Sunday, January 20, 2013

Announcing the 2013 Empire State Legal Writing Conference

The Fourth Annual Empire State Legal Writing Conference will take place on Saturday, April 20, 2013, at Albany Law School in Albany, New York. We invite proposals for presentations on a broad range of topics relevant to those who teach legal writing and research

Possible topic suggestions in this tumultuous time in legal education include everything from practical suggestions for teaching to point-counter-point dialogue about plain language; effective methods for teaching rapidly-changing legal research at a state, national, or even international level; teaching writing for email or social network sites; creating effective methods of both formative and evaluative assessment; and making do with fewer resources. Individual and panel presentations are both welcome. 

Please limit your proposal to one single-spaced page and include the following:

1.  Presenter(s), title(s), and school affiliation(s);

2.  Title of the proposed presentation;

3.  A short description of the proposed presentation and teaching method (lecture, simulation, small group exercises, etc.);

4.  A two-sentence summary of the proposed presentation for the program brochure;

5. Whether the presentation would benefit new or experienced instructors (or both);

6.  The time needed: no longer than 50 minutes (we try to accommodate requests, but make no guarantee);

7.  Technology needs for your presentation (please describe);

8.  Contact information for one presenter, including email address, mailing address, and phone number;

9.  Whether you have previously presented at any national or regional conferences.

 The deadline for submissions is Friday, February 8, 2013. Please email proposals as a Word Document attachment to: Pam Armstrong, Conference Chair, Albany Law School,  (518) 445-2364, with a copy to . 




January 20, 2013 | Permalink | Comments (0)

Saturday, January 19, 2013

LSAC update on law school applicants for fall 2013

Here's an update from our last report from LSAC a few weeks ago; the total number of law school applicants for fall 2013 classes is 25,423 as of January 11, 2013. That represents a decline of 20.4% from the same time last year.  Total applications are down 23.4% from this time last year.  With an estimated 44% of total applicants having submitted their applications by this point, that means we're on track to see a total of about 53,000 students apply for the coming school year.   By way of comparison, this past fall, approximately 45,00o total students enrolled in law schools nationwide according to this report from Thomson Reuters (the ABA will have the final figure on total fall 2012 enrollment in the spring according to TR).  It sounds like it's going to be almost open enrollment at some schools this fall.


January 19, 2013 | Permalink | Comments (0)

Does Financial Aid From Parents Affect Student Success?

 According to a study in the American Sociological Review, there is a correlation between the extent that parents provide college students with financial aid and how well students perform academically. More financial aid correlates with higher graduation rates, but it also correlates with lower grades.  The author suggests that students “satisfice;” that is, they do well enough to satisfy their parents, but don’t perform at the maximum level.

One wonders if there is a similar correlation for law students, particularly law students who are not at the top of the class. Do they perform well enough to satisfy parents and make themselves eligible for jobs, but fail to perform as well as  they could? Here is the abstract:

Evidence shows that parental financial investments increase college attendance, but weknow little about how these investments shape postsecondary achievement. Two theoretical frameworks suggest diametric conclusions. Some studies operate from a more-is-more perspective in which children use calculated parental allocations to make academic progress. In contrast, a more-is-less perspective, rooted in a different model of rational behavior, suggests that parental investments create a disincentive for student achievement.

I adjudicate between these frameworks, using data from nationally representative postsecondary datasets to determine what effect financial parental investments have on student GPA and degree completion.

The findings suggest seemingly contradictory processes. Parental aid decreases student GPA, but it increases the odds of graduating—net of explanatory variables and accounting for alternative funding. Rather than strategically using resources in accordance with parental goals, or maximizing on their ability to avoid academic work, students are satisficing: they meet the criteria for adequacy on multiple fronts, rather than optimizing their chances for a particular outcome. As a result, students with parental funding often perform well enough to stay in school but dial down their academic efforts. I conclude by highlighting the importance of life stage and institutional context for parental investment. 


January 19, 2013 | Permalink | Comments (0)

Professor William D. Henderson's Strategy Memo: A Blueprint for Change

Professor William D. Henderson, a leader in legal education scholarship, has just posted a remarkable article, A Blueprint for Change, on SSRN. The article is remarkable because, not only does it view the complex problem of legal education and the legal market in a new way, it provides a viable solution for the problems in legal education using innovative and practical proposals based on how other fields, including the legal market as a whole, have dealt with similar problems. In fact, he calls his piece "a strategy memo addressed to my fellow legal educators on how to respond to a profoundly serious business problem."

Henderson writes, "I believe the most serious problem [with legal education] is inadequate quality." Accordingly, the thesis of Henderson’s article is "To justify our current price tag, a law degree needs to be a transformative educational experience that confers personal and professional benefits to students and positive external benefits to society in the form of more capable leaders and problem solvers." He writes, "My own belief is that educational quality is the next great frontier. . . . Improving quality changes the debate from "how much does my law degree cost?" to "how much is my law school degree worth?" If the worth is sufficiently high, I believe both public and private employers would be willing to subsidize it in exchange for preferred access to graduates."

Professor Henderson describes his article: "This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the ‘12% solution.’ Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs."

While Professor Henderson’s analysis of legal education and the legal market is new and convincing, I would like to concentrate on his solutions in this post. First, he has developed a blueprint for change:

(1) Build consortia of law schools that can reliably pull together information, resources, and expertise for the purpose of large-scale collaborations focused on labor market outcomes. These consortia should be built in conjunction with alumni and employers, who are themselves looking for resources and venues that help them successfully adapt to a rapidly changing legal marketplace.

