Saturday, January 21, 2012

The Supreme Court and the Constitutional Convention

Here is a plug for my latest publication, “The Supreme Court and the Constitutional Convention,” 27 Journal of Law and Politics 63 (2011). Here is the abstract:

This article offers the first extensive study of the Supreme Court’s reliance on the debates of the Constitutional Convention. It begins with an account of the historical record of the Convention. It then catalogues instances in which the Court has referred to the debates, supplies information on the purposes for which the Court engaged in this reliance, and offers five findings based on the data. The article also offers a limited qualitative analysis of three prominent cases arising at different times in the Court’s history: Dred Scott v. Sandford, Morrison v. Olson, and U.S. Term Limits, Inc., v. Thornton. It analyzes how the Court employed the Convention records in these cases. The article concludes with some conclusions about the role of constitutional history as a method of persuasion in briefs and judicial opinions.

Unfortunately, the extensive graphs and charts do not appear on Westlaw or Lexis.



January 21, 2012 | Permalink | Comments (0)

Friday, January 20, 2012

"Part-time Work Among Lawyers Declined for First Time in 17 Years"

From an NALP press release dated January 19, 2012:

Most large law firms have made part-time schedules available to their experienced lawyers for many years, but overall the number of lawyers working part-time continues to be very small, and in fact the number edged down in 2011 for the first time since NALP began compiling these figures in 1994. In 2011, just 6.2% of lawyers were working part-time, compared with 6.4% in 2010, and most of them, over 70%, were women. This reflects the fact that women are much more likely to be working part-time than men. Among women lawyers overall, 13.4% work part-time; among female partners, 11.8% are working part-time; and among women associates the figure was 10.0%. This contrasts with a rate of just 2.7% among all male lawyers. These are among the findings of the most recent analyses of the NALP Directory of Legal Employers, the annual compendium of employer information published by NALP. The 2011-2012 Directory comprises listings from primarily large law firms and includes part-time use information for 1,269 individual law offices and firms and for more than 125,000 lawyers.

The lack of part-time lawyers at law firms distinguishes private law firm practice from both the U.S. workforce as a whole and from more defined segments of the workforce. According to the Bureau of Labor Statistics (BLS), not quite 13.6 % of employed individuals during 2010 usually worked part-time, as did a similar percentage (13.2%) of those employed in professional specialties (e.g., engineers, architects, physicians). These rates contrast markedly with the 6.2% rate among lawyers at major law firms. However, it is worth noting that the decrease in the percentage of lawyers in large firms working part-time parallels a decline among those in professional specialties as a whole. The annual average of 13.2% for 2010 compares with 13.6% in 2009.

Table 1. Part-time Work at law Firms in 2011 — Summary by Lawyer Type

  Total # % Part-time % Who Are Women Working Part-time % Who Are Men Working Part-time % of Women Working Part-time % of Men Working Part-time % of Part-time Lawyers Who Are Women
Partners 57,020 3.5% 2.3% 1.2% 11.8% 1.5% 65.8%
Associates 53,303 5.1 4.5 0.6 10.0 1.0 89.1
Other Lawyers* 14,710 20.7 11.8 8.9 31.4 14.2 57.0
Total 125,036 6.2 4.4 1.8 13.4 2.7 70.5

*Includes counsel/of counsel, staff attorneys, and senior attorneys.
Source: 2011-2012 NALP Directory of Legal Employers

You can continue reading the report here including tables showing the percentage of part-time private sectory lawyers by city.

Hat tip to the ABA Journal Blog.


January 20, 2012 | Permalink | Comments (0)

More on Infliction of Emotional Distress

The tort of infliction of emotional distress is a common subject of Legal Writing projects. Here’s a new related case. The issue: “Does the Washington Product Liability Act permit relief for the emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?”

In the abstract, the issue sounds like a typical one. But the facts are attention-getting. Gross Alert: The following facts are a bit gross:

Edward J. Bylsma—a sheriff's deputy—ordered a Whopper with cheese from a Burger King drive-thru. An “uneasy feeling” prompted him to lift the top bun before eating the burger, and he observed a “slimy, clear and white phlegm glob” on the meat patty, the Ninth Circuit said. DNA testing revealed the glob to be the employee's saliva.

The victim sued Burger King. The culprit went to jail for 90 days. The case is taking place in federal court, and the Ninth Circuit has certified the issue to the Washington Supreme Court. Here is a link to the story on U.S. Law Week online. Here is the Ninth Circuit’s opinion.



January 20, 2012 | Permalink | Comments (1)

LSAC reports applications to law schools are down more than 15%

According to a password protected report posted in the "law school" section at, both the number of applicants and applications to ABA accredited law schools for the fall 2012 term has dropped more than 15% since last year.

The report indicates that as of 1/13/12 ABA applicants are down 16.7% and ABA applications are down 15.3% from 2011.  The report also indicates applicants to Canadian law schools are up 4.4% and applications are up 5.4% from 2011.



