Thursday, October 24, 2013

Oct. 20, 1949: The Inklings’ Meetings End

Literary History. We missed observing this date by a few days. The Inklings were C.S. Lewis, J.R.R. Tolkien , Owen Barfield, Hugo Dyson, Charles Williams and others—a legendary group. They met regularly to read and discuss their writings. On Oct. 29, they met at their traditional pub, The Eagle and Child (The Bird and the Baby) for a ham dinner. It was to be their last formal meeting. At the next scheduled meeting, no one showed up. Still, they met informally during the following years.

The Eagle and Child still flourishes. I’ve made the pilgrimage there. When next you get to Oxford, you might want to pay a visit. Here’s more of the story from ChristianHistory.


October 24, 2013 | Permalink | Comments (1)

Did Pizza Help End the Government Shutdown?

From (excerpts):

At least 20 huge boxes were delivered by a congressional aide to the office of Speaker John Boenher, along with bags stuffed full of sides.

It came from local outlet Pizza Boli's who has proudly laid claim to helping avert disaster.

The only question that remains is what flavours helped create the mood for compromise?

We're tipping a hardliner like Ted Cruz went for nothing less than the full "meatster" while a more moderate Republican like John McCain might have opted for crab or cheese steak.

All may have discreetly avoided Greek given the financial situation in that particular country.

Make way for the most important man in Washington. Picture: Alex Wong, Getty Images, AFP.         

Make way for the most important man in Washington. Picture: Alex Wong, Getty Images, AFP.


October 24, 2013 | Permalink | Comments (0)

Visual Advocacy Skills and Adversarial Imbalance: Thoughts on the Michael Skakel Re-Trial Order

Last night a Connecticut Superior Court judge granted Michael Skakel’s habeus petition for a new trial, on the basis that Michael Sherman, his trial defense lawyer, failed to  provide effective assistance of counsel.  At a 2002 trial, Mr. Skakel was convicted of murdering his neighbor Martha Moxley, in 1975.  Because Mr. Skakel was a remote member of the Kennedy family, the case became a media spectacle, involving journalist Dominick Dunne, who wrote a fictionalized novel detailing Mr. Skakel’s role in the murder and O.J. impresario Mark Furhman, who also wrote a book about the case. 

The Connecticut Superior Court noted that three defense errors rose to the level of a Sixth Amendment deprivation: the failure to argue third party culpability for Skakel’s brother; the failure to locate an independent alibi witness who would have testified that Skakel was several miles away during the time of the murder; and the failure to contest and rebut testimony from the State’s key witness who claimed to have heard petitioner make admissions regarding the crime.  

 There were numerous other errors that the court commented on that, by themselves, did not rise to the level of constitutional magnitude, but in the aggregate, could have impacted Mr. Skakel’s Sixth Amendment rights.

Among these errors were Sherman’s (1) failure to present a compelling closing argument and (2) failure to argue, on Fourth Amendment grounds, to exclude audio-tapes of Mr. Skakel speaking about the night of the Moxley murder.  From an advocacy standpoint, the court was right to point out the magnitude of these two errors. Skakel’s defense attorney mounted little to no opposition to a rigorous and robust advocacy, in one of the first high-profile cases to utilize new media technology.

In its rebuttal closing argument (another strategic error may have been Sherman’s allowance of the prosecution to have this last word), the prosecution used Mr. Skakel’s audio testimony along with projected photographs of Ms. Moxley’s corpse to create a powerful, but conflated, visual inference.  The prosecution played a portion of the audio-tapes where Mr. Skakel expressed his fear that someone saw him outside of his home that night.  He was verbalizing fear that his strict Catholic father would find out that he climbed a tree in his yard to masturbate that night, not any fear about his role in Moxley’s death. 

On the other side, the Connecticut Superior Court characterized Sherman’s closing argument as “disjointed, unfocussed, and, at times, improper.”  Sherman failed to “provide the jury a road map to an understanding of the state’s burden of proof and the absence of a corollary burden in the defendant.” 

