Thursday, May 31, 2012

What Are the Life Goals of Today’s Students?

The Heldrich Center for Workforce Development, headquartered at Rutgers University, has issued a report surveying career priorities of the U.S. population.

Here is a summary of the life goals of today’s college and university students (soon to be our students):

Having a job where they can make an impact on causes and issues that are important to them is something the vast majority of undergraduate and graduate students want out of their work life. Seven-in-ten say this is “very important” to them, including 31 percent who say it is “essential.” At this point in their lives, the same number say having a job where they can make a difference and having children is essential to them. Having an impact on important issues through their work comes behind the goals of being financially secure and having a partner/being married, but is far more important to them than having a prestigious career, being wealthy and being a leader in their communities. It is interesting to note that this cohort of university graduates, who started college amidst the Great Recession, choose “being financially secure” as their top life goal. Additionally, women are about 10 percentage points higher than men in wanting a job with impact.


May 31, 2012 | Permalink | Comments (0)

A New Standard for Equal Protection Review: Rational Basis with Federalism Considerations

In today’s DOMA case, the 1st Circuit developed a unique standard for equal protection cases: rational basis with federalism considerations. (Rational basis with a bite of federalism)

The court refused to apply strict or intermediate scrutiny based on Supreme Court precedent. The court, instead, used a heightened rational basis standard, as the Supreme Court employed in Romer v. Evans and similar cases. However, the court added a new factor–federalism, stating that federalism considerations diminish somewhat the deference usually given to rational basis cases. The court stated that "DOMA intrudes extensively into a realm that has from the start of the nation been primarily confided to state regulation--domestic relations and the definition and incidents of lawful marriage--which is a leading instance of the states' exercise of their broad police-power authority over morality and culture." The court then used federalism cases to create the review standard: "In United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court scrutinized with special care federal statutes intruding on matters customarily within state control. The lack of adequate and persuasive findings led the Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases." The court added that a statute that violates equal protection is probably beyond Congress’s power. The court wrote, "Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns."

Based on this standard, the court found that none of the rationales supporting DOMA were adequate. The court finished: "To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today. One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage. Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."

(Scott Fruehwald)

May 31, 2012 | Permalink | Comments (2)

1st Circuit Strikes Down Section 3 of DOMA

The next controversial issue before the Supreme Court will be same-sex marriage.  In an unanimous decision, the 1st Circuit this morning struck down the part of the Defense of Marriage Act that denies benefits to married gay couples.  The section struck down states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."  The 1st Circuit stayed its decision until the Supreme Court considers the matter.

"One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage," Judge Michael Boudin wrote for the court. "Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest." (Quoted in New York Times)

Full decision here.

I wrote an article in 1999 that argued that section 2 of DOMA was unconstitutional because Congress lacked the power to pass it under of effects clause of the Full Faith and Credit Clause.  See  Choice of Law and Same-Sex Marriage, 51 Fla. L. Rev. 799 (1999).

(Scott Fruehwald)

May 31, 2012 | Permalink | Comments (0)

The Bloomberg Law commericial legal search engine is coming to a law firm near you.

Bloomberg Law had previously indicated its plan for "world-domination" of the online, commercial legal research market when it bought BNA last year. It's now targeting BigLaw firms, intent on replacing Wexis as the search engine of choice (though it's not clear whether firms using Bloomberg are dropping other services too). After signing up mega-firm DLA Piper, it just scored a second coup by winning the business of Jones Day. From a Bloomberg press release:

Bloomberg Law, the legal research system from the world leader in data, information and news services, today announced a firm-wide agreement with Jones Day, the global law firm, to provide high quality legal research, news and market information. Jones Day is ranked among the world's most respected law firms and perennially rated among the best in client service. The firm represents approximately half of the Fortune Global 500.

Jones Day's firm-wide adoption of Bloomberg Law will provide the firm's approximately 1,800 U.S.-based lawyers with unlimited desktop and mobile access to any of the information in the Bloomberg Law system - from Bloomberg BNA’s legal coverage to Bloomberg’s proprietary news to dockets to primary legal research - as often as they want and whenever they want. Bloomberg Law integrates legal research with the Bloomberg industry and financial information relied upon by corporations and investment institutions throughout the world to provide lawyers with a competitive edge in understanding their clients' businesses. Jones Day, which has more U.S. lawyers than any other firm, joins the growing roster of law firms that are using Bloomberg Law to meet their firm-wide legal research requirements.

