Thursday, November 24, 2011

The mysterious "Umbrella Man" of Dealey Plaza

Watch this Errol Morris short "The Umbrella Man" regarding the mysterious JFK assassination figure courtesy of

Give Errol Morris any topic (the more obscure and bizarre the better), and he'll likely dazzle you with what he can come up with. And as a testament to his powers of narrative force, all the famed documentarian needs is about six minutes to let his latest short, an endeavor for New York Times where he frequently writes, to say more about the JFK assassination than Oliver Stone did in his own three hour movie (which is a still great watch).

 "The Umbrella Man" focuses on the lone, mysterious titular figure present in Dealey Plaza that day, who has been the subject of great debate for conspiracy theorists for decades. However, author Josiah "Tink" Thompson, who wrote the book "Six Seconds In Dallas," gives an utterly fascinating breakdown of the surprising truth about who that man was and why he was the only person in Dallas that bright, warm day, walking around with an umbrella.

"You can never on your own think up all the non-sinister, perfectly valid explanations," Thompson explains, and in Morris' typically beautiful way, and aided by a great score, we find out as always, that truth is so much stranger than fiction. This is some pretty great stuff, and the first of what Morris hopes will be a multi-part examination of the assassination (awesome). Watch below, and bear in mind, this is only a small portion of a six-hour interview Morris had with Thompson. Astounding.

Hat tip to Professor Braccialarghe.


November 24, 2011 | Permalink | Comments (0)

Wednesday, November 23, 2011

President Obama’s Thanksgiving Day Proclamation

Here is a link to the President’s Thanksgiving Day Proclamation. It concludes with these words:

As we gather in our communities and in our homes, around the table or near the hearth, we give thanks to each other and to God for the many kindnesses and comforts that grace our lives.  Let us pause to recount the simple gifts that sustain us, and resolve to pay them forward in the year to come

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim Thursday, November 24, 2011, as a National Day of Thanksgiving.  I encourage the people of the United States to come together    whether in our homes, places of worship, community centers, or any place of fellowship for friends and neighbors    to give thanks for all we have received in the past year, to express appreciation to those whose lives enrich our own, and to share our bounty with others.

     IN WITNESS WHEREOF, I have hereunto set my hand this sixteenth day of November, in the year of our Lord two thousand eleven, and of the Independence of the United States of America the two hundred and thirty-sixth.

Happy  Thanksgiving!


November 23, 2011 | Permalink | Comments (0)

Article lays blame for lack of legal skills training on BigLaw.

An article posted yesterday at The Atlantic called Why Law Schools Are So Bad at Creating Lawyers (and how to fix it) is sort of a response to David Segal's most recent New York Times article, What They Don't Teach Law Students: Lawyering.  However, the author of the Atlantic article says BigLaw, not the schools, should be blamed for not pushing for more skills training in the curriculum. The author suggests that if the major firms threatened top schools with a boycott in favor of 2nd and 3rd tier schools that place a greater emphasis on skills training, curricular reform would follow throughout legal academia. I say fat chance of that happening; BigLaw will always recruit the top candidates from the best schools.  Though there's significant pressure these days from clients to stop footing the bill to train new lawyers, the path to the top firms will continue to be, generally speaking, through the top schools.  BigLaw might try to solve the problem in other ways, such as adopting apprenticeship programs (here and here), but I don't think it's realistic to expect BigLaw to change its recruiting practices in any significant way. An excerpt from the Atlantic article:

[I]f law students aren't learning what they need in order to succeed as real live lawyers, it's not fair to lay all the blame on academia. Law firms have been guilty accomplices. And in the end, it's the firms who are going to need to force change.

How? It's time to stop hiring students from Harvard Law. Or at least threaten to.

. . . . 

For years, they simply bought whatever law schools were selling. Instead of expecting the schools to teach J.D.'s practical skills, they treated them as glorified head-hunting services from which they could draw raw talent. Even when schools offered up programs such as legal clinics, which let students represent underprivileged clients under the supervision of a licensed attorney, the response from the industry was minimal. To this day, hiring partners at elite firms still mostly look for students with high GPAs and law journal experience--experiences that, as Megan McArdle would tell you, were probably pretty similar to their own.

So firms have reinforced the very education system they now say falls short. The schools haven't had an incentive to rethink their model. And while the bad press may force reform around the edges, it's hard to imagine the legal academy making wholesale changes on its own accord. After all, it's been working on the same basic model for more than a century.