As I wrote in 2009, there was a tremendous advocacy imbalance in this trial, exacerbated by the prosecution’s unilateral use of visual argumentation.  Visual argumentation is powerful and can lead decision-makers to make rapid and emotional decisions without the benefit of logo-centric deliberation.  If one side uses this rhetoric tool with no answer from the other side, injustice can result.  We saw a similar issue with the Amanda Knox trial in Italy, where lenient evidentiary rules allowed prosecutors to show jurors an animated video presenting their fanciful theory of the case. Americans recoiled with a sense of injustice there, but with the Michael Skakel trial, a similar injustice may have been done, but produced by adversarial imbalance rather than evidentiary controls.  Hopefully, during Mr. Skakel’s new trial, the two sides will be more equalized in their advocacy approaches.

(Lucy Jewel, guest blogger)

October 24, 2013 | Permalink | Comments (0)

Wednesday, October 23, 2013

Legal sector adds 1,100 jobs in September

This is the third consecutive month of growth (here and here) in the legal job sector. The AmLaw Daily has the full details here.  An excerpt:

Legal Sector Gained 1,100 Jobs in September

Continuing its recent run of positive momentum on the employment front, the legal sector added 1,100 jobs last month, according to preliminary data issued Tuesday by the U.S. Bureau of Labor Statistics.

. . . .

. . . September's hiring uptick follows the even greater job gains recorded in July and August and boosts the total number of people employed in the legal sector to 1.13 million.

Factoring in last month's new jobs, there are now 6,600 more people working in the legal profession than there were at this time last year. Tuesday's BLS report also included revised hiring data for August showing that the legal industry added 3,100 positions that month, up from the 2,700 the agency initially estimated. Overall, the BLS reports, through the first three quarters there were more people employed in the legal sector than at any point since 2009.

. . . .


October 23, 2013 | Permalink | Comments (0)

ABA Committee Wants 80% Bar Passage Rate


From JD Journal:

The ABA Standards Review Committee, which is engaged in doing a
comprehensive review of law school accreditation standards has recommended a
new standard – a law school will have to show 80 percent of its graduates
passed a bar exam within two years of graduation.

 However, the proposal was tabled after it was found during
recent meetings of the committee, last week, that many jurisdictions do not
currently provide name-specific bar pass information to law schools, reported
the ABA journal. The committee also found that many jurisdictions did not
provide such information to law schools even upon request.

 Consequently the committee has decided to request the governing
council of the Section of Legal Education and Admissions to the Bar to arrange
for universal release of name-specific bar exam pass fail information to law
schools. The committee, which met on Friday and Saturday in Atlanta, voted
unanimously to recommend that the council pass a resolution calling on
jurisdictions to start providing the required information to law schools.

 Not all schools are going to rally around the Committee's proposal. You can read more here.


October 23, 2013 | Permalink | Comments (0)

The Influence of Rankings on Admissions Decisions by Students

The Art & Science Group has released the results of a survey on how much college rankings
influence students in choosing a college. I suspect that the results also apply to law school admissions. Here is a summary

Our latest studentPOLL study conducted in November and December 2012 reveals that the college rankings are having an influence on many students’ college decisions. Among the key findings of the study:

Two-thirds of students surveyed indicated that they had taken college rankings into account in their college application decisions.

Students with the highest SAT scores — 1300 and above — were more likely to have considered the rankings in their application decisions (85%) than students with SAT scores of less than 1300.

US News & World Report is the predominant source of college rankings used by students to help make judgments about colleges.

Nearly two-thirds of students surveyed “strongly agree” or “somewhat agree” that the rankings are “very important in trying to sort out the differences between colleges.”

About two-thirds, respectively, somewhat or strongly disagreed that the rankings “don’t matter” and that they “don’t matter to me, but they matter to my parents.”