January 20, 2012 | Permalink | Comments (4)

New Article on Rule Synthesis

Rule synthesis is one of the most important miniskills that first-year law students should learn.  However, except for legal writing classes, this skill is not frequently taught in first-year classes.  I believe that this is a skill that professors need to drill the students on, just like piano teachers drill their students on scales.

There is a new article on rule synthesis:  Teaching Rule Synthesis with Real Cases by Paul Figley.

Abstract: "Rule synthesis is the process of integrating a rule or principle from several cases. It is a skill attorneys and judges use on a daily basis to formulate effective arguments, develop jurisprudence, and anticipate future problems. Teaching new law students how to synthesize rules is a critical component in training them to think like lawyers.

While rule synthesis is normally taught in legal writing classes, it has application throughout the law school experience. Academic support programs may teach it to students even before their first official law school class. Many professors convey analytical lawyering skills, including rule synthesis, in their doctrinal courses. Rule synthesis has obvious utility for clinicians and others who supervise interns. Mastering synthesis skills can help students integrate doctrinal material and succeed on law school exams.

Many students new to the law have a difficult time grasping how to do rule synthesis. To avoid the process, some pick one promising quotation from a group of cases and declare it to be their rule of law. Others may serially discuss all the cases on an issue and compare each with the facts of the matter at hand, in effect, doing a mini-IRAC analysis for each cited case. Neither approach is adequate. Students must learn to read a body of law and integrate their understanding of it into one simply stated, readily applied rule.

This article suggests how rule synthesis might be taught in one classroom session using real cases. It advocates a three-part approach. First, explain the nature of rule synthesis to the students. Second, do a whimsical exercise with them to show how rule synthesis works. Finally, break into small groups and synthesize a rule from real cases for a hypothetical problem. Massachusetts judges have written a number of very short opinions regarding banana peel litigation. Accordingly, the hypothetical problem suggested involves a banana peel slip-and-fall case set in Boston. Because these opinions are so short, students will have time in class to read them and synthesize a rule from them. In working through the exercise students will see that different rules can be synthesized from the same set of cases."

(Scott Fruehwald) 

January 20, 2012 | Permalink | Comments (0)

Thursday, January 19, 2012

Get ready for Apple's textbook revolution

From the Guardian U.K.

Apple: iBooks 2 will 'reinvent textbooks'

Although price is likely to be a barrier, the software will let students watch videos and take notes inside the virtual books

Apple has unveiled a glimpse of the classroom of the future, launching a new version of its iBooks software that will allow publishers to create interactive textbooks for iPad-owning students.

The new textbooks offer a host of functions which experts say will transform teaching – including images that turn into slideshows, links from the body text into glossaries, and multiple choice tests which are instantly assessed.

Students will be able to create notes by highlighting text with their fingers, and then review all of their notes in one place – instantly creating a tailormade set of study cards.

The price of the books – $14.99 or less – will also be a crucial factor in a market frequently criticised for its high prices.

According to Steve Jobs biographer Walter Isacsson, the Apple founder spent the last years of his life looking at how the company could shake up the textbook market.

Apple unveiled the textbooks on Thursday at an event at the Guggenheim Museum in New York.

"These are beautiful books. Interactive, gorgeous, fun, engaging," said Philip Schiller, Apple's senior vice president of world-wide marketing.

The company also released iBook Author, which will allow people to create their own interactive textbooks.

Initially the books will only be available in the US. Textbook approval is a lengthy processes in the US but Apple said it has struck deals with major publishers including McGraw Hill and Pearson.

Among the launch titles will be two high school textbooks – Biology and Environmental Science – from Pearson and five from McGraw-Hill.

While textbooks, especially for university students, are expensive in the US, iPads start at $499. Michael Gartenberg, analyst at Gartner, said price was a "significant factor" but that the price of iPads was likely to come down.

"Even at $499, over four years of a college degree that's probably less than students spend on coffee," he said. "I think this is a very exciting development. Apple have put out the tools that will start to bring education into a digital world."

He said he expected Amazon, the world's largest book seller and owner of the iPad rival Kindle Fire, would also make moves on the digital textbook market.

"It's going to take time for a generation of teachers to adapt to this but it will happen," he said.

Seb Schmoller, chief executive of the Association for Learning Technology, a charity which promotes the effective use of technology in classrooms, said: "Students, particularly in the US, pay a lot for textbooks even if they manage to buy them second hand. Provided they own an iPad, then Apple's textbook service will provide a much more interactive and probably pedagogically more effective experience than conventional textbooks at a much lower price."

Digital textbooks will account for just 6% of education-textbook sales this year, according to textbook distributor MBS Direct Digital, but that is up from 3% in 2011 and number is expected to rise to more than 50% by 2020.

The digital textbook had long been a dream of Jobs's. At a dinner in early 2011, he told News Corp chairman Rupert Murdoch that paper textbooks could be made obsolete by the iPad.

The interactive features of the e-textbooks have the potential to revolutionise classrooms and transform the role of the teacher, education experts suggested.