No. To change the schools, law firms need to change their own behavior.

. . . . 

Imagine what would happen if a coalition of elite law firms approached every Ivy League law school and gave them an ultimatum: Change your curriculum, or in five years we will stop hiring your graduates. They could just as easily go to a group of lower-ranked law schools and offer to start hiring more graduates if they make the same curriculum changes. It would require accepting the possibility of hiring outside of the most elite institutions. But frankly, that might add some much needed diversity to firms anyway.

I imagine the results would be dramatic. In the end, the most important thing to a law school's reputation these days is who hires its students. And where the Ivies go, the rest of legal academia will go.

You can continue reading here.


November 23, 2011 | Permalink | Comments (0)

Language Apps

This post from Apps in Education lists 80 apps that can be used to learn a new language. 

"You’ve been telling yourself for years that you’ll learn a new language or at least dust off those high school Spanish skills. How about starting when you’re in line at the grocery store or waiting for the bus? Having language lessons on your iPhone means you can learn at your own pace, wherever and whenever you have the time....Below you’ll find 80 apps for learning a number of different languages: everything from Chinese to sign language! A few of the apps come in multiple language variations so if you find one you like in a given language, keep scrolling to see if there are other versions."

Have fun exploring!  Hat tip Mark Brumley (@markbrumley)


November 23, 2011 | Permalink | Comments (0)

Tuesday, November 22, 2011

Cloud Computing: Protect Yourself

Cloud computing is here to stay. Users access applications on the internet and upload information on the internet (the “cloud”) instead of on their private computing systems. Thus they store it with a private software service. Is this storage system safe? Not everyone is convinced.

In an article in the November ABA Journal, attorney Arlen Tanner suggests using encryption:

For best “in the cloud” practices, Tanner suggests researching both the service provider and the company leasing the space to determine whether the underlying cloud is stable. “Then encrypt your own data,” he says. “Adding your own encryption to data gives another layer of security, especially from internal risks. ... The service’s on-site encryption is intended to prevent outsiders from getting to your data, but the internal IT staffers have access to the site’s encryption key files. By adding your second layer of encryption, you have more control over who can access your data.”


November 22, 2011 | Permalink | Comments (0)

For even top performing students, prof finds that law school may not be a good investment

Although the author of this study cautions that the conclusions pertain only to the financial return on investment of attending law school, not the non-monetary rewards (i.e. the "warm & fuzzies") of becoming a lawyer.  From the Tax Prof Blog via the ABA Journal blog (which has the following summary):

A Vanderbilt law professor who examined the value of a law degree for three hypothetical students has reached a surprising conclusion: The value of law school as an investment may be better for an “also ran” student than a “hot prospect,” though neither made a smart choice.

Tax law professor Herwig Schlunk outlined his conclusions in a draft paper entitled, “Mamas 2011: Is a Law Degree a Good Investment Today?” TaxProf Blog has the study highlights.

In all three of Schlunk’s hypotheticals, the students lost money by attending law school. His hypothetical Also Ran student had a nonmarketable major and low-paying job prospects outside of law school, while his Top Performer could have done fairly well without a law degree.

Schlunk’s hypothetical Also Ran paid about $210,000 for a degree that is actually worth about $174,000; Solid Performer paid about $228,000 for a degree worth about $137,000; and Hot Prospect paid about $252,500 for degree worth about $196,500.

In other words, the expected loss is about $36,000 for Also Ran, about $90,500 for Solid Performer, and about $56,000 for Hot Prospect. The differences are partly attributable to the salaries the hypothetical students gave up by attending law school, their likely salaries after graduation, and differing tuition costs.

Also Ran and Hot Prospect both had a 31 percent chance of earning a sufficient starting salary to justify their law firm investments, while Solid Performer had a 20 percent chance.

Schlunk made these assumptions when creating his hypothetical students:

• Also Ran had a relatively nonmarketable major from a middle-of-the-pack college; in a nonlegal job he could have made $35,000 a year. He is admitted into a third-tier law school and has about a 5 percent chance of landing a job in one of the nation’s 250 largest law firms.

• Solid Performer had a more marketable major from a better institution; in a nonlegal job he could have made $42,500. He is admitted into a second-tier law school and has an 8 percent chance of getting a job in BigLaw.