More findings:

Students with the highest SAT scores (1300 and above) and those with mid-range SAT scores (1100 and above) were more likely to say they used the US News college rankings to make judgments about where to apply than students with the lowest SAT scores (1090 or lower), (66%, 60%, and 48% respectively).

Asian students (75%) were more likely to report US News & World Report as the rankings source of greatest value to them in their application decisions than Caucasian (53%), African American (54%), and Hispanic students (45%).

Students with the lowest SAT scores (1090 or lower) were more likely to say they used to make judgments about where they would apply to college than students with mid-range SAT scores (1100 to 1290) and those with the highest SAT scores (1300 and above), (9%, 1%, and 2% respectively).

However, group also has advice for schools trying to game the rankings:

So despite the fact that college rankings appear to have grown in influence in students’ college search, we would argue against spending too much institutional time, money, and energy on hand wringing over rank per se and on attempts to improve it. For most institutions, it would be far better to focus on planning strategy that strengthens an institution’s competitive position on a substantive basis: differentiation based on educational approach, student experience, innovative teaching, and the like. In short, for most, trying to game the ranking numbers is a fool’s errand.


October 23, 2013 | Permalink | Comments (0)

Ads Appearing on This Blog

Sometimes you will see ads appearing at the end of a posting. We, the posters, do not select  those ads. Once we once we go to the blogsite and see an ad that displeasaes us, we can delete it.

Today, I noticed an ad appearing at the conclusion of a posting. It was a political ad paid for by a group in Delaware County, a local suburban subdivision. It disparaged one of my colleagues who is seeking elecction as a trial judge, intimating that he is unqualified.

Steve Chanenson, my colleague, clerked for the U.S. Supreme Court, worked in a national law firm, and as part of his teaching duties, runs a course that includes students and state judges and aims to sharpen the skills of both groups. Working with state judges has been his calling. The county would be privileged to have someone of his ability on the court.

I am sorry that this blog was used for a cheap political stunt. I have deleted the ad. 


October 23, 2013 | Permalink | Comments (0)

Professor Jessica Erickson on the Socratic Method

I have always thought that the Socratic method was a valuable tool to train law students when used properly and when used with other teaching techniques.  In her important article, Experiential Education in the Lecture Hall, Professor Jessica Erickson discusses the Socratic method.

She writes, "In its ideal form, the Socratic method is itself an active-learning method. The Socratic method is designed to prompt students to assess the strength of legal arguments through a series of back-and-forth exchanges between the students and the professor. Even students who are not directly in the hot seat must participate in case they are the next target of the professor’s questioning. When done well, the Socratic method may well be an effective means of teaching complex legal reasoning to a large class of students."

However, she notes that "this ideal may bear little resemblance to the methods used in most doctrinal courses today."  She quotes Professor Stephen Bainbridge's description of a typical Socratic class: "He started today’s session by picking up the thread of a discussion from yesterday. After reviewing the material by lecture, he started the new material. As before, he relied on volunteers. He got some participation, but it wasn’t particularly interactive. Students made a comment, he made a comment, and went on."

She adds that "professors may have a romanticized notion of what is going on in their students’ heads during a typical class. . . .  Professors may therefore assume that their students are actively engaged in the material, answering the professor’s questions in their heads even if they are not the focus of the professor’s attention. The reality may not match this idealized hope. In many classes, students can passively listen to the exchange, waiting for the professor to repeat the correct answer or summarize the most salient points. In-between these moments of typing, students can let their attention drift?"  In addition, "The Socratic method may also move too quickly to produce meaningful learning."

In sum, "even if our only goal is to teach doctrine, we need to think about ways to force our students to engage with the doctrine so that it gets into their long-term memory. The Socratic method may lead to this engagement, but it is also relatively easy for students to become passive participants in a Socratic class, especially if the class is the soft-Socratic style more common today"

My ideal first-year doctrinal class would combine the Socratic method with an experiential approach.  First, professors should help their students learn doctrine using the Socratic approach.  Then, they can produce deeper learning by having the students do problem-solving and other experiential exercises.  Finally, the Socratic method is very effective for individual meetings with students.

