Thursday, June 30, 2011

Friday Fun: "That rug really tied the room together, did it not?"

Until a couple of nihilists peed on it.

Buenos Aires-based artist Max Dalton (and here) has created this limited edition print that pays tribute to the rug from the Big Lebowski. Click here (and scroll down) to check out how the artist has incorporated characters from the movie into the design (I can find Sam Elliott but not The Jesus).


Hat tip to Corey Friedman.


June 30, 2011 | Permalink | Comments (0)

New York just made e-filing mandatory; what does this mean for the Amish?

The mandatory e-filing legislation is reported here. Thanks to the TaxProf Blog for the Amish angle. From the Watertown Daily News:

DEPEYSTER — Enos Yoder fiddles with a metal gear and won't make eye contact with a stranger who is asking him about his troubles with the state Department of Taxation and Finance. Instead, he looks out onto his field, where a two-horse sleigh is carrying a stack of hay on a cart, ridden by a young man probably in his teens.

Mr. Yoder, who owns a machine shop business, explains his problems politely, although with few syllables.

The department, he says, wants him to file his sales taxes electronically rather than mailing them in as he has done for years. Also, the state wants to know his phone and Social Security numbers.

There's only one problem: he's Amish. He doesn't use electricity, doesn't own a computer or a phone, and doesn't have a Social Security card.

Technological advances in the outside world are making life more complicated for this Christian sect, which holds fast to the traditions of its forefathers and shuns modern conveniences.

But those traditions are increasingly clashing with 21st-century government mandates.

"They want to do everything electronic," said Mr. Yoder.

This year, the Department of Taxation and Finance has made electronic filing of sales-tax returns mandatory. While those without access to Internet can request an exemption, something got lost in translation. According to interviews with members of the community and those who interact with them, a handful of Amish — furniture builders and shopkeepers, mostly — have received letters warning them that they face a $50 penalty for every return not electronically filed.

Department spokeswoman Susan Burns said in an email that the department is mandating the electronic filing to cut down on bank processing costs and to reduce errors in sales tax returns. She said the department would be "judicious" in levying fines against the Amish.

"Our expectation was that businesses with concerns about complying would call the Taxpayer Contact Center," she wrote. "According to the TCC, if someone called and indicated that they did not have a computer or broadband and they did not use a preparer, they were advised that they were not mandated to comply. This would most likely have covered the Amish."

But most north country Amish will not use a telephone.

Ms. Burns said in a follow-up email that the Amish could have another person call the department for them, or they could write a letter.


Republican State Sen. Patricia A. Ritchie is from Heuvelton, which is an Amish enclave. She first heard about the issues from Jonas Hershberger, an Amish furniture maker, who tried to file his $50 in sales tax via paper forms. The department wrote back less than a month ago requesting that he file electronically. He responded by letter, explaining his predicament, but the letters requesting e-filing continued, Mrs. Ritchie said.

Mrs. Ritchie contacted the tax department to intervene on his behalf, according to her spokesman, James E. Reagen.

"When they finally listened to what she was trying to tell them, they offered to call him," said Mr. Reagen. "We were like, 'That probably won't work out. You can if you can figure out a way to do it.'"

Last week, Mrs. Ritchie's office received word from the tax department that it would allow Mr. Hershberger to file his tax returns the old-fashioned way.

Mr. Reagen, who lives in Ogdensburg, delivered the notice from the tax department to Mr. Hershberger, who was happy to receive it, he said.

"He said he's heard some other Amish people who are having similar problems. I told him, if they are, to let us know and we'll be happy to go to bat for them with the state tax and finance people," Mr. Reagen said.

Mr. Hershberger was selling strawberries in Ogdensburg on Wednesday when a reporter went to his house on Irish Settlement Road in Heuvelton, so he could not be reached for comment.

His father, Peter Hershberger, said that the electronic filing issue is of grave concern to Amish businesses.

"I don't blame the state" for its desire to require electronic filing, said Mr. Hershberger, 62. "They want to do it their way, and we're getting caught up in it."

Most of the concern in the Amish community about changes in the American culture have to do with children, including the half-dozen youngsters whom Mr. Hershberger and his wife are looking after while their son is away.

"You live your way, we live our way, and it's a free country," he said. "And we hope it continues."