"We are delighted that Jones Day, one of the largest and most respected law firms in the world, has chosen Bloomberg Law to meet its legal research needs," said Larry Thompson, CEO of Bloomberg Law. "Bloomberg Law has modernized the legal research industry with a truly integrated platform that, combined with our transparent and predictable pricing, provides law firms with the resources to conduct comprehensive research while managing costs."

About Bloomberg Law

Bloomberg Law is the real-time legal research system that integrates innovative search technology, comprehensive legal content, company and market information, and proprietary news all in one place. This collaborative workspace also includes a suite of new tools for more effective legal analysis and more productive client development. For more information, visit

Should legal writing profs start teaching students how to use Bloomberg in addition to Wexis?

Hat tip to the Law Librarian Blog.


May 31, 2012 | Permalink | Comments (0)

Wednesday, May 30, 2012

Golden Gate University School of Law's Honors Lawyering Program

Golden Gate University School of Law has an Honors Lawyering Program that "takes a unique approach to legal education, integrating the theory, skills, and values learned in the classroom with actual work in the legal community - a modern version of the traditional apprenticeship."  They describe the program as:

"HLP students attend a regular first-year curriculum, participate in an intensive skills-focused summer session, and work at a full-time fall apprenticeship. In the spring, students return to full-time classes with a new appreciation for the application of law to practice. During their third year, students complete a second apprenticeship and have the option to enroll in additional, practice-based courses.

Honors courses meet in small sections that integrate lawyering skills training with the substantive law curriculum. By the third week, students begin representing real clients under the guidance and supervision of the professors, who are themselves practicing attorneys. Students may apprentice in private law firms, companies, courts, government agencies, and public interest organizations."

They further state,


  • The Honors Lawyering Program takes a unique approach to legal education, integrating the theory, skills, and values learned in the classroom with actual work in the legal community — a modern version of the traditional apprenticeship.
  • As an HLP student, you attend a regular first-year curriculum, participate in an intensive skills-focused summer session, and work at a full-time fall apprenticeship. In the spring, you return to full-time classes. In your third year, you complete a second apprenticeship and have the option to enroll in additional, practice-based courses.
  • The extraordinary summer program prepares you for your apprenticeships. You study in a simulated law firm environment, taking unique course offerings that blend substantive law with essential lawyering skills.
  • All HLP students qualify for certification under the Practical Training of Law Students program through the California State Bar and may appear in court."

This looks like a wonderful program that combines knowledge with doing.  I hope that more law schools adopt similar programs that allow students the option of learning through doing.

(Scott Fruehwald)

May 30, 2012 | Permalink | Comments (1)

Are Law School Classes Introvert-Hostile?

 In law schools, professors encourage class participation and even raise grades for class participation. This approach rewards the extroverts, but penalizes the introverts. Critical studies are popping up in the K-12 world that call for recognizing that many students work better when they think quietly, rather than immediately raising their hands:

Educators often look for ways to bring quiet children out of their shells, but emerging research suggests schools can improve academic outcomes for introverted students by reducing the pressure to be outgoing and giving all students a little more time to reflect.

"Whoever designed the context of the modern classroom was certainly not thinking of the shy or quiet kids," said Robert J. Coplan, a psychology professor and shyness expert at Carleton University, in Ottawa, Canada. With often-crowded, high-stimulation rooms and a focus on oral performance for class participation, he said, "in many ways, the modern classroom is the quiet kid's worst nightmare."

Susan Cain, the author of Quiet: The Power of Introverts in a World That Can't Stop Talking, published by Random House this year, argues that such children often stop learning when they feel emotionally threatened in a class environment in which being an extrovert is considered the norm.

As one who is by nature an introvert (this may surprise some of you), I fully agree. I think many lawyers are introverts who can perform in public when required to do so. Here’s the full article from Education Week. Worth reading.


May 30, 2012 | Permalink | Comments (0)

Is Coding a Lawyering Skill?

This post from the Advocate’s Studio raises an interesting question.  Are we illiterate if we can’t program? 

“[T]here is a new movement afoot that is pushing the idea that literacy should also include the ability to program. ReadWriteWeb describes this concept in a great blog post. Proponents of programming as a measure of literacy explain that we are rapidly moving to a standard of interaction that rates the communications between man and machine and machine and machine at equal importance as communications between man and man. He or she who can master machine language will control two-thirds (or thereabouts) of the flow of information.”

I agree with the notion that there are plenty of reasons to learn to code, or at least how to read and understand code.  With the amount of online evidence and data involved in the day-to-day life of a lawyer, it seems like a useful skill.  It might be a great skill for building an attractive resume!

