clinics negatively, which would severely hurt our curriculum and our ability to serve the community by providing access to justice."  

Along with the Environmental Law Clinic, Tulane Law School operates clinics representing indigent clients in civil litigation, criminal law, domestic violence, juvenile law and legislative and administrative advocacy.  

According to Griffin, SB 549's prohibition of suing the government and restriction on raising constitutional issues would have a profound and negative impact on the attorney-client relationship.  "You can't say, 'yes I'll represent you but, by the way, I can't make an argument based on a state constitutional challenge'," said Griffin.  

The legislation also calls for all university law clinics to be subject to oversight by the House Committee on Commerce and the Senate Committee on Commerce, Consumer Protection and International Affairs. Currently, the Louisiana Supreme Court supervises law clinics.  

"Clinics have always been supervised by the courts," said Griffin. "They operate under the strictest limitations in the country. More regulation is simply unnecessary."  

Currently the bill is under review before the Senate Commerce Committee. Griffin encourages anyone interested in the welfare of clinical legal education to contact members of the committee to voice their concern.

The law deans' letter appears here [Download Deansletter].  Contact info for the Committee, in case you can share your view. What a sad way to celebrate the second week of JazzFest:  resisting a bill that may be targeted by petrochemical industries at our environmental clinic -- this, ironically, while the fishing industry tries to salvage its shrimp bed from oil -- but really will end one of the best things about legal education and about Loyola and Tulane.  Have they no shame?  And will this effort stop at La. and Md.?

Update:  letter from SALT opposing bill, here.

Joint Report Recommends Changes to Legal Education for Practice and CLE Training

Posted by Alan Childress

From a press release this morning:

Recommendations for improving the training of lawyers to meet the challenges of the 21st century were explored at Equipping Our Lawyers: Law School Education, Continuing Legal Education, and Legal Practice in the 21st Century, a summit organized by ALI-ABA Continuing Professional Education and the Association for Continuing Legal Education (ACLEA) in October of last year.

The summit examined the entire spectrum of lawyer training and development, and recommended ways in which all constituencies within the profession can improve their cooperation toward the goal of a competent bar.  ALI-ABA and ACLEA have now released the Final Report containing recommendations that emerged from the summit. [or: Download Finalreport] Among the final recommendations are: 

-- Develop model core practice competencies keyed to each level of a lawyer’s professional career.
 
-- Design and share transitional training programs in legal practice skills starting in law school and continuing through at least the first two years of practice.

-- Consider reformulating bar examinations to include phased examination, linked in part to attainment of legal practice skills, with some parts as early as in the law school years.

-- Accredit in-house continuing legal education programming similarly to that produced by other CLE providers.

-- Develop appropriate accreditation standards for all varieties of distance learning CLE.

-- Expand law school and CLE programming to prepare and encourage law students and lawyers to represent underserved communities.

Can a Discussion of Contract Theory Up Front Allay the Usual First-Year Angst About Consideration (and Everything Else)?

Posted by Jeff Lipshaw

After a fair amount of writing on contract theory, I've been assigned to teach contracts next year (for the first time since I taught the first semester of the full year offering at Wake Forest in 2005).  I have been fiddling with the essay that follows, and asking myself whether its attempt to allay first year angst, and particularly that angst that seems to appear just after the second or third case on consideration, might actually allay angst. I invite comments.

Welcome to law school and to the year we will spend together learning contract law.
 
The law of contracts falls under the general category of "private law," meaning that agencies of the government (courts, legislatures, etc.) do not necessarily set rules for legal or illegal conduct (as, say, in criminal or environmental or civil rights law), but instead enforce the obligations of individual parties to each other.  Tort law deals with non-voluntary obligations - the private rights of one party to seek recompense from another for a relationship that it's likely neither party ever wanted.  Our relationship in a tort case, for example, arises from the fact that you hit me with your automobile, or the product you manufactured and sold to me was dangerously defective.  Intentional torts aside, normally when there's an injury giving rise to a tort claim, we didn't mean for it to happen.
 