(Scott Fruehwald)

P.S. I also discussed Professor Erickson's article a few days ago.  This is a very important article that everyone needs to read.

Professor Erickson also mentions that Professor Gerald Hess suggests that professors can ameliorate this problem [with the Socratic method] by incorporating opportunities for student reflection into the Socratic dialogue. For example, the professor may "ask the entire class to silently formulate a response in thirty seconds, or to write a brief response in one minute, or to turn to the next person and discuss the question for two minutes." Gerald F. Hess, Principle 3: Good Practice Encourages Active Learning, 49 J. Legal Educ. 401, 407 (1999).  I also think that the use of clickers will help keep the students engaged.

October 23, 2013 | Permalink | Comments (0)

Tuesday, October 22, 2013

One large law firm starts residency training program for non-partner track associates

Greenberg Traurig has announced plans to start what may be a first in the nation residency program for new lawyers.  It will work somewhat like a medical residency.  Those hired will be paid less than partner-track associates (though the firm hasn't yet said how much less) and in exchange they'll get to spend as much as one third of their time in training.  At the end of the year long training period, attorneys in the residency program will either become partner-track associates, become what the firm calls a "practice group attorney," or they will leave the firm. The training during that probationary period will come from tagging along with firm lawyers as they work (though the client won't be billed for the trainee's time), taking Practising Law Institute online courses as well as the other professional development courses offered by the firm to all associates, and "some extra 'hands-on learning' with partners" according to a firm spokesman.  The The AmLaw Daily has more details.

Calling All Unemployed Law Grads: Greenberg Is Hiring

Greenberg Traurig has a proposition to make to recent law school graduates: Join the firm as an associate, but only if you're willing to spend a third of your time training rather than churning out billable work.

The catch? Those who sign on will be paid considerably less than the typical starting associate, will bill at a much lower hourly rate—and may wind up only sticking with the firm for a year.

The offer is the basis of what Greenberg is billing as a new residency program that is being rolled out across its 29 U.S. offices. Firm leaders envision the program as a way of recruiting talented associates it wouldn't have hired during the traditional on-campus interview process for one reason or another. It will also allow the firm to assign junior lawyers to client matters without billing their work at the usual cringe-inducing hourly rates.

. . . .

[Partner Kara] MacCullough says the fellows program benefits both recent law graduates and Greenberg. "I think it absolutely makes economic sense for the firm," she says, adding that clients have been eager to use the junior lawyers, who cost less than a typical associate, and have allowed them to sit in on meetings and calls—at no cost to the client—as part of their training. The rest of the training, MacCullough says, comes via online courses with the Practising Law Institute, the professional development courses the firm offers all associates, and extra "hands-on learning" with partners without concern about billing for the time.

With the firmwide residency initiative—spearheaded by Greenberg shareholder, vice president and treasurer Bradford Kaufman, who also heads the associate development program—each office will have the autonomy to decide how many residents it hires. Once the initial one-year period ends, residents will either become a regular-track associate, take on the new practice group attorney title, or leave the firm, Rosenbaum says.
Continue reading here.


October 22, 2013 | Permalink | Comments (0)

Are Law Schools Like Newspapers?

Chancellor & Dean Frank Wu (Hastings) makes the analogy. His point: Newspapers following the traditional model fail. Law school following the traditional model also fail. Here are excerpts from his essay:

In abstract terms, a newspaper is a nexus. It is an organized structure for bringing together the readers with the writers. An institution of higher education is also a nexus. It is a means of bringing together the students with the teachers.

Access to the newspaper's nexus is sold to the advertisers. That makes it affordable for the readers and subsidizes the writers.

