Monday, March 31, 2014
The University of Washington Law Review, 88 Wash. L. Rev. 1227-1464 (2013), has published a symposium issue on the topic of "contracts in the real world." Below is the table of contents with links to each article.
Aditi Bagchi, The Perspective Of Law On Contract, 88 Wash. L. Rev. 1227 (2013).
Brian H. Bix, Contract Texts, Contract Teaching, Contract Law: Comment on Lawrence Cunningham, Contracts in the Real World, 88 Wash. L. Rev. 1251 (2013).
Lawrence A. Cunningham, Reflections On Contracts In The Real World: History, Currency, Context, And Other Values, 88 Wash. L. Rev. 1265 (2013).
Larry A. DiMatteo, Contract Stories: Importance Of The Contextual Approach To Law, 88 Wash. L. Rev. 1287 (2013).
Erik F. Gerding, Contract As Pattern Language, 88 Wash. L. Rev. 1323 (2013).
Charles L. Knapp, Cases And Controversies: Some Things To Do With Contracts Cases, 88 Wash. L. Rev. 1357-1394 (2013).
Jake Linford, Unilateral Reordering In The Reel World, 88 Wash. L. Rev. 1395 (2013).
Jennifer S. Taub, Unpopular Contracts And Why They Matter: Burying Langdell And Enlivening Students, 88 Wash. L. Rev. 1427 (2013).
Glenda A. Gertz, Comment, Copyrights In Faculty-Created Works: How Licensing Can Solve The Academic Work-For-Hire Dilemma, 88 Wash. L. Rev. 1465 (2013).
Does anyone use Martindale Hubbell anymore? Several bloggers have asked this question. Once upon a time, it was the only game in town for identifying and ranking lawyers. But no more, particularly with the growth of the internet and the flourishing of competitors. MB argues that its death has been greatly exaggerated:
[MB President Rod] Stoddard says he's shocked by the implication that Martindale is, at best, on life support. He blames it on rumors launched by competitors looking to poach Martindale business.
"It's exactly the same as it's always been," he says. "Martindale-Hubbell has tried to connect attorneys to other attorneys so they could make decisions around 'Whom should I work with?' and 'How do I stand vis a vis my competitors?' All those things still exist, and we'll make them better."
The team in charge of what's now called Martindale.com has begun tweaking the rating system with improvements to online navigation and expansion of its reviewing net. The changes have resulted in more lawyers being ranked each month, Stoddard says, though he says he doesn't have data or goals.
"There's a secret sauce that's been around 104 years," Stoddard says. "The challenge is to get people into that pipeline to get ranked and to review that so you don't have one person giving a lawyer an A rating. We're also tweaking who gets solicited to do reviews."
You can read more here at the ABA Journal’s blog.
A couple of excerpts from the summary:
"Thanks to his prolific commentary in the legal press, Harper's critique is familar to many readers. He is angry with the elite legal establishment -- large law firms and the legal professoriate -- for succumbing to 'a culture of short-termism' that focuses obsessively on the AmLaw and US News league tables."
"Yet, to my mind, there is an avenue for at least partial redemption -- reading Richard Susskind's slender 165 page book. In my Counterpoint essay, I lay out the mounting evidence that the legal industry is in the early stages of a sea change. The best theoretical treatment of this sea change is Susskind's Tomorrow's Lawyers. Yet, I am amazed at how many lawyers and law professors know essentially nothing about Susskind's work."
Sunday, March 30, 2014
Forbes says previous list of law schools graduating students who make the highest salaries contained many flaws
In this follow up to an earlier story in Forbes, the author notes that she significantly understated the salaries of graduates from several elite law schools by relying on data supplied by a website called Payscale rather than the figures reported by the law schools themselves. She acknowledges that the original list of 25 law schools who graduate students making the highest salaries contains several flaws. However, even the revised list doesn't jibe with common sense. For instance, the starting salary of Fordham law grads working in the private sector is listed at $160k. The average salary at U. Houston Law Center is $110k and Santa Clara is listed at $100k.