Hat tip Nicole Black (@nikiblack)


May 30, 2012 | Permalink | Comments (0)

Glenn Reynolds on the Law School Bubble

Glenn Reynolds has an article on the law school crisis in the New York Post.  His main piece of advice: "Don’t go into debt."  He thinks that for today's students it is better to go to a lower ranked law school with scholarship money than a higher ranked one at full price.  He states,  "Debt is what gets people into trouble in bubbles: They borrow heavily because they think the value of what they're buying, whether it's a house or a tulip, will go up.  When it stops going up, they're sunk.  Today, the value of an education isn't going up, but the price is.  That's a bad combination.  So don't borrow heavily."  He also cites studies that say that students study 50% less than they used to and they are learning less than they used to. 

He advocates that "interested citizens" should put pressure on trustees and legislatures of public universities.  Alumni and students can do the same with private schools.  He declares, "Taxpayers should realize that change is unlikely without external pressure, though.  Left to themselves most faculty and administrators (especially administrators) will protect their perquisites to the bitter end."  He also mentions some proposed changes from Brian Tamanaha's forthcoming book "Failing Law Schools."  One possibility is that, if too many graduates are defaulting on their loans, a school would lose eligibility for future loans.  Another is a cap on the total amount of student loans per school, which would help keep tuition down.

Professor Reynolds article is one of many that has appeared in the main stream press over the last few months.  I suspect there will be many more after the publication of Brian Tamanaha's book on June 15.  With student debt so high and law school applications down dramatically, it is time that law schools act, both to deal with the debt/tuition crisis and the quality of legal education crisis.

(Scott Fruehwald)


May 30, 2012 | Permalink | Comments (0)

How to detect for purposes of trial a photoshopped picture from an unretouched one

From Law Technology News:

Detecting Photoshop Fraud.

"A picture is worth a thousand words,” or so they say. Yet this expression only holds true if the photo in question provides evidence of a genuine person, place or object. If the image has been tampered with by using Photoshop or another image editing application, there's a strong chance that the picture isn't worth much more than the paper it is printed on.

While photographic evidence is one of the most effective means of eliminating doubt when preparing a court case, it's also never been more challenging to establish that a photo hasn't been tampered with. At trial, a photograph usually must be authenticated by someone who is familiar with what the image depicts and who can testify that the image accurately represents whatever it illustrates. The authenticator is often the photographer, but can also be anyone at all, as long as he or she is familiar with the subject matter of the image.

To save time and money, many attorneys would like to be able to detect obvious photographic tampering before calling in an expert. This a goal that most legal professionals can achieve if they have the desire and time, says Siwei Lyu, a State University of New York at Albany computer science professor who specializes in image forensics. "In today's era of digitally manipulated images, it's becoming increasingly difficult, although not impossible, to detect traces of photographic tampering, all that's required is a discerning eye and the appropriate software tools," Lyu says.


Examining a photograph for unusual qualities is the first step in tampering detection. "One of the best ways to detect manipulation is to look for lighting oddities," says Tim Bradley, an intellectual property attorney at Coats & Bennett, a Cary, N.C., law firm. "For example, whether shadows are absent or incorrectly cast, or whether the light reflecting of peoples' eyes is not consistent in an image." Bradley also suggests looking for "orphan" shadows and reflections created by apparently invisible objects. "That too is a good indication of manipulation," he says.

"Knowing how to read light sources and shadows is the first step; that's usually the first giveaway," says Rick Kiesel, a graphics designer for QCI Direct, a home products marketing company located in Rochester, N.Y. But he adds that skeptical observers also need to keep an eye peeled for a variety of other clues, including the levels of color density and hue, as well as evidence of blurred edges on objects and figures, blurring in odd spots and a general lack of detail across entire images or within specific areas.

Continuing reading here for more tips and advice on how to spot fake photos.


May 30, 2012 | Permalink | Comments (0)

Tuesday, May 29, 2012

Terrible Student Excuses

At Concurring Opinions (May 21) Dave Hoffman notes that “one particularly irritating variant of unprofessionalism is terrible excuses for trivial offenses.” His partially successful solution: “Indeed, I provide students free participation passes (a limited number in some classes, unlimited in others), but explicitly tell them not to tell me why they are passing.”

Following the posting are several interesting comments. Here’s one: “The oddest reason I ever got was from a student who told me he couldn’t come to class because he had tickets to an IU basketball game. Dude, make up a cover story!”


