Monday, September 30, 2013

New Article on Legal Problem Solving

Norman Otto Stockmeyer has posted an article on problem solving on SSRN, Using the Problem Method to Engage Students and Simulate Law Practice.  It is a chapter from the new book Teaching Law Practice: Preparing the Next Generation of Lawyers, edited by Charles Cercone, Nelson P. Miller & Christopher R. Trudeau.

Abstract: "Criticism of American legal education has centered on use of the Socratic method and, more recently, lack of a practice orientation. But proposed reforms fail to consider an alternative teaching method used successfully by other graduate schools: the problem method.

This is a chapter from the new book Teaching Law Practice: Preparing the Next Generation of Lawyers (Vandeplas Publishing, 2013). The chapter explains how the problem method is used to teach Remedies, a third-year capstone course. Instead of briefing cases, students master legal doctrine through assigned readings and analyzing legal problems of the sort a client or supervising attorney might present.

The problem method offers several advantages over traditional case-recitation or lectures. It simulates law practice, it suits the learning styles of today’s students, and it is engaging. On course evaluations, 75% of student comments on the problem method have been favorable. And implementation requires no curriculum change or resource reallocation."

I especially like this paragraph:  "In my view, the problem method has several pedagogical advantages over the traditional case-recitation and lecture methods of teaching. First, it simulates law practice. Clients and partners bring problems; our graduates will need to look up the law to help resolve them. Second, it is contemporary. A problem based approach suits the learning styles of today’s students. Third, it is engaging. Third-year students are notoriously difficult to motivate. The problem method encourages active participation. And enough with briefing cases. Lawyers rely heavily on texts after all, as do judges."

(Scott Fruehwald)

September 30, 2013 | Permalink | Comments (0)

The research supporting "generational differences" in the workplace doesn't exist

The myth-busting is nothing new (here and here); that so-called generational differences are much better explained by the differences in age between "Generation Y" and Boomers than sociological influences producing an entire population of young adults who share similar values despite disparate upbringings.   Every person in their early 20's, no matter when they were born, tends to be a little more narcissistic and self-entitled compared to their parents' generation.  And what young person doesn't want respect or like to learn, to take two more examples that are claimed to differentiate Generation Y from the people who employ them.  These are the innate characteristics of all post-adolescents throughout history. Duh. 

And according to this post at Salon, the research by U. New Hampshire Professor of Management Paul Harvey that has been the source of popular media reports about the uniqueness of Generation Y when it comes to the workplace, doesn't actually exist:

Such conclusions [about Generation Y] are based on misunderstood research. Many of the more recent millennial critiques, including the Wait But Why post along with the New York Post, USA Today, CNBC, the Daily Mail and the Telegraph, find themselves citing the work of Paul Harvey. Harvey, a professor of management at the University of New Hampshire, researches the phenomenon of entitlement in workplaces — and he’s been finding a lot of it. Starting around 2010, amid an avalanche of stories in the  “college grads enter a hard economy” subgenre, journalists began tying academic research on entitlement to Generation Y’s workplace demeanor.

After scouring professor Harvey’s lengthy CV, I couldn’t see any research suggesting that entitlement is amplified in Generation Y-sters. In other words, I was looking for research that connected feelings of self-entitlement among young workers to being raised in the ’80s and ’90s. After I couldn’t find it, I emailed him. Here’s his response:

"Unfortunately the reason you can’t find the article is that it doesn’t exist…I’ve published some studies on workplace entitlement but I’ve never actually looked at generational differences. That’s primarily been a creation of the media – one of those things that’s now been repeated so many times that reporters and other writers assume that there must be an actual study out here somewhere. In their defense I usually collect age data as a control variable and I did once run a quick post-hoc analysis at the behest of a reporter that showed significantly higher entitlement in the younger age group. I think that’s the “study” that people now seem to think I’ve published… I do think there’s a difference with the level of entitlement we’re seeing in this generational group compared to past groups although it’s not something I’ve specifically set out to study."

In order to demonstrate that being a little delusional about one’s prospects in life, feeling entitled to more, and ultimately growing disillusioned are phenomena specific to millennials and not simply a function of age, we would need reliable longitudinal data on entitlement-specific attitudes of previous generations when they were the age that millennials are now. Otherwise, the data simply can’t show that millennials are any different from their parents when they were younger.

