Sunday, August 31, 2014
If you want to know what "actor network theory" is and how it could possibly relate to the teaching of legal research, then you'll need to read Judith Lihosit's (U. San Diego Legal Research Center) new article entitled Breaking Down The Black Box: How Actor Network Theory Can Help Librarians Better Train Law Students In Legal Research Techniques available at 106 Law Libr. J. 211 (2014). From the introduction:
The development of a pedagogy for the teaching of legal research would serve to both improve the quality of research instruction that law students receive and elevate the status of those providing that instruction within the legal academy. Actor network theory, a methodology that originated in the field of science studies to trace relations in the process of group formation, can assist librarians in the development of such a pedagogy and also help them to better understand how to position themselves as the experts best suited to the task of providing that instruction.
That’s the finding of a survey conducted by the Kaplan Bar Review:
According to a Kaplan Bar Review survey* of over 1,200 law school graduates from the class of 2014, a strong majority of tomorrow’s attorneys give their alma maters strong marks overall: 40% of law school graduates gave their overall law school education an “A” (up from 37% in 2012), while 45% gave it a “B”. Only 11% gave their legal education a “C”; and a relatively small percentage (4%) scored it as below average or failing. And while law school grads gave their former JD programs generally favorable marks in a number of subcategories, there was one glaring exception: job placement.
Students generally were pleased with their professors, their schools’ efforts to make them practice ready, and the value of the financial investment. As one might guess, they were less satisfied with their schools’ efforts at job placement.
I would have expected these results. The real problem is not the quality of the education. It is the lack of jobs.
You can read the details of the survey here.
Saturday, August 30, 2014
Using in-class "microlawyering" to give students experiential training in trusts and estates practice
This is a new "legal skills" article by Professor Alyssa Dirusso (Cumberland) called Microlawyering and Simulations in Estates and Trusts Courses and can be found at 58 St. Louis U. L.J. 739 (2014). From the introduction:
If practice makes perfect, law school is not yet a perfect experience for budding trusts and estates lawyers. The legal curriculum needs to include significant opportunities for students to learn through doing. When legal instruction is limited to purely academic study, students are deprived of important professional training. As recognized in many other professional schools, practice presents an invaluable opportunity for learning the reasoning necessary to be competent in the field. The benefits of integrating practice into legal education have been documented through psychological study. Through these studies, it was recognized that when comparing novice and experts, experts had developed “well-rehearsed procedures, or ‘schemas,’ for thinking and acting,” which allow experts to quickly apply this knowledge to current situations in a manner not developed in novice. The studies also revealed that the knowledge of experts is “conditioned, or related to contexts.” This evidence supports the proposition that purely academic legal education is merely a foundation for expertise, which can be developed only through the actual practice. An ideal exposure to trusts and estates practice is gained through microlawyering--a term I use to mean small-scale, real legal experiences. The term borrows from the concept of microlending. In microlending, budding entrepreneurs who need small amounts of capital to launch new enterprises receive modest loans from microfinancing institutions, empowering business owners to take action when traditional lending structures would not offer the opportunity to proceed. Although the investment is small, the impact can be substantial. So too in the classroom can enabling small-scale experience yield large-scale results.
Although clinics and externships can provide microlawyering opportunities, not all law schools have the resources to offer experiences in trusts and estates to significant numbers of students. Fortunately, it is also possible to provide microlawyering experiences to law students in traditional doctrinal courses as well as smaller skills classes. In this Article, I will describe two such activities and reflect upon the challenges microlawyering presents in these contexts.
In addition to microlawyering, simulations offer students the opportunity to develop skills in a practice-like context. Unbound by the restrictions of real legal practice, simulations are remarkably flexible and well-suited to a variety of classes. Like microlawyering, simulations illustrate the importance of learning to do and not just to think. They can be critical in not only providing experience and feedback in a safe setting, but in developing confidence in nascent lawyers.
. . . .
Yes, according to the Third Circuit. In a nutshell:
Attorney Andrew Dwyer, lauded by New Jersey judges in separate judicial opinions, published on his law firm's website those complimentary remarks. One of the judges objected to this, and ultimately the New Jersey Supreme Court adopted an attorney-conduct guideline that bans advertising with quotations from judicial opinions unless the opinions appear in full. Is the guideline an unconstitutional infringement on speech as applied to the advertisements of Mr. Dwyer and his firm? We believe it is and thus reverse the contrary decision of the District Court.
Here is the quote to which the judge objected:
"The inescapable conclusion is . . . that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer. . . . Mr. Dwyer was a fierce, if sometimes not disinterested advocate for his clients, and through an offensive and defensive motion practice and through other discovery methods molded the case to the point where it could be successfully resolved."