(2) Use the economies of scale and scope of a consortium to begin the process of constructing a competency-based curriculum that enables students to enter traditional law practice, the Susskind process driven world, or a third alternative identified and targeted by the law school; 

(3) Implement a realistic allocation of the retooling burden—what I call the "12% solution."

Professor Henderson would produce a competency-based curriculum in five steps:

(1) In conjunction with a group of alumni and employers pulled together through a consortium of law schools, identify examples of professional excellence in both the new and old legal economies.

(2) Break these examples into discrete domains of knowledge, skills, and behaviors, identifying both the overlaps and distinctive features of specific practice areas. Industrial and organizational psychology provides the methodology, which has been applied in virtually all industries.

(3) Use the iterative process of theory and data to determine the most effective ways to sequence and teach the requisite knowledge, skills, behaviors, and competencies.

(4) Measure the post-graduate performance of students who have had the benefit of this education (a summer program that eventually evolves into a curricular program at individual law schools) against the post-graduate performance of law students who received a traditional J.D. education.

(5) Build feedback loops on the student, faculty, and employer experience, evaluate program and repeat. Yes, that’s right, repeat. Version 1.0 won’t be near good enough.

He also has three guiding principles for building a competency-based curriculum:

(1) "Practice-Ready" is Not Enough. Despite the rebukes often received from the practicing bar, for most law schools an emphasis on "practice-ready" skills will be insufficient to cope with the structural changes occurring within the legal industry. . . . practice-ready skills training will not change the total number of traditional legal jobs available to law school graduates. Moreover, one of greatest dangers of the "practice ready" solution is that we law professors will too readily conclude that we don’t need to leave the building—that is, engage with [the] profession and the industry— to find a solution. Our schools would just need to hire more clinicians. Yet, this is a very expensive solution that fails to address the longer-term systemic employment problems.

(2) Design and Build It Yourself.

(3) Alliances with Employers. Law schools have one factor working in our favor. Legal employers are facing a battle over market share, and high quality professional talent is the solution to their problem. 

Finally, to deal with institutional resistence and issues of cost, Professor Henderson proposes a 12% solution: "we start with 12% of the curriculum—the equivalent of one course per year—driven by a small subset the faculty, who are willing and able to take up the challenge." He adds, "The 12% solution is a plan for law faculty to create school-specific capital. A competency-based curriculum is best executed by the faculty who created it and who continue to grow and improve it." He also adds, "Ironically, in terms of scholarship, any law school that succeeds in creating true school-specific capital would be in a position to make an enormous contribution to the literature on experiential legal education, educational assessments, adult learning, teamwork, institutional design and change management."

He also replies to those who argue that law schools should not change to meet the needs of the market: "First, the types of education that will attain the highest valuation are complex problem-solving skills that enable law school graduates to communicate and collaborate in a highly complex, globalized environment. This is not vocational training; it is the creation of a new model of professional education that better prepares our graduates for the daunting political and economic challenges ahead. . . . Second, we academics are on thin ground when we claim that we must operate apart from market influences in order to develop critical thinking among our students. . . . Whether we like it or not, we already operate within a market. . . . Simply stated, the market for traditional legal education is drying up. . . . An education that is attuned to this changing marketplace is a valuable education. . . . Finally, there is nothing in the consortium approach described above that would urge a law school not to experiment with its own non-consortium initiatives."

He also replies to those who think that a solution like his is not possible. Professor Henderson writes, "As one law professor once told me, "I can’t teach ‘smart.’" In response, Professor Henderson writes, "The above five-step process contains a critical assumption: that students’ professional potential is not substantially fixed by incoming academic credentials. Stated another way, it is possible for a student who receives three years of an outstanding competency-based education to obtain a permanent, sustainable advantage over a more academically qualified student who received a traditional—and therefore largely unstructured—legal education. If an educational program can produce a measurable value-add that another school cannot reliably produce, employers will seek out the graduates of such a program; students will seek out admission; and alumni will want to contribute time and money toward its construction and improvement."

I find Professor Henderson’s "strategy memo" to be very convincing. Many education theorists and scientific writers (Geoff Colvin Malcolm Gladwell) believe that we can do better with teaching students. Students can overcome a lack of nature’s gifts to a large extent when they are properly taught–taught to be problem solvers, metacognitive learners, and self-engaged learners. This is not only important to our graduates, but to ourselves. Law schools cannot continue to turn out graduates who are educated for the past. Those that do will go bankrupt.

My only argument with Professor Henderson is his 12% solution. Is 12% of the faculty enough to truly change legal education? It might be with some tweaks. 12% of the faculty could work full time on legal education reform, while the remainder of the faculty adopted some educational innovations. For example, I believe that all law school classes should have problem solving as part of the teaching strategy. Similarly, faculty could adopt the new textbooks, which reflect the latest in educational scholarship, without a great deal of work. In any event, Professor Henderson’s article will invoke a great deal of debate for the next few years.

(Scott Fruehwald)

January 19, 2013 | Permalink | Comments (1)

Friday, January 18, 2013

Lexis to close Matthew Bender printing plant

It's another sign of the economic times. Although Matthew Bender titles will continue to be published by its parent company Lexis, it was announced this week that Matthew Bender's Albany, New York printing plant will be shuttered by 2014 resulting in the loss of 220 jobs. According to the Albany Times Union, the 126 year old facility has been a "centerpiece" of the local business community.  Lexis says the decision to close the plant is the result of economic pressure in the legal publishing industry to streamline costs.  Law Technology News has additional details:

LexisNexis to Close Matthew Bender Plant in Albany, N.Y.

