Saturday, May 31, 2014
Last year, Yale’s Undergraduate Career Services Office surveyed seniors about their plans after graduation. Here are the fields in which they expected to work:
Public Policy/Politics 4.1%
Fine or Performing Arts 4.3%
Health Care 4.4%
Financial Services 14.8%
A far cry from my Yale undergraduate days. Then, I suspect that law would have been near the top of the list.
(Statistics from the Yale Alumni Magazine, May/June 2014, p. 25.)
Friday, May 30, 2014
In a story related to this post about technology replacing lawyers, Forbes is reporting that 28 year old Tim Hwang, an internet entrepreneur phenom, plans this summer to launch software that will do some of the more routine legal tasks formerly done by first year associates such as document review and IPO form filings. From Forbes:
. . . .
Thin and excitable, with spiky black hair and black glasses, the 28-year-old [Tim] Hwang represents a new kind of Web entrepreneur who is equal parts huckster and activist. Rather than seek riches, Hwang seeks legitimacy for digital concepts such as crowdfunding (done), social bots that interact with humans on Twitter (done) and software to automate rote but expensive human functions such as the law (not done yet).
. . . .
Last summer Hwang tried again to go mainstream, joining prestigious law firm Davis Polk after graduation. He had wowed them with his efficiency as a summer associate the year before. Little did they know that he had written software to handle simple tasks he’d been assigned. He stayed at Davis Polk for only seven months, all the time he needed to lay the groundwork for his own firm, Robot, Robot & Hwang. It’s a joke name, and the firm isn’t real, but Hwang has assembled a group of programmers that this summer will release a free software package to automate the document review and IPO-form-filling work that’s assigned to a first-year law firm associate. “I was in it to kill it. I want to replace lawyers with code,” says Hwang.
. . . .
Continue reading Forbes here.
Hat tip to Above the Law.
The Center for Benefit-Cost Studies of Education at Teachers College, Columbia University, has issued an extensive report on MOOCs. The report’s language is tempered, but I read it as cautioning institutions to tread slowly. Among other reasons, financial reasons:
Given the considerable investment that MOOCs represent, we strongly recommend that prior to embarking on MOOC-related initiatives, institutions carefully consider their goals and whether MOOCs present a realistic and financially justifiable means to achieve them.
As for the future of MOOCs, here are the report’s concluding paragraphs:
Based on what we heard from our interviewees regarding MOOCs of the future, we expect that MOOCs will evolve to more closely resemble regular online courses in that they will be targeted at specific audiences, will offer some form of credential, and will combine elements of both synchronous and asynchronous participation. While participation at some basic level may be offered free, it is likely that revenue-generating services will proliferate including verified certificates, employer recommendation services, online tutoring, peer study group selection and facilitation, face-to-face components with a local instructor, and more complex assessments that require human grading or personalized interaction. We expect convergence between the extremes of cMOOC and xMOOC pedagogy to combine the strengths of networked learning and “creation of artifacts” with structured progression through a series of activities designed to improve specific skills and knowledge.
Much of the hype surrounding MOOCs may be subsiding but it is clear that the infrastructure and effort that has been poured into such initiatives are not likely to evaporate overnight. Whether MOOCs as they currently stand persist into the future is certainly debatable, but there is no doubt that online and hybrid learning are here to stay and that MOOCs have ignited many valuable inter-disciplinary and cross-institutional discussions about how best to improve intellectual capital. There remains much work to be done to document how well MOOCs and related interventions serve their intended purposes and whether they do so cost-effectively.
You can access the full report here.
Thursday, May 29, 2014
Attention all law students - you need to redeem your WestlawRewards Points before September 30, 2014
Thomson Reuters has announced it will be ending the WestlawRewards program on September 30, 2014 meaning that you only have until then to redeem any unused points. You'll only be allowed to accumulate new points on your account until this Saturday, May 31, at 11:59 p.m. CT. The program works like frequent flyer miles in that students can rack up points by using Westlaw which they can redeem for hundreds of items offered through a Rewards Points catalog. Westlaw made the announcement that it is ending the program via its Facebook page. To soften student disappointment a bit, Westlaw later announced that it will conducting a sweepstakes in August to give WestlawRewards Members a chance to win gift cards, Black’s Law Dictionaries or a BARBRI course. At the same time it will also be lowering the minimum point threshold on charitable donations. Look for further updates on Westlaw's Facebook page here. In the meantime, start racking up those last minute rewards points.