The Amish came to New York in the early 20th century and can be found in many counties, including Jefferson and Lewis, as well as St. Lawrence. They shun ostentatious colors or variation that would bring attention to themselves. The attire from one to another does not vary much. The women usually wear purple body-length dresses and bonnets. Most men sport beards and wear blue shirts, gray slacks and black shoes. They speak English with an accent that is flavored by a German dialect, a reminder of where the Amish first began to flourish in the 18th century.

The north country community, known as the Swartzentruber clan, is considered more conservative than Amish clans in other states, said Karen Johnson-Weiner, a SUNY Potsdam anthropology professor who has written books on the Amish.

And those who moved to the Heuvelton area around the 1970s are an even more distinctly conservative group, seeking more separation from the outside world.

"There are lots of different ways in which Amish communities differentiate themselves," Ms. Johnson-Weiner said. The Heuvelton-area Amish "have put extreme limits on technology."

Ms. Johnson-Weiner said advancements in society are putting more pressure on a group that resists, at once, change and the outside world.

"People drawing up the procedures just never thought about" the Amish population, she said.

The Amish studies department at Elizabethtown (Pa.) College estimates that New York's Amish population at 12,000, increasing 19 percent from 2009 to 2010.

Most people see Amish buggies and will note the result of the first clash between the state and Amish. In the 1980s, then-state Sen. H. Douglas Barclay helped broker a deal with the Amish requiring them to put orange reflective triangles on their buggies for road safety.

But with each passing decade, more conflicts between the Amish community and the outside world arise. Patriot Act provisions have increased requirements on photo identifications, which the Amish shun, Ms. Johnson-Weiner said. Those rules have complicated banking and travel for the Amish.

Several Morristown Amish are involved in a federal court battle over the government's efforts to require their homes to include smoke detectors, engineering plans and outside home inspections.

"Things that we can't imagine living without, they're rejecting," Ms. Johnson-Weiner said. "That's going to bring them into more and more conflict. It's not that they're changing. We're changing in ways that are making things more and more difficult for them."


Cars travel sparsely even on the paved roads of the bucolic Amish country. When they do, two horses may jockey and jostle in fear when a utility truck passes too closely on a narrow road, jostling the family that's sitting in the black buggy.

The road to Eli Yoder's house near West Lake Road starts out paved, then turns into a dirt path. In an adjacent field women pick strawberries and wave at a stranger driving by. A few young boys in matching blue shirts and gray slacks, with stray hats, dive under some farm equipment as the car approaches.

Eli Yoder knows about the problems with the state: Enos Yoder, the machine shop owner, is his first cousin. Since Eli Yoder is a sustenance farmer, the issue hasn't affected him yet.

"Yet" is the key word for him, as he explains, with serene concern, the changes that the 21st century Amish face.

"You know how it used to be," he said with a few young children watching the conversation with curiosity. "Things have changed."


June 30, 2011 | Permalink | Comments (0)

Corporate compliance work is a hot job market for new attorneys

From The Careerist column at

If you have your heart set on being a corporate lawyer, think compliance.

That's the advice of Constance Melrose, the managing director of eFinancialCareers North America, which just issued a survey of almost 160 financial firms about the number of offers they expect to make to their MBA summer interns.

According to the survey, Wall Street financial institutions are pretty stingy about offers (less than half--49 percent--plan to extend offers to 10 percent or less of their summer hires). But what everyone--including lawyers--should pay attention to is where they expect to hire: operations, debt/fixed income, corporate finance, research, and compliance. "It's the fundamentals--the core stuff," says Melrose.

The message to lawyers is that there's "a tremendous shortage of compliance people," says Melrose. "The traditional path is for law school graduates to work at a regulatory body, like the SEC, where they'd develop skill sets that would translate into the private sector." But now, she says, "even regulators can't find regulators" to keep up with the demand.

The shortage is especially acute in the financial sector. Melrose adds that her company's clients (which include big investment banks, asset managers, and risk managers) are so hungry to hire people with regulatory background that they're interviewing "women who have taken time off, and retired lawyers." 

Her advice to junior lawyers and law students: Get cooking on the regulatory front. Even though many of the proposed rules for the financial market are unsettled, just having an understanding of the regulatory framework and reforms will be a major plus, she says: "If you have legal training, discipline, and analytic skills, you will be valuable."