Louise Robinson, president of the Girls' School Association, which represents 179 independent girls schools in the UK, said: "It is exciting. You can annotate your textbooks so children can create their own study aids. That seems a really clever way for students to learn.

"The glossary [function] too – there's a number of times when you go through a textbook and a child doesn't know a word that you've covered the day before. It's so easy now to go back and say what that word means. It takes away from the 'regurgitating' side of teaching."

While exams continue to use pen and paper, classrooms will be resistant to change, Robinson said. However, exam boards are beginning to look at computerised tests which can be customised for individual candidates. The technology will lead to a new relationship in the classroom, Robinson suggested.

"It's going to be a different model where you don't expect children to have it in their minds, because they have it at their fingertips.

"I think we will move away from one teacher in front of a class of 25-30, where the teacher is not quite a facilitator but leading the learner through the path."

Miles Berry, senior lecturer in ICT education at Roehampton University, highlighted the book authoring tool unveiled at the same event. Berry said: "This is something Apple has done all along - putting the tools of production in the hands of the people. There is more that one can do with textbooks in this form – it makes it easier for teachers themselves and students to create that sort of content. That's a really exciting prospect.

"There are social division issues here. Is it going to be possible to borrow these books from school libraries? Is the school going to be the organisation to provide these books to students? What about those who can't afford to buy the books themselves?"

Hat tip to Doreen McKee.


January 19, 2012 | Permalink | Comments (0)

Guest blogger Nick Wagoner on "Common Parenthetical Pitfalls"

Please welcome Nick Wagoner who writes for a great new blog called that provides timely, insightful commentary on federal appellate issues headed for the Supreme Court. (It's also an excellent resource for legal skills profs looking for moot court problem ideas).  Nick is an associate with the Houston law firm Rogers, Morris & Grover, L.L.P., where his practice focuses on civil-rights litigation and public law.

This is the first installment of a 3 part series from Nick on writing effective citation parentheticals in legal briefs.

Common Parenthetical Pitfalls (Part 1 of 3)

I just finished reading Ross Guberman’s new book on legal writing, Point Made: How To Write Like the Nation’s Top Advocates, which I would highly recommend to lawyers and law students alike. The book is chock full of helpful writing tips presented in a conversational, “show-and-tell” style more closely resembling a casual series of blog posts rather than a stuffy treatise on legal writing. I found the chapter on parentheticals particularly insightful since many students, professors, and attorneys, myself included, are not completely comfortable with exactly when and how this versatile tool should be used in legal writing.

Scan through a handful of opinions and law review articles and you will quickly notice that many of them either misuse parentheticals or simply omit them entirely. Treating parentheticals like an afterthought, however, is a missed opportunity to more effectively inform or persuade your intended audience. Justice Ginsburg once wrote that one of the items on her “check list for a first-rate brief” is the liberal use of parentheticals (no pun intended) “offering the readers a clue why they are there” by “show[ing] the relevance of the citation.” Ruth Bader Ginsburg Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 568 (1999). Senior Judge Leonard Garth of the Third Circuit expressed an even deeper appreciation for the parenthetical when he proclaimed, “The single, easiest way to make a good brief better is by the judicious use of parentheticals following case citations.” Leonard I. Garth, How to Appeal to an Appellate Judge, 21 Litig. 20, 24-66 (Fall 1994).

So how do you cure a poorly drafted parenthetical? This first thing to do is to learn how to diagnose it. Although parentheticals can be misused in a variety of ways, here are two of the most common parenthetical pitfalls to avoid:

1. Lengthy Parentheticals

Long-winded parentheticals can turn fluid prose into a choppy mess. Any value added by a long parenthetical will likely be lost if the reader forgets what the preceding sentence said by the time they make it from left parenthesis to right parenthesis. Sure, judges, editors, and even law students are capable of holding their train of thought. But doing so is not particularly pleasant. Short and sweet parentheticals are much more pleasant to read and keeps the reader's focus on your core arguments. 

As a general rule of thumb, consider limiting the length of parentheticals to less than or equal to the length of the preceding textual sentence. I would also recommend reading briefs to the Supreme Court to get a better feel for how skilled advocates use parentheticals to communicate complex, nuanced ideas in a concise manner. Or, if you must, think of parentheticals as Twitter—140 characters or less!

2. Duplicative Parentheticals

This pitfall refers to parentheticals that simply echo what was already communicated in the preceding sentence, adding little or no value to your sentence. See (defining the word “echo” to mean “[a] repetition or an imitation”). Duplicative parentheticals reveal an author’s discomfort with their ability to accurately paraphrase the law. Parentheticals should generally not follow direct citations or “see” citations. If you are concerned about unwittingly trimming out important terms of art when paraphrasing a particular law, simply quote the source directly and drop the parenthetical. If courts have stated a particular proposition in a variety of ways, quote the case that most clearly states your position and then resist the urge to quote every other variation of that position in parentheticals. Think of the parenthetical as a tool for making a sharp, laser-like point about the law that is not obvious from the preceding sentence, rather than as a blunt instrument for making duplicative, shotgun-blast arguments at the end of a sentence that may or may not appeal to the reader.