Bloomberg/BNA offers a thorough article on the practicalities of social media in litigation. It’s worth emphasizing to our students that today, social media is a source of research and evidence in litigation. Here is a summary:
1) Counseling Your Client From the Beginning Regarding Public and Private Social Media Accounts
From the beginning of any litigation, you need to ask your client whether the company has an official Facebook, LinkedIn or Twitter account, or whether individual employees of the company may post potentially relevant information on his/her personal social media account, whether it is public or private.
2) There Is a Duty to Preserve Social Media
Of course, in any litigation there is clearly a duty to preserve relevant documents from a variety of sources. However, many lawyers and clients do not consider that social media accounts should be preserved just like e-mail or Microsoft Word documents.
3) Be Careful When Using Social Media for Litigation Research and Impeachment
Finally, just as your opponent can use the Internet to research you and your client, you can and should use social media in any litigation to your advantage to gather information about your opponent. The recent NYSBA social media guidelines recognize that publicly available social media profiles or posts may be used in a litigation and it is entirely ethical: “A lawyer is ethically permitted to view the public portion of a person's social media website, profile or posts, whether represented or not, for the purpose of obtaining information about the person, including impeachment material for use in litigation.” 30
30 See NYSBA Guideline No. 3A (2014).
You can read more here. Compliments to the authors: Sarah S. Brooks and Jessica Mullen.
Wednesday, May 28, 2014
At Guidestar, Larry Checco writes, “Denial or blaming others is not an option. Quite frankly, the quality of a workplace environment is everyone's responsibility.” He offers seven principles for avoiding workplace toxicity:
- Those who do the hiring need to look at more than just an applicant's skills set.
- Those who lead must do so by example.
- Those who are being led need to have a voice and a fair opportunity to air what's on their minds.
- Those who excel need to be acknowledged.
- Those with new ideas deserve a hearing.
- Those who are intolerant of others should be sensitized to the maxim that some date back to the ancient Greeks: Be kind. Everyone you meet is fighting a hard battle.
- Those who fail to be accountable for their behavior and do not fit the profile of a cooperative, collaborative, and congenial coworker need to be reassigned or removed.
I think the last two are particularly important. You can read the full explanations of these principles here.
Tuesday, May 27, 2014
Earlier this week, the Legal Whiteboard had a story about "SeRiouS," a program that helps students memorize material for the bar exam developed by Gabe Teninbaum. Jeff Lipshaw writes, "Crammers know what the studies bear out: you forget most of what you crammed (66%) within 24 hours, and almost all of it (79%) within a month.
Gabe's claim (give it a try!) is that SeRiouS improves the memory retention rate to 92% for as long as the student is using the system, and takes less time than traditional methods."
Here's how the program works: "To slow the rate at which users forget, SeRiouS shows them online flashcards and, after each one, prompts the user to report how well he or she knew the answer after flipping it over. If the user knew it well, the card won't reappear for a longer time; if the user struggled to remember, SeRiouS will show it again sooner. Based on these answers, SeRiouS’s algorithm customizes itself to the user’s personal rate of forgetting, and then uses that information to prompt studying at just the right time." Lipshaw notes, "With spaced repetition, as with any other cramming, it’s 'garbage in, garbage out.' In other words, if the content of the flash cards stinks, so will the memorized result. Currently, SeRious has 600+ law professor-created flashcards on the topics most likely to be tested on the Multistate Bar Exam and in core law school courses."
A memory retention rate of 92% is quite a claim. Teninbaum states that this is the retention rate based on his experience. Is there anything else to support his claim?