If I were Mr. Dwyer, I certainly would want to post that quotation on my website. On the other hand, I might ask the judge’s permission first. And on the other hand, I strongly suspect that the judge would decline to give that permission.
You can read the court’s opinion here (Dwyer v. Cappell, No. 13-3235, 2014 BL 221382 (3d Cir. Aug. 11, 2014).
Friday, August 29, 2014
Florida State University College of Law joins other institutions that have started accelerated JD programs like Albany, Denver, Fordham, Rutgers, Seton Hall, Southwestern, Stetson, Touro, USC, Vermont (considered) and Whittier by announcing a partnership with Eckerd College in St. Petersburg, Florida that will allow undergrads to get their BA and JD in six years rather than seven. From the press release:
Eckerd College and the Florida State University College of Law have created a new program that will allow Eckerd students to obtain a bachelor’s degree and a law degree in six years instead of seven.
Applications are now being accepted for the 3+3 Program, the third of its kind for the FSU College of Law.
Undergraduates who gain admission to the program after successfully completing their junior year at Eckerd College will follow the usual course of study for full-time, first-year law students. Those who successfully complete their first year at FSU will obtain a BA or BS from Eckerd College. Students who fail to complete their first year at law school or decide to withdraw may return to Eckerd to complete their undergraduate degree without applying for readmission.
The program is designed for students with a commitment to academic excellence. Students in the program are required to complete at least 24 courses plus an autumn term course in their freshman year and a winter term project in each of the subsequent two years. Students must take the LSAT before or during their junior year.
Tuition and fees to the law school will be the same as other first-year law students.
“Eckerd College is excited to offer our students this opportunity,’’ said Suzan Harrison, Eckerd’s Dean of Faculty. “This saves them a year of tuition and moves them forward in their professional ambitious more quickly.”
The Florida State University College of Law has similar arrangements for undergraduate students at the University of Central Florida and Florida State University.
“I am delighted about our new relationship with Eckerd’s outstanding academic programs,” said FSU Law Dean Donald Weidner. “In short, under this program, the first year of law school is double-counted: that is, it is credited both to the law degree and to the undergraduate degree. The result is that students and/or their families save the entire cost of the fourth year of college.”
Continue reading here.
The United States District Court for the District of Connecticut plans to appoint a new federal magistrate. Your students might be interested in knowing what the application form looks like. It is quite thorough and, for students who aspire to a judicial position, it may help them chart their course and remind them to keep their noses clean.
Law schools interested in legal education reform need to teach students reflection because reflection is a key to deep learning. Timothy Casey has just posted an excellent model for reflection on SSRN: Reflective Practice in Legal Education: The Stages of Reflection.
"Experiential legal education programs include reflection as an explicit learning outcome. Although many teachers and students have seen the value of reflection, few have studied the process of reflection. Drawing from research in the fields of cognitive development, reflective judgment, and moral reasoning, this article presents an organizational model for teaching reflection in six stages. The Stages of Reflection model provides teachers and students with a deeper understanding of the process of reflection, and creates a pathway for the development of reflective practice."
Here are the six stages of Casey's model:
"The model proposed in this article begins with a concrete, descriptive level of reflection and then progresses in stages to more abstract and more contextual levels of reflection. Each stage adds complexity. The first stage – Competence – asks the student to relate her performance to the standard of a reasonably competent lawyer. At the next stage – Difference and Choice – the student considers different means to achieve the goal of the performance. Middle stages– Internal Context and External Context – ask the student to describe factors that affected her decision-making process, beginning with a consideration of personal preferences, experiences, biases and characteristics, and moving to consideration of the preferences, experiences, biases and characteristics of others. The next stage – Societal Context – asks the student to consider relationships between law and society, social, political, historical, or economic structures that affect the lawyering process. In the final stage – Metacognition – the student should demonstrate an awareness of the effect of reflection on her thinking process."
Update: I have just finished reading this article for the third time, and I think it is amazing. I think all law schools should teach it on orientation. This model helps students get started in the right direction.
Of Reptiles and Velcro: The Brain's 'Negativity Bias' and Persuasion by Kenneth D. Chestek.
Cognitive psychologists have concluded that bad stimuli have significantly more power across a broad range of psychological phenomena. What are the implications of this finding for legal writing? For example, how do judges respond to negative themes in briefs? Should lawyers phrase their legal arguments in terms of avoiding bad outcomes instead of promoting good outcomes? Should rule statements in briefs highlight the possible negative consequences of a particular ruling as opposed to a positive outcome? Should advocates adopt a negative or aggressive tone in their writing? Does this finding change the way lawyers should do, or at least think about, counteranalysis? Does a judge’s negative opinion of an advocate have more power than a potential positive view of the client?