3. Example

Consider the following parenthetical, which helps illustrate the common pitfalls discussed above:

Although all reasonable inferences should be drawn in favor of the nonmovant, nonmovants cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little v. Liquid Air Corp., 37 F.3d 1069, 1974 (5th Cir. 1994) (“This burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, by ‘conclusory allegations,’ Lujan, 497 U.S. at 871-73, 110 S.Ct. at 3180, by ‘unsubstantiated assertions,’ Hopper v. Frank, 16 F.3d 92 (5th Cir.1994), or by only a ‘scintilla’ of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir.1994).”)

Now that we know how to diagnose a poorly written parenthetical, stay tuned for Part II, entitled “Crafting the Perfect Parenthetical,” in which we will explore how to cure such parentheticals.


January 19, 2012 | Permalink | Comments (0)

Is It OK to Pay Referral Fees?

That’s a topic that our students should know about.  According to the Rules of Professional Conduct, a lawyer cannot pay referral fees to non-lawyers. (Rule 7.2)

Can lawyers pay referral fees to lawyers? Yes, if there is compliance with Rule 1.5(e). Here is the explanation from Attorney at Work.

Rule 1.5 (e) specifically governs referral fees between attorneys, and spells out certain requirements, including these three:

  1. The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
  2. The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
  3. The total fee is reasonable.

While the last two clauses are self-explanatory, many lawyers have questions about the meaning of the first clause. Some mistakenly believe that all fee division arrangements must be proportional. The rule is clear that this is not the only option. Non-proportional arrangements are allowed if “each lawyer assumes joint responsibility.” What does this mean?

Joint responsibility implies that both the referring and receiving lawyers would be held liable for any claim of malpractice. Some interpreters of the rule believe that it is enough for a referring lawyer to simply state responsibility in the referral agreement. Others believe that the referring lawyer must actually do something—other than just making the referral—in the actual representation. Regular brief contacts with the client or an occasional review of relevant documents would probably suffice.

Better Safe Than Sorry 

Many state rules follow Rule 1.5 (e) very closely, if not verbatim, but some do not. To ensure compliance in your jurisdiction, always check the state rules and apply them rigorously. Many states have an ethics hotline to answer questions.


January 19, 2012 | Permalink | Comments (0)

Congressional Record App

he Library of Congress has created an iPad app that provides access to the daily edition of the Congressional Record from January 4, 1995 - present.

From the AALL Advocacy Discussion List:

“The app allows users to:
 * Browse editions of the Congressional Record by date.
 * Perform keyword searches within individual documents or sections within documents.
 * Identify the latest bills and resolutions considered daily on the floor of the U.S. House of Representatives.
 * Identify the latest bills, resolutions, treaties, and nominations considered daily on the floor of the U.S. Senate.
 * Save documents to your preferred iPad PDF reader.
 * Share documents via email.”

You can access the app here or you can search in the iTunes App Store for "The Congressional Record."


January 19, 2012 | Permalink | Comments (0)

Oral Argument Skill Building – Supreme Court Transcripts & Audio

Audio recordings and transcripts of Supreme Court arguments may be interesting learning tools for law students.  The transcripts are posted online through the Supreme Court website and also linked in the SCOTUS blog.  Beginning with the October 2006 Term, the transcripts are posted online on the same day an argument is heard by the Court.  More information about accessing the transcripts can be found here.

Argument transcripts can be found here.
Argument Audio can be found here.

Several state appellate courts also post these materials online.  This is great supplementary material for your lawyering skills courses.


January 19, 2012 | Permalink | Comments (0)

Wednesday, January 18, 2012

Incorporating Professionalism Into Doctrinal Courses

When I taught legal ethics a few years ago, I told the students that legal ethics was the one topic that they would be using everyday in practice. When I have taught legal writing, I have included material on professionalism, even on the first day. (see Legal Writing, Professionalism, and Legal Ethics) Over the last few weeks, I have been reading casebooks and supplemental texts that incorporate professionalism into doctrinal courses. I am now convinced that professionalism should be a part of substantive courses.

Two recent series of law books integrate ethics into doctrinal courses.  The Context and Practice Series from Carolina Academic Press is a new kind of casebook that incorporates skills training and professionalism into doctrinal casebooks. Each chapter includes a professionalism section at the end, which deals with specifics ethics problems related to the topic of that chapter.

While the supplemental skills training texts in the Skills & Values Series from LexisNexis do vary in format, most of them include materials on ethics training. As I stated in a post last week, I am especially impressed by Discovery Practice by David I.C. Thomson (2010). In this book, Professor Thomson makes ethics an integral part of discovery teaching. Considering that discovery involves the tension between the ethical duties of zealous representation and confidentiality to the client with the duties of fairness and disclosure to the court and to other parties, it makes a great deal of sense to include professionalism here.