Contract law deals with enforcing the rights of the voluntary agreements of private parties.  It is a subject with which many law students struggle.  The subject matter is probably unlike almost anything you have studied; the classic "Socratic" method of teaching (remember Kingsfield in The Paper Chase taught contract law) can be disorienting; and there is a certain unreality to the whole enterprise.  I'm going to tell you here why I think that's so, and I will repeat it when we get together for the first time.
 
The approach to the study of law through the reading of assembled cases, still the predominant method of instruction, and particularly in the first year, is something invented at Harvard by C.C. Langdell in the late 1800s.  The teaching through cases, however, was about something more than instruction.  The view of the great pioneers, Langdell and Samuel Williston, for example, was that law could be approached as a science - that the underlying principles of the law existed "out there" and could be discerned, as a botanist discerns the structure of a plant, by examination of the raw material, namely, judge's opinions.  But think about what that means.  We're pretty sure, in the physical sciences, there is indeed a coherent and regular structure waiting to be discovered.  We are probably less sure about that in the social sciences. Whether it's true about "the law" is, in my mind, very much an open question.
 
Nevertheless, we still tend to teach subjects in the law in the way Langdell and others envisioned it:  that there is a coherent structure out there waiting to be found.   Moreover, our hope is that coherent structure is correct, that it leads to the right or just results.  So the traditional course in contract law is to proceed through a series of cases that reveal to us how the law sees the formation, enforceability, execution, interpretation, breach, and recompense regarding private agreements. 
 

But there's a troubling paradox in that presumption of coherent structure.  As one noted contract law scholar has observed:  "participants within the legal system use private law as an instrumentality to their subjective ends, while scholars try, objectively, to make sense of it as a system. Put another way, how can the legal result in a particular dispute be discoverable as a truth statement and, hence, constitutive of an objectively correct result, when parties themselves approach the law not as a matter of truth but as argumentation in favor of their preferred outcome."  We'll explore this idea over the course of the year, but I think it's key to the usual "lost at sea" feeling that first year students have about the law generally, and about contract law specifically. 

[UPDATE:  I'm persuaded by a number of the comments, here and offline, to tone down the angst aspect.  Jeremy Telman has an alternative and thoughtful pedagogical approach over at Contracts Prof Blog - suggesting he benefits from not having a "systematic" approach to contract theory.  As I mentioned to Jeremy in an e-mail, my systematic theory (if you call it that) is that you really can't find a systematic theory within the doctrine.   But the way the doctrine itself is presented presumes a systematic theory.  That's the real dilemma.  Anyway, the essay continues after the break.]

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Kazakhstan Law School Seeks Dean

Posted by Jeff Lipshaw

The School of Law of the Kazakhstan Institute of Management, Economics, and Strategic Research in Almaty, the major commercial center of Kazakhstan, is looking for a dean.  Here's the job description (from AcademicKeys.com):

The Kazakhstan Institute of Management, Economics and Strategic Research (KIMEP) is a rapidly growing, dynamic higher education institution, offering American style, credit-based programs in business administration, social sciences and international law. KIMEP is located in Almaty, an attractive and cosmopolitan city, with 1.2 million residents, located in the foothills of the Tian Shan mountain range. The Institute currently enrolls about 4,300 students in degree programs. All degree programs are taught in English.

KIMEP is accepting applications for the position of Dean of the School of Law (SL).

Currently, the Law Program is housed in the Bang College of Business, offering an LLM, a minor in Law and undergraduate courses. The creation of an independent Law School is being planned, with both undergraduate and expanded graduate programs.

The Dean of SL is the School's administrative and academic head. Reporting to the Vice-President of Academic Affairs (VPAA), the Dean will exercise vision, ethical leadership and advocacy in curriculum matters of the School, placing emphasis on quality assurance and continuing development of the finest educational program possible. As key responsibilities and duties, the Dean of SL shall:

•Manage fiscal and personnel resources of the School and recruitment, evaluation and retention of well qualified faculty and staff;

•Curriculum planning and development;

•Promotion, publicity and student recruitment;

•Manage the School’s faculty, including hiring, promotion, arrangement of leaves, salary determination, assignment of academic and administrative duties and resolution of grievances and disciplinary problems;

•Prepare and submit the School's annual budget and other relevant reports;

•Serve as Chair of the School Academic Committee and facilitate the work of other School committees; •Serve as a member of the Deans’ Committee and KIMEP Executive Committee;

•Represent the School in KIMEP-wide events and to external constituencies;

•Teach one course (3 credits) in each of the Fall and Spring semesters; and,

•Other duties, as assigned by VPAA.