LexisNexis, a legal software, workflow and content provider, notified the New York Department of Labor on Tuesday that it intends to close its Matthew Bender law book publishing plant in Albany, N.Y., by the end of 2014 for economic reasons. All told, the plant closing will eliminate 220 jobs in the state capital region.

Marc Osborn, senior director, public relations and communications at LexisNexis, informed LTN from New York that Matthew Bender's parent company initially filed the notice under the Worker Adjustment and Retraining Notification (WARN) Act on Tuesday "about changes over the next two years to 2014, when the [Albany] office will be closed." Osborn said that some positions will be eliminated or moved to operate the publishing business more efficiently.

The Albany location is Matthew Bender's main office, but is also home to other LexisNexis departments, including human resources and finance, according to Osborn, who confirmed that "LexisNexis is still committed to the print business." Matthew Bender's publications and treatises such as Energy Law and Transactions and Current Legal Forms With Tax Analysis, as well as their U.S. and state code compilations will continue to be edited and published by LexisNexis.


January 18, 2013 | Permalink | Comments (1)

Ace the 50 Most Common Job interview Questions

Forbes lists the top 50 here. Here are the top seven:

  1. What are your strengths?
  2. What are your weaknesses?
  3. Why are you interested in working for [insert company name here]?
  4. Where do you see yourself in 5 years? 10 years?
  5. Why do you want to leave your current company?
  6. Why was there a gap in your employment between [insert date] and [insert date]?
  7. What can you offer us that someone else can not?

Forbes also gives advice on how to answer the top seven here.


January 18, 2013 | Permalink | Comments (0)

Thursday, January 17, 2013

New York Times: Make Law Schools Earn a Third Year (with a Reply)

Today, a meeting at NYU will discuss a proposed rule change that would allow law students to take the New York bar after two years of law school.  Dean Daniel B. Rodriguez and Professor Samuel Estreicher have written an op-ed in the New York Times in which they discuss the proposal.

The authors write, "If adopted by the state’s highest court, it could make law school far more accessible to low-income students, help the next generation of law students avoid a heavy burden of debt and lead to improvements in legal education across the United States. . . .  Law schools  would no doubt continue to provide a third year of legal instruction — and most should (more on that in a bit) — but students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work."  They add: "But a straightforward solution — one that would shave the current law school bill by a third for those who take this option — is simply to permit law students to sit for the bar exam and begin practicing even if they have not received a law school degree."

They conclude that "While this wouldn’t increase the number of available jobs, a two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need. As it is now, many young lawyers say they would love to follow this path but cannot afford to because of their onerous debts. . . .  A two-year option, in our view, would provide young lawyers with the training they need to get started, lift a heavy financial burden off the backs of many — and vastly improve third-year curriculums in the process."

However, they believe that a third year of law school can still be valuable: "With this reform, law schools would have an obvious financial incentive to design creative curriculums that law students would want to pursue — a third-year program of advanced training that would allow those who wished it to become more effective litigators, specialize or better prepare for the real-world legal challenges that lie ahead."  They continue, "We are confident that many law schools will be able to meet that challenge.  In fact, that evolution is already going on, as many schools (including our own) reimagine their third-year curriculums through externships, public service programs and courses that offer in-depth practical training. If this trend continues — and the two-year option would only encourage it — those who graduate from rigorous three-year programs will not only emerge with sharper legal skills, but also be more essential to employers, raising the rate of job placement out of law school."

I strongly disagree with the proposal that law school should be two years.  Under our current system of legal education, most attorneys are not ready to practice even after three years in law school.  I have often written on this blog about the need to serve minorities and the poor, but providing substandard lawyers is not the right solution.  The problems of the underserved can be as complicated as those of corporations.  Moreover, public service organizations and public interest law firms do not have the resources to train lawyers who did not receive the proper training in law school. 

Similarly, while I believe there is a significant problem with the high costs of a legal education and the debt that many graduates incur in law school, I do not think that two years of law school is a solution to that problem either.  First, lawyers who have only two years of law school will have to compete with lawyers who have three years of law school.  Who do you think firms will hire and who will get the best assignments?  Second, as is true of public interest law firms, most law firms today do not have the resources or time to train new lawyers.  Finally, the two-year proposal will not stop the glut of attorneys on the market today.  In fact, it might make it worse because more people might go to law school if they only have to go for two years.

I do agree with those critics who state that the third year of law school at present is worthless for many students.  Like Dean Rodriguez and Professor Estreicher, I believe that law schools can make the third year more valuable by giving students skills classes, clinics, and other experiential opportunities.  I have often mentioned as an example of a valuable third year the third-year program at Washington and Lee, which is all practical courses.

In sum, while I agree that it is time for law schools and the legal profession to act, allowing students to practice law after only two years of law school is not the answer.

(Scott Fruehwald)  


January 17, 2013 | Permalink | Comments (3)

Legislators seek another law school for Texas

The New York Times is reporting there are two bills pending before the Texas legislature to start a new law school in the Rio Grande Valley (the bills differ only insofar as to which university the school would be affiliated with).  Approval is being sought despite an estimate from the Texas Workforce Commission that the state will create only 1600 new attorney jobs in the next five years. Texas already has nine law schools not including the proposed Rio Grande Valley school.  Can you guess how Elie and Campos will likely take the news?