Access to the higher-ed nexus is offered to prospective employers. Here as well, there has been a generational change. In the cultural revolution of the late 1960s, people wanted to learn for the sake of learning; starting with the counter-revolution of the 1980s, people wanted to be prepared to make a living. In a perfect world, we would see that these
are the same goals. There is much more to contemporary expectations than merely
materialistic ambitions.

In terms of content, a newspaper must (or at least should) perform the function of sorting and credentialing. Its operators determine what information within the chaotic mass of available data is worthwhile. Furthermore, they vouch for the accuracy of what they present.

The institution of higher education also performs the function of sorting and
credentialing. It is a business that those of us who hold onto progressive
ideals might be uncomfortable with, but it is the business we are in nonetheless.

Our responsibilities as gatekeepers could be described in a more genteel manner. We
attest to the quality of not only our students, but also -- and just as importantly -- our teachers. We are saying to the world that coming here means you have the opportunity to interact with a certain group of great minds as peers and pupils. The catch is that the specific place may become no more relevant than the pages of the newspaper.

The campus enables social interaction. For traditional college students, that's
essential to the experience. For graduate students, it's an entry to the
profession. Yet social interaction itself is becoming altogether different.
Old-fashioned courtship has given way to meeting via the web.

We know what has become of newspapers. After all, consider how I am communicating
with you. There is a lesson here for any college president.

You can read the full version here at the Law Deans on Legal Education blog (previously on Huffington Post)


October 22, 2013 | Permalink | Comments (0)

Monday, October 21, 2013

The best moot court programs

The TaxProf blog has published a list of the top sixteen moot court programs based on competition results during the 2012-2013 academic year as compiled by the University of Houston Law Center's Blakely Advocacy Institute.  The schools that made the cut will compete for the 2014 Andrew Kurth Moot Court National Championship to decide the "best of the best" in January at the U. Houston Law Center. 

A related article about the Andrew Kurth competition and the BAI's moot court ranking system can be found in Pre-Law Magazine here.  According to the article, this is the only moot court ranking system still in existence after Brian Koppen's popular Law School Advocacy moot court rankings (here and here) ceased publication.


October 21, 2013 | Permalink | Comments (0)

Data on Deans

Sunday, October 20, 2013

More on a Small-Firm Practitioner's Open Letter to Law Schools

On Saturday, my co-blogger, Jim Levy mentioned an open letter to law schools from a small-firm practitioner, Carolyn Elefant. Jim’s post mainly concerned what she and other small-firm practioners wanted law schools to teach law students. In this post, I would like to explore her reasons for posting this open letter. They demonstrate why law schools need to significantly reform how they deliver legal education.

Elefant writes, "I’ve gone out of my way to hire and pay law students and new grads in my field [emerging renewable energy technologies and micro-grids, pipeline regulatory proceedings and eminent domain on behalf of landowners and communities and 21st century legal ethics] because I believe that my generation in this profession owes an obligation to train those who come after." She continues, "But increasingly, I am finding that many of your students are, quite frankly, useless to me; lacking the basic skill set necessary to incorporate them quickly and seamlessly into a busy and frequently resource-constrained practice like mine."

She remarks, "Yet what I can’t fathom or tolerate is the utter lack of curiosity that many (but not all) new grads bring (or don’t bring) to the table when they hit the job market. . . . how can today’s students not be excited about the cornucopia of riches at their fingertips — from free caselaw, free online legal briefs and memos by top attorneys, substantive analytic blogs galore, and an endless stream of news items on Twitter curated by experts in every field?"

She notes, "I need young lawyers who can keep a pulse on my industry and inform me of what’s new. I want new lawyers to challenge me every single day, not to sit like potted plants waiting for the next assignment. And most importantly, lawyers who work with me have got to have basic 21st technology skills."