The author correctly notes that the salary data supplied by law schools is only a snapshot of what students are making 9 months after graduation while the figures supplied by Payscale average the salaries over the initial five years of practice. She seems perplexed by the fact that in many cases the starting salaries of law grads are nearly twice as high as the figures reported by Payscale. But the legal profession is unique in that the vast majority of lawyers who make those stratospheric starting salaries working in BigLaw will leave those firms within the first few years for jobs in small firms where few will see that kind of money again. Thus, the original figures supplied by Payscale may be closer to the truth. An excerpt:
Since I published a story earlier this month about the law schools whose graduates earn the highest salaries, I’ve learned that the data I used was flawed and most of the numbers I published were inaccurate. Example: I listed the median starting salary at New York University, No. 22 in my slide show, as $76,300. In fact, the median compensation for a recent NYU grad is $160,000. I also wrote that new graduates of UCLA School of Law earn a median income of $84,200. The correct number is $135,000. In addition, I’ve discovered I made several glaring omissions, like University of Pennsylvania School of Law, where the median starting salary is $160,000, which should obviously be in the top tier. It didn’t make my list at all. We ran a story in 2013 that also had inaccurate information.
How did we get the numbers so wrong? We relied on Payscale, a Seattle-based website that provides information about compensation at companies, law firms, state and local government, and nonprofits. Payscale’s paying clients are firms, including law firms, who use the data to help set compensation levels. It gathers information from users who come to the site looking for salary numbers. Some data is available free of charge but to gain access to detailed reports, users must enter information on their own employers and compensation. Payscale has a trove of 40 million salary reports. It’s a rich data set, which is why Forbes has used it for other lists.
. . . .
But Payscale’s data has obvious flaws, which I’ll describe below. Also law schools collect their own data, which is much more extensive than Payscale’s and, I’m now convinced, more reliable. Some schools, like NYU, Columbia, Harvard and Northwestern, hear back from upwards of 90% of their graduating class, which makes their salary numbers very reliable. However other schools, like University of San Diego and University of San Francisco, hear back from only 35% or fewer.
In putting together my new list, I’ve had extensive conversations with Kyle McEntee, the executive director of five-year-old Law School Transparency (LST), a Washington, D.C. nonprofit that manages a website chock full of useful numbers for aspiring law students, including extensive salary information and response rates from law schools.
. . . .
Continue reading here.
Here’s an example of a metaphor in a white collar criminal case. It takes place in the trial employees of Bernie Madoff (They were found guilty). The defendants claimed that they were just following Madoff’s instructions with no idea that he was running a Ponzi scheme. Here is the narrative from USA Today:
A federal prosecutor presenting final government arguments in the fraud trial of five former Bernard Madoff aides Thursday described the "wonderful tale" of an "extraordinarily generous man" who brought riches to many people.
But the story is the tale of Santa Claus, said Assistant U.S. Attorney Randall Jackson, not Madoff, the Ponzi scheme mastermind whose massive fraud made the financier and the former co-workers wealthy. He used the analogy in urging jurors to reject "the absurdity of the premise" that the defendants were unaware of the scam.
"Madoff Securities was not Santa's factory. The defendants in this case were not children. And New York City is not the North Pole," said Jackson, who argued that even children "always figure it out" that Santa's not real.
Saturday, March 29, 2014
Below is the job description for the position in William & Mary's Special Ed. Advocacy Clinic which is part of the law school's Parents Engaged for Learning Equality (PELE) Initiative. You can apply here.
Position Title Professor of the Practice and Managing Attorney Position Summary
The Professor of the Practice and Managing Attorney for the PELE Special Education Advocacy Clinic provides legal services to school-aged children with disabilities and their parents, supervises law students in providing these services, assists in training students in a clinical legal education environment, and provides education and outreach activities, including an annual Institute in Special Education Advocacy.
Required qualifications include: a Juris Doctor degree and valid Virginia state bar license to practice law; Knowledge of and experience with IDEA and Sect. 504, and experience representing children with disabilities and their families in special education advocacy required. Also must have client-based legal experience, advocacy experience, superior research and legal writing skills, and clinical teaching experience.
Preferred qualifications include: prior experience in K-12 teaching, experience with interpretation of educational evaluations and testing data.