Backers Push a Law School in the Valley

Texas produces more law school graduates than it has jobs for. But that has not stopped some lawmakers from proposing that the state build a public law school in the Rio Grande Valley.

Supporters of a new school say there is geographic inequity. The public law school nearest the state’s southernmost region is more than 300 miles away, at the University of Texas in Austin. In addition, they point out, the Rio Grande Valley has one of the lowest lawyer-to-citizen ratios in the state.

Before the legislative session even began, two Valley lawmakers filed bills to create a new school. State Representative Eddie Lucio III, Democrat of San Benito, said that he was not naïve enough to think that the current Legislature would spend millions on a new law school when it was facing a budget shortfall of as much as $27 billion, but that he wanted to try to keep the issue from being “sent to the back of the line.”

The other sponsor, Representative Armando “Mando” Martinez, Democrat of Weslaco, said that even if the school was initially unfinanced, “I’m not looking at leaving here without one.”

Even if the state was not facing a huge budget shortfall, making the case that it needs another law school poses a significant hurdle: who would hire the graduates? In 2009, Texas’ nine law schools produced a total of 2,340 graduates. And 1,837 lawyers passed the 2009 Texas bar exam. The Texas Workforce Commission estimates that there will be only about 1,660 lawyer job openings in each of the next five years.

Continue reading here.


January 17, 2013 | Permalink | Comments (0)

Job Interview Skills: Answering Questions

Here is a 10 minute youtube on answering questions that one might expect at a job interview.  I think your students will find it helpful. The theme: when employers ask you questions, they are want to hear specific answers that they believe will show that you are THE PERSON for the job. Craft answers that they want to hear.

 In my experience, many students do not understand that they need to be proactive in a job interview. They can’t  just wait for a question and answer it. The have to present a personality that the employer is looking for.

Here is another, more basic video on job interviewing “DOs and DON’Ts (7 minutes).


January 17, 2013 | Permalink | Comments (0)

Are Judges Influenced by What They Eat for Breakfast in the Morning?

Professor Linda Berger deals with the contemporary version of this question in A Revised View of the Judicial Hunch.

Abstract: Judicial intuition is misunderstood. Labeled as cognitive bias, it is held responsible for stereotypes of character and credibility. Framed as mental shortcut, it is blamed for overconfident and mistaken predictions. Depicted as flashes of insight, it takes credit for unearned wisdom.

The true value of judicial intuition falls somewhere in between. When judges are making judgments about people (he looks trustworthy) or the future (she will be the better parent), the critics are correct: intuition based on past experience may close minds. Once a judge recognizes a familiar pattern in a few details, she may fail to see the whole fabric’s color and design. When judges are solving problems, the critics are, however, incorrect: it is in this process that judicial intuition has the power to open minds. Visual and verbal cues point to similarities, triggering an intuition or recognition of potential parallels, unlocking patterns and unblocking paths. When judges are solving problems — and they are doing so when they are finding, interpreting, applying, and making law — both the lawyers seeking to persuade them and the judges themselves may effectively apply lessons suggested by studies of intuitive problem solving.

To support the argument that lawyers and judges should learn from both, this article seeks to reconcile claims from the heuristics and biases branch of cognitive psychology (the branch that demonstrated that intuitive mental shortcuts, or heuristics, often lead to mistakes and cognitive biases) with findings from studies of intuitive problem solving (the branch that studies intuition as the primary method used by real-world experts to identify options for testing). The latter researchers define intuition as “nothing more and nothing less than recognition” of a pattern or path stored in the decision maker’s memory. In this sense, intuition can pull up an instant snapshot of a perception or experience already present in our minds, and so it is easy to see why intuition may lead our judgments astray. But in exactly the same sense, intuition can provide the wide-angle or telephoto lens essential for the very different process of problem solving, a process in which these lenses can be used to reveal unusual angles and unseen corners.

(Scott Fruehwald)

January 17, 2013 | Permalink | Comments (0)

Wednesday, January 16, 2013

UHN launches sports and entertainment law institute

The University of New Hampshire School of Law (nee the Franklin Pierce Law Center) is launching a program that will offer practical training opportunities to students who wish to pursue a career in sports and entertainment law.  The National Law Journal has the story:

The school will launch a Sports and Entertainment Law Institute next fall that will combine courses, workshops, externships and conferences aimed at preparing students to practice in those fields. Leading the institute will be Michael McCann, who now teaches sports law at Vermont Law School. He is co-author of the popular Sports Law Blog and a legal analyst for Sports Illustrated.

"The Sports and Entertainment Law Institute will be a great pairing with our historic strengths in trademark and copyright law," dean John Broderick said. "We are very fortunate to have Michael McCann, one of the most exciting legal scholars in the country, leading the way."

McCann said he anticipates offering two sports law courses—one focused primarily on the law of professional sports, the other on amateur and international sports. Classes will cover major sports leagues including the National Football League and National Basketball Association, but also NASCAR and skiing.

"The scope of sports law continues to grow, and types of legal issues that arise are also increasing," McCann said. "With sports, you're dealing with intellectual property law, contract law, criminal law and even immigration law."

Those areas are also relevant to entertainment law, and the law school expects to offer a class in that area as well, he said. McCann hope the institute will collaborate with the university's business school and athletic program. Students will have opportunities to extern with area sports and entertainment companies, including equipment manufacturers, agents, broadcasters or teams, he said.

Sports law programs have been growing in popularity. Marquette University Law School has run a widely respected program since 1989, and Tulane University Law School and Duke Law School also have well-regarded programs. Villanova University School of Law established a program in 2012 with a $5 million donation.