June 30, 2011 | Permalink | Comments (0)

Courtroom audience member in Casey Anthony trial gets 6 days in jail for flipping the bird to prosecutor

Not only did the trial judge give this TGIF waiter six days in the hoosegow, he also subjected him to some embarrassing questions on national TV about his personal finances to determine whether he's entitled to a public defender.  Word to the wise: Don't disrupt the courtroom in high profile, month-long capital murder cases.


June 30, 2011 | Permalink | Comments (0)

Law schools should brace themselves

The Coming Crunch for Law Schools via the blog Balkinization:

Why are law schools enrolling so many students when employment prospects            for graduates are so poor? Because they must. In the past two decades law            faculties have gotten bigger. AALS tallied 7,421 full time faculty in 1990, and            10,965 in 2008. Some of this overall increase comes from newly accredited            schools, but most of it is faculty expansion: student-faculty ratios have been cut             almost by half during this period.

Bigger faculties must be paid for through some combination of more bodies (J.D. and LL.M) and higher tuition. Tuition already goes up every year as it is, so the number of revenue paying students cannot be reduced substantially. It's that basic. (Administrations have also gotten bigger, but I focus on faculties because faculty expenses typically comprise more than half of the total budget and are hard to trim owing to tenure and long term contracts.)

Law schools will soon suffer the consequences of this expansion. The chart below tracks the number of applicants against the number of first year students from 1990 to the present. As it shows, law schools exhibit a one-way ratchet: when applications drop, enrollment remains steady; when applications rise, enrollment goes up.

This pattern--explained by our need for revenue to fund our operation--portends tough times ahead for law schools.

. . . .

With tuition high and job prospects low, it seems likely that the number of law school applicants will continue to fall--although it's hard to say how far or for how long. One concrete indication of a continued drop is the google trend line for LSAT searches (check it out here), which shows a steady downward trajectory since the peak in 2004. (Tellingly, the applicant uptick in 2009 and 2010 barely disrupts the overall trend.)

If the drop in applicants continues, while enrollment stays up, schools will reach deeper in the pool to fill their classes, bringing in students with lower qualifications. A significant decline like this has happened before, in the early eighties and the nineties. The consequences for each school will depend upon its standing in the overall law school hierarchy and in the local legal market. But every school will feel it (although much less at the top). Schools would be prudent to anticipate a cumulative drop in applications of perhaps a third from their high. (Even if the reduction does not go that far, the number will be misleading because prospective students now apply to more schools than in the past.)

The 2010 acceptance numbers suggest that many law schools are already in a worrisome spot. That year, twenty schools accepted between 45% and 49% of the students who applied; twenty-two schools accepted between 50% and 59% of applicants; and seven schools has an acceptance rate of 60% or higher (Cooley was the highest at 83.3%). Added together, nearly a quarter of law schools in the country accepted close to half or more of their applicants—and this was before the latest decline in the number of applicants.

Law schools have enjoyed flush times for more than a decade. Tough times are ahead

You can read the rest here.


June 30, 2011 | Permalink | Comments (0)

Chief Justice Roberts Criticizes Law Profs

Last Saturday morning, I watched an interview with Chief Justice Roberts at  the  Fourth Circuit’s  Annual Conference on C-SPAN . During the interview, he politely criticized legal academics for scholarship that he intimated was relevant only to academics. I paraphrase: “If you asked me when was the last time I read a law review article, I’d have to think long and hard.” This link will take you to a video of the 46 minute interview.


June 30, 2011 | Permalink | Comments (0)

Writing tips for summer associates (rising 1L's take note)

Courtesy of Above the Law and Lateral Link:

The Importance of Good Writing


Law schools cannot teach students to be excellent writers.  While some new lawyers are excellent writers, excellence for most takes years of effort.  Nothing puts you at peril more quickly than sloppy, unfocused, or error-filled writing.  Some supervising lawyers are anal-retentive about writing.  But that is not unfair in a world where clients pay a literal fortune for legal advice and have the right to expect perfection.


If you wouldn’t accept a sloppy paint job on your Saab, or a shoddy work on your condominium, why should clients tolerate sloppy prose?  A simple typo can cause a multi-million dollar headache (just ask Stroock).  Lawyers who criticize carelessness are trying to teach you lessons that they learned years ago.  Do not resent it.  Spell checking and grammar checking are not the guardians of perfection.  Take the time to abide by the Mary Poppins Rule (“practically perfect in every way.”).  Sometimes the most conspicuous and embarrassing errors survive spell check and grammar check — misspelling the name of the client, the partner, or the project are three favorites.