Location William & Mary Job Open Date 03/24/2014 Review Begin Date 04/24/2014 Job Close Date Open Until Filled Yes Job Category Instructional Faculty Special Application Instructions Background Check Statement
The College of William & Mary is committed to providing a safe campus community. W&M conducts background investigations for applicants being considered for employment. Background investigations include reference checks, a criminal history record check, and when appropriate, a financial (credit) report or driving history check.
The College of William & Mary values diversity and invites applications from underrepresented groups who will enrich the research, teaching and service missions of the university. The College is an Equal Opportunity/Affirmative Action employer.
Required fields are indicated with an asterisk (*).
- Do you have a valid state bar license to practice law in Virginia?
(Open Ended Question)
- Do you have knowledge of and experience with IDEA and Sect. 504, and experience representing children with disabilities and their families in special education advocacy?
(Open Ended Question)
- Do you have experience in K-12 teaching and/or experience with interpretation of educational evaluations and testing data?
(Open Ended Question)
Required DocumentsRequired Documents
The New York State Bar Association has issued detailed guidelines (not rules or best practices) to give ethical guidance to lawyers who are using social media. Topics include
• lawyer advertising;
• giving legal advice in social media networks;
• gathering evidence on social media sites;
• advising clients about social media accounts; and
• reviewing jurors' profiles and posts.
Friday, March 28, 2014
The grants, in amounts ranging from $5,000 to $15,000, are available to bar associations, courts, law schools and other groups that propose to hire new lawyers to provide legal assistance to low income clients. To apply for a grant, contact the Legal Access Job Corps here by May 15. Below are the complete details from the ABA's press release:
The American Bar Association today announced a program of start-up grants to be awarded to bar associations, courts, law schools or other groups that propose to employ new lawyers in innovative ways to address the legal needs of poor or moderate-income individuals.
The grants, to be given through the Legal Access Job Corps initiative established by ABA President James R. Silkenat, will range from $5,000 to $15,000. The grants are not intended to be an ongoing source of funding but are meant to start projects that can be sustained by other resources.
"Our nation is facing a paradox involving access to justice," Silkenat said in explaining the reason for the grant program. "On the one hand, too many people with low and moderate incomes cannot find or afford a lawyer to defend their legal interests, no matter how urgent the issue. On the other hand, too many law graduates in recent years have found it difficult to gain the practical experience they need in order to enter practice effectively.
"The ABA's catalyst grants will help nurture innovative programs that bridge the unmet legal needs of our society and the unmet employment needs of our young lawyers," Silkenat said.
The grants are intended to foster initiatives that achieve objectives similar to those of existing programs that employ new lawyers to serve the legal needs of poor and moderate-income individuals. As part of the Legal Access Job Corps initiative, the ABA has created a comprehensive catalog of such programs, which include legal incubators that provide resources for new lawyers who start their own practices to serve moderate-income clients, postgraduate fellowships, and initiatives to ensure the availability of legal services in rural and other underserved communities. An ABA short video – “Be the Change” –highlights how such programs help employ underutilized lawyers while serving those who need a lawyer's help.
Information on the Legal Access Job Corps and the catalyst grant program, including a detailed request for proposals, is available at www.ambar.org/legalaccessjobcorps. The application deadline is May 15, 2014.
In practice, our students will deal with a variety of advisors. It’s not too early to warn students to rely only on experts who are well credentialed. There are a lot of scam artists out there. Here, from Trust Advisor, is the store of one alleged estate planner who bilked senior citizens out of their life savings. Consider this advice from a commenter on the article:
The only way for titles matter, and be legitimized, is for them to be issued by a governmental agency. It really is pure and simple. CPAs and attorneys are licensed by each state, Enrolled Agents are licensed by the US Treasury. Wannabe regulators who are membership organizations, marketing leads or whatever, probably do the public more harm than good. I know of several advisory firms who have adopted the policy of only allowing credentials issued by a government agency to be used - all should follow.