May 29, 2012 | Permalink | Comments (0)

An updated version of the Professor Jeff Sovern's article about student classroom use of laptops in law school

It looks like Professor Sovern (St. John's) has posted an updated, final draft of his article entitled Law Student Laptop Use During Class For Non-Class Purposes: Temptation v. Incentives concerning student use (and misuse) of laptops in law school classrooms (click here for a post from April, 2011 relating to an earlier version of the article). The most recent draft can be downloaded here. From the abstract:

This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses.

Some findings: • More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from class. By contrast, first-semester Civil Procedure students used laptops for non-class purposes far less: only 4% used laptops for non-class purposes more than half the time while 44% were never distracted by laptops. • Students in exam courses were more likely to tune out when classmates asked and professors responded to questions and less likely to tune out when a rule was discussed or textual material read in class.

• For first-semester students, policy discussions generated the highest level of distraction while displaying a PowerPoint slide which was not later posted on the web elicited the lowest level.

• With some exceptions, what was happening in the class did not affect whether upper-year students tuned out or paid attention.

• The format used to convey information—lecture, calling on students, or class discussion—seemed to make little difference to the level of attention.

• Student attentiveness to the facts of cases is comparable to their overall attention levels.

The article speculates that student decisions on whether to pay attention are responses to the tension between incentives and temptation. While the temptation to tune out probably remains constant, ebbs and flows in incentives may cause students to resist or yield to that temptation. Because first-semester grades have more of an impact on job prospects, first-semester students have a greater incentive than upper-year students to attend to classes. Similarly, because students probably anticipate that rules are more likely to be tested on exams, students perceive that they have more of an incentive to pay attention when rules are discussed. Conversely, students may suspect that matters asked about by classmates are less likely to be tested on and so their grades are unlikely to be affected if they miss the question and answer, reducing the incentive to pay attention.

Because of methodological limits to the study, the article notes that its conclusions cannot be considered definitive, and so it urges others to conduct similar studies.


May 29, 2012 | Permalink | Comments (0)

Using a Kindle for Reading WestlawNext Documents

Just in case your summer reading includes case law and law review articles, you can now download your WestlawNext documents to your Kindle and take them with you to the beach.  Here is the Westlaw “tip of the week” with instructions to send documents to your Kindle. 

“Documents are formatted to provide a reading experience that's optimized for Kindle, including the ability to adjust the text size and font to suit your reading preference.”

I noticed several of my legal research students using this functionality recently and have heard some of the faculty use a Kindle to review documents.  Give it a try!

Hat tip LearnWestlaw (@LearnWestlaw)


May 29, 2012 | Permalink | Comments (0)

Monday, May 28, 2012

Holmquist on the Carnegie Report

This blog has discussed several articles that have criticized the Carnegie Report for not going far enough. Kristen Holmquist has written an article, Challenging Carnegie, which disagrees with some of the fundamental conceptions of this report.

Professor Holmquist attacks the Carnegie Report’s notion that law schools are good at teaching students to think like a lawyer and its distinction between thinking and practice. Rather, she stresses "the interdependence of knowing and doing that is at the heart of lawyering." She bemoans the lack of context that law students receive in classes largely taught by the case method. She declares, "But legal education‘s narrow focus on case-method learning may also deny students the opportunity to engage in sophisticated higher-order thinking about law and policy, about problems and goals, about potential paths, obstructions, and solutions."

She specifies, "Carnegie‘s stress on the distinction between the cognitive and the practical, ‘formal knowledge’ and ‘the experience of practice’, is a mistake because it belies the interrelatedness of understanding, experience, evaluating and creating. The separate cognitive and practical categories are inconsistent with most everything we know about how people learn. Higher-order thinking skills like evaluating and creating come only after repeated opportunities to apply, or act on, memorized and then understood information." She continues, "In lawyering terms, the Carnegie categories suggests that law schools owe their students the opportunity not only to learn to think like lawyers, but also to act like them. Yet this cognitive/practical divide is as untenable in lawyering as it is in learning." She concludes that "The result of these formal categories is to define ‘thinking like a lawyer’ downward, limiting it to a detached-from-much-context doctrinal analysis and application." 

She notes, "Education research makes clear the iterative nature of learning: one acquires content knowledge, ‘uses’ that content in relevant ways, and thereby gains a deeper and more nuanced understanding of the original learned content." She writes, "By dividing practical from cognitive, doing from thinking, the Report avoids asking how lack of experience with ‘using’ legal doctrine in messy, real-world-like situations denies students an opportunity to engage in higher-order lawyerly thinking." She then asserts, "the result of drawing artificial boundaries between the cognitive and the practical is to limit what it means to think like a lawyer in a way that allows the Report to say that legal education succeeds in the cognitive sphere, when it could be said that our pedagogy ‘sharpen[s] the mind by narrowing it.’  The case method, repeated over and over again, sacrifices complexity for precision, and as it stands, there is no systematic method for folding cultural, factual or procedural complexity back into the discussion."