Recent research on long-term memory has demonstrated that retrieval (which SeRiouS uses) works better in retaining knowledge than other types of learning including restudying and rereading. (Jeffrey D. Karpicke, Metacognitive Control and Strategy Selection: Deciding to Practice Retrieval During Learning, 138 J. Exper. Psych.: Gen. 469, 469 (2009); John A. McNulty et.al., Study Strategies are Associated with Performance in Basic Science Courses in the Medical Curriculum, 1 J. Educ. & Learning 1, 9 (2012)). This is because retrieving knowledge increases the strength of that knowledge in the memory. Duane Shell et. al., The Unified Learning Model 144 (2010). Memory is stored in the brain's neurons, and every time a neuron is fired (by retrieval) it gets stronger. Id. at 12, 24-26. On the other hand, something that is studied or read may not even go into working memory, let alone be stored in long-term memory. Id. at 20-22.
Thus, cognitive psychology research supports Teninbaum's program. In addition, it shows the importance of formative assessment in learning. Moreover, students who test themselves while studying remember more than those who don't.
P.S. The Shell book shows how an understanding of how the brain works helps teachers develop teaching techniques. Everyone who is interested in legal education should read it.
P.S.S. Of course, using knowledge is also an excellent way of improving memory because it involves retrieval. In fact, applying knowledge is better than a program like SeRiouS because it also helps create procedural knowledge and skills. Nevertheless, it appears that SeRious does an excellent job of doing the task it was designed to do--memorizing a mountain of material.
Study finds students who take class notes longhand understand material better than those who use laptops
I'm aware of studies (for example, here) showing that people understand material better when reading paper versus an electronic screen. So it doesn't surprise me much that researchers have also found that students who take class notes longhard better comprehend the material than those who take notes on a laptop since the extra steps involved in, first, listening, interpreting and then writing result in deeper engagement with the subject matter. The study, called The Pen Is Mightier Than the Keyboard: Advantages of Longhand Over Laptop Note Taking was conducted by Pam A. Mueller (Princeton, Dept. of Psychology) and Professor Daniel M. Oppenheimer (UCLA, Dept. of Cognitive Psychology) and is available in Psychology Science: A Journal of the Association of Psychological Science (April 23, 2014). Here is the abstract:
Taking notes on laptops rather than in longhand is increasingly common. Many researchers have suggested that laptop note taking is less effective than longhand note taking for learning. Prior studies have primarily focused on students’ capacity for multitasking and distraction when using laptops. The present research suggests that even when laptops are used solely to take notes, they may still be impairing learning because their use results in shallower processing. In three studies, we found that students who took notes on laptops performed worse on conceptual questions than students who took notes longhand. We show that whereas taking more notes can be beneficial, laptop note takers’ tendency to transcribe lectures verbatim rather than processing information and reframing it in their own words is detrimental to learning.
Hat tip to The Legal Whiteboard.
from Throwback Fact:
The history of Memorial Day remains disputed, with several different stories that may have contributed to the birth of the holiday.
Check out this article from TIME to read the details:...
Here is one of the more interesting origin stories:
#ThrowbackFact: Memorial Day was started by former slaves on May, 1, 1865 in Charleston, SC to honor 257 dead Union Soldiers who had been buried in a mass grave in a Confederate prison camp. They dug up the bodies and worked for 2 weeks to give them a proper burial as gratitude for fighting for their freedom. They then held a parade of 10,000 people led by 2,800 Black children where they marched, sang and celebrated.
At Slate, John Saksa disagrees with the assertion. Here are two paragraphs frm his article supporting his argument:
“In my experience hunting for a nonlegal job, your J.D. hurts more than it help,” says Andre LaMorgia, a Brooklyn Law School graduate and trade compliance analyst in Philadelphia. In its employment stats, the American Bar Association considers jobs like LaMorgia’s to be “J.D. Advantage” positions, meaning a law degree should give you a boost. But LaMorgia says that if he didn’t have a friend who worked at the company, “my résumé would have gone right into the garbage can.”