Continue reading here.


September 30, 2013 | Permalink | Comments (0)

Law School is Not Vo-Tech School

With the emphasis on educating lawyers to be practice ready,
an important part of their education may suffer neglect. Students also need
what are sometimes called “perspective courses.” I view them as specialized
liberal arts courses. Examples are jurisprudence, legal history, comparative
law, and law and literature. The insights from these courses help students to
understand the human condition. After all, lawyers work with people and develop
relationships with them. The courses also give them insights that enhance their
ability to be creative. Successful lawyers who help their clients need to be
more than drones. Here is a quote from a recent article by the noted biographer
and editor Jon Meacham.

What is heartening to those who believe in the value of a passing acquaintance with
Homer and the Declaration of Independence and Jane Austen and Toni Morrison as
well as basic scientific literacy is that there is little argument over the
human and economic utility of a mind trained to make connections between
seemingly disparate elements of reality. The college graduate who can think
creatively is going to stand the greatest chance of not only doing well but
doing some good too. As long as the liberal-arts tradition remains a foundation
of the curriculum in even the most elective of collegiate systems, there is
hope that graduates will be able to discuss the Gettysburg Address—in a job
interview at Google.

You can read more here.


September 30, 2013 | Permalink | Comments (0)

A Challenge To Matt Bodie and Rick Garnett

Last week, Matt Bodie made this claim on the PrawfsBlawg: "However, there is not consensus that the content and quality of legal education has failed to educate attorneys for their work. . . .  To make these much more contestable claims, there needs to be data and analysis to back it up."  I replied to this statement here, citing numerous studies that demonstrated that there was overwhelming evidence concerning the need for legal education reform.  I also quoted key parts of those reports.

Today, Rick Garnett reiterated Professor Bodie's declaration: "I agree with Matt that 'there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis.  To make these much more contestable claims, there needs to be data and analysis to back it up.'"  (here)

I challenge Professors Bodie and Garnett to back up their statements.  What is the basis of your statement that "there is not consensus that the content and quality of legal education has failed to educate attorneys for their work" ?  How can you make your statements in light of the many studies that have shown the need for legal education reform?  (listed here)  Can you cite a report from the past 25 years that says that our current methods of teaching law students are working?

I am looking forward to your reply.

(Scott Fruehwald)    

September 30, 2013 | Permalink | Comments (0)

Should Law School Be Two or Three Years? The Debate Continues.

Last week, I mentioned that U.S. News Weekly (subscription required) had published a debate between Kyle McEntee and me concerning whether law school should be reduced to two years.  The debate has now moved to U.S. News's open website, and they have added a piece by Dean Daniel Rodriguez to the mix.  McEntee argues that law school should be reduced to two years, while Dean Rodriguez and I assert it should remain three years.  You can find the debate here.

(Scott Fruehwald)

September 30, 2013 | Permalink | Comments (0)

Neuroplasticity and Education

I have written several posts concerning how important understanding how the mind works is on improving education and legal education (the neurobiology of learning).  There will be a conference on this subject in Vancouver on October 25:

Neuroplasticity and Education: Strengthening the Connection Conference 


VANCOUVER, Sept. 24, 2013 /CNW/ - The brain is a beautiful organ.  One that enables us to plan, problem solve, reason, interact, remember, forgive, forget, and a myriad of other tasks, all within the space of a few mere pounds.  Every day we are learning more and more about how malleable the brain really is, and how, with intervention, our brain has the capacity to grow, change, rewire and strengthen.

The brain's ability to change over time, with targeted and sustained stimulation, is called neuroplasticity.   In recent years educators, and professionals in related fields, have become very interested in learning more about the implications that neuroplasticity holds for those who we teach...children, teenagers, and adults.  If we could provide opportunities for students to strengthen weaker brain capacities at an early age, thereby sparing them the struggles that lie ahead as a student with a learning disability, wouldn't we?  Wouldn't learning more about the effect of exercise, meditation and love on the brain's ability to function help direct our best practices as educators and caregivers?