Thursday, March 27, 2014
Lexis launches "Think Like a Lawyer Program" for law students that includes free unlimited summer access
We've previously blogged about students and their employers getting into trouble for the misuse of the free Westlaw and Lexis access provided to students in connection with their law school training (here and here). Apparently some employers have hired summer law clerks chiefly for the purpose of taking advantage of their free computer research access which until now has been a violation of the end user agreement. But Lexis is changing that with the announcement this week of a new training program called "Think Like a Lawyer" that, among other features, gives 1Ls and 2Ls free, unlimited access to computer research over the summer which they can use in their jobs. That's going to make it easier for at least some students to find summer clerkships especially with smaller firms where free Lexis access will add value.
Here are more details about the Think Like a Lawyer program from an email sent by Lexis this week to law librarians and LRW faculty:
[Lexis is] excited to let you know that we're again offering students unlimited access to Lexis Advance this summer! Here's an update on the LexisNexis® 2014 Summer Access program, Think Like a Lawyer program, and related teaching tools as you prepare your students for their summer and post graduate positions. We appreciate any assistance you can provide in ensuring your students know about the summer access program and all training opportunities prior to starting their summer jobs.
Summer 2014: All-Access to Lexis Advance®
1Ls & 2Ls: Students may continue to use their current Lexis Advance® ID for any purpose this summer– including work they perform at a law firm, corporation or government agency.
Lexis Advance ID all summer long for:
- Any purpose at all
- All legal content and news on their current law student ID
- Unlimited hours-per-week
Graduating 3Ls, can register for one of our Graduate Program IDs that will extend their access beyond graduation. To learn more, visit www.lexisnexis.com/grad-access.
Think Like a Lawyer
Please share this Think Like A Lawyer link with your students so they can take advantage of training opportunities prior to heading out this summer. As you know, many employers require or highly recommend their incoming associates attend all applicable training offered at their school. Think Like a Lawyer training opportunities include Professional Research Certification designed to include the research skills expected among incoming associates based on feedback from commercial customers. The site also provides links to the summer access and 3L Graduate ID programs.
Faculty Teaching Resources
Provide students with up to date information about Law Firm research rates and cost effective research skills:
- Lesson Plan Overview - “Educating students on Law Firm Research Rates and Cost Effective Skills” and PowerPoint Presentation (covers cost recovery trends, screen shots of commercial ID features like “preview”, in and out of plan display)
- Law Firm Simulation video: Understanding research charges on Lexis Advance video. This video walks students through an assignment at a small law firm including details on their Lexis Advance subscription, cost effective research skills and calculating client charges.
- Researching Cost Effectively for clients , updated video
- 10 Cost Effective Tips for Legal Professionals, updated literature
Please contact your account executive with questions or if you would to schedule a special cost effective (or other topic) session for your students.
Several times, I have blogged about cognitive science as an important tool for learning and understanding the law. I have used cognitive science in my own work on jurisprudence (neurojurisprudence) and on legal educaion (the neurobiology of learning). (e.g., here)
Now, a group of authors have written a text book on neuroscience and the law.
Law and Neuroscience by Owen D. Jones, Jeffrey D. Schall, and Francis X. Shen.
One part of the book lays general foundations by exploring the relationships between law and science generally, and by comparing the views from law and from neuroscience regarding behavior and responsibility. A later part explains the basics of brain structure and function, the methods for investigating each, and both the promise and the limitations of modern neuroscience technologies.
Core themes the book addresses include new law/neuroscience issues pertaining to: brain injuries, pain and distress, memory, emotions, lie detection, judging, adolescence, addiction, and brain death. Closing units explore current and coming legal issues surrounding cognitive enhancement, brain-machine interfaces, and artificial intelligence. The materials also consider: international neurolaw, psychopathy, decision-making, mental health, the aging brain, the veteran’s brain, behavioral genetics, prediction of future dangerousness, and neuroethics. Given the scope and nature of coverage, the book is designed to serve both as a coursebook and as a reference text for judges, practicing attorneys, and scholars interested in law and neuroscience.
Wednesday, March 26, 2014
This month's The Woman Advocate column in the ABA Section of Litigation magazine provides tips from a former judge turned litigator on how to prepare for oral argument. While most of it is common sense - know the cases, know the record, etc. - it serves as a nice primer from a very credible source for 1Ls looking for guidance on how to prepare for their moot court arguments this spring. An excerpt:
. . . .