That’s sensible, considering that human resource managers outside the legal world treat a J.D. as the scarlet acronym. “Generally, I imagine they’re going to be too expensive with not enough relevant experience to justify the salary,” says Maureen Chu, an HR and operations manager in D.C. She believes that law school gives candidates a competitive disadvantage. “It’s lost time. Whatever you learned in law school is not useful to what we need. So every other candidate has three years on you.”
On the other hand, several of my students have set out for the business world, found jobs, and succeeded.
You can read more here.
Formative assessment is one of the major tools in the tool boxes of legal education reformers. Elizabeth M. Bloom has written an important article on formative assessment:
"Many law professors have experienced the frustration of spending hours providing feedback to students only to find that the students fail to read it and, even when they do, they are not able to use it to enhance their understanding of the law. Amidst current concerns about the real value of a legal education, this Article seeks to identify ways in which law professors can take steps to create formative assessment opportunities that will enable students to become successful, self-regulated learners. Drawing upon educational psychology principles guiding best practices of formative assessment, this Article focuses on cutting-edge strategies for providing feedback that is more likely to be used by students, yet takes less time for professors to create. It sets out innovative yet simple ways to give feedback that transfers the responsibility for learning to students and enables them to improve their performance in law school, all while cultivating the skills necessary for success as a lawyer."
Professor Bloom presents a framework for formative assessment:
"David Nicol and Debra Macfarlane-Dick propose that in order to empower self-regulated learning, successful feedback:
1. Helps clarify what good performance is (goals, criteria, expected standards);
2. facilitates the development of self-assessment (reflection) in learning;
3. delivers high quality information to students about their learning;
4. encourages teacher and peer dialogue around learning . . .; and
5. provides opportunities to close the gap between current and desired performance.
Her most important point is that "Providing feedback positively affects students’ learning only when it goes hand in hand with their own self-assessment. Accordingly, the goal of formative assessment should be to provide students with the skills to evaluate their own work just as effectively as the teacher is able to."
She adds, "Self-assessment skills are especially important in the area of law, because ‘throughout an attorney’s professional life after law school, her success in practice will depend on the ability to self-assess professional performance, behavior, and attitudes.’"
Monday, May 26, 2014
Though the deadline for submitting articles has already passed, fans of the show can still look forward to reading this special issue of the New Mexico Law Review which will address legal issues relating to one of the "greatest dramatic series in television history" according to the law review's editors. Since the show takes place in New Mexico, it makes sense that the editorial board would suggest such an idea. Accepted authors will be notified in September which presumably means that interested readers can expect the volume to appear sometime in early 2015. The Wall Street Journal Law Blog has additional information about what fans of the show might expect by way of scholarly articles.
The journal, published by law students at the University of New Mexico School of Law, is taking a decidedly more serious approach to the subject.
“Breaking Bad implicates a number of significant legal and social issues, including the war on drugs, morality and the law, and ethical attorney behavior, among other critical topics,” said the law review’s announcement.
The law review allowed authors to pick their own “Breaking Bad”-themed topic, but suggested several of particular interest to its editors. Those include:
• The Application of the Fourth Amendment to Drug Crimes Under the New Mexico and/or U.S. Constitutions
• Comparative Analysis of Fourth Amendment Jurisprudence Concerning Drug Crimes
• The War on Drugs: International vs. Domestic Drug Enforcement
• Ethical Duties of Lawyers to Clients Involved in Drugs or Sophisticated Crimes
You can continue reading the WSJ Law Blog entry here.
Recently, I sat in a meeting (not law school related) witha group of senior successful lawyers. The discussion turned to law school. The lawyers enthusiastically related how they studied in law school and how they prepared for exams. I guess law school embosses everlasting memories on the souls of law students. Sometimes I pull out my law school Property outline to show to students; they are reverential.