On October 25th, 2013 on the B.C. Professional Development Day, up to 1000 educators, parents, psychologists, counsellors, speech language pathologists, occupational therapists, neuroscientists and those in related professions from all over the world will gather in Vancouver, BC to hear six world renowned pioneers in the field speak about the connections between education and neuroscience.  Revolutionary conversations with the potential to enhance the field of education as we know it.

Register here

(Scott Fruehwald)

September 30, 2013 | Permalink | Comments (0)

Sunday, September 29, 2013

Eight Obsolete Punctuation Marks

Last week, we missed the opportunity to contribute to Punctuation Day. To compensate, we now link you to a discussion of obsolete punctuation marks at the Huffington Post. The pilcrow, the Trinion et, the manicule-- the list goes on. Actually, a few of these do show up on the modern keyboard.


September 29, 2013 | Permalink | Comments (0)


Will it end with a bullet, cancer or ricin? 

September 29, 2013 | Permalink | Comments (0)

New Book on Legal Education: Teaching Law Practice: Preparing the Next Generation of Lawyers

By Charles Cercone, Nelson P. Miller & Christopher R. Trudeau, Editors

"Change is here. Accelerating change in technology, trade, and regulation is rapidly reshaping the legal profession – just as they are reshaping other fields. There is a new urgency to deliver affordable legal products and services to corporate and individual clients in sustainable law firm models. Huge new client populations have new legal needs that they expect lawyers to meet using efficient, accessible, affordable, and transparent means.

Lawyers should not expect to return to traditional models of packaging, pricing, and delivering legal services. The question now is how lawyers will respond to changes in the market for legal services that have already occurred. Some lawyers and law firms are responding, identifying those burgeoning new client populations while designing new processes and implementing new systems to serve them affordably.

Law schools have a peculiar responsibility and opportunity to help accelerate the change in the packaging, pricing, and delivery of these legal products and services. Schools that have practice preparation as their mission can help the profession study and improve the ways in which lawyers identify clients and their needs, and then find effective and efficient ways to serve them.

This book collects some of the practice-preparation efforts of the faculty at the nation’s largest law school – Thomas M. Cooley Law School. Throughout the essays in this book, you’ll learn how faculty from all parts of the curriculum prepare graduates to practice law and meet these new challenges that all lawyers must face. In addition to illustrating the innovative efforts of a practice-based faculty, the book pays tribute to a colleague who stands among the best law professors in the nation – Philip Prygoski."

(Scott Fruehwald)

September 29, 2013 | Permalink | Comments (0)

Saturday, September 28, 2013

Unusual Cases

Compliments of the Disciplinary Committee of the Supreme Court of Pennsylvania:

Two come out of Portland, Oregon. The Portland Loo, a street toilet developed by the City of Portland, is such a successful design that the city has registered a trademark and markets the
design to other cities. However, a Southern Oregon company, Romtec, offered for sale a competing product, the Sidewalk Restroom, at about half the price. Portland has filed a lawsuit, alleging that the “strikingly similar” design of the Sidewalk Restroom infringes its trademark. Portland seeks to have all existing Sidewalk Restrooms destroyed and all proceeds paid as damages.

Also in Portland, lawyer Charley Gee offered a romantic gesture to his wife – he
bought her a tiger lily. They didn’t think about their cat, Boogaloo, who chewed on the leaves. Within 24 hours, Gee and his wife had to rush Bogaloo to a veterinary hospital, where
he spent four days and was placed on kidney dialysis. Although a label on the flower warned that it was not for human consumption, it did not mention that, like all lilies, it is highly toxic to cats. Gee has filed suit against the grocery store where he bought the flowers and its floral contractor, alleging that the lily is an ‘unreasonably dangerous” product.

For owners concerned about the safety of their furry friends, here is a (long) list of plants toxic for cats. Hint: plants dangerous to our feline friends include most of the plants associated with Easter – lilies, daffodils, tulips, hyacinths, azaleas – and with Christmas, including poinsettia, holly, and mistletoe.

Not all our strange lawsuits come out of Oregon. From Altoona in our own commonwealth comes the story of the suit filed by James Weyant against the Altoona Police Department and an officer who shot and wounded Weyant in a 4 a.m. confrontation in a dark alley. The officer said he thought Weyant was holding a weapon and told him to drop it, but the “weapon” turned out to be a pair of black Guitar Hero boxer shorts. Weyant had been wearing them, until the elastic gave out while he was walking home. Weyant recovered, but states he still has “shooting” pains in his arm.