Holmquist argues for a broader definition of thinking like a lawyer: "to prepare lawyers who will ‘contribute to the public good and serve their clients effectively and ethically.’" She mentions two possible approaches to better understand lawyerly thinking. First, she takes an empirical approach based on the study by Marjorie Shultz and Sheldon Zedeck, Identification, Development, and Validation of Predictors for Successful Lawyering. "Through hundreds of interviews with groups of individual lawyers, they identified twenty-six ‘Effectiveness Factors; related to competent lawyering. . . . At the end of the process, Shultz and Zedeck had a range of behavioral examples for each factor that lawyers were asked to assess in terms of the ‘level of effectiveness’ it showed." She points out that "A lawyer‘s need to understand her role within institutions and society might be informed by: problem solving, ability to see the world through the eyes of others, strategic planning, networking and business development, developing relationships within the legal profession, community involvement and service. And judgment and wisdom are expressed throughout the list, but most especially in the following: creativity/innovation, problem solving, practical judgment, strategic planning, integrity, self-development."  She continues, "A lawyer cannot provide advice and counsel to her client without having analyzed a problem, researched the law, and interviewed relevant parties, and so on. The competencies on the list are wholly iterative and interdependent. Their interaction shapes the ‘thinking of a lawyer’ beyond the narrow, hyperanalytical definition that both the Report and law school itself tends to rely on." She writes, "Educators who hope to rely on these effectiveness characteristics to reform legal curriculum and pedagogy must explore both ‘what’ and ‘how.’ What would a student need to know to become competent lawyers under this fuller definition? What does it mean to teach creativity? Problem solving? Judgment? Influencing and advocating? And, second, how might we go about teaching these competencies?"

Second, Holmquist advocates drawing on cognitive psychology: "The lawyering-as-problem-solving literature springs from the cognitive science work on the same subject in other domains.  Cognitive psychologists define a problem, simply, as any situation in which the current state of affairs varies from the desired end point. And solving that problem entails a series of decisions and actions, each building on the last, in order to move the world closer to the goal state.In order to make these decisions, or encourage others to, we rely on stock stories, or schemas, familiar stories and arguments that act as heuristics and allow us to create meaning through narrative." She notes that "Individuals develop mental databases of stock stories through experiences direct and indirect, individual and cultural. These stock stories become categorizing and ordering tools." She adds, "Not only do our stock stories allow us to make sense of our world, they also help us make choices, and to persuade others to do the same. ‘They enable us to identify a menu of possibilities for asserting and responding to our own needs and aspirations and the needs and aspirations of others.’Our stock stories – past experiences of our own or others that we‘ve stored away – suggest the efficacy of one path, the risks of another. . . . When we face choices–or problems–stock instruments help us frame the problem, evaluate potential solution paths, and decide on a course of action."

The same occurs in legal thinking: "Lawyers as problem solvers rely on legal–and cultural–stocks in order to try to move the world in directions that benefit their clients. This movement involves persuasion of one form or another – whether it‘s persuading a court to find for one‘s client, an opposing party in litigation to see one‘s settlement offer as a good deal, or collaborative party to undertake some kind of a joint venture. The question of how to persuade through stocks in a legal context - or, how to ‘lawyer’ – involves understanding empirical, instrumental, and normative questions." She notes, "On the most obvious level, legal precedent serves this function." "But lawyering involves appealing to stories and arguments that are relevant and persuasive for larger empirical, cultural, and social reasons, as well. Law is not an organic thing unto itself, but a reflection of broader cultural and social forces and understandings (mentally represented through stocks).Effective lawyering must appeal to these broader forces and stories. Effective lawyers persuade by understanding and manipulating the stocks of the relevant arbiter." 

She asks, "First, what would a rich database of stock lawyering stories look like; and second, how might we help our students build it in ways that enables them to progress toward, eventually, expert status?" "The recent graduate’s mental library largely lacks stock stories that help her assess how, and in what institutions, and by relying on what methods, she might--or might not—use the law to help a client solve his problem. A curriculum geared toward this view of lawyering must address this lack of context and content, asking - what are a lawyers‘ stories? And what might a lawyer need to know about how to frame and manipulate them in order to serve her client?" Second. "how does one build the organized library of stock stories and arguments, problem framings and solution paths that precede good judgment and assist in bringing about welcome outcomes? The answer, in short, is experience. . . . experience with working with, recognizing, and defining ‘problems,’ deploying legal arguments and tools while partnering with a client in order to resolve those problems, acting in the various roles and institutions a lawyer might position herself – experience of this sort is fundamental to gaining expertise." "Legal problem-solving skills . . . can be learned in the classroom as well outside of it, so long as the classroom is designed to give students experiential chunks and to help them develop the habits of thought inherent in the formal model [that] improves subsequent problem solving done at the naturalistic end of the spectrum." 