McCann acknowledged that these programs have their critics, who contend there are too few jobs in these practice areas; he said he is the first to warn students against fantasies of becoming hotshot sports agents à la Jerry Maguire right out of law school.

But there are plenty of overlooked opportunities in sports law, he said. For instance, colleges and universities often like to hire attorneys as compliance officers who enforce NCAA, state and federal rules, he said, and sports can start out as a small component of a practice that grows over time.

Continue reading here.


January 16, 2013 | Permalink | Comments (1)

Understanding and Teaching Standard of Review

During the Spring semester, Legal Writing faculty often find the need to help students understand standard of review. Amanda Peters has writing a helpful article on the subject: “The Meaning, Measure, and Misuse of Standard of Review,” 13 Lewis & Clark Law Review 233 (2009). Of particular value are the brief discussions of the four most common standards of review: abuse of discretion, clearly erroneous, substantial evidence and de novo. Here is the abstract:

Standards of review should be the appellate court’s first consideration when it reviews the trial court decision on appeal. Yet, so often it is ignored or misused. This article seeks to explore the history of modern-day standards of review and the policy reasons for their creation. It uses empirical data collected from two sample jurisdictions, California and Texas, to identify ways that courts ignore, confuse, and misuse standards of review. The purpose of this article is to illustrate how standards of review are supposed to work in theory, demonstrate how they are often abused in practice, and encourage judges and appellate practitioners to recognize and confront problems that arise with the use of standards of review.


January 16, 2013 | Permalink | Comments (0)

Can an Employee Who has not been Flirtatious get Terminated Because her Boss Views her as an Irresistible Attraction?

Under Iowa law and apparently under Title VII, the Iowa Supreme Court says yes. Here, a dentist engaged in questionable joking with his dental assistant and had to deal with a wife who demanded that the dental assistant be fired. The dental assistant sued on the basis of gender discrimination and lost. Here are the facts presented in the light most favorable to the plaintiff: Melissa Nelson, v. James H. Knight DDS, PC and James Knight

In the 1940s, one of my late friends clerked for a prominent federal circuit judge and was in line to become the first female clerk at the U.S. Supreme Court. However, the wife of the Justice involved vetoed the invitation because she did not want an attractive female in chambers.

(Thnxs to the Work Matters blog.)


January 16, 2013 | Permalink | Comments (0)

UALR Names Michael Hunter Schwartz Dean of Bowen School of Law

The University of Arkansas at Little Rock has just named Michael Hunter Schwartz as dean of its law school.  Mike is one of the leaders of the legal education reform movement.  He brought general education scholarship into the law school through his pioneering articles, Michael Hunter Schwartz, Teaching Law Students to be Self-Regulated Learners, 2003 Mich. St. DCL L. Rev. 447 (here) and Michael Hunter Schwartz, Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching, 38 San. Diego L. Rev. 347, 397 (2001) (here).  He is editor of the Carolina Academic Press: Context and Practice Casebook series, and he co-authored (with Denise Riebe) Contracts: A Context and Practice Casebook (2009), which is a model for a new type of legal casebook.  He has also authored an important article on writing legal casebooks (here).  He was a contributing author to Best Practices for Legal Education (CLEA, 2007),  and he is also co-director of the Institute for Law Teaching and Learning.

In the preface to his contracts casebook (at xxv), he wrote, "In 2000, the editor of this series, Professor  Michael Hunter Schwartz, took a community college class in learning theory and instructional design.  It changed his whole outlook on legal education.  He learned that there are better ways to teach what we wanted our students to learn."

Through his work, Mike has changed our whole outlook on legal education. 

The UALR press release is here.

Congratulations to Mike and to UALR.  This is a very happy day for law school reform!!!

Update: The National Law Journal also has a nice article on Mike's appointment.  (here)  They write: "Schwartz has spent a decade studying effective ways to teach law and has written numerous books on that topic. For the past four years, he has examined the teaching techniques of 26 highly effective law professors for a book due out this summer. Among his findings is that great classroom teachers can also be productive scholars, Schwartz said—refuting the view that law professors must emphasize one or the other."

(Scott Fruehwald)

P.S. If you haven't read Mike's article on self-regulated learners (here), you need to do so as soon as possible.

January 16, 2013 | Permalink | Comments (0)

Tuesday, January 15, 2013

Be content with your life because it may not get any better

That's the upshot of a new report prepared by Citi's Private Bank Law Firm Group and Hildebrandt Consulting concluding that the halcyon days of BigLaw are over and never coming back. Indeed, the report concludes that "the prosperity [experienced] between 2001 and 2007 was an aberration rather than the norm."  At bottom, the legal services industry is burdened with "too many lawyers chasing too little work."  The National Law Journal has a nice summary.

Report: The Boom Years Are Not Coming Back, Get Used to It

The 13-page client advisory, produced by Citi Private Bank's Law Firm Group and Hildebrandt Consulting, lays out a changing law firm landscape—one that sees partners billing fewer hours than they did before the recession while investing more into their firms through capital contributions; associates occupying a shrinking slice of salaried attorney positions; and leaders acting more like businesspeople than lawyers.

Firms "can no longer rely on a rising tide that lifts all boats," the coauthors write. "In fact, the tide is out."

Demand for legal services dropped an average of 0.4 percent between 2008 and 2012, according to the advisory, compared to an average 3.7 percent increase between 2004 and 2008. Rates are rising at a slower pace now than before the downturn, and average revenue growth of 9.8 percent in the earlier time frame compares to just 0.8 percent growth in the more recent years.