• Hot Prospect had good grades and a relatively marketable major from a highly ranked undergraduate institution; in a nonlegal job she could have made $50,000. She gets into a top-tier law school and has a 25 percent chance of attaining a BigLaw job.

“Law school is a very risky (and expensive) investment; it should not be entered into lightly,” Schlunk writes. “However, as I have already mentioned, and worth repeating again, each potential student’s calculus will be based on a host of factors unique to him or her. For some, like an English major (relatively low opportunity costs) who gets some scholarship assistance (somewhat lower out-of-pocket costs) to attend Harvard Law School (relatively high pay-off), the investment in a legal education is almost surely a no-brainer.”

Law degrees may also open up more avenues of potential employment, something that is not part of Schlunk’s calculation. “And lastly, of course, a law degree is a professional degree; it confers considerable prestige,” Schlunk adds. “But alas, as I first pointed out two years ago, you cannot eat prestige.”


November 22, 2011 | Permalink | Comments (0)

Sound advice for effectively delivering feedback

Here's some excellent advice, directed at business managers but equally valuable to teachers, about how to deliver criticism that will be heard in a positive way by the recipient (the bit about taking care not to project one's own feelings during the critique is especially important). From the Harvard Business Review blog:

There's no such thing as constructive criticism.

The problem with criticism is that it challenges our sense of value. Criticism implies judgment and we all recoil from feeling judged. As Daniel Goleman has noted, threats to our esteem in the eyes of others are so potent they can literally feel like threats to our very survival.

The conundrum is that feedback is necessary. It's the primary means by which we learn and grow.  So what's the best way to deliver it in a way that it provides the greatest value — meaning the recipient truly absorbs and acts on it?

There are three key behaviors, I believe, and they're each grounded in the recognition that what we say is often less important than how we say it.

1. The first mistake we often make is giving feedback when we are feeling that our own value is at risk. That's a recipe for disaster, and it happens far more commonly than we think, or are aware.

If we're feeling threatened or diminished by another person's perceived shortcomings, providing "constructive criticism" becomes secondary to getting our value back. We're more likely to be reactive, insensitive and even hurtful.

If it's about us, it's not truly about them. Any time we provide feedback with the goal of getting someone to better meet our needs, rather than being responsive to theirs, it's unlikely to prompt the desired outcome.

A classic example is the parent who confuses his own worth with his child's performance, and reacts to the child's missteps with harshness and judgment rather than sensitivity and compassion.

2. The second mistake we make in giving feedback is failing to hold the other person's value in the process. Even the most well-intentioned criticism will, more often than not, prompt us to feel our value is at risk, and under attack.

When that happens, the primal impulse is to defend ourselves. The more the person you are criticizing feels compelled to defend her value, the less capable she becomes of absorbing what she's hearing.

I once had an employee who was highly competent and detail-driven, and rarely made mistakes. Partly this grew out of her fierce perfectionism and her outsize fear of the consequences of being wrong.

Her automatic instinct was to deny responsibility for any misstep. When I felt the need to bring one to her attention, I learned it was crucial to begin by reassuring her that I cared about her, and that I had continuing confidence in her abilities. Only then could she truly take in what I was saying.

When you're inclined to offer specific feedback, pause and ask yourself first how you'd feel if someone gave you that feedback. If you would feel uncomfortable or defensive, assume anyone else would too.

3. The third mistake we make is to assume that that we're right about whatever it is we're inclined to say. Like lawyers, we take a series of facts and weave them together into a story that supports and justifies the case we're seeking to make.

The problem is that our stories aren't necessarily true. They're simply one interpretation of the facts. It makes much more sense to think about offering feedback in a spirit of humble exploration rather than declaration, dialogue rather than monologue, curiosity rather than certainty. Humility is the recognition that we don't know, even when we think we know. As Steven Covey says, "Seek first to understand."

You can read the rest here.


November 22, 2011 | Permalink | Comments (0)

Study finds "RateMyProfessors" may provide "rough barometer of helpfulness and clarity"

Even the authors of the study, Student Consensus on, don't suggest that the anonymous student comments reflect any indication of overall teacher effectiveness beyond those two, limited measures. And even then, it may only serve as a "rough" guide if the professor has accumulated more than 10 feedback ratings. As reported by the Chronicle of Higher Ed:

The Web site RateMyProfessors evokes skepticism among faculty members. Some view the anonymous evaluation site as a haven for rants and odd remarks ("He will crush you like an academic ninja!"), or a place where students go to grade instructors based on easiness or attractiveness (a chili-pepper icon distinguishes professors that are "hot" over those that are "not").