Sunday, May 25, 2014
A new article by Professor Richard Redding (Chapman) argues, among other points, in favor of adapting the medical school model of clinical rotations to legal education. It's called The Legal Academy Under Erasure and will be published by the Catholic University Law Review. In the meantime, it is available here on SSRN. From the abstract:
We hear much about the crisis in legal education: high tuition costs, steep declines in law school enrollment, and graduates unprepared for practice who cannot find jobs. Proposals to address the crisis appear to enjoy wide support and may be poised to dramatically change the landscape of legal education. Such reforms will harm law students and the legal profession, placing the legal academy “under erasure,” by: (1) reorienting it from an academically-grounded education towards vocational training, (2) requiring just two years of study for the J.D. degree, (3) allowing graduates of non-ABA accredited law schools to sit for the bar examination, thereby rendering accreditation a toothless mechanism for ensuring academic quality, and (4) gutting faculty scholarship.
Instead, we must make the value of legal education worth its cost by doing a better job of educating and training our students. Legal education is broken because it fails to prepare students for the demands of modern law practice, which is more complex and interdisciplinary than ever before. We need a three-year program that is more robust, one that teaches the core first-year subjects as well as applications of other disciplines (e.g., accounting, economics, psychology) to everyday law practice, exposes students to a reasonable range of specialty areas, and integrates skills training (e.g., client counseling, advocacy, drafting) throughout the curriculum. To accomplish these goals, we should adapt the medical school model to legal education. This would entail a curriculum that provides a comprehensive foundation in basic legal subjects and legally relevant other disciplines, culminating in a series of clinical rotations where the basic doctrinal and interdisciplinary knowledge is applied in practice. I also explain why we should not gut support for faculty scholarship in the hopes that doing so will cut costs and encourage professors to focus on teaching. Contrary to popular claims, engaged scholars are better teachers, and legal scholarship can contribute meaningfully and substantially (though often in ways not readily apparent) to law practice and legal reform efforts. Finally, I suggest that we address the employment problem and improve educational quality by having fewer but better law schools, producing fewer attorneys.
In observance of Memorial Day, I offer this poem by Mary Frye.
Do not stand at my grave and weep
I am not there. I do not sleep.
I am a thousand winds that blow.
I am the diamond glints on the snow.
I am the sunlight on ripened grain.
I am the gentle autumn rain.
When you awaken in the morning’s hush
I am the swift uplifting rush
Of quiet birds in circled flight.
I am the soft stars that shine at night.
Do not stand at my grave and cry;
I am not there. I did not die.
Norton Rose Fulbright has conducted its 10th annual survey of senior corporate counsel. Among its findings: 81% of those surveyed expect no change in the number of in-house lawyers who manage or conduct disputes. The areas most likely to see an increase in in-house dispute departments are energy (24%) and insurance (19%).
The survey results offer a considerable amount of information. You can access it here.
Saturday, May 24, 2014
Here come the lawyer-bots: "The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services"
Digital technology will soon be drafting briefs and predicting litigation outcomes. Superstars and specialized lawyers will thrive while journeyman lawyers will face an increasingly insecure future. All this and more from a new article by Professors John O. McGinnis (Northwestern) and Russell G. Pearce (Fordham) which is available at 82 Fordham L, Rev. 3041 and on SSRN here. The article abstract is below but there is also a more detailed summary and talking points by author Professor McGinnis on the Liberty Law Blog here.
This Article argues that machines are coming to disrupt the legal profession and that bar regulation cannot stop them. Part I describes the relentless growth of computer power in hardware, software, and data collection capacity. This Part emphasizes that machine intelligence is not a one-time event that lawyers will have to accommodate. Instead, it is an accelerating force that will invade an ever-larger territory and exercise a more firm dominion over this larger area. We then describe five areas in which machine intelligence will provide services or factors of production currently provided by lawyers: discovery, legal search, document generation, brief generation, and prediction of case outcomes. Superstars and specialists in fast changing areas of the law will prosper — and litigators and counselors will continue to profit — but the future of the journeyman lawyer is insecure. Part II discusses how these developments may create unprecedented competitive pressures in many areas of lawyering. This Part further shows that bar regulation will be unable to stop such competition. The legal ethics rules permit, and indeed where necessary for lawyers to provide competent representation, require lawyers to employ machine intelligence. Even though unauthorized practice of law statutes on their face prohibit nonlawyers’ use of machine intelligence to provide legal services to consumers, these laws have failed, and are likely to continue to fail, to limit the delivery of legal services through machine intelligence. As a result, we expect an age of unparalleled innovation in legal services and reject the view of commentators who worry that bar regulations are a significant stumbling block to technological innovation in legal practice. Indeed, in the long run, the role of machine intelligence in providing legal services will speed the erosion of lawyers’ monopoly on delivering legal services and will advantage consumers and society by making legal services more transparent and affordable.