Finally, she proposes "that, at least in part, we shift our pedagogy to give students more experience with understanding legal problems from the ground up. So much has happened in a case–lawyers and clients and judges have already made so many decisions–before it ever reaches the phase of an appellate opinion." She asserts that "Both the cognitive psychology literature and our own experience tell us that students learn best when they get their hands dirty." She remarks, "Many of the forms, or stages, of lawyerly thinking might be incorporated into the classroom. . . . Among the major changes a teacher might choose is a more inclusive notion of the case method, one that leans less heavily on appellate opinions and spends more time building a case from the beginning stages. Students would read case files that included client interviews, information elicited through discovery, and a series of cases that function as controlling and persuasive authority.  Or case files could set students up to think through transactional processes, providing a nice counterbalance to legal education‘s current litigation-heavy curriculum." In addition, "Teachers might rely heavily on a casebook, but work one or two ongoing case files into the course. Or they might rely wholly on a casebook but consistently work the lawyer‘s point of view into the classroom discussion."

Holmquist has done an excellent job of filling in some of the lacunae in the Carnegie Report. I agree that you cannot separate knowledge from doing. Doing helps one to learn and remember better, and doing requires knowledge. Similarly, learning theorists have shown that understanding context helps students learn. (see Teaching Context and Purpose in Law School Classes)  Lawyering in the real world is messy. Problems don’t come labeled as a torts problem or a contracts problem, and problem solving often involves areas outside the law. Students need to be able to apply their skills across domains. Moreover, using ideas from cognitive psychology on learning theory helps us be better teachers. Is the case method the best way to teach students, or is it just one of many tools we should be employing? I especially like Holmquist’s suggestion that we include case files in first-year courses. I do not believe that we should do away with appellate cases completely, but students need to learn the law from multiple viewpoints and sources.

(Scott Fruehwald)


May 28, 2012 | Permalink | Comments (0)

How Much Do College Students Study?

At many colleges, not much. How will students used to an easy schedule cope with the demands of law school? The Washington Post conducted a survey:

Tradition suggests that college students should invest two hours in study for every hour of classes. The reality — that students miss that goal by half — emerged from the National Survey of Student Engagement, a research tool for colleges that examines the modern student in unprecedented detail.

The survey, first published in 2000, queries freshmen and seniors. It reveals that study time can vary widely by college and by major. Architecture majors, for example, study 24 hours a week, while marketing majors put in only 12.

At Sweet Briar College, a private women’s school in Virginia, students reported 19 hours of study in an average week. Weekly study among seniors averaged 18 hours at St. Mary’s College of Maryland, 17 hours at the College of William and Mary, 16 at the universities of Maryland and Virginia and Catholic University, 15 at American University and 13 at Howard University.

Some majors seem to require more study time than other majors:

Architecture students studied the most, at 24 hours a week. Further down the list, in descending order: physics (20 hours), music and biology (17), history (15), psychology (14), communications (13) and, at 11 hours, parks, recreation and leisure studies.

Here is another article from the Post spotlighting colleges where students put in serious study time.


May 28, 2012 | Permalink | Comments (1)

Dru Stevenson on Legal Education: A Reply

Professor Dru Stevenson has written a post entitled "Should Law Schools Focus on Lawyering Skills?" on Circuit Splits. He writes,

"I do, however, disagree with the nationwide push toward making law schools into trade schools, the attempt to make the institutions less intellectual. And I recently blogged here about the direction I would like to see schools go - echoing the vision recently outlined by the Dean of the law school at Boalt Hall (California-Berkeley). Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on ‘counseling patients,’ and ‘medical clinic management,’ or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills. I wonder if any other profession criticizes its theoretical wing like ours does.