But new research out of the University of Wisconsin at Eau Claire suggests the popular service is a more useful barometer of instructor quality than you might think, at least in the aggregate. And the study, the latest of several indicating RateMyProfessors should not be dismissed, raises questions about how universities should deal with a site whose ratings have been factored into Forbes magazine's college rankings and apparently even into some universities' personnel evaluations.

. . . .

In their study, they probed the reliability of the site's ratings by focusing on the level of consensus among students for 366 instructors at their state university, each of whom had at least 10 evaluations.

The idea is that, if students rate professors based on idiosyncratic personal reactions—to a rude comment made in class, say—then it should take a lot of posts to reach a consensus. By contrast, if students are consistent in their ratings, then a consensus should emerge with a small number of evaluations.

. . . .

Ms. Bleske-Rechek found professors with 10 evaluations displayed "the same degree of consensus in their quality ratings" as those with 50.

"Degree of student consensus about an instructor occurs very early on, in terms of how many raters there are," she said in an interview. "This is similar to what you see on traditional student evaluations of instruction. In other words, it seems like students are homing in on the same experiences in the classroom, because otherwise they wouldn't be showing consensus."

That suggests faculty members with at least 10 ratings "may be able to extract crude judgments" of how students perceive their "clarity and helpfulness," Ms. Bleske-Rechek and Ms. Fritsch write in their paper.

. . . .

Ms. Bleske-Rechek isn't the first researcher to mine this territory. An earlier paper from New York's Marist College, "'He Will Crush You Like an Academic Ninja!': Exploring Teacher Ratings on," concluded that the site's evaluations "closely matched students' real-life concerns about the quality of instruction in the classroom."

The paper added, "While issues such as personality and appearance did enter into the postings, these were secondary motivators compared to more salient issues such as competence, knowledge, clarity, and helpfulness."

And another study, conducted by researchers at the University of Maine, found strong correlations between ratings on RateMyProfessors and formal in-class evaluations.

Other researchers have blasted RateMyProfessors, however. In a 2009 paper, Elizabeth Davison and Jammie Price, of Appalachian State University, in North Carolina, faulted the site's category system for fostering an "anti-intellectual tone that manifests itself in comments about instructors' personality, easiness of workload and entertainment value rather than knowledge attained."

"My biggest validity issue with the site is that Overall Score is being perceived as 'teaching effectiveness' and yet is only based on perceptions of helpfulness and clarity," Ms. Davison says in an e-mail. "I believe teaching effectiveness is more complex and should include more-robust measures such as how much did a student learn, preparedness of the instructor, or the challenging nature of the material."

You can continue reading here.


November 22, 2011 | Permalink | Comments (0)

Monday, November 21, 2011

Writing Tip: Beginning the Small-Scale Paradigm

Most small-scale paradigms, such as IRAC, begin with the issue.  (Ex. "The next issue is whether saying the pledge of allegiance in a public classroom has a secular purpose.")  However, it is clearer to begin with your conclusion.  (Ex. "Saying the pledge of allegiance in a public classroom has a secular purpose because it celebrates our country.")  Beginning with the conclusion tells the reader at the start what you are arguing.  After the opening, the rest of the paradigm is proving your conclusion.  Also, it is more persuasive for persuasive documents;  the reader doesn't have to wait until the end to learn your conclusion.  Finally, you can include a "because" in your opening sentence.

( esf)

P.S. For more on the small-scale paradigm, see Legal Argument and Small-Scale Organization on SSRN.

November 21, 2011 | Permalink | Comments (0)

University limits students' right to tape classes following hatchet job on instructor

In response to a misleadingly edited classroom video that went viral last spring and almost cost the professor his job, the University of Missouri has declared that students may no longer tape a professor's classes without first obtaining written permission.   From the Chronicle of Higher Ed:

Under a policy change proposed by the University of Missouri, students who want to record classroom lectures would first have to obtain written permission from their professors and classmates, the Associated Press reports. Administrators say the intent is to protect “the sanctity of the classroom,” so students and faculty can freely express their opinions without worrying about their comments’ being posted online. The university was at the center of a controversy last spring after highly edited videos of labor-studies classes were posted online by the conservative blogger Andrew Breitbart.