Finally, a California man is suing the Blue Man Group (BMG), the troupe of wordless, face-painted comics/acrobats/musicians/mimes whose antics have amused audiences around the world for more than 25 years. Most attendees at BMG shows know what to expect (i.e., just about anything). But Stan Michelman contends that during a show in San Francisco, “a large blue plastic or rubber-like ball was thrown into the audience without warning to [Michelman],” which caused him "shock and injury to his nervous system" when he extended his arm to block the incoming missile. The lawsuit suggests the Blue Men should have warned the audience that objects would be thrown into the audience. A video of a BMG aerial assault is here.



September 28, 2013 | Permalink | Comments (0)

The MacArthur Fellows for 2013

The MacArthur Fellows Program awards unrestricted $625,000 fellowships to talented
individuals who have shown extraordinary originality and dedication in their
creative pursuits and a marked capacity for self-direction. Here are biographies of
this year’s 24 fellows. Only one is a lawyer, and none are legal academics.
Does this statistic tell us something about the awards process or something
about the participation of lawyers in creative pursuits?


September 28, 2013 | Permalink | Comments (0)

The Lesson of Wharton Business School

The Tax Prof Blog has an interesting post concerning the decline of Wharton business school.  Applications to Wharton have declined 12% over the last four years, and it has lost much of its reputational luster.  Apparently, this is because, while Wharton stuck with its traditional program, students' interests shifted from finance to technology and entrepreneurship.

"Wharton over the past century built its reputation as a training ground for Wall Street titans, but the financial crisis closed off many paths to such careers. The school in the mid-2000s regularly sent more than a quarter of its students to jobs at investment banks and brokerage firms. That figure has slid into the teens. ... Some admissions advisers and Wharton professors say the school didn't react aggressively enough when the spigot of finance jobs was turned off and that recent moves, such as a rebranding campaign begun in the spring of last year, did little to clarify the school's profile."

Is there a lesson for law schools to learn from Wharton's mistakes?  Will other law schools face a similar decline because of their failure to adjust their programs to new conditions?

(Scott Fruehwald

September 28, 2013 | Permalink | Comments (0)

"Tips For The Practitioner Seeking To Return To The Academy"

This article is by Professor Kevin Conboy (John Marshall - Atlanta), also a former partner at Paul Hastings, and is available at 14 Transactions 147 (2013).  From the introduction:

Law schools simply cannot prepare each law graduate well for his or her initial job or ultimate career. It is not possible. Predictability of career path is low; I was going to be Atlanta's next great international lawyer, and spent most of my career doing commercial finance transactions (lending law). In law school, I took Admiralty Law, but not Bankruptcy.

But what do law schools do to prepare law students for practice? In the television program "The Paper Chase," Professor Kingsfield, played by John Houseman , said in the trailer at the beginning of each new episode: "You enter law school with brains full of mush, and we teach you to think like a lawyer." Law students learn how to read and digest cases and how to use 'study aids' to reduce unnecessary brain cramping; how to cope with final exams, largely essay style (with the occasional "scantron" multiple choice exam or portion thereof), for doctrinal courses; how to prepare legal memos and perhaps a persuasive brief; or maybe even how to argue a motion, or a case on appeal. If a student takes courses such as contract drafting, deal skills, negotiation, trial practice or another clinical course or courses as electives, the student may be exposed to other skills. But it is still quite possible in 2012 for a law student to graduate from an ABA-accredited law school and pass a bar exam without having read a contract, a will, a deed or mortgage, a complaint, or an answer (much less having drafted such a thing); without having counseled a client, or even a faux client; without having negotiated anything; without knowing what an engagement letter is; or how to keep time or bill and collect. A law student is likely to know the rules regarding client conflicts from a course in Professional Responsibility, but not how to avoid client conflicts or what to do if one arises. As I said, while it is not possible to properly prepare each law graduate for his or her initial job or ultimate career, it should be possible (i) at least to expose all law students to rudimentary universal elements of practice, and (ii) for those students who know, for example, that they will be business lawyers of some sort, or litigators of some type, to give those students a running start.

Thankfully, the landscape of legal education is shifting fairly rapidly, and I hope to be a part of it. Here are my suggestions for the practicing lawyer looking to move into teaching.