The most troubling aspect of turning the focus of law schools completely toward ‘skills’ is that this is the seed of our institutions' destruction. When a consensus finally emerges that the whole point of law school is training kids in the mechanical tasks of lawyering - how to write a brief, how to give an opening argument, how to look up the law on something - people will then realize that law schools are not really necessary at all for teaching ‘skills’ - these are better learned by ‘doing’ and by repetition. A law school with a skills curriculum is a law school that is not worth the time or tuition, as the same skills would be better learned on the job in apprenticeships. After we all switch to teaching mechanical skills, there will be a movement to abolish law schools completely. The academic study of law will get absorbed back into the political science departments from whence it came, and lawyer training will be done the same way we train & license paralegals."

He later adds: "Ultimately, this is a symptom of a larger problem happening at colleges and universities everywhere. As Professor Benjamin Ginsberg has described in his wonderful book The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters, undergraduate institutions nationwide are replacing academically rigorous courses for ‘life skills’ courses on subjects like event planning, how to keep a journal, social networking, and so on."

Professor Stevenson has painted an inaccurate picture of the legal education reform movement; he has produced a strawman. (Professor Stevenson can you cite to an article that advocates teaching rudimentary paperwork skills as a significant component of law school? Have you read articles on legal education by Michael Hunter Schwartz, Benjamin Spencer, Judith Wegner, Laurel Oates, James Stratman, Leah Christensen, Robin Boyle, Stef Krieger, Richard Neumann, etc.? Have you read any cognitive psychology articles on learning theory?) Those in this movement do not want to turn law schools into trade schools. We do not want to teach "mechanical" tasks or rudimentary paperwork skills. Rather, we recognize that theory and practice are inseparable. We want to combine doctrine with doing, theory with practice. We want law students to be able to apply doctrine to facts and doctrine to drafting documents.

Learning theory has demonstrated that students learn better when they apply doctrine. As Kristen Holmquist has stated, "one acquires content knowledge, ‘uses’ that content in relevant ways, and thereby gains a deeper and more nuanced understanding of the original learned content." (SSRN at 16-17). She has elaborated: "Higher-order thinking skills like evaluating and creating come only after repeated opportunities to apply, or act on, memorized and then understood information." (SSRN at 15) Similarly, as Best Practices points out, "It takes time to develop expertise in legal problem-solving. Problem-solving skills can be developed only by actually working through the process of resolving problems. Developing problem-solving expertise requires repetitions of ‘training’ as against the hard world of consequences, of repeated success and failure, and some inductive efforts at understanding what works and what does not, what seems important and what does not." (Best Practices in Legal Education, at 142.) In other words, rather than developing mechanical skills, the legal education reform movement wants to develop higher order skills than the current methods of legal education, like the case method, do.

Professor Stevenson asks, "Comparing law to another profession, would you prefer that your surgeon had spent more time taking courses on ‘counseling patients,’ and ‘medical clinic management,’ or more time studying cellular biology and organic chemistry? For my surgery, I would prefer the one who had a more intellectually rigorous program, not one that focused on role-playing exercises and rudimentary paperwork-completing skills." I ask Professor Stevenson, would you like to have a surgeon who has only learned the theoretical part of medicine? One who has never met a patient before? One who has never performed surgery before? I want a surgeon or a lawyer who has been trained in both theory and practice, who has been through a rigorous intellectual program that has trained the lawyer or surgeon to solve complex problems in their field. For example, Professor Holmquist has declared, "Yet this cognitive/practical divide is as untenable in lawyering as it is in learning. Is writing a motion for summary judgment in a multi-million-dollar copyright matter a cognitive skill, or a practical one? And imagine deposing a scientist employee of a corporate defendant in an environmental matter. Imagine further that the scientist is both reluctant and knowledgeable. Is it a cognitive task or a practical one to elicit useful information from him?" (SSRN at 16)

Professor Stevenson also criticizes the general trend at universities to teach 'life skills’ courses on subjects like event planning, how to keep a journal, social networking, and so on." I couldn’t agree more. I have previously advocated that universities teach critical thinking and problem solving. (post) However, I don’t think universities were doing this much before the "life skills" movement.

Finally, legal education reformers are not advocating using a single model for all law teachers or all law schools. There is a need for law schools that take different approaches. What we do not need is legal education that is stuck in the nineteenth century and that does no good for law students, clients, and society.

Paul Horwitz also has a post on Stevenson’s post here.

(Scott Fruehwald)

P.S. I will have more on the Holmquist article on Tuesday.

May 28, 2012 | Permalink | Comments (2)

Today is Memorial Day

In honor of those who have served and paid the ultimate price.


From the Legal Skills Prof Blog.