November 21, 2011 | Permalink | Comments (0)

November 22, 1963: The Death of President Kennedy

I remember that day as if it were yesterday.  In commemoration, here is a link to President Kennedy’s Inaugural Speech.


November 21, 2011 | Permalink | Comments (0)

Track Your Citations with Google Scholar

From the Chronicle of Higher Education:

Anyone can now track his or her citations via Google Scholar. The free citation service is “a simple way for authors to compute their citation metrics and track them over time,” the company said in an announcement yesterday on the Google Scholar blog. Google announced a limited-release test of the service in July.

Google Scholar automatically sorts articles into groups. Authors can go through those, identify which articles are indeed theirs, and edit the list. Google Scholars collects citations for each author and graphs them over time to calculate different metrics: “the widely used h-index; the i-10 index, which is simply the number of articles with at least ten citations; and, of course, the total number of citations to your articles,” the blog post says. “Each metric is computed over all citations and also over citations in articles published in the last five years.”

The citation metrics update automatically over time, according to Google Scholar. Scholars can manually edit their entries, “adding missing articles, fixing bibliographic errors, and merging duplicate entries.” Users can also list co-authors and search for other researchers by name, affiliation, or research area. Authors can opt to have their profiles made public, too. “This will make it easier for your colleagues worldwide to follow your work,” Google Scholar says.

It looks as though Microsoft Academic has also ramped up its Academic Search offerings in recent months.


November 21, 2011 | Permalink | Comments (0)

Maryland Register Reverses Decision About Fees

You may recall my post on Nov. 10 about the State of Maryland charging a fee to access the State Register.  Maryland has now reversed that decision.  This post has the details. 

“Yes, the Register is once again available online on the day it’s published for non-paying consumers,” wrote Register Editor Gail Klakring in an e-mail to “We realized that any change to the availability of Maryland Register has had an unintended impact on the transparency of Government and that was never the intent.”

Hat Tip Maryland Law Library (@mdstatelawlib)


November 21, 2011 | Permalink | Comments (0)

Sunday, November 20, 2011

New skills-related scholarship: "Renaissance or Retrenchment: Legal Education at a Crossroads"

This one is by Professor Lauren Carasik (Western New England School of Law) and can be found at 44 Ind. L. Rev. 735 (2011).  From the introduction:

This is a time of unprecedented opportunity to undertake a comprehensive and unflinching evaluation of the deeply entrenched and inflexible system of legal education, a system that has utterly failed to adapt its pedagogy, culture, and economics to the current and devastating reality facing law students. A confluence of factors has created the current state of affairs, including the publication of two monographs-the MacCrate Report and more recently, the Carnegie Report - decrying the limitations of the dominant pedagogy of legal education and urging educators to reshape its reigning design; a collaborative effort to delineate the best practices in legal education in the Best Practices Report that highlighted the shortcomings of legal education as currently structured; crushing student debt, rising tuition, and dismal employment prospects for law school graduates; vociferous student dissatisfaction with the value of their legal education; a continuing crisis in access to justice; the apparent end of “big law;” and alarming rates of student and lawyer distress. These factors contain thematic cross-currents and send the unmistakable message that it is time to ignite a conversation within the academy and the broader legal community to reassess our mission, vision, and efficacy as legal educators. We must engage in unsparing self-reflection, step back from our entrenched positions and the attendant privilege we have as members of legal academia, and re-imagine a new vision for legal education that serves the interests of our students, the bench and bar, and society, with an overarching aspiration to bolster the bedrock principle of equal justice under law.


This Article synthesizes some of the literature criticizing the current state of legal education with some of the scholarship proposing solutions and argues that whatever review is undertaken must be expansive, with a careful and critical look at how each piece supports the endeavor. None of the ideas discussed below, taken alone, are novel, as scholarship abounds on all of the topics. Considered together, they propound a comprehensive and holistic approach to reform. In essence, my goal is to catalyze a wholesale reconsideration of the very foundation of legal education. Many of the seemingly disparate themes comprise a Gordian Knot and cannot be rectified in isolation. Accordingly, the whole enterprise must be deconstructed, from how we recruit and admit law students to how we license them, because the process supports a self-reinforcing and self-perpetuating system and culture that fails to serve our students and the society in which they will operate as professionals. I hope this engenders a conversation that is unfreighted by and decoupled from history and compels us to step back and critically assess how we can restructure legal education by focusing our sights on the best interests of our students instead of perpetuating the privilege and luxury of legal academia. Given the well-documented emotional and fiscal price that legal education is exacting from our students, it is unconscionable to maintain the status quo. After lamenting the current conditions that law students confront, one commentator noted that “[a]t some point, law professors can no longer disclaim responsibility for the harmful consequences of this enterprise.”