Why are small-firm practitioners important to law schools? "But here’s why what my solo and small firm colleagues and I have to say matters so much. Back in the day, most schools prepped attorneys to work at big law – but those jobs are gone for good. Likewise, most government employers, which can hire big law cast offs with several years of experience, won’t touch new grads. . . . So, hate to break it to you, law schools, but you’re stuck with employers like me: solo and small firms who are the face of today’s legal employers."

She concludes, "Earth to law schools, the bottom line is this. Once upon a time, you all would have hung your heads in shame at the horror of your illustrious students slumming in solo and small land. Reality check – working full time or on a contract or part time basis for a solo or small firm may be the future for the majority of your students. What’s more, my guess is that many of your grads would be grateful for an opportunity to actually use their legal skills instead of being directed to non-legal analyst or marketing jobs or doc review. Moreover, the practice of law has changed, and in case you haven’t noticed, solos and smalls are neither bumbling losers nor morons churning out cookie-cutter wills and incorporations using fill-in-the-blank forms that you believe." "We can help rescue our profession from this mess (brought on, largely I might add, by large firms who never thought that the day of reckoning would come). But to help, law schools need to do their part by producing graduates who can serve our needs so that we can serve our clients."

I hope that law schools listen to Carolyn Elefant’s letter. It demonstrates the realities of today’s legal practice and what law schools need to do to survive. You can read the rest of her letter here.

(Scott Fruehwald)

P.S.  I urge you to forward this letter to your deans and faculty colleagues.

October 20, 2013 | Permalink | Comments (1)

Another online dispute resolution service that eliminates the need for lawyers

Professor Henderson's Legal Whiteboard blog has posted a profile of a company called Modria that's entered the online dispute resolution fray.  We've blogged before about companies developing software and related services that allow parties to resolve disputes and even negotiate divorce settlements without the use of lawyers which substantially reduces transactional costs (not to mention achieving a much faster result in most instances than would be had by using lawyers).   Modria, which touts itself as the "internet's justice system," includes among its management team some of the same people who developed the dispute resolution tools used by eBay and Paypal which have been responsible for resolving more than 60 million claims according to the company's short informational video below.  Of course this type of service is not appropriate for every dispute nor will it replace the need to hire lawyers in many cases.  But neither is there any doubt that some of the work that used to go to lawyers will be increasingly done by companies like Modria. 

Check out Modria's informational video below and read Professor Henderson's take on the disruptive effect on legal practice of this company and others like it by clicking here.


October 20, 2013 | Permalink | Comments (0)

Justice Kennedy on the Two Year Law School

He’s against the idea. He voiced his opinion in a recent interview with the Wall
Street Journal Blog:

Q: President Barack Obama and some academics have proposed reducing the law school curriculum to two years from three to cut the cost of legal education. What’s your view?

A: I think the cost factor has to be addressed [but] I don’t think the right way to address it is to shorten the curriculum [which provides] the foundation for what I call the language of the law, the language that lawyers speak to each other. I can pick up the telephone and talk to an attorney two generations removed from me, and [yet] I know him, I know her. We talk this [common] language that we learn in the law school. And this is the envy of the rest of the world, I assure you, it’s a tremendous national resource.

You can read more of the Justice’s views here.


October 20, 2013 | Permalink | Comments (0)

Saturday, October 19, 2013

The Routines of Successful Writers: Why Do We Care?

At the Chronicle of Higher Education, Professor Natalie Houston suggests three reasons:

We’re looking for a magic bullet. It’s tempting to think that if you just did headstands or drank
more coffee you too could be a productive or famous writer. And maybe that is true, if by adopting a regular habit you would sit down to write more regularly.

We want confirmation that our own behavior isn’t so strange. Chances are, whatever
your own work rituals might be, there’s some Beat poet or nineteenth-century eccentric who’s weirder than you are.

We want to be inspired by those who are the recipients of inspiration. The fascination with famous artists is part of a Romantic cult of genius that imagines the Muse sweeping in and favoring a few.