In sum, I agree with the Carnegie Report that we need to teach professionalism better in law school. Probably the best way of doing this to incorporate skills training into doctrinal courses, especially now that casebooks and supplemental texts allow professors to easily do this.

(Scott Fruehwald)

January 18, 2012 | Permalink | Comments (0)

Tips on effective public speaking from James McElhaney

The author of the great and widely read litigation column from the ABA Journal is hanging up his pen and pad in the fall. As a tribute, the journal is re-publishing some of McElhaney's most popular columns from the past 25 years.  This one, called More Than Just Words: This Is What It Really Means to Talk Like a Lawyer, is from 1991.  Each tip is a gem.


Even the simple “May it please the court” is an instinctive recognition that pleasing your audience is the key to persuading it.

And there are all kinds of bonds that tie speakers to audiences—some simple and appealing, others base, even ignoble. The psychology of the bond lies in our most primitive past. Should the cavemen gathered around the communal fire even listen to this stranger from another clan? Any lawyer who has been subjected to “home cooking” has felt the power of “the cave.” It can be overcome, but it takes a lot of work.

Fortunately, there are other bonds that can tie a lawyer to the audience. One of the strongest bonds a lawyer can draw on is the very reason for everyone being in court in the first place: to right a wrong.


You didn’t design the courtroom, the bench, the jury box or the lectern. You have only a limited responsibility for who is in the jury box, and even less for who is on the bench. You have only a little control over when you start to speak and how much time you have.

The same things are true in all kinds of other settings in which you must speak as a lawyer.

But whatever the surroundings, whoever the audience, whatever your goal and however long you have, you are the one responsible for effective communication. It is your job to make yourself understood—not your audience’s job to try to understand you.

Accepting responsibility for communication means a number of things—all of them important:

• Focus on your audience. Watch their faces for signs of understanding or confusion. Respond to the signals they send you. Even on very formal occasions, your job is to get ideas across, not to perform an idle litany.

• Don’t complain about the adversities you face, such as the surrounding noise, the lateness of the hour, the fact that you were deprived of some of your time to speak, or that you only had a short time to prepare. It’s up to you to overcome these obstacles, not to blame them.

• Respect your audience. Treat them as equals. Let them understand that getting your ideas across to them is the most important task you have.


One of the reasons lawyers try so hard to sound like lawyers is that we suppose it gives us the trappings of credibility. If we know the magic words, we must know what we’re talking about.

But the problem is that the rest of the world didn’t learn our new vocabulary with us, so sounding like a lawyer is usually a self-defeating effort. You should choose other ways to look like you know what you’re talking about.

One of the best ways is to make sure that what you say is true. Talk only about what you know. Whenever you try to fake it, little verbal and nonverbal clues will give you away.

Show that you have prepared for your presentation. Sharing a few bits of interesting information or using a pertinent quotation not only grabs your audience’s attention but also says you have done your homework.

Use audible and visible organization. It validates what you’re saying by showing that you are not simply winging it. If you announce at the beginning of your presentation that you have three main points and then call them out as you come to them, everyone will know that you have thought through what you’re saying.

Of course, there are lots of ways to shoot yourself in the foot (or some more painful place). You can show that you don’t know the facts or don’t understand the law. Even showing dislike for the topic can be disastrous.


There was a psychology course that I always wanted to take when I was a college undergraduate, but somehow I never got around to it. Early every fall, students in the class would accost people walking through the student union and ask them to participate in an experiment. They would ask you to study the contents of a cigar box for 15 or 20 seconds. The box would have a number of ordinary objects scattered around the bottom and glued in place.

After the time was up and the box was closed, you would be asked to recite what you had seen in the box. It was fascinating how easy it was to forget objects you had just seen—even those you had consciously noted and decided you were going to remember.

But if you linked the objects together in a story, a theme or even a fanciful chain of absurd cause and effect, then your memory was vastly improved.

The point is simple: Never make a random cigar box presentation. Even organization is not enough. You need a point of view, a story with an object, a theme. You need to have something to say.


If a point is worth making, it is worth illustrating.

Good examples—apt analogies—are more precious than rubies. They have the power to persuade because they make the audience think your point through for themselves. So when they reach their conclusion, it is their idea—not yours.

But just as an apt analogy is a powerful argument, so is one that turns around on you. That means you must be careful about picking your analogies. Test them ahead of time.


The art of simplicity is not only knowing how everything fits together, but also knowing what can safely be discarded. And this is where lawyers have trouble.

Probably our most rigorous training as lawyers is in spotting exceptions to general propositions. So as soon as we make a simple declarative sentence, we start thinking of the situations in which it does not apply. Inevitably, we start talking about those exceptions. Or even worse, we start talking about why we are not talking about the exceptions.

Stop it.

Forget the exceptions unless they are directly relevant to what you are doing. Your function is not to cover everything; it is to make a focused presentation.


Usually your goal is not to impress your audience with what a fine speaker you are, but rather to persuade.