Consider what happens to your written work product.  First, it crosses the desk of the lawyer who assigned the project.  Next, it will be read by another partner or two who work in that department.  Finally, a copy is sent to the partner who runs the summer program.  At the end of the summer writing can be the tie-breaker in determining whether you receive an offer.  Remind yourself about this process before you turn in anything written.


Death by Diction


Make every effort to banish slang from the workplace and all forms of written and oral communication.  Forgive the partners if they are offended by someone who uses the word “like” 23 times in 30 seconds as a verb, a noun, a gerund, a state of mind, and a verbal tic.  It makes you sound like a poorly educated teenager trapped in a mall.  While you’re at it, skip the shorthand messages on emails that are used frequently in your text messages with friends.  A few years ago I met with a law student with an impressive record who mis-used the word “like” 132 times in a 30 minute counseling session.  It was excruciating.


. . . .

You can read the rest here.


June 30, 2011 | Permalink | Comments (0)

The importance of learning to unplug

Students arrive at law school already knowing what it's like to be plugged-in 24/7. What's important to teach them, therefore, are the cognitive benefits of unplugging. The evidence is pretty clear that you can't produce high quality work that requires deep thought if you're distracted by wireless devices. (Indeed, evolutionary psychologists tell us that it's hard enough to get the brain to think abstractly, let alone multitask while doing it, since the brain was originally designed for social learning and interaction, not office work).  Because digital natives overestimate their ability to multitask, it's important that we teach them to unplug when they can.

From Belly of the Beast blogger Steven J. Harper, courtesy of

Self-delusion about the consequences of constant connectivity has become a special problem for attorneys who measure their lives in billable hours. They've convinced themselves that these technological innovations have come with no downside. Especially for those practicing at large firms, it's all positive because everyone is just utilizing time more productively, i.e., it's getting billed and the equity partners in particular are getting richer.

Associates supposedly benefit, too. Unlike earlier, tougher times, they can go home and continue billable activities in their virtual offices.

And the clients? They get 24/7 access to their lawyers.

Everyone wins because the human mind can simultaneously do many things well, right? Not really.

The human brain processes information sequentially, that is, one thing at a time. When interrupted, the mind disengages from the original task, turns to the second one, and then disengages again before returning to what it was doing first. Not surprisingly, a recent scientific study found that young people (average age 24) switched tasks more quickly and easily than old ones (average age 69).

But another study reveals that people of all ages underestimate the extent to which they are, in fact, distracted in ways that burden the brain and diminish productivity. Using television and computer screens concurrently, the subjects multitasked between TV and Internet content. On average, they switched between the two media four times per minute -- or 120 times during the 27-minute experiment.

That's stunning, but less shocking than the gap between reality and the subjects' perceptions. Compared to the actual number of 120, they thought they'd switched between TV and computer screens only 15 times. The report concluded:

"That participants underreported their switching behavior so drastically echoes recent work in the applied multitasking field that illustrates how individuals tend to overestimate their multitasking ability and how heavy multitaskers are prone to distraction ... [P]eople have little self-insight into multitasking behavior."

You can read the rest here.


June 30, 2011 | Permalink | Comments (0)

Wednesday, June 29, 2011

Writing tip of the day: Avoid hyperbole

Great advice for law students and experienced attorneys alike courtesy of the blog An Associate's Mind (which, by the way, is an excellent read if you want to better understand the workaday world of a new associate):

There is nothing worse than reading a brief that is filled to the brim with over-the-top exposition and exploitive narrative detail. It does not bolster your argument – it dampens your argument.

By forcing a reader to navigate sentimental adjectives and impassioned turns of phrase, you are removing the focus of the brief from your argument to your prose. While such a tactic might hold some weight when making an oral argument before a jury, it instead comes across as amateurish and impertinent when delivered in a written brief to a court.

That’s not to say that you should not attempt to write boldly or with zeal, but rather that any creativity in your writing should be expressed by means of carefully constructing and crafting your arguments – funneling the reader to a compelling conclusion.

More steak, less sizzle.