She sums up her advice for writers:

  • Create a writing environment that works for you, whether that’s a desk in your house, a spot at your local coffee shop, in silence or with music. Figure out what you need to work at your best, in terms of physical location, comfort, and sound.
  • Prepare your body and mind in whatever way works best for you, by eating, drinking, exercising, dressing, or not doing any of those things. Set a day and time for writing that will actually fit with your work and family commitments. Make it a sacred appointment. Enlist others to help you stick to your routine.
  • Show up and write. That’s the part that reading another author profile really won’t help you with.


October 19, 2013 | Permalink | Comments (0)

Legal Education Reform Across the Curriculum: Experiential Education in the Lecture Hall

About twice a year, I read an article that is so exciting that I must immediately write a post about it. Jessica Erickson has recently written such an exciting article:

Experiential Education in the Lecture Hall, which advocates using experiential teaching techniques in all doctrinal classes.

Abstract: "This Essay, written for the "Experience the Future" symposium, hosted by Northeastern University School of Law and the Alliance for Experiential Learning in Law, argues that the push for experiential education in law schools is really a push for better teaching. Experiential learning is not just appropriate for the relatively few skills courses in law schools. It is the best way to teach all material in law schools, including doctrine. To have a deep understanding of the law, students must be able to use the law to craft legal arguments, draft legal documents, and shape legal strategy. A student who has memorized the rules but who cannot apply it in these ways does not know the law in any satisfactory way. Yet students do not acquire this deep understanding of the law through passive methods of instruction. Students learn by experiencing, and doctrine is no exception. This Essay examines the benefits of experiential education in doctrinal instruction and explores how to incorporate experiential teaching methods into doctrinal courses."

I think that Professor Erickson's article will become an important article on legal education reform because, as I have urged many times on this blog, she draws on general education scholarship, including research by cognitive scientists.  She then shows how the learning from general education scholarship can be applied to law school teaching.

Here are some key excerpts from her article:

1. "Students learn by experiencing. . ."

2. "[T]he debate about experiential education is really a debate about student learning."

3. "[E]ven if the goal in the classroom is just to teach doctrine, students learn doctrine better when professors use experiential teaching methods."

4. "[T]o the extent that doctrinal professors want their students to leave law school with other higher-order proficiencies, students can best acquire these proficiencies through experiential learning methods."

5. "The current model in legal education is teacher-oriented."

6. "If they evaluate themselves honestly, most professors would probably admit that their students are not learning as much as the professors had hoped."

7. "To really improve legal education, professors must focus more directly on student learning. . . .  we have to spend as much time (or more) thinking about how we teach as we do thinking about what we teach."

8. Often, in traditional law school classes, "The students did not have to think deeply about the information so, as a result, their brains did not think the information was important enough to store in long-term memory."

9. "When we ask students to apply course material in a problem or case study, we are really asking them to think about the material.  This process of intellectual engagement is more likely to get the information into students’ long-term memory."

10. "Academics in other disciplines have repeatedly shown the benefits of active learning methods."

11. "[A] wealth of studies demonstrates that testing itself enhances student learning."

12. "Even within doctrinal learning, there are different levels of knowledge. A student who can use the doctrine in a sophisticated way has a higher level of understanding than a student who can simply recite the doctrine."

13. "Experiential education is not an end unto itself. . . .  The key is to link experiential education with the professor’s learning objectives for the course."

14. "The final step in the course design process is to determine the learning activities for the course. These learning activities should again be closely tied to the learning objectives and assessments outlined above. Indeed, the three steps—defining objectives, developing assessments, and creating learning activities—should all be tightly intertwined, such that each class period has students actively engaged in activities that will allow them to assess their progress in meeting the learning activities."