September 28, 2013 | Permalink | Comments (0)

Friday, September 27, 2013

New website aims to solve problem of linkrot in court opinions and legal scholarship

A recent study by Harvard law prof Jonathan Zittrain showed that of the more than 500 United States Supreme Court opinions published since 1996 that included hotlinks to web-based materials, about half no longer work.  As a result, Professor Zittrain's has started, with the support of  a consortium of law school libraries and others, a website called that will serve as a permanent archive for web-based materials cited in court opinions, law review articles and the like.  Its purpose is to "preserve the foundation of legal scholarship online" by creating citation links that will never break.  Here's how users will interact with the website which is now in beta testing:

Any author can go to the website and input a URL. downloads the material at that URL and gives back a new URL (a “ link”) that can then be inserted in a paper.

After the paper has been submitted to a journal, the journal staff checks that the provided link actually represents the cited material. If it does, the staff “vests” the link and it is forever preserved. Links that are not “vested” will be preserved for two years, at which point the author will have the option to renew the link for another two years.

Readers who encounter links can click on them like ordinary URLs. This takes them to the site where they are presented with a page that has links both to the original web source (along with some information, including the date of the link’s creation) and to the archived version stored by

The service will be free and open to all.

Hat tip to the Wall Street Journal Law Blog.


September 27, 2013 | Permalink | Comments (0)

Will Students Sell & Buy Seats in Fully Subscribed Classes?

This phenomenon is already happening in one Canadian university. Will U.S. law schools encounter this unfortunate development?

  University of Toronto students desperate for scarce seats in fully booked classrooms are
offering cash to classmates willing to give up a spot, turning registration
into a bidding war.

“$100 to whomever drops (History of Modern Espionage),” posted Christopher Grossi on
Facebook Tuesday. “I really need this course.”

 The third-year history student said the 180-person course filled up before his
designated registration time. After talking to the professor without success,
he said offering money was his last chance to coax someone to trade with him. 

You can read more here.



September 27, 2013 | Permalink | Comments (0)

Thursday, September 26, 2013

If you want to write better, start watching Columbo reruns

That's the seemingly unorthodox advice from journalist Shahan Mufti in this New York Times 6th Floor column (subscript. req).  But Mr. Mufti makes a strong case that by observing Detective Columbo at work, you'll learn everything you need to know about developing the skills of a good writer.

Want to Write Better? Watch ‘Columbo’

Over the years, as a writing student and as a working journalist, I’ve received all sorts of advice from teachers and mentors and colleagues. There are timeless tips like “Write what you know” or the even simpler “Rewrite.” There has been other advice tailored more to the moment, like “Start a blog” or the similar but more dubious “Build your brand online!” But in the midst of all this mostly practical advice, the wisdom of one writing mentor has always stuck with me: “Watch ‘Columbo’ reruns.”

. . . .

Columbo is a master of reporting. To begin, he is polite. Regardless of whether he was talking to someone he knew, to a murderer or to a victim, he never failed to respect a source. He was relentless. He never stopped asking questions until he had everything sorted cleanly in his head. And most important, in the end he was always humbled by the reality he had been able to reconstruct. He never got cocky. Since facts are the essential ingredient of any work of nonfiction, and the truth is what all writers strive for, “Columbo” reruns are the perfect inspiration. I did watch some old “Columbo” reruns during graduate school and my early reporting career, but to be honest, I never really thought that they impacted my work.

Continue reading here.


September 26, 2013 | Permalink | Comments (0)

A Place to Find Statistics

The Concious Curriculum by Sarah Schrup & Susan Provenzano

Professors Sarah Schrup and Susan Provenzano have just published an excellent article on developing a legal writing curriculum focused on mastery of core lawyering traits.  I agree that structuring the curriculum in cognitive steps should be a major part of legal education reform.  

Abstract: In The Conscious Curriculum, Northwestern Professors Sarah Schrup and Susan Provenzano propose a curriculum focused on progress towards mastery of core lawyering traits (e.g., legal analysis, problem solving, and effective communication). The hallmarks of this approach are deliberate choices about the types and timing of the courses offered and increased collaboration among the existing strands of law school education: the doctrinal, the clinical, and legal writing. Professors Schrup and Provenzano first discuss the theoretical underpinnings of their approach, and then address how the current law school environment hinders it. They conclude with a case study detailing exactly how their proposed curriculum would be feasibly executed in the context of a legal writing program.