This Article is comprised of three parts. Part I provides the historical backdrop for legal education, briefly critiques the current system, and discusses the impact of those shortcomings on law students. Part II considers a few of the solutions crafted in response to the current crisis facing legal educators. Part III suggests a wide array of reforms aimed at remediating these deficiencies and argues that any real reform must consider and integrate the seemingly disparate but interdependent factors. Piecemeal and incremental reforms will ultimately fail to fully remedy the shortcomings of our current system, although they may provide marginal relief. This section also illuminates the significant impediments to meaningful reform in legal education. Each section contains a truncated discussion of the topics because space constraints preclude a thorough discussion. My intention is not to provide persuasive evidence on each component, but rather to encourage a cumulative discussion that underscores the importance of an ecumenical commitment to holistic and comprehensive reform. In conclusion, the Article argues that while the forces supporting the status quo are powerful and the barriers to change are substantial, the costs of ignoring these problems for law students, practicing lawyers, our venerated legal system, and the greater society are wholly unacceptable.


November 20, 2011 | Permalink | Comments (0)

Must lawyers use privacy screen protectors on all mobile devices when out in public?

Products such as 3M's Privacy Screen Protector prevent others from seeing your mobile device screen when you work away from the office like sitting on an airplane or in any other public space where prying eyes habitate.  See below for a video demonstrating how a smartphone privacy screen works.  The heavy use of mobile devices (smartphones, tablets and laptops) to transact confidential client business away from the safe confines of the office means that the risk of the inadvertent disclosure of the attorney-client or work-product privileges is eminently foreseeable. That raises the question whether a court would consider the failure to use a screen protector under such circumstances prima facie evidence of negligence on the part of the attorney.  Courts vary in how they analyze inadvertent disclosures but a common approach asks whether the attorney took "reasonable steps" to prevent the disclosure.

Given the minimal cost and ease of installing screen privacy protectors, there's no reason attorneys should not use them for their mobile devices.  Stories abound of people overhearing all manner of confidential information while waiting around in airports or traveling on commuter trains.  Don't wait for a court to rule that your failure to spend a couple of dollars on a privacy screen amounts to gross negligence regarding the failure to prevent an inadvertent disclosure of confidential client information.  But do take a moment to shop around because based on my quick review of customer ratings for several screen protectors sold by Amazon, some apparently work better than others.


November 20, 2011 | Permalink | Comments (1)

Law School Mailings as “Law School Porn”

“Law school porn” is what many legal educators call the promotional mailings that inundate their mail boxes:

It's that time of year when law school faculties are inundated with so-called "law school porn" — slick mailings extolling the virtues of individual law schools meant to sway voting in the U.S. News & World Report's reputation survey, now underway.

Some legal educators believe the annual barrage of mail has gotten out of control, and proves that rankings are driving administrative decisions. They say it's time to stop paying for glossy brochures and invest that money in students.

Here’s an interesting article on the subject in which law professors almost uniformly deplore this feeble public relations effort. Still, the mailings pour forth. As for me, I quickly glance at them before I toss them. They have never influenced my assessment of a law school.


November 20, 2011 | Permalink | Comments (0)

Institutional resistance to legal skills training presents an opportunity for change for schools willing to become that "oddball place."

This article from Saturday's New York Times, What They Don't Teach Law Students: Lawyering, nicely summarizes the historical bias law schools have toward skills training and why from an institutional standpoint it's so hard to change.  In essence, a law school's prestige is what attracts the best applicants and it's that selectivity that creates job opportunities upon graduation. Traditionally, a school's prestige has hinged upon the quality of its faculty's publications. Thus, it's not so irrational that the legal academy values scholarship above all else including teaching students the nuts and bolts of law practice. Indeed, the unspoken rule within most of higher education is that time spent teaching students is time that would be much better spent pursuing scholarship that has "impact."