June 29, 2011 | Permalink | Comments (0)

Writing Tip of the Week

Writing Persuasive Headings

Last week, I stressed the importance of articulating the structure of your brief or memo.  One of the most important parts of showing the structure of your writing is headings.  In a persuasive brief, a heading tells your reader what is in the section or subsection, it introduces your arguments, and it persuades.   In addition, the judge should be able to read the headings in your table of contents and get a clear idea of your arguments.  Finally, everything in a section or subsection should relate to the heading or subheading.  If it doesn't, the section needs to be revised or the heading rewritten.

A good persuasive heading should contain a conclusion, the law, the facts, and why.  (of course, some of these overlap.)  The why or because is especially important.  The heading should be as focused and specific as possible.





June 29, 2011 | Permalink | Comments (0)

A Plan to Reduce High Education Costs for Law Students

The plan: admit top undergraduate students at your college to your law school after three years of college and thus shave off a year of college expenses. The University of Texas system is working on similar plans to reduce the cost of a medical education:

Under UT-Austin's plan, 60 freshman undergraduates with a record of high academic achievement would be guaranteed a slot in medical school at UT Southwestern in Dallas or the UT Health Science Center at Houston if they maintain good grades, said David Laude, a senior associate dean at UT-Austin. Those standards are being defined, he said. Another 60 freshmen would be added in the spring, Laude said.

The plan is to cut a year from the bachelor's degree, reducing the overall time to finish college and graduate from medical school from eight years to six or seven, Laude said.

Here’s the story from the Austin-American Statesmen.


June 29, 2011 | Permalink | Comments (1)

A state-by-state analysis of the job prospects for new law grads

From the New York Times (as you read the stats, below, keep in mind ways in which the study might over-state, or understate, the picture).

We’ve written before about the tough job market for recent law-school graduates. The climate is hard partly because of the weak economy, but also partly because the nation’s law schools are churning out many more lawyers than the economy needs even in the long run.

Now a few researchers have tried to quantify exactly how big that surplus is.

The numbers were crunched by Economic Modeling Specialists Inc. (also known as EMSI), a consulting company that focuses on employment data and economic analysis. The company’s calculations were based on the number of people who passed the bar exam in each state in 2009, versus an estimate of annual job openings for lawyers in those states. Estimates for the number of openings is based on data from the Bureau of Labor Statistics and the Census Bureau.

According to this model, every state but Wisconsin and Nebraska (plus Washington, D.C.) is producing many more lawyers than it needs. (See table after the jump for full data.)

In fact, across the country, there were twice as many people who passed the bar in 2009 (53,508) as there were openings (26,239). A separate estimate for the number of lawyers produced in 2009 — the number of new law-school graduates, according to the National Center for Education Statistics — also showed a surplus, although it was not quite as large (44,159 new law grads compared with 26,239 openings).

In raw numbers, New York has the greatest legal surplus by far.

In 2009, 9,787 people passed the bar exam in the Empire State. The analysts estimated, though, that New York would need only 2,100 new lawyers each year through 2015. That means that if New York keeps minting new lawyers apace, it will continue having an annual surplus of 7,687 lawyers.

California and New Jersey have the next largest gluts of new lawyers, according to EMSI.

As noted above, not every state is overproducing lawyers. Nebraska and Wisconsin actually have small deficits of lawyers. The place with the biggest shortage is the District of Columbia, which is projected to have 618 new jobs opening annually for lawyers for the next few years, but had only 273 bar-passers in 2009. (Update: As several readers observed in the comments, the District of Columbia waives in lawyers who are barred in other states, meaning that these figures probably underestimate the number of newly-minted lawyers in the nation’s capital. If you know how to calculate a better estimate for this figure, please e-mail us.)

The District of Columbia has the highest median wage for lawyers in the country: $70.96 an hour.

2010-15 Est. Annual Openings
2009 Bar Exam Passers
2009 Completers (IPEDS)
Median Wages
New York
New Jersey
North Carolina
South Carolina
New Mexico
Rhode Island
W. Virginia
New Hampshire
South Dakota
North Dakota

Hat tip to Above the Law (here and here).


June 29, 2011 | Permalink | Comments (1)

Do women students take better class notes than men?

Yes, according to this study entitled "Gender Difference Variables Predicting Expertise in Lecture Note-taking" by Lindsay Reddington, a Ph.D. candidate at Columbia (this dissertation popped up in my Google Scholar alert and I thought some of our readers would find it interesting).