(Scott Fruehwald)

September 26, 2013 | Permalink | Comments (0)

Wednesday, September 25, 2013

Losing helps us develop the resilience to succeed

Apropos to yesterday's post about the desirability of a tougher law school grading curve to help students learn to forge ahead in the face of disappointment, today's New York Times featured an editorial by the author of Top Dog:  The Science of Winning and Losing who essentially agrees saying that losing helps us develop the character traits necessary to succeed.  In life, we're going to lose much more than we're going to win so learning to deal with it in order to press forward is an important learnng experience that's all too often absent in our Lake Wobegon culture.  An excerpt:

Losing is Good for You. 

. . . .  

Trophies were once rare things — sterling silver loving cups bought from jewelry stores for truly special occasions. But in the 1960s, they began to be mass-produced, marketed in catalogs to teachers and coaches, and sold in sporting-goods stores.

Today, participation trophies and prizes are almost a given, as children are constantly assured that they are winners.

. . . .

Po Bronson and I have spent years reporting on the effects of praise and rewards on kids. The science is clear. Awards can be powerful motivators, but nonstop recognition does not inspire children to succeed. Instead, it can cause them to underachieve.

Carol Dweck, a psychology professor at Stanford University, found that kids respond positively to praise; they enjoy hearing that they’re talented, smart and so on. But after such praise of their innate abilities, they collapse at the first experience of difficulty. Demoralized by their failure, they say they’d rather cheat than risk failing again.

In recent eye-tracking experiments by the researchers Bradley Morris and Shannon Zentall, kids were asked to draw pictures. Those who heard praise suggesting they had an innate talent were then twice as fixated on mistakes they’d made in their pictures.

. . . .

Having studied recent increases in narcissism and entitlement among college students, she warns that when living rooms are filled with participation trophies, it’s part of a larger cultural message: to succeed, you just have to show up. In college, those who’ve grown up receiving endless awards do the requisite work, but don’t see the need to do it well. In the office, they still believe that attendance is all it takes to get a promotion.

In life, “you’re going to lose more often than you win, even if you’re good at something,” Ms. Twenge told me. “You’ve got to get used to that to keep going.”

When children make mistakes, our job should not be to spin those losses into decorated victories. Instead, our job is to help kids overcome setbacks, to help them see that progress over time is more important than a particular win or loss, and to help them graciously congratulate the child who succeeded when they failed.

Continue reading here.


September 25, 2013 | Permalink | Comments (0)

Preventing Burnout

In the September issue of the Wisconsin Lawyer, Paula Davis-Laack identifies five reasons for burnout:

  • Workload (your workload is too much, too
    complex, or too urgent)
  • Control (your sense of control over what you do is often limited or undermined, and you don’t have much say over what is going on at work)
  • Reward (you feel taken for granted, not recognized, and undercompensated)
  • Community (you deal with patronizing partnersand colleagues, there is no mechanism for conflict resolution, and feedback is nonexistent)
  • Fairness (you or others are treated unfairly,there is a culture of favoritism, and task assignments and promotions are arbitrary and discussed behind closed doors); and
  • Values (you experience a disconnect between your core values and the organization’s core values).

Here are her five suggestions for preventing burnout (abridged):

1) Increase your self-efficacy. Self-efficacy is having the belief in your own ability to accomplish (and exercise control over) personally meaningful goals and tasks.

2) Have creative outlets. Burnout interferes with your ability to perform well, increases rigid thinking, and decreases your ability to think accurately, flexibly, and creatively. Even if you aren’t able to flex your creative muscles at work, having some type of creative outlet will keep you engaged and motivated.

3) Take care of yourself.

4) Get support where you can find it. It takes time and effort to maintain social connections, but supportive people are the best inoculation against burnout.

5) Identify your values. We all have values that we espouse, but the daily grind of practice may cause you to forget what they are, or you might discover that the culture of the legal profession doesn’t really support your values.

The article contains bibliographic endnotes and some helpful worksheets.





September 25, 2013 | Permalink | Comments (0)