Likewise it's hard to claim absence of merit for the view that giving students access to the "best" scholars provides the "best" education.  As a source quoted in the NYT's article said: “Students want renowned scholars to teach them, period . . . .  They want to learn from the best and brightest.”  Even those who advocate for more skills training must concede that teaching students how to "practice" law must begin with a solid foundation in legal theory.  Thus, there are several institutional forces at play that suggest it is highly unlikely the traditional model of legal education is going to change in a substantial way anytime soon, especially among the top ranked schools and those that aspire to be.  The expanding number of law schools competing for a shrinking pool of applicants and the role of "peer reputation" in the USNWR rankings serve to reinforce these status quo values.

Nevertheless, employers are asking even the best schools to spend more time teaching practical lawyering skills and the schools are responding.  But the top-tiered schools are so heavily invested in the traditional "research institute" model of legal education that a major paradigm shift won't happen anytime soon.  On the other hand, it means lower ranked schools that are not as heavily invested in that model have an opportunity to create a unique identity within a very crowded field that could see an "industry" shake-out in the coming years. 

Schools that can successfully compete in the USNWR rankings game based on traditional measures of institutional prestige have too much to lose to risk becoming that "oddball place," to quote a law professor interviewed for the NYT article.  But for other schools, that might be the key to surviving the "coming crunch for law schools." The time is ripe for lower ranked schools to invent an alternative to the prevailing educational paradigm by directing the bulk of their financial resources toward skills training rather than faculty scholarship (and hiring experienced practitioners to teach rather than relying primarily on those who have "never practiced law for a single day").

It's an entrepreneurial gambit that might pay-off big time to the extent it allows a lower ranked school to carve-out a niche within a very crowded field of law schools that all look pretty similar.  These schools have little to lose by withdrawing from the USNWR beauty pageant but much to gain if they can reinvent themselves in a way that assures survival by providing to students employable skills.  Consider, for example, this California school that is marketing itself as a trial preparation institute.  Other schools may also have to become that "oddball place" if they hope to compete for tuition dollars among the 200 plus (and growing - here and here) law schools chasing a shrinking applicant pool (and here).


November 20, 2011 | Permalink | Comments (2)

Saturday, November 19, 2011

What They Don't Teach Law Students: Lawyering (NYT)

The New York Times has another article on legal eduction, this time criticizing law schools for not teaching practical skills.  The author bases his article mainly on discussions with law firms. While the article has some significant gaps, I agree that its basic message is correct--that law schools do not produce practice-ready attorneys.

First, the gaps.  While the article mentions clinics, it ignores legal writing, which all law schools require, as well as advanced writing courses.  It also leaves out other skills courses that some law schools have recently added, such as contract drafting and other transactional courses.  It fails to mention the Carnegie Report or CLEA's Best Practices, both of which advocate more practical training.  It doesn't mention the Legal Writing Institute, the Association of Legal Writing Directors, and other groups that have advocated change in the legal profession and held conferences where new approaches to legal skills have been presented.  Although the article criticizes legal scholarship, it fails to mention that many of us in the legal skills area produce practical scholarship, as one can see from SSRN or posts on this blog.

Despite the above, more still needs to be done.  Changes need to be made in first-year doctrinal courses.  These courses should include miniskills, such as exercises in case synthesis, rule-based reasoning, reasoning by analogy, distinguishing cases, and dealing with ambiguity.   (Law is more than analysis of single cases!)  As I mentioned earlier this week, some first year courses, especially contracts, could include drafting exercises.   As Scott Burnham has observed, "I find that, in fact, drafting required the same higher-level reasoning processes as case analysis."

The second and third years of law school should build on the miniskills learned in the first year.  The NYT article mentions that lawyers coming into large firms do not know how to do mergers.  Most law schools have courses in mergers and acquisitions.  Why can't these courses actually teach students to do mergers and acquisitions?  You should learn how to write wills in wills class, an estate plan in an estate planning class, and corporate documents in a corporations class.

Despite the efforts of the Carnegie Report, Best Practices, LWI, ALWD, etc., there has been and will continue to be resistance to change, both by law professors and students.  Since we need to make changes in all law school classes, all professors will have to change their teaching methods, but I think a lot of this can be accomplished by a new type of casebook--a casebook that includes cases, skills exercises, drafting exercises, and practical problems.  (Carolina Academic Press is starting to put out some skills-oriented casebooks, but we need many more.)  Of course, we have to also convince our students to take these courses.  While such courses might require more work on the students' part, they should also be more interesting.