From the abstract:

Lecture note-taking is an important study strategy used by a majority of college students to record important information presented in class. Research suggests that there may be gender differences in note-taking and test taking. However, previous research on lecture note-taking has only examined gender differences, or used gender as an anecdotal variable, in post-hoc analyses. This is the first dissertation to investigate gender differences in lecture note-taking directly. More specifically, the primary purpose of this dissertation was to determine if gender differences in lecture note-taking exist, and if they do, to examine the cognitive and motivational variables that might explain them. A second purpose was to determine if there might be gender related differences in test performance. This research is an extension of research on lecture note-taking expertise (Peverly, Ramaswamy, Brown, Sumowski, Alidoost, & Garner, 2007), in which a reanalysis of their data found that females wrote faster than males, had higher quality notes, higher semantic retrieval scores, and performed better on written recall of the lecture (Reddington et al., 2006).

A sample of 139 undergraduate students took notes from a prerecorded lecture, and were later allowed to review their notes before taking a test of written recall. The independent variables included transcription fluency, working memory, verbal ability, conscientiousness, and goal orientation. The dependent variables were note quality and written recall. All procedures were group administered.

Results indicated that females recorded more information in notes and recall than males. Females also performed significantly better on measures of transcription fluency, working memory, verbal ability, and conscientiousness. Note quality was significantly predicted by verbal ability, gender, and the gender x verbal ability interaction, while written recall was significantly predicted by transcription fluency, mastery goal orientation, and the gender x conscientiousness interaction. Future research should continue to focus on examining potential gender differences associated with note-taking and test performance.


June 29, 2011 | Permalink | Comments (0)

Tuesday, June 28, 2011

Job opening for Assistant Director of Academic Development, Santa Clara L.S.

Assistant Director of Academic Development

Santa Clara University School of Law

2011-12 Academic Year

The Assistant Director of Academic Development works in and out of the classroom to improve the academic success of Santa Clara University Law School’s students from orientation through bar passage as part of Santa Clara Law’s Academic & Professional Development (“APD”) Department. APD works in coordination with the doctrinal and skills faculty to design, coordinate, implement, evaluate, and improve the supplemental academic skills curriculum. Every APD faculty member teaches courses, provides direct student counseling, and administers various programs on a year-round basis.

Depending on need, the Assistant Director will teach two multiple credit-bearing skills courses, some of which target students in academic difficulty. These courses, ordinarily capped at 20 students, require individualized counseling and regular written feedback aimed at diagnosis and correction, as well as management of enrollment when registration is restricted.

In addition to course work, the Assistant Director will contribute to APD’s substantial academic and course counseling of law students and future bar takers at all levels.

Finally, the Assistant Director must contribute to the management and execution of one or more programs for student academic success and/or bar preparation. These duties may include the hiring, training, and supervision of upper division law students and/or adjunct lecturers. APD faculty also regularly teach at events including Orientation programs and Skills Workshops.


* J.D. and a state bar admission.

* Prior teaching, student counseling, academic support, and/or bar tutoring or grading experience desirable.

* Ability to excel in teaching and counseling students from diverse backgrounds.

* Experience in program management and assessment desirable.

* Familiarity with Microsoft Word, Excel, and PowerPoint helpful.

* Ability to think imaginatively, critically, and collaboratively about how to improve and measure student academic development.

This position is a full-time, non-tenure track, one-year lecturer position with benefits.  The position is year-round; summer service in residence is required. The law school supports professional development through conferences and training; service and scholarship are welcome but not required.

Santa Clara University is an Equal Opportunity/Affirmative Action employer, committed to excellence through diversity, and, in this spirit, particularly welcomes applications from women, persons of color, and members of historically underrepresented groups. The University will provide reasonable accommodations to all qualified individuals with a disability.

Submit applications to:

[email protected]

Academic & Professional Development

Santa Clara University School of Law

500 El Camino Real

Santa Clara, CA  95053-0448



June 28, 2011 | Permalink | Comments (1)

Is Class Attendance Important?

Yes, according to a recent article by Norman Otto Stockmeyer.

Better Grades @ No Extra Cost

A 1975 study, confirmed by another one in 2001, found a high positive correlation between class attendance and course grades at the law school level. A study by the author of this article sought to confirm the findings. In third-year courses taught at three law schools, grades earned by students with perfect attendance were compared with grades earned by students whose absenteeism triggered a warning letter. The results confirmed existence of a strong positive correlation between class attendance and grades. Attendance (or non-attendance) affected grades by an average of almost half a grade level.