On the day of oral argument, review your notes and your prepared remarks. Get to court early so you are calm and collected. If you are the appellant, approach the lectern with a paragraph introduction ready to go. If you are the respondent, respond to the appellant’s oral argument—and where necessary the appellant’s reply brief arguments—within the context of your “story” or theme. Maintain eye contact with all the judges as much as possible. Be respectful. Don’t ever interrupt a judge. Don’t fail to answer a question directly and immediately. Welcome questions as the beginning of a conversation with the judges that is the best and most meaningful part of oral argument.
Focus on the judges, their body language and their questions. Your preparation will mean that you will not need to search frantically through your brain to figure out the answer to the question. Instead, you will know the answer and can devote your thoughts to the purpose of the question, the best way to frame the answer, and the means to segue from the answer to another point that needs to be made. . . . [S]um up, and remind the court of the relief or remedy that you have requested.
. . . .
Read the full column here.
From The Guardian:
Google faces a lawsuit in California over whether bulk scanning of emails to deliver advertisements breaches state and federal wiretap laws.
In its filings for the lawsuit, the company has also admitted scanning the contents of emails sent and received by American students who attend schools which use the company’s Apps for Education suite. But America’s Education Week magazine says that that raises new questions about the compatibility between US child-protection laws and “big data”.
The nine plaintiffs accuse Google of breaching wiretap laws, and hope to start a collective “class action” suit to gain financial compensation for Gmail users, as well as to force the company to be more open about its policies.
The company “scans and indexes” the email of any student using its tools for education, even if those schools have turned off the ability to display adverts. The scanning lets the company provide features such as spell check, virus and spam protection, as well as functionality including its “Priority Inbox” feature. It cannot be turned off.
Such a practice could be in violation of an American law called Ferpa, the Family Educational Rights and Privacy Act, which is the main law guarding student educational records.
You can read the rest here.
Centralized powerful technology leads to the temptation to use it for questionable means.
Tuesday, March 25, 2014
Robert Ambrogi at his blog LawSites has a review of a relatively new business networking tool called Relationship Science (also known as "RelSci") that seeks to improve upon the relationship mapping functions of LinkedIn by finding contacts within organizations for purposes of turning those connections into potential clients. Unlike LinkedIn, RelSci is a fee-based service that employs a staff of 150 researchers who proactively search for information about business leaders within both private and public organizations that are added to the site's extensive database of business contacts. RelSci's data mining is intended to enable those who join the network, such as lawyers, to use the relationship mapping functions to identify contacts and decision-makers at more than 1 million organizations who have the potential to become clients. Robert Ambrogi explains further:
[RelSci] works by mapping your contacts and those of others in your firm against its database of people and companies. Its principal tool for doing this is something called Path Finder. Say you are at a firm with an interest in exploring a relationship with Company X. Search that company and Path Finder will map out how you are connected to that company. Maybe your contacts include someone within the company or maybe one of your partners has a contact there. You can find the strongest pathway and then follow it.
RelSci also has a Power Search feature that includes an array of advanced search filters. Search by industry, interests, work history, education, investments, political contributions, nonprofit donations, memberships and other parameters. The level of information available here is much deeper than you could find through LinkedIn.
Worth noting is that RelSci can also be used to map external relationships. Use it, for example, to find out which law firms already represent a company or which companies a law firm or lawyer represents (to the extent this information is available through public filings).
Another feature, 360 Alerts, provides daily alerts by email when people and companies you know are mentioned in the news. You can customize these to build specific lists of people and companies. You can also customize these to alert you only for specified events, such as when someone changes employment.
One other feature worth noting is Visit a City. As its name suggests, use it in advance of your next business trip to research who you could or should meet with.
. . . .
Announcing the 2013 Blawggie Awards – Tenth Edition
From December 23, 2013. (link)
Welcome to the 2013 edition of Dennis Kennedy’s annual Best of Law-related Blogging Awards, affectionately known as the “Blawggies.”
The Blawggies, which honor the best law-related blogs as determined from my personal and highly-opinionated perspective, were first unleashed on an unsuspecting blogosphere in December 2004 and are an annual tradition here at DennisKennedy.Blog.