May 28, 2012 | Permalink | Comments (0)

Sunday, May 27, 2012

A Facebook Wedding: Tax Consequences

Undoubtedly Facebook founder Mark Zuckerberg and Priscilla Chan entered into a prenuptial agreement.  However, tax advantages also accompany the married life. At Forbes, lawyer Deborah Jacobs delineates the tax consequences. Here is an excerpt dealing with federal estate taxes:

There’s also a huge federal estate tax advantage to the Zuckerberg/Chan merger. (California does not have an estate tax.) Assets inherited from a spouse are not taxed as long as the inheritor is a U.S. citizen. This is the unlimited marital deduction. So Zuckerberg and Chan can now avoid the tax on their death by leaving everything to each other directly (outright) or having the assets go into a special trust, called a marital trust.

The marital deduction doesn’t avoid estate tax – it just postpones it. Whatever is left when the survivor dies could be subject to the tax.

Still, contrast the protections of marriage with what would happen if their previous arrangement continued.  Apart from assets left to a spouse, which are tax-free, right now we can each transfer up to $5.12 million tax-free during life or at death to anyone else. Anything above that amount is subject to a 35% tax.

Next year this whole system may change. Unless Congress acts before then, at the end of this year the current $5.12 million per-person exclusion from the federal estate and gift tax will automatically dip to $1 million and the tax on transfers above that amount will go up to 55%.


May 27, 2012 | Permalink | Comments (0)

Survey finds college students hand-write class notes to learn; they type notes for convenience

That's one of the conclusions from a forthcoming article called The impact of laptop-free zones on student performance and attitudes in large lectures to be published in the Journal of Computers and Education. The researchers also concluded, based on their study of introductory biology classes at U.C. Irvine, that students who used laptops in class performed more poorly on exams compared to students who took notes by hand. From the article abstract:

The goal of this study was to determine if laptop use in lecture negatively impacts learning outcomes of surrounding students taking notes on paper. Two sections of a large introductory biology course (>400 students/section) were zoned into a laptop-permitted and a laptop-free area. Two sections in which laptop users could sit anywhere served as the Control. There was no difference in the attendance (∼85%) or percentage of students using laptops (∼29%) between Zoned and Control sections. Academic performance, based on exam points earned, was not significantly different for paper-users in Zoned and Control sections indicating laptop use did not impair the overall achievement of surrounding students. However, there was a correlation between exam performance and note taking preference: paper note takers scored significantly higher and laptop users scored significantly lower than predicted by pre-class academic indicators (p<0.01, paired t-test). The majority of both laptop (64%) and paper users (82%) in the Zoned sections supported a policy restricting laptop use to specific areas. Thus, while we further investigate whether the relationship between laptop-use and performance is correlative or causative, zoning is an effective method for accommodating both laptop users and paper note takers in the same lecture hall.


May 27, 2012 | Permalink | Comments (1)

Saturday, May 26, 2012

Good Riddance to the Five Paragraph Essay?

Here’s a short piece directed at K-12 teachers arguing against teaching the five paragraph essay.  That formula too constricting and artificial. I would say the same about the five sentence paragraph.

After high school, I doubt that many students follow these formulas, because they are too limiting. Do Legal Writing professors teach formulas for writing that virtually no students follow in real life? I submit that IRAC and its variants fall in this category. Maybe formulas like IRAC and how-to-write-a-case-brief have value in the very early days of law school. However, we should encourage students to move on fairly quickly.


May 26, 2012 | Permalink | Comments (0)

Did you know there's a style-guide for Twitter authors?

You can find it at and Amazon. It is authored by one of the people behind Twitter. Here's the publisher's abstract:

The advent of Twitter and other social networking sites, along with the ubiquity of text messaging, have made short-form communication and constant contact an everyday reality. Expressing yourself clearly in short bursts—particularly within Twitter's 140 character limit—takes special writing skill.


For marketers and business owners, social media and text messaging have become an increasingly important avenue for promoting a business, but you have to be able to get your message out in just a few words. 140 Characters is the first writing guide specifically dedicated to communicating with customers, colleagues, and contacts with the succinctness and clarity that the times demand.


Twitter User #9 Dom Sagolla teaches the lessons of great short-form writing, including the importance of communicating with simplicity, openness, and humor. What Strunk and White's Elements of Style did for traditional media, 140 Characters does for the social media revolution happening today. Inside, you'll learn all the basics of:


  • Developing your own honest and unique writing style

  • Evolving rules of grammar for the short form

  • Principles of brevity, including tech-speak/leetspeak

  • Avoiding the too-much-information syndrome

  • Mastering the art of the text message

  • Winning techniques for writing poetry, news, fiction, and much more


May 26, 2012 | Permalink | Comments (0)