"With too many lawyers chasing too little work, pressure from clients to provide discounts and other forms of pricing concessions has become a fact of life in the current market," the paper says. In an interview, Gretta Rusanow, a senior client adviser in Citi Private Bank's law firm group, says firms need to find niche practice areas that clients don't want to bring in-house and that competing firms haven't yet bulked up on. As an example of an area that found success in the past, Rusanow cited the emergence of Sarbanes-Oxley work following the law's enactment in 2002.

Dan DiPietro, chairman of the law firm group at Citi Private Bank, added that firms "can also be just fine" by going after what others consider commodity work, as long as the cost structure is right.

The dip in demand has resulted in average hours per lawyer falling to 1,641 in 2011, versus an average of 1,742 from 2001 to 2007. Partners are likely responsible for most of that lag, since the report notes that associate productivity is returning to prerecession levels. (Generally speaking, large firms often demand between 1,850 and 1,950 billable hours for associates to be eligible to receive a bonus.)

In the year ahead, Citi Private Bank and Hildebrandt say demand for legal services might inch up as the economy improves and as deal activity, particularly in private equity, picks up. Even so, the forecast for revenue growth looks "somewhat weak," according to the advisory.

DiPietro says there are firms "we have some concerns about," kept on a so-called watch list that he first mentioned publicly to Bloomberg in October. Heavy lateral churn, high bank debt, weak leadership, and cracks in firm culture are all possible warning signs, he says, though he doesn't think any firm is in "imminent" danger.

Then again, he concedes that the bank's "powers of prediction" are not 100 percent, saying they weren't able to see years in advance that now-defunct firms the bank lent to were on the brink (Such firms include Thelen, Howrey, and Dewey & LeBoeuf). "If we were [able to predict that], we would have exited as gracefully as possible," he says.

The bottom line, according to the report, is that the prosperity between 2001 and 2007 was an aberration rather than the norm: "We think it is time to let go of any lingering notion that the industry will revert to the boom years before the Great Recession any time soon."

You can read the full Citi-Hildebrandt report here and NLJ's summary and commentary here


January 15, 2013 | Permalink | Comments (0)

Can You Get Sued for Writing a Law Review Article?

The answer is yes, though you may well prevail. From the National Law Journal:

New Jersey banker Robert Catalanello on December 28 sued Zachary Kramer, an associate dean at Arizona State University Sandra Day O'Connor School of Law and author of a 2011 law review article titled "Of Meat and Manhood." The article explores a separate lawsuit brought by a fired employee who alleged that Catalanello discriminated against him because of his vegetarianism and perceived homosexuality.

The suit also names as defendants the Washington University in St. Louis School of Law, which houses the journal that published the article, and Western New England University School of Law, where Kramer delivered a related lecture.

Kramer's article focuses on developments in sex discrimination law, including the courts' treatment of gender stereotyping and how sex discrimination is manifested in different forms of bias. "In the case of the male vegetarian, what may look like vegetarian or sexual orientation discrimination is really sex discrimination in the form of gender stereotyping," the abstract argues.

The article cites former employee Ryan Pacifico's 2009 complaint against Catalanello, including a charge that he made numerous derogatory comments equating Pacifico's vegetarianism with homosexuality. "You don't even eat steak dude. At what point in time did you realize you were gay?" he said, according to Pacifico's complaint.”


January 15, 2013 | Permalink | Comments (0)

Pronoun Confusion, Politico, and Sen. Chuck Hagel

Some wording on Politico, the celebrated blog, led to confusion on “Morning Joe,” MSNBC’s popular talk show. According to Politico, when Senator Hagel retired, Sen. Mitch McConnell delivered an encomium. According to Politico, Senator McConnell “praised Hagel’s heroism in Vietnam, noting how Hagel saved his brother—with whom he also served—by dragging him out of an armored personnel carrier that exploded after hitting a landmine.”

Did Senator Hagel save his own brother or Sen. McConnell’s brother? The answer is the former. However, the panel on Morning Joe—and apparently the White House-- thought he saved Sen. McConnell’s brother. We’ve to be careful with those referent pronouns.

You can read Professor Ben Yagoda’s commentary here.


January 15, 2013 | Permalink | Comments (0)

Monday, January 14, 2013

Letter to The ABA Task Force on the Future of Legal Education

The American Bar Association created the Task Force on the Future of Legal Education in summer 2012 and charged it with making recommendations to the American Bar Association on how law schools, the ABA, and other groups and organizations can take concrete steps to address issues concerning the economics of legal education and its delivery.  The Task Force is currently solicing comments. (here)  You can read the comments here.  My comments are below.

To: The ABA Task Force on the Future of Legal Education

Comments on the Future of Legal Education: Reform in the Delivery of Legal Education

 The goal of legal education in today’s world should be to develop self-regulated learners who are practice ready. By self-regulated learners, I mean independent learners, who are self-motivated, self-directed, and reflective. Self-regulated learners know themselves, and they are inquisitive, open to new ideas, and take risks. Most importantly, self-regulated learners have learning strategies, and they focus on the mastery of learning.

Law schools cannot graduate self-regulated learners who are practice ready using the old methods of legal education. Law schools have been using the same outdated method of legal education for over 100 years with a few tweaks at the edges. Law schools need to radically change their teaching methods in all classes.