It is well know that there is a law school crisis.  The posting below this one notes that LSAT test takers were down 16.9% last month.  Those law schools that don't adapt to new conditions may not exist much longer.


 (hat tip: Ruth Anne Robbins)

November 19, 2011 | Permalink | Comments (5)

Number of LSAT test-takers down 16.9% in October; Professor Brian Tamanaha reiterates warning to law schools

From the blog Balkinization:

More Ominous Signs of the Coming Crunch for Law Schools

Brian Tamanaha

In June I wrote a post about the coming crunch for law schools, which asserted that law schools should anticipate a significant decline in the number of applicants in coming years. This will be especially problematic because law schools have substantially increased the size of their faculties in the past decade, making it hard to trim expenses to meet a decline in revenues. As the number of applicants falls, a significant proportion of law schools will experience a drop in the quality of students or a fall in revenue, and many will suffer both simultaneously.

Three recent signs indicate that this will happen more quickly and to a greater degree than I suggested in the post. The first indication is the disclosure that every student in the 2011 entering class of Illinois law school, including students admitted off the wait list, received tuition discounts. When everyone gets a scholarship, that constitutes a de facto tuition reduction, an indication that a law school is having trouble filling its seats at the list price. Given that Illinois is an excellent law school, it is likely that other schools are in the same position.

The second sign is more serious. The October 2011 LSAT, which is the highest volume test for people considering law school, had 16.9% fewer takers than the previous year. It was the lowest number of people to sit for the October exam in a decade. And it was the fifth straight LSAT administered to show a substantial decline from the same test the year before. The two most recent exams—June and October—had the largest year-to-year declines, 18.7% and 16.9%, for those respective months as far back as the LSAC chart goes (1988-89).

The third sign is perhaps the most alarming for law schools: the yield of applicants to test takers has been falling steadily in recent years. At least since 1995 (earlier statistics are not available), between 75% and 80% of the people who take the LSAT have gone on to apply to law school. It makes sense that a high proportion of people who take the test would apply because preparing for and taking the test involves a substantial commitment of time and money. Beginning in 2000-01, however, when 80% of the people who took the test applied to law school, the yield of applicants to test-takers has declined every year but one (2003-04). In 2010 and 2011, only around 63% of the people who took the test applied to law school.

This sustained decline in yield suggests that applicants to law school are rationally responding to the extraordinary emphasis law schools place on LSAT scores—which determine the range of law schools a prospective student will be admitted to as well as the price a student will pay. Apparently, more and more prospective students who don’t achieve their target LSAT score are passing on law school. This decline in yield is perhaps also an indication that the yearly increase in law school tuition has been suppressing demand, although it was not visible on the surface. What's telling about this decline is that it began long before the current legal recession and all the bad news about law schools.

Law schools are caught in the grip of two separate, reinforcing declines that portend a severe contraction in the immediate future: fewer people are taking the LSAT test, and fewer people who take the test go on to apply to law school. (It is possible that a sharp decline in the former will lead to a rise in the latter, but that has not happened so far.) A painful dose of economic discipline for law schools is just around the corner.

Hat tip to Tax Prof Blog.


November 19, 2011 | Permalink | Comments (0)

The Out-of-Town Lawyer and Client: Does Homefield Advantage Matter?

According to jury consultant Melissa Gomez, it depends. She has found that home towners have an advantage in Pittsburgh, but much less of an advantage, if any, in New York City. More important is how the out-of-towners interact with the venue:

 In my practice, I have found that being the attorney from the outside means you have to do your homework to understand the people in the venue as opposed to being like them. It is not that you need to change who you are or who your client is. In fact, trying too hard to fit in may backfire. Most jurors from Texas will notice that those cowboy boots that attorney from Philadelphia is wearing are fresh from the box. Instead, understanding a venue is more about showing respect for it by learning and following the court procedures, and understanding the folks well enough to know what kind of argumentative tactics will fly and what will not (i.e., you may get away with a more directly confrontational cross examination in New York City than, say, Savannah, Ga.).

Here’s the posting from the Legal  Intelligencer blog.


November 19, 2011 | Permalink | Comments (0)