15. In sum, "Reform in legal education must include doctrinal professors." 

(Scott Fruehwald)

October 19, 2013 | Permalink | Comments (0)

"Criminal Confusion: Addressing The Tension Between Bar Preparation & Practical Skills"

This is an essay by Professor Anders Walker (St. Louis) and available at 10 Ohio St. J. Crim. L. 669 (2013).  An excerpt:

Most bar exams divide criminal law into distinct halves: the common law and the Model Penal Code (MPC). Yet, no state has adopted the entire MPC nor has any state survived simply on common law principles.  Further, the MPC's age makes it a relatively old model, one that can hardly be said to convey the complex interaction between statutory drafting and judicial interpretation that has taken place in so-called MPC states over the past fifty years.

How, if at all, can the teaching of criminal law be made more practical while still serving the interest of bar preparation? One possibility is the selective incorporation of state codes and cases into the criminal law curriculum. For example, Missouri adopted much of the Model Penal Code in the 1970s, meaning that instead of assigning the draft version of the MPC, one could assign actual Missouri code sections in class. Some of these sections have remained virtually identical to the original MPC, particularly the general part. To illustrate, just as the MPC divided mental state into four distinct categories of purpose, knowledge, recklessness and negligence, so too did Missouri.  Further, just as the MPC adopted a specific act requirement holding that all conduct be voluntary, so too did the state of Missouri.


October 19, 2013 | Permalink | Comments (0)

Friday, October 18, 2013

The skills new law grads need to succeed in small firm practice

In case you didn't already know, Carolyn Elefant maintains an excellent blog on issues pertaining to solos and small firm practitioners called  Her most recent post is called an Open Letter to Law Schools: What Law Students Need to Learn to Be Hired By Tomorrow’s Largest Legal Employer – Solos & Smalls.  Her point being that the overwhelming majority of law grads will wind up working for small firms or solos so those interested in law school curricular reform need to pay closer attention to what those employers say is vital to success as a practicing lawyer rather than BigLaw. 

Here are some of Ms. Elefant's key points:

Analysis and Legal Writing Call me a traditionalist, but legal analysis, research and writing are hands-down most important skills that law school can teach. I need someone who understands the importance of seeing a case from a million different sides and building a persuasive argument out of the disparate pieces. I need someone who can write with confidence and power and purpose, cogently and void of jargon.

. . . .


If there is a single skill that I wish law schools would focus on, it should be blogging. I know I’m biased – I’m a blogger myself – but the discipline of writing regularly combined with the urgency of getting timely posts to press – has improved my legal writing immensely. Incorporating blogging into legal education is moronically easy.  Professors could assign students to blog about the daily lecture, relevant topics.

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Social Media

This one’s often controversial but I need attorneys who can do social media.

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Video and Visuals

Video is another way to produce content. My video skills are not great and I don’t have the time to master them. But law students should be.

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Online research Solos and smalls don’t have unlimited Westlaw accounts. Most of us use a variety of tools (here, I use LEXIS for energy, HeinOnline through Jenkins Law Library and SSRN for law journals, Google Scholar for lay of the land research and FastCase app for on the road research) – and what’s most important is the ability to segue way seamlessly from one to the other and then manage knowledge from multiple sources in one place. Easiest solution – ditch the LEXIS/Westlaw addiction and use a variety of research tools from the outset. 

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Continue reading here.

Hat tip to the ABA Journal Blog.


October 18, 2013 | Permalink | Comments (0)

Traditional Conferences or Live Grading?

Recently, I offered my Advanced Legal Writing students a choice. At their forthcoming individual meeting with me, we could have a traditional conference over their assignment or we could have a live grading session in which I would read their homework for the first time, verbally comment on it, and grade it. They voted overwhelmingly for the traditional conference. I was surprised.

I asked one of my students why the vote turned out as it did. She said the students were timid about a format with which they were unfamiliar. Yet, some of them experienced live grading in their first year. All of them had held conferences with me—I employ a relaxed conversational format.
Maybe they liked that format better than a format that they had not yet experienced with me. Interesting.


October 18, 2013 | Permalink | Comments (0)