And that means the memories you create should be vivid word pictures—sometimes even uncomfortably vivid word pictures—that will argue your case for you.

In classical times, it was said that when Athenian statesman Demosthenes spoke, people would say, “What a wonderful speaker.” But when Roman leader Cato the Elder spoke, the people would rise up and shout, “On to Carthage!”


When you are done, stop. Afterthoughts, recapitulations, repetitive exhortations and the dismal trailing off by the speaker who is not certain he has finished cost more than whatever they could possibly add to a presentation.

It’s much better to leave your audience thinking they want more than knowing they have heard too much.



January 18, 2012 | Permalink | Comments (0)

NPR on the law school "scam"

Is there any media outlet that hasn't reported this story?  Both an audio file and transcript are available here.  An excerpt:

Do Law Schools Cook Their Employment Numbers?

It's often assumed that even in tough times, lawyers can find good jobs. But that proposition is being overturned by a tight legal market, and by a glut of graduates.

The nation's law schools are facing growing pressure to be more upfront about their graduates' job prospects. Many students say they were lured in by juicy job numbers, but when they got out, all they ended up with is massive debt.

Chloe Gilgan enrolled at New York Law School in 2005, with one thing in mind: getting a good paying job. She says the school gave her every assurance that she was in the right place, and that she was told "a high majority of their graduates would find employment at least within 9 months of graduating," and that they tended to have high salaries.

Three years after graduation, Gilgan says, the only large number she's staring at is her student debt. The only job she found was doing work that did not require a law degree. Gilgan is convinced New York Law twisted its job numbers.

"Nobody can guarantee you'll have a job for sure," she says, "but what they can do is give you honest prospects."

So Gilgan has joined a proposed class action suit against New York Law School, charging that it has deceived students. Attorney David Anziska is lining up plaintiffs who attended primarily lower-tier law schools, paid more than $40,000 a year and feel they got little in return.

New York Law School says it provides all the information required by the American Bar Association and more. Interim Dean Carol Buckler says the school tries hard to counsel students about their employment prospects.

"We also break down the information based on the type of employer and the salaries that graduates might expect," Buckler says.

Misrepresenting Salary Statistics?

But in blogs like the, former students howl about high tuition and lousy job prospects. And there's Kyle McEntee, who started McEntee says he was outraged to find that the employment data supplied by many lower-tier schools is really part of a recruiting strategy.

"A school might advertise a median salary of $160,000," McEntee notes, "and not disclose that only 10 percent of a class actually responded to the salary survey."

A school might advertise a median salary of $160,000 and not disclose that only 10 percent of a class actually responded to the salary survey.

- Kyle McEntee, with

Or, McEntee says, schools don't disclose that some jobs are in fact funded by the law school. McEntee himself is a graduate of Vanderbilt Law, where he says he actually got good employment info when he enrolled.

Elizabeth Workman, assistant dean for career services at Vanderbilt, says she keeps a close eye on students' achievement and their debt. "And if they will incur six figures, in terms of debt, we have a very serious discussion about employment outcomes," Workman says.

Activists say more schools need to follow that path. They blame the American Bar Association, which accredits law schools, for letting institutions define what is accurate.

You can continue reading here.


January 18, 2012 | Permalink | Comments (1)

Great Symposium for Moneyball Fans

 If you are in the Villanova area on February 10, you are invited to a program that will feature Billy Beane, the hero of the movie “Moneyball.”

Former Governor Edward G. Rendell, ’68, will be the moderator of a panel of baseball and television executives at the Villanova Sports and Entertainment Law Journal Symposium, “Moneyball’s Impact on Business and Sports” on Friday, February 10 at noon.  Jeffrey S. Moorad, ’81, vice chairman and CEO of the San Diego Padres, will lead a panel which includes Billy Beane, vice president and general manager of the Oakland A’s, Omar Minaya, senior vice president of baseball operations for the Padres and former general manager of the New York Mets , and Phil Griffin, president of MSNBC.      

The book Moneyball: The Art of Winning an Unfair Game, by Michael Lewis, examined how the  Oakland Athletics baseball team under Beane used an analytical, evidence-based, sabermetric approach to assembling a competitive team despite Oakland's smaller payroll. 

The symposium will be held from 12 until 2 p.m. on Friday, February 10, in the Villanova Room at the Connelly Center on the campus Villanova University.  A question-and-answer session will follow the panel discussion.  The event will be simulcast live to the Villanova Law website at

Here is the full announcement.



January 18, 2012 | Permalink | Comments (0)

Educate Yourself on SOPA & PIPA

Here are some resources for finding out more about these controversial bills:

One-Minute Guide to SOPA & PIPA (from Fast Company)

Post from Ezra Klein’s WONKBLOG (Washington Post)

Bill Summaries from Thomas (Library of Congress)

- H.R.3261 SOPA
- S. 968 PIPA


January 18, 2012 | Permalink | Comments (0)

Tuesday, January 17, 2012

Embedding Professionalism in Legal Education

A recent article by Denise Platfoot Lacey advocates that law schools go beyond classroom teaching of ethics to evaluate their students' professional conduct in law school.  This is an excellent idea. Law students need to learn how to act like professionals in law school.