Qualifications: Doctoral degree in Jurisprudence/Law; a clear educational vision for an effective, rigorous, comprehensive Law program, following American models; administrative experience, preferably at Chair or Dean level, at an institution of higher education; experience in curriculum development and review; excellent negotiation, communication, organization and leadership skills; and, fluency in English.

Applications will be accepted until the position is filled. Salary is negotiable.

To apply, please send, via e-mail, a letter of interest, curriculum vitae and contact information, including e-mail addresses of three references, to: [email protected]

We like to be a full service blog, so if you are interested, here's a link to the Cores real estate agency in Almaty, if you might be looking to rent.  If you'd be looking to buy, we suggest Almaty Real Estate.  And here's Air Astana, the national airline of Kazakhstan.

Bernstein on Pervasive Teaching of Professional Responsibility (Torts Version)

Posted by Jeff Lipshaw

Anita Bernstein (Brooklyn, left) is a guest blogger over at our sister Torts Prof Blog and has an interesting take on whether and how to mix professional responsibility into the torts class. (HT:  Sheila Scheuerman)

Utah Grants Waiver Of ABA-Accreditation Requirement

The Utah Supreme Court recently granted a petition for extraordinary relief and allowed waiver of the requirement that the petitioner have graduated from an ABA-accredited law school in order to sit for the bar examination. The petitioner graduated from Western State University which, at the time of his graduation, was accredited by the California State Bar but not the ABA. He was told by the Utah Bar that he would be allowed to sit for the bar exam if he was admitted in California and practiced there for at least five years.

 Petitioner was authorized to sit for the Utah bar in 1988 but did not show up for the exam. In 2008, he moved to Provo to care for his ailing mother. When he reapplied to take the exam, he was advised he was ineligible due to the ABA problem. He filed the petition for extraordinary relief rather than appeal the Bar's decision.

The court here granted the waiver, noting that it "has no desire to encourage a flood of individualized waiver petitions...where an attorney had actively practiced law, without blemish, for nearly thirty years and comes highly recommended by judges, clients, and fellow attorneys, waiver of the ABA-accreditation requirement is appropriate." The court also referred the issue to the Bar and the court's rules committee to consider changes to give the Bar authority to waive the requirement in the future subject to discretionary court review.

A good result that does not mindlessly follow procedural rules but rather does the right thing. (Mike Frisch)

Would-Be Iowa Law Prof Litigant Responds

Posted by Jeff Lipshaw

Back in August, the ABA Journal ran a story on a Michigan lawyer and academic aspirant, Donald Dobkin, who was suing the University of Iowa Law School on an age discrimination theory.  Usha Rodrigues commented over at The Conglomerate, and I opined as well, generating some debate about whether he had alleged the basis of a good claim.  Mr. Dobkin has responded in a comment to the August post, and I thought it deserved not being buried back in the comments.

First, some context.  As I read the reports, this is an age discrimination claim.  Here were some of my comments back then:

Much as I think it's questionable policy, it doesn't take much to overcome the initial prima facie burden in an age case. You show you are over forty, you applied for the job, you were qualified, you were denied, and somebody under 40 got the job. But to eliminate the prima facie inference, all Iowa would have to do is satisfy a burden of production (not the burden of proof) to articulate a legitimate, non-discriminatory reason for the decision. At that point the claimant continues only by showing (through his or her burden of proof) that the stated reason(s) was a pretext (or cover up) for discrimination. The claimant has to prove two things: that the respondent’s proffered reason is false AND that the real reason for the respondent’s challenged action was discrimination or conduct otherwise prohibited by the ADEA. According to one of the news releases I saw, the complaint is based on his response to the posting in the AALS Placement Bulletin. I don't know which one, but it happens that the AALS posts a sample placement bulletin on its website, this from 2006, and it happens that Iowa had an ad in that issue that is very typical of these kinds of ads: "Consideration of any applicant for a faculty position may depend upon the current curricular needs of the College. Although considerable flexibility exists with respect to courses and other assignments, we are particularly interested in hiring people with interest or expertise in administrative law, business law, constitutional law, criminal law, disability/health law, immigration, intellectual property, law and economics, property, regulated industries, and taxation." Apropos of my comment about naivete, that's the classic laundry list, probably reflecting a myriad of conflicting views within the faculty about the school's top hiring priorities. As applicants and faculty members know, that's often not sorted out until the last debate among the whole faculty, and is one of the reasons I suggest in the "Retire and Teach" article that you not assume anything until you actually have a call from the dean extending you an offer.

Here's Mr. Dobkin's comment, posted this morning (the text, as well as the metadata on the post, satisfy me that it really is Mr. Dobkin!):

Now having read all of the posts from this blog as well as many others it is readily apparent how one sided the comments are from members of the academy and just how insular the entire community appears. The posts reflect several errors which I shall note as follows. First, I can assure all that I am not naive. I spent 5 years at this academic endeavor since retiring from active practice. I published 5 law review articles in less than four years. I am halfway through a significant book on the US immigration mess. I presented papers several times at scholarly meetings. I spent a year at Johns Hopkins in the graduate program in PoliSci only to be told that it was a waste of time since nobody would hire a 60 year old. I am a graduate of a mega-elite law school, Northwestern, in case no one has noticed. I am a member of the Martindale Bar Register of Preeminent Attorneys (which I assume counts for nothing with all of you). I registered 4 years in a row with the FAR and never got an interview. I applied for visiting professorships and was rejected. My conclusion after going through all of the above is that unless one meets the academy's gold standard profile, as I call it, i.e. Harvard, Yale, Stanford J.D., Sp. Ct. clerkship and 1-3 years with the Justice Dept. your chances of becoming a law professor counts are slim. Long experience and knowledge as an accomplished professional counts for nothing in the hiring process. Quite amazing given the fact that law professors are given the awesome responsibility of preparing law students to become future lawyers. Accordingly, I concluded that I could not get a fair shot at landing a position under the paradigm currently utilized by the academy and that I needed to shift the playing field to one where I would have a chance, i.e the courtroom.

Assuming we can get to a jury, Iowa has a problem, because at the end of the day we will turn the trial into a question of who is more competent to teach immigration and administrative law. Is it the two younglings who had no practice experience in the field, had no or few publications in either field or myself--a candidate with 7000 cases under his belt, a graduate degree in law from an elite school, and more publications in the field than both candidates combined? Can you imagine a prospective juror, let's say a plumber from Iowa working 6 days a week to put his son through law school listening to all of this. Who do you think he is going to favor to teach his son to become a future lawyer--someone with mega practice experience and the scholarly credentials to boot--or the two neophytes who were offered the position?

Some comments below the break.

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AALS Section on Professional Responsibility Issues Newsletter

Packed with info and announcements, and just in time for the holidays, is the latest newsletter [fall 2009 edition] from the section on Professional Responsibility of the AALS.  Thanks again to editor Randy Lee and section chair Laurel Terry for allowing us to link it here for your review.  It includes useful updates from Roy Simon and others, and tributes to the late Fred Zacharias.  Available at: Download AALS Newsletter   [Alan Childress]

What is "Soft Socratic" Teaching?

Posted by Jeff Lipshaw

Jacqueline Lipton over at The Faculty Lounge observed that the self-described teaching style au courant in FRC interviews these days is something called "soft Socratic."  Here's Jacqueline's description:  "When asked about their 'teaching style', candidates invariably answer 'soft Socratic'.  In other words, they like to create a welcoming atmosphere in the classroom where students feel free to participate, but also be sufficiently rigorous in calling on students to ensure that everyone is prepared."  Others have chimed in, including Ilya Somin at Volokh Conspiracy, Dave Hoffman at Concurring Opinions, Steve Bainbridge, and my co-author, Larry Ribstein, (the latter three all in the context of teaching corporations, and with PowerPoint, and the last with a plug for an excellent unincorporated business entities casebook.)