June 28, 2011 | Permalink | Comments (0)

Winklevoss Twins Are Back In Court

After a recent loss in court, the lawyers for the twins told that court that their clients were calling it quits in their litigation against Facebook and Mark Zuckerberg. Not so fast! The litigation continues.

Cameron and Tyler Winklevoss were back in court on Thursday, a day after their lawyers had submitted to a court in California that they would not appeal to the US Supreme Court their $65 million settlement with Facebook and its CEO Mark Zuckerberg.

In a status report before the United States District Court for the District of Massachusetts, the Winklevoss twins and Harvard classmate Divya Narendra said they will move the court for discovery on the issue "whether the Facebook Defendants intentionally or inadvertently suppressed evidence", and then move for appropriate relief from the court.

Here’s the story.


June 28, 2011 | Permalink | Comments (0)

Monday, June 27, 2011

Documentary about 6 law students studying for the California bar

This documentary, called "A Lawyer Walks Into a Bar . . . ," was released in 2007 but I just learned about it from a former student who is now studying for the California bar. The start of the trailer leads you to believe it's about the public's attitude toward lawyers. By minute 1.33, it's into the real subject matter which profiling six law students who are sitting for the California bar, including one poor soul who's failed it 41 times.


Hat tip to Corey Friedman.


June 27, 2011 | Permalink | Comments (0)

4th Circuit holds missed deadline due to computer glitch causing calendaring error not exclusable neglect

From Law Technology New:

In a recent decision, the 4th U.S. Circuit Court of Appeals analyzed the excusable neglect standard in the context of a notice of appeal from a district court judgment that was filed one day late as a result of a technical error by counsel's computer calendaring system. The court's May 23 opinion is captioned Symbionics Inc. v. Ortlieb.

On Dec. 4, 2009, the U.S. District Court for the Eastern District of Virginia entered judgment on the defendant's counterclaims against Symbionics. Pursuant to Fed. R. App. P. 4(a)(1), the notice of appeal with respect to that judgment had to be filed within 30 days. The 4th Circuit opinion said Symbionics filed one day late, on Jan. 5, 2010, but requested that the district court permit the late filing on the grounds that "a quirk in the functionality of counsel's computer calendar caused counsel to miscalculate the deadline to appeal as Jan. 5, 2010, rather than the correct date of Jan. 4, 2010."

The mistake allegedly resulted from a computer glitch that calculated the deadline based on a January, 2009 calendar rather than the correct 2010 version. The district court concluded this was excusable neglect, Ortlieb appealed and the 4th Circuit reversed. Applying the applicable three part test from Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the 4th Circuit examined:

"(1) danger of prejudice to the opposing party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith . . .  [noting] that the third factor -- the reason for the delay -- is the most important consideration to the excusable neglect inquiry.

. . . .

The court found that Symbionics' explanation for its delay did not present the type of "extraordinary" circumstance satisfying the excusable neglect standard. Symbionics had argued its delay was caused by a computer miscalculation: counsel had used his computer calendaring system, which, according to counsel, had a glitch causing him to believe the applicable period expired one day subsequent to the actual deadline. The court found that this explanation was not extraordinary or unusual, nor did it excuse Symbionics' failure to comply with the deadline set forth in the federal rules.

You can read the court's unpublished, per curiam opinion here.

Hat tip to Above the Law.


June 27, 2011 | Permalink | Comments (1)

Practical Skills at St. Louis University

The St. Louis University School of Law has had a Law Practice Management class in its summer session for several years. Barbara Gilchrist teaches the class. 

The syllabus shows the expansive reach of the class - business forms, marketing, client managment, technology, finances and much more. As part fo the class, students go to the highly-regarded Missouri Solo and Small Firm Conference. If that's not enough, the students get to hear a wide range of speakers with expertise in each of the areas of coverage.

I (Dennis Kennedy) have had the pleasure to speak to this class several times in recent years about legal technology and related matters. I take an all Q & A approach and am always intrigued by the great questions I get and what issues the students focus on each year.

I spoke to this year's class last week and had a great discussion with the students. Perhaps not surprisingly, a lot of the questions related to social media. I enjoyed getting some of the most sophisticated questions I've ever gotten about use of social media and the Internet by lawyers. Unlike most groups of lawyers, these students not only knew what cloud computing was, they were asking about its positive aspects while still being cognizant of security and other issues. We spent quite a bit of time talking about ethical and professional responsibility issues relating to technology in general and social media in particular.