Abstract: There has been a repeated call to incorporate professionalism training in legal education in order to assist students in developing professionalism. While law schools have begun to answer this call, they often fail to teach and assess actual professionalism behaviors of their law students. Such failure results in lost opportunities to impart to law students the expectations of the legal profession, as well as to help them to develop the highest standards of conduct. This article will present information about a model of professionalism assessment in medical education and how it can be integrated into legal education to facilitate the teaching and evaluation of professionalism in law students.

(Scott Fruehwald)

January 17, 2012 | Permalink | Comments (1)

"First Thing We Do, Let's Kill All the Law Schools"

From today's Wall Street Journal. Sounds a bit harsh, don't you think? One of the authors is a Professor McGinnis of Northwestern University School of Law.

Over three years, tuition at a law school can exceed $150,000. Even this princely sum does not capture the full cost. During the time spent at these schools, most students could have earned substantial income. A recent analysis by Herwig Schlunk of Vanderbilt University suggests that for bright students with attractive career opportunities, the total cost of law school is closer to $275,000.

The high cost of graduate legal education limits the supply of lawyers and leads to higher legal fees. And higher fees place legal services out of the reach of middle-income families at a time when increasing complexity demands more access to these services. In short, the current system leaves citizens underserved and young lawyers indebted.

Some have argued that to reduce costs states should simply drop their educational requirements, policing lawyer quality through bar exams, if at all. But the requirement of a legal education can serve important public needs.

First, most citizens, particularly the less educated, do not know much about law and have difficulty evaluating the skill of individual lawyers. Some education in law makes it more likely that a lawyer will be competent. Second, educated lawyers provide a public good. In the United States, most important political questions become legal questions. Educated lawyers can supply a deeper social understanding that informs political policy-making.

Here is a straightforward solution: States should permit undergraduate colleges to offer majors in law that will entitle graduates to take the bar exam. If they want to add a practical requirement, states could also ask graduates to serve one-year apprenticeships before becoming eligible for admission to the bar.

An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training.

This option would reduce the law school tuition to zero. And the three years of students going without income would be replaced by a year of paid apprenticeship and two years earning a living as a lawyer.

The idea of learning law as an undergraduate discipline is hardly untested. Great Britain, for instance, educates lawyers in college, not graduate school. These college-educated lawyers appear to provide legal services on par with those of their American colleagues.

In addition to reducing the cost of training a lawyer, an undergraduate law degree could facilitate innovation in legal teaching. Because an undergraduate major would be situated within a college of arts and sciences, it would be easier to provide an interdisciplinary education, mixing elements of social science and humanities with legal doctrine.

Law demands fluency in many such disciplines. For instance, the merits of a mass torts case may turn on statistical inferences. Students could integrate relevant courses in statistics, economics and psychology into their undergraduate program rather than trying to catch up in law school. Thus, an undergraduate legal education has the potential to produce better rounded, more capable lawyers.

Of course, encouraging colleges to offer undergraduate legal education would not prohibit law schools from continuing to offer the current, three-year J.D. program. The maturity and career change that this graduate option would provide would continue to benefit some students.

Further, the undergraduate option would improve graduate education by forcing law schools to justify their cost by offering additional benefits. LLM programs—which result in a master's degree—would also become more robust, as undergraduate-educated lawyers can earlier gain practical experience to better decide what specialty course to pursue. Overall, by increasing competition, an undergraduate law degree would increase diversity and quality in legal education.

But the great benefit of the undergraduate option would be lowering the cost of legal education, thus increasing the supply of lawyers willing to charge lower fees. Lower fees mean broader access for middle- and lower-income Americans. Ultimately, law exists to serve the public. Legal education needs to provide more diverse options to assure a more diverse bar and a better-served public.

Hat tip to the always gracious and debonair Professor Braccialarghe.


January 17, 2012 | Permalink | Comments (0)

Arizona ethics committee says it's "ok" for law firms to use ".org" in web address

This reverses an earlier Arizona state bar ethics panel decision (Arizona Ethics Op. 01-05 (2001)) that had found the use of the suffix ".org" by for-profit law firms would mislead consumers. This most recent opinion, (Arizona State Bar Committee on Rules of Professional Conduct, Op. 11-04), finds that the ".org" suffix is now more widely used by for-profits such that consumers of legal services will no longer be misled.  An excerpt from the opinion:

As we indicated in Ariz. Ethics Op. 01-05, a law firm’s website address is the mechanism by which the law firm’s website is located by persons using the Internet. The website address frequently differs from the law firm name. The website address is typically used on business cards, letterhead, telephone directories, and other listings so that actual and potential clients and others will be able to identify and remember the firm easily. Since the website address is intended to identify the law firm, it is a “professional designation” within the meaning of ER 7.5, and its selection and use is therefore subject to the requirements of ER 7.1. Thus, while the website address need not be the same as the law firm name, it cannot be false or misleading. For example, the website address may not state or imply that the law firm has qualifications, competence, or experience that it does not, or that the law firm has an affiliation or relationship with another organization unless that affiliation or relationship actually exists.