In the past, law schools have taught students doctrine through the Socratic method. Today’s law schools need to teach their students doctrine and how to apply that doctrine to facts (problem-solving). Every law school class, particularly first-year classes, should incorporate problem solving as a major part of the teaching methods. Not only will this create problem solvers, but studies have shown that learners remember more when they apply their knowledge.

Law schools should also increase the availability of experiential/skills classes. While law schools are adding some skills courses, I have received complaints from students who were not able to enroll in skills courses because of the lack of available slots. I believe that students should take at least one skills course every semester of their second and third years.

Law schools should also teach their students to be self-regulated learners. The first step in creating self-regulated learners is to make the students metacognitively aware–that they control their own learning. Metacognition is thinking about one’s thinking. It includes knowledge of one’s learning, the knowledge of strategies for problem-solving, and the knowledge of when to use a particular strategy. Metacognitive learners know the strategies for solving a problem, consider the alternatives, monitor their learning, and evaluate and reflect on their learning. For example, considering which approach to take when doing a research project is metacognition; doing the research in a digest is cognition.

Law professors can develop metacognition in their students in several ways. First, they should make the students aware of metacognition. One method of doing this is asking the students metacognitive questions, such as "What are the strengths and weaknesses of your study techniques?" "Do you always have clear goals when you tackle a problem?" and "How would you teach another student to solve this problem (e.g., a contracts problem)?" Another way to help students develop metacognition is to do "modeling of strategies" in class where the professor states out loud his or her problem solving process. A similar method is to have the students do think-alouds in which they state out loud all the steps in their thinking process in solving a problem including rejected alternatives and dead ends. Among the many other methods law professors could use to help their students develop their metacognitive skills is to help students with their study habits, such as requiring them to keep journals that include their metacognitive thinking, and to create guidelines for study groups.

A significant part of metacognition is evaluation and reflection. Self-regulated learners preplan, reflect on their learning as it is taking place, and evaluate their learning when it is done. A self-reflective learner compares the new learning to what the learner already knows, compares his or her ideas to those of others, and is a critic of his or her work. A self-reflective learner questions everything rather than just being a passive receptacle for the ideas of others.

To develop cognitive skills in their students, law professors should explicitly teach the miniskills of legal reasoning, such as deductive reasoning, inductive reasoning, reasoning by analogy, synthesis, distinguishing cases, and reasoning by policy. "Hiding the ball" is not an effective teaching technique. Students should also be drilled through exercises in these miniskills. For example, one study has shown that law students are not good at synthesizing cases. To overcome this problem, students need to do multiple synthesis exercises across several subject matter areas.

Formative assessments (having assessments during the semester) aids both metacognitive and cognitive learning. Studies have shown that tests are better for learning in contrast to just studying. In addition, formative assessments provide the students frequent feedback. With the current system of end-of-the-semester finals, students often don’t know what they have done wrong until well into their second semester.

Finally, law schools need to take seriously the Carnegie Report’s third apprenticeship–the "apprenticeship of identity and purpose," which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible." First, we need to teach ethics across the curriculum because it is much more effective to learn the ethical rules in connection with the corresponding doctrine. Second, as a few scholars have proposed, we need to teach professional identity in addition to teaching the ethical rules.

While making the above changes may seem to require a great deal of work for law schools and law professors, the ground work has already been laid. Carolina Academic Press has issued a new series, the Context and Practice Casebooks, that incorporates the new learning in legal education. Similarly, Lexis/Nexis has started a supplemental textbook series called Skills and Values. Likewise, Educating Tomorrow’s Lawyers has several "portfolios" on its website that provide examples of teaching doctrinal subjects in new ways. Moreover, numerous organizations, such as the Institute for Law Teaching and Learning, Educating Tomorrow’s Lawyers, the Center for Excellence in Teaching, the Legal Writing Institute, and the Association of Legal Writing Directors, hold conferences on new teaching and learning techniques. Many of the presentations at these conferences are very specific and practical. For example, I once attended a presentation at an ILTL conference in which I learned how to teach a doctrinal class using the latest in education scholarship. Finally, several law schools have already adopted new approaches to learning. I am especially impressed by the third-year program at Washington & Lee and the problem-solving seminar at Harvard.

In making the above suggestions, I do not mean to imply that there is only one way to reform legal education. Legal scholars have advocated numerous, exciting reforms for legal education in recent years. However, one thing is clear: We cannot stick with the status quo. We owe it to our students to provide the best possible legal education now.

(Scott Fruehwald)

January 14, 2013 | Permalink | Comments (0)

International Journal of Clinical Legal Education Conference July 2013 in Australia

Here are the details:

11th International Journal of Clinical Legal Education Conference

12th Australian Clinical Legal Education Conference

Tuesday 16 – Thursday 18 July 2013 Griffith University, Brisbane, Australia

Common Ground. Sharing Across Models of Experiential Legal Education

The International Journal of Clinical Legal Education at Northumbria University is proud to announce its 11th annual international legal education conference in conjunction with the Australian Clinical Legal Education Conference. Previous conferences have been held in London (2003), Edinburgh (2004), Melbourne (2005), London (2006), Johannesburg (2007), Cork (2008), Perth/Fremantle (2009), Newcastle upon Tyne (2010), Valencia (2011) and Durham (2012). Our conference in Durham was a gathering of over 180 delegates from 22 countries. These conferences serve as a unique forum in which clinical educators from many jurisdictions come together to discuss all aspects of clinical teaching and learning, to learn from one another and to share best practice. More information is available at:

The conference will bring together academics, lawyers, students and social activists with an exciting mix of keynote speech, panel discussion, formal presentation and interactive workshop sessions. There will be lots of opportunity for participation, collaboration and dialogue.