This historic tenth edition of the awards makes them the longest running annual awards list for law-related blogs selected by a lawyer named Dennis Kennedy living in St. Louis, Missouri. What was originally just a crazy idea turned into a bit of an institution in the world of law-related blogging, illustrating my original premise: “Hey, I have a blog and there’s nothing stopping me from making up my own awards.”
1. Best Overall Law-Related Blog – 3 Geeks and a Law Blog
3. Best Law Practice Management Blog – Adam Smith, Esq.
4. Best Law-related Blog Category – Law Librarian Blogs
5. The “Kennedy-Mighell Report” Best Legal Podcast – The Return of the Legal Talk Network
6. The “Sherry Fowler” Best Writing on a Blawg Award – Sharon Nelson’s Ride the Lightning
***7. Best Law Professor Blog – Legal Skills Prof Blog***
8. The “DennisKennedy.Blog” Best Legal Technology Blog – V. Mary Abraham’s Above and Beyond KM
9. Best New Blawg – Jerry Lawson’s NetLawTools
7. Best Law Professor Blog – Legal Skills Prof Blog
Although, I’m nominally a contributing editor of the Legal Skills Prof Blog, I’m way more a reader than a contributor. As the debate about the future of legal education started to take hold in 2013 and gain momentum, the “practical skills” approach started to get a lot of attention. This blog’s coverage of those issues was excellent and it’s a great place to keep up-to-date on discussions about the future of legal education, analysis of current trends, and generally helpful links and information.
Runner-up – Paul Caron’s The TaxProf Blog What more can I say than that this blog covers tax topics in such an interesting way that I want to read every post. My greatest compliment: reading this blog makes me want to take a class from Paul. I hope he’s thinking about doing some online courses.
In its annual survey, Princeton Review asked this question of parents of children entering college. (Note: parents of future law students):
9) When it comes to choosing which college you (or your child) will attend, which of the following do you think it is most likely to be?
Here was the response:
For the first time in 10 years, an equal percentage (42%) of respondents overall said they/their child would likely attend the college that will be "best for career interests" as chose "best overall fit." In previous years, "best overall fit" was the primary choice each year. Only about 1 of 10 respondents (09%) indicated they'd choose the college with the best academic reputation, which for 10 years has been the least chosen.
I find this response disappointing, but it sends a signal to law schools trying to attract students.
You can find the rest of the survey here.
From Dean Erwin Chemerinsky’s op-ed piece in the Los Angeles Times:
Justice Ruth Bader Ginsburg should retire from the Supreme Court after the completion of the current term in June. She turned 81 on Saturday and by all accounts she is healthy and physically and mentally able to continue. But only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.
Advising a Supreme Court justice to resign—a bit arrogant, don’t you think? You can read the rest of the column here
What Cognitive Dissonance Tells Us About Tone in Persuasion by Kathryn Stanchi.
This article is an excellent example of how a scholar can use cognitive science to help lawyers make effective arguments.
This essay takes an initial step toward thinking about where good advocacy should draw the line between zeal and coercion by looking to cognitive science for guidance. In particular, the paper looks at cognitive dissonance and related psychological processes to determine how decision-makers might react to different advocacy styles.
The bottom line arrived at in the paper is that it may often be advisable for lawyers to present arguments in a tone that, while strong in pursuit of a favorable outcome, appears more gradual, objective and reasonable. In other words, in many cases, the one most psychologically appealing advocacy approach is one that appears more balanced and reasonable rather than one that is aggressively pushy and one sided."
Monday, March 24, 2014
A University of Michigan law student has created a new app called BriefCase that will import case PDFs from your favorite legal research site, highlight the case in up to 9 colors each corresponding to different aspect of the case like "facts," "procedural history," "holding," etc., annotate the case and then turn all of that into a case "brief" with the tap of a finger. A free version of the app is available at the iTunes store here although for a subscription price of $9.99 per year you can get an upgraded version that adds some enhancements. Below is a short video showing BriefCase in action. Robert Ambrogi also has a review of the app at his LawSites blog here.