The website address contains a suffix (.com, .gov, .edu, .net, .org, etc.) that identifies the domain in which the website is located. Opinion 01-05 relied on U.S. Department of Commerce guidelines that identified “.org” as pertaining to a non-profit entity. On that basis, the Committee concluded that a for-profit law firm’s use of “.org” as a suffix “creates a false impression that the firm either is non-profit or is in some way specially affiliated with a non-profit,” and was not permitted under the Ethical Rules.
Since 2001, use of Internet domain names, including those with the suffix “.org,” has skyrocketed. Of particular significance here, notwithstanding the “guidelines” in the Department of Commerce document relied on in Op. 01-05, the use of an “.org” suffix for Internet domain names has not been restricted to “non-profit” entities. To the contrary, anyone may register a website address that contains the suffix “.org,” and the person registering the address is not required to demonstrate that the website is or will be owned or used by a non-profit entity.

Moreover, in light of the widespread use of the “.org” suffix by for-profit organizations in the years since Ariz. Ethics Op. 01-05 was issued, the possibility that the public will be misled by a for-profit law firm’s use of “.org’ in its website address is remote. “Whether a communication about a lawyer or legal services is false or misleading is based upon the perception of a reasonable person.” ER 7.1 [comment 5] (emphasis added). A reasonable person, desiring to verify whether an entity is non-profit, would not rely solely on the entity’s website address.

In light of the foregoing, the Committee does not believe that the mere use of “.org” by a for-profit law firm is a violation of the Arizona Rules of Professional Conduct. Opinion 01-05 is modified accordingly.

Except to the extent modified by this opinion, the Committee believes that Ariz. Ethics Op. 01-05 is correct. Thus, a lawyer or a law firm may not use a domain name that falsely implies that the lawyer or the law firm is affiliated with a particular non-profit organization or with a governmental entity or which otherwise is false or misleading.

Hat tip to the BNA/Bloomberg The United States Law Week (subscription required).


January 17, 2012 | Permalink | Comments (1)

An Issue to Watch: Student Internet Speech

Excerpts from an article on Education Week online:

The U.S. Supreme Court on Tuesday declined to take up major appeals involving student free speech rights on the Internet.

The appeal in Blue Mountain School District v. Snyder (No. 11-502) involves a 3rd Circuit decision that said students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.

The 3rd Circuit held in the Blue Mountain case that a Pennsylvania middle school student's 2007 MySpace parody depicting her principal as a sex addict and a pedophile was so outrageous that no one could have taken it seriously.

In a companion case, Layshock v. Hermitage School District, the 3rd Circuit court overturned the discipline of a Pennsylvania high school student who in 2005 had created a fake MySpace profile of his principal on a computer at his grandmother's house.

The 3rd Circuit court found that the profile did not create a substantial disruption in school, and the court rejected the school district's arguments that other facts created a nexus between the parody and the school.

Meanwhile, an appeal in Kowalski v. Berkeley County Schools (No. 11-461) involved a West Virginia student who was disciplined for creating a MySpace page targeting not an administrator but another student at her high school.

Kara Kowalski was a student at Musselman High School, in Berkeley County, W.Va., in 2005 when she created a MySpace page that suggested another female student had herpes. School officials concluded that Kowalski had created a "hate" website in violation of school policies against harassment, bullying, and intimidation. Kowalski sued under the First Amendment, but both a federal district court and a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld school administrators.

The justices declined on Jan. 17 to hear the cases without comment or recorded dissent.




January 17, 2012 | Permalink | Comments (0)

Law School Transparency Report

Law School Transparency has just released its Winter 2012 Transparency Index Report.

The Executive Summary states:

"Having had their long-standing practice of withholding basic consumer information called into question, law schools have responded with new attempts at disclosure in advance of the ABA’s new requirements. Adequate disclosure should be easy to achieve; law schools have possessed ample information, in an easy publishable format, for many months. But as the findings of this report show, the vast majority of U.S. law schools are still hiding critical information from their applicants. . . .  The Winter 2012 Index reveals a continued pattern of consumer-disoriented activity."

It continues:

"Taken together, these and other findings illustrate how law schools have been slow to react to calls for disclosure, with some schools conjuring ways to repackage employment data to maintain their images. Our findings play into a larger dialogue about law schools and their continued secrecy against a backdrop of stories about admissions data fraud, class action lawsuits, and ever-rising education costs. These findings raise a red flag as to whether schools are capable of making needed changes to the current, unsustainable law school model without being compelled to through government oversight or other external forces. "

While I agree that prospective law students are smart enough and mature enough to make their own decisions, they need full and accurate information upon which to make those decisions.  It is time that law schools give them that information.

(Scott Fruehwald)

January 17, 2012 | Permalink | Comments (0)