Confirmed Keynote Speakers

Professor Ernest Ojukwu, Deputy Director-General and Head of Campus of the Nigerian Law School and President of the Network of University Legal Aid Institutions (NULAI Nigeria). Professor Ojukwu played a leading role in establishing clinical legal education in Nigeria with 14 university based law clinics and an average of 2000 students taking part in clinical legal education annually

Professor Leah Wortham, Columbus School of Law, Catholic University of America (CUA). Professor Wortham coordinated the School’s clinic for 9 years and currently leads the externship programme. She has extensive experience outside the United States assisting law teachers in developing their programmes – particularly in relation to legal ethics, clinical education, and legal education reform. Countries in which she has worked include Poland, Croatia, Macedonia, Montenegro, Latvia, Hungary, Bulgaria, Russia, Kazakhstan, the Kyrgyz Republic, Ukraine, South Africa, Argentina, India, and Japan.

Professor Catherine Klein, Columbus School of Law, Catholic University of America. Professor Klein is Director of Columbus Community Legal Services, the umbrella organisation for the law school's live-client clinical program. She is also Co-Director of the Families and the Law clinical programme addressing issues of domestic violence. Professor Klein has worked with clinicians in developing and furthering their work in many countries including Poland, Russia, the Kyrgyz Republic, other countries of the former Soviet Union, Bulgaria, Ukraine, Hungary and Turkey. She is a current member of the Global Alliance for Justice Education (GAJE) Steering Committee, serving as one of two representatives from North America.

Professor Stephen Billett, Professor of Adult and Vocational Education, School of Education and Professional Studies, Griffith University. Professor Billett is a specialist in learning through and for work. He has published widely in the fields of vocational learning, workplace learning and conceptual accounts of learning for vocational purposes. He currently sits on the editorial boards of 7 refereed journals, including the prestigious American Education Research Journal. He is currently an Australian Research Council Future Fellow completing a project on learning through practice.

IJCLE conference themes

This year’s particular conference streams:

  • Pedagogy
  • Social Justice and Community Engagement
  • Learning from Practice
  • Street Law and Community Legal Education

Papers involving workshops and other interactive sessions are particularly welcome

Papers are also welcome in relation to standing conference themes:

  • Internationalising clinical legal education
  • Trends in international clinical legal education
  • Clinic twinning projects
  • Supervision
  • Clinical scholarship
  • Reporting research findings (final or interim)
  • Assessment /grading of clinical legal education – in particular: how do rubrics and other techniques help in the grading/evaluation process?
  • Evidencing best practice
  • New clinics and new clinicians
  • Review of clinic operations
  • Student and faculty attitudes to clinical learning

Call for Papers/Submission of Proposals

The call for papers is now open.

To submit a proposal for a conference session, click on the Submit a Proposal page of the conference website Proposals should be submitted by 18 April 2013. Proposals should be emailed to

All proposals will be considered by a conference planning group and submission of a proposal does not guarantee that it will be accepted. Consideration of papers will begin prior to the deadline so early proposals may receive a decision and confirmation of participation more quickly.


January 14, 2013 | Permalink | Comments (0)

Ditch the third year of law school?

That's what a group of New York bar officials and legal educators will discuss during a meeting on Friday as one way to make the pursuit of a law degree economically viable given the exorbitant cost of most three year programs. Granted something has to be done about the runaway cost of a law degree but given we're likely to remain in a buyer's job market for a long time, will students from two year programs be able to compete when employers can hire grads with three years of school for the same cost?  I'm not saying we don't need to re-think the third year of law school or pursue serious curricular reforms that replace traditional classroom teaching with apprenticeships or other real-world, experiential opportunities but for some schools to merely lop-off the third year likely isn't going to help those students compete with better trained ones.

The National Law Journal has the story:

FDR did fine without a 3L year:  New York may let law students once again take the bar exam after two years.

The third year of law school has long been a punching bag for critics who argue it's a waste of time and drives up the costs of a law degree, but there have been few serious attempts to do anything about it. Until now.

Legal educators and top New York state court officials will gather on January 18 to discuss whether to allow candidates to sit for the New York state bar examination after just two years in law school. The idea was floated by Samuel Estreicher, a professor at New York University School of Law, who believes skyrocketing law school tuition and diminishing job prospects for new lawyers have created a climate favorable to reform.

"People have been asking for years: 'Do we really need a third year of law school?' " said Estreicher, co-director of NYU's Institute of Judicial Administration. "I'm simply proposing that we give students a choice to stay for three years or leave after two. The economic downturn is a big part of it."

He believes additional states would follow suit if New York adopted a two-year option. The proposal may prove a tough sell to the legal academy at large, however, which has blocked previous attempts to drop the third-year requirement.

. . . .

Trying to convince the American Bar Association's Section of Legal Education and Admissions to the Bar or the AALS — both run by legal educators with a financial stake in the 3L year — is a losing strategy, Estreicher said. He hopes for a friendlier hearing from New York's highest legal tribunal, the Court of Appeals. Chief Judge Jonathan Lippman, who oversees the state's court system and who recently instituted a 50-hour pro bono requirement for admittees to the bar, and Associate Judge Victoria Graffeo are slated to attend the January 18 meeting.

"I don't know what will happen with this, but there is enough interest from some of the decision-makers to come to the meeting and hear more," Estreicher said. "I've received a lot of interest from academics, as well."

Continue reading here.


January 14, 2013 | Permalink | Comments (1)