Hat tip to JD Underground.
At “Best Practices for Legal Education, (May 13)” Andi Curcio offers a fun way for students to exercise their creativity and get extra credit:
You may work alone, or in a team of up to four people, to create a video, comic book, song, game, poster or some other creative way to explain any one of the following concepts: relation back of amendments; work product; expert discovery; summary judgment; claim and/or issue preclusion [in Evidence the list includes hearsay, character evidence, expert testimony and impeachment]. You may choose to focus on particular aspects of these concepts or the entire concept.
The project will be worth up to 6 raw score points toward your final raw score total. [The most raw score points available in the class toward a final grade, excluding extra credit, is 100].
Points for the extra credit project will be allocated based upon: creativity; content chosen and explained [i.e. if you take a very simple portion of a rule and explain that, you will likely not get many points]; demonstrated understanding of the applicable rule[s]; communication of the rules to other students. Your project will be part of the review session in the final class.
For more and for a number of examples of student projects, you can click here.
Friday, May 23, 2014
Disciplinary Board: Three Strikes and You’re Probably Out
In a recent posting, The Disciplinary Board of the Supreme Court of Pennsylvania recounted the proceedings of one recidivist lawyer:
[He] had a disciplinary record of two informal admonitions for neglect and mishandling of cases. In a third prosecution based on his failure to pursue a criminal appeal, the Disciplinary Board did not escalate the discipline one or two steps to some form of reprimand or censure, but recommended that the attorney be suspended for a year and a day, requiring him to go through a reinstatement proceeding to regain his license. The Board commented, “[S]tanding alone, this case would not merit suspension, but the cumulative nature of the prior discipline requires the Board to assess this matter in a different light.” Noting that the Respondent was on temporary suspension for failure to pay the costs of his prior discipline, the Board refused to recommend the suspension be retroactive.
In a per curiam decision dated March 30, 2014, the Supreme Court accepted the Board’s recommendation and suspended the Respondent for a year and a day prospectively. Justices Baer and Stevens dissented in favor of a suspension for three years, consistent with previous dissents they have entered.
The Board noted:
While neither the Court nor the Board has endorsed a firm “three strikes you’re out” rule, it does appear that the disciplinary system is growing impatient with attorneys who fail to set themselves straight after multiple incidents of discipline.
You can read more here.
Thursday, May 22, 2014
Apple's General Counsel, Bruce Sewell, gave the commencement speech at George Washington University Law School last Sunday, where he is also an alum (Class of '86), in which he urged law grads to "push the boundaries in the workplace. " The GW Hatchet, the university's newspaper, has a synopsis of Mr. Sewell's speech which included the following bits of advice for new lawyers entering the workforce:
- “Define your job broadly. In other words, forget the phrase 'that’s not my job.' Bosses will be thankful."
- “Treat your peers as you would your boss, and treat your boss as you would your peers. Be someone [your boss] can talk to, rather than someone she can give orders to.”
- “Understand the relationship between risk and consequence.”
- “Assess [coworkers] as critically as your job itself. Surround yourself with people who are better at things than you are… and you won’t regret it.”
Read the full article here. There's also a brief interview with Mr. Sewell on GW's blog conducted before his commencement speech in which he talks about the importance of law students blending coursework that focuses on theory with more practical classes like clinics.