 As we discussed recent state regulatory and ethical decisions on these subjects, the students voiced their concern that the rules seemed to block (or want to block) uses of social media and the Internet that seem very natural to the current generation of students. At one point, a student suggested that the disciplinary approaches seemed more directed at protecting a cartel than protecting clients. 

I took my professional responsibility class in law school in the same semester as my antitrust law class, and I must admit to having similar thoughts over the years. 

The conversation gave me, and should give all of us, much to think about as ethical and disciplinary approaches based on a shaky understanding of technology seem to make difficult uses of technology aimed at providing better, faster and cheaper service to clients.  I liked the way that the students wanted to learn how to get involved in the rule-making process.

I like the way practice management courses such as this one help students not only learn basic practical skills and get insights about the actual practice of law, but also let them apply their academic skills to practice management areas and come up with fresh ideas and approaches. 


June 27, 2011 in Legal Technology, Practice Management | Permalink | Comments (0)

Supreme Court Overrules Stream of Commerce Principle?

While most of the media attention was directed elsewhere, the Supreme Court today decided two important personal jurisdiction cases.  In a unanimous decision, the court in Goodyear v. Brown rejected a lawsuit filed in North Carolina by parents of two North Carolina children killed in a Paris bus accident involving tires manufactured by a Turkish subsidiary of Goodyear Tire & Rubber. According to the Court, the fact that Goodyear, the parent, does business in North Carolina doesn’t mean its foreign subsidiaries can be haled into court to answer for an accident that occurred in a foreign country.  In making its ruling, the Court reiterated the "continuous and systematic" rule from International Shoe

In J. McIntrye Machinery Ltd. v. Nicastro, which concerned  a worker who was injured while using a metal-shearing machine made in England and imported into New Jersey from another state, the plurality "overruled" the "stream of commerce" theory from Asahi.   Justice Kennedy thought that the theory, which was also contained in a plurality opinion, overemphasized fairness to consumers and underemphsized whether a court has jurisdiction.  He also wrote that the "foreseeability" of a product ending up in the forum was too little for jurisdiction.  He declared that

"The owner of a small Florida farm might sell crops to a large nearby distributor, for example, who might then distribute them to grocers across the country.  If foreseeability were the controlling criterion, the farmer could be sued in Alaska or any number of other States’ courts without ever leaving town.  And the issue of foreseeability may itself be contested so that significant expenses are incurred just on the preliminary issue of jurisdiction. Jurisdictional rules should avoid these costs whenever possible."

Justices Breyer and Alito concurred, but they thought that the plurality had gone too far in rejecting the stream of commerce theory.

These two cases provide greater protection for corporations from state court jurisdiction than previous cases.  They allow a large corporation to avoid jurisdiction in a state by using a subsidiary in another country, and they have probably ended the stream of commerce principle.

This author believes that there should be minimal constraints on the assertion of personal jurisdiction by states (The Boundary of Personal Jurisdiction: The 'Effects Test' and the Protection of Crazy Horses's Name). The boundary of personal jurisdiction should prevent states from asserting jurisdiction over defendants who have no significant connection with the state, yet permit broad jurisdiction so that plaintiffs have the opportunity to litigate their grievances. In this author's view, the proper test for personal jurisdiction under due process should be the following: 1) Does the defendant have a significant, purposeful contact or connection with the forum or has the defendant knowingly received some benefit from the forum state in connection with the forum’s regulatory authority? 2) If so, is defending the lawsuit in the forum so burdensome that the defendant cannot mount a proper defense?

In McIntyre, the defendant clearly benefited from its tires being sold in New Jersey--it increased its market and profits, so there should be jurisdiction.  Goodyear is a harder case.  Under corporation principles, corporations and their subsidiaries are separate entities under state law.   The corporation cannot be sued for debts or torts of the subsidiary unless there is a reason to pierce the corporate veil.  Reluctantly, this author finds no reason to change this rule for jurisdiction in this case.  The subsidiary lacks a significant, purposeful contact or connection with North Carolina, and it has not received some benefit from the forum state in connection with the forum’s regulatory authority.  The problem is not personal jurisdiction law, but corporate law.      


June 27, 2011 | Permalink | Comments (0)