I've converted to what I think is "soft PowerPoint," which I define as projecting those things that I know I would have put on the whiteboard anyway - the class outline and schematics of the cases, for example.  I've even adopted the "sidebar" outline approach now seen on ESPN SportsCenter.  This is a concession to my innate randomness.  When I started at Wake Forest in 2005, I imported the wholly non-visual style of my own teachers from the second half of the Seventies.  I moved to having non-PowerPoint "class outlines" (formatted in Word, and posted on TWEN) so that the students would have a sense where we were in the material, and now, to some extent, keep that scrolling on the left side of the schematics or bit of statutory language that may be on a slide at any given time.

But I'm still not sure what "soft Socratic" is, as opposed to my style, which I would call "interrogative lecture," something I think falls between whatever soft Socratic is, and the incredibly annoying "anyone? anyone?" style of Ben Stein in Ferris Bueller's Day Off. I distinguish this from true lecture, which I think of as non-interrogative or non-interactive, and the best of which have wonderful narrative structure, a beginning, a middle, and an end, with a pace and an organization that bring you along from one place of shared knowledge to another of greater understanding.

I think there are two aspects of classroom manner that make the teaching Socratic of any kind.  First, the teacher calls on students (rather than relying on volunteers).  The method of calling, and the amount of warning (e.g. panels, going in alphabetical order, working across the seating chart) don't matter - if you call on students other than volunteers, it's Socratic.  Second, whether or not, it's "soft," there's a certain amount of squirm that the teacher is willing to allow the student to endure.  It may be a nanosecond of squirm, or it may be an extended squirm, but there's squirm.  In my view, there's a third element to traditional "hard" Socratic method, but I'm not inclined to make it a sine qua non, because it usually disappears in "soft Socratic":  the progression of questions from the statement of the facts of the case, through the court's holding, to a series of increasingly minor variations in the fact pattern, to the point at which the viability of the rule of law announced in the case, at least as a matter of analogical reasoning, falls away.  The primary pedagogical purpose is to impart the understanding that in the common law the court's holding and the facts are inextricably linked, and to test the power of the analogy that supposedly connects the thread of the law as it progresses from case to case.  (I take no position in this blog post as to whether that's a load of hooey, but I will say that the notion of a case being "on all fours" depends on precisely this relationship.  Moreover, if you think about the "law" being taught, say in 1910, which I'm positive was overwhelmingly case law versus statutory interpretation or any kind of "law and..." (even at "elite" schools), it's not surprising that it might well have worked!)

As I said, I wouldn't call what I do soft Socratic, because over the past several years in upper level courses (the only ones I teach presently), I have gradually eliminated, in roughly this order: (i) cold-calling; (ii) "on-call panels"; (iii) calling on people at all; and (iv) finally, the seating chart (in favor of name cards).  (I'm teaching contracts next year, so I'm considering all of this for its application to the first year, or at least the first semester.)  Nevertheless, I still pounce around in moderately manic style, often posing rhetorical or not so rhetorical questions, and often staring with puppy dog eyes at a student or two, begging for an answer if for no other reason than to remind me I'm not talking to the wall.  I have a hard time calling that a "lecture" (see above).  My primary objection to any kind of Socratic method is the result of my experience as a student and as a teacher.  As a student, when others were in the throes of Socratic exchange, I recall drifting off to more pleasant thoughts, writing sarcastic comments in the notebook of my friend sitting next to me, or turning to the only redeeming aspect of The Stanford Daily, the New York Times crossword puzzle (so much for the evil of Internet surfing).  As a teacher, not only do I see my own students doing the same, but it strikes me as a terrible waste of time to drag whatever teaching point I want to make out of the poor kid.

Having said all that, I do indeed on occasion go into "what if" mode, with a series of questions changing the facts just a little each time, to make precisely the point about the relationship of facts, law, and policy that I believe was the basis for the institution of Socratic method at the outset.  I just don't do it by calling on students or making them squirm.