Answering these questions in the affirmative might be controversial. Many a judge (as well as many legal writing professors) counsel lawyers and law students to avoid the negative, and emphasize the positive. Given the near ubiquitousness of this advice, it seems that the cognitive psychology on negativity bias is worth studying. Have we all been giving bad advice all this time? This article discusses the cognitive psychology findings, then suggests some hypotheses for how they might inform choices that advocates might make. It is intended to open a conversation about how the negativity bias might affect the process of persuasion.
Thursday, August 28, 2014
You can read the full post from the Wall Street Journal Law Blog here. An excerpt:
Employers often complain that law schools don’t do enough to prepare graduates for life as practicing lawyers.
Well, it turns out that young attorneys feel pretty strongly about it, too.
A new survey in the September issue of The American Lawyer suggests that job satisfaction among mid-level associates is heavily influenced by how well they believe their law schools prepared them for practice.
The publication polled more than 5,000 attorneys with three-to-five years of experience under their belts on their satisfaction with compensation, training, relations with partners and other issues. Overall, job satisfaction was up slightly, it found
. . . .
But others said law school coursework tilted too heavily towards litigation, and didn’t do enough to prepare corporate lawyers for scenarios they are likely to encounter after graduation.
. . . . .
Continue reading here.
Beginning next July, all Illinois colleges and universities will be smoke-free—inside and out. From the Chicago Sun-Times:
Smoking will be banned indoors and out on all Illinois public college and university campuses starting next summer under legislation signed Sunday by Gov. Pat Quinn.
Quinn said the measure, which takes effect July 1, 2015, applies to all state-supported schools and will protect students' health and help nonsmokers avoid unwanted smoke "on the campuses they call home."
Smoking still will be permitted inside privately owned vehicles and during some activities protected by the federal American Indian Religious Freedom Act.
You can read more here.
Wednesday, August 27, 2014
Here are the details:
University of Richmond School of Law Seeks Clinical Professor
The University of Richmond School of Law seeks a full-time clinical faculty member to develop, run, and teach our Intellectual Property and Transactional Law clinic, which provides non-litigation legal services to small businesses, entrepreneurs, non-profits, authors, and artists. The focus of the clinic is business formation, business transactions, and intellectual property issues, but the Clinical Professor will play a major role in determining the clinic's specific emphasis and operation. The clinic is part of the U.S. Patent and Trademark Office's Law School Clinic Certification Pilot Program.
The Law School has four other in-house clinics, over 60 external clinical placements, and a well-developed, structured, sequential, skills-oriented curriculum. The Law School is also home to the Intellectual Property Institute, which comprises three full-time research faculty members and which offers more than a dozen courses in intellectual property and a certificate program for J.D. students.
Required qualifications for this position include a law degree, a license to practice in Virginia (or a willingness to quickly become licensed), and significant experience in business transactions, small business start-ups, and intellectual property issues. Entrepreneurial spirit and substantial organizational skills are a must. Prior teaching experience is a plus but not required.
This is a non-tenure-track, renewable contract position. Salary and benefits will be commensurate with experience and scope of responsibilities assumed. Starting date is flexible. Interested applicants should send a cover letter, curriculum vitae, and list of references to Professor Chris Cotropia, Chair of Clinical Faculty Appointments, at firstname.lastname@example.org.
Villanova University School of Law has opened a search for an Executive Director of its Career Strategy Office. Here is the link will all the information. https://jobs.villanova.edu/postings/7135
I think anyone accepting the position would find the law school to be a welcoming place.
Recently, Law Crossing, a job placement service for lawyers, published a detailed piece on bad things lawyers do. I think it gives us an idea of what many clients think about lawyers. The tone of the article is ugly and the accusations certainly are debatable. However, we need to keep in touch with what critics say about our profession.
You can read the article here.
Tuesday, August 26, 2014
Here's a post from National Jurist Magazine about how to handle some of the tough interview questions you can anticipate being asked during OCI season. The questions are below but you'll have to go to National Jurist to check out advice on the best way to deal with them from Hillary Mantis, author of Jobs for Lawyers: Effective Techniques for Getting Hired in Today's Legal Marketplace and Director of Fordham's pre-law program.
- What is your class rank?
- What is one of your weaknesses?
- Why is there a gap on your resume?
- Where do you see yourself working five years from now?
Continue reading here.
One of the most important skills that law students need to learn in law school is how to synthesize rules from cases. Yet, studies have shown that second- and third-year law students are not good at synthesizing rules. I have heard two conference presentations by Professor James Stratman in which he has stated that, while second- and third-year law students are generally proficient at applying a single case to a set of facts, they are poor at synthesizing rules and applying several cases to a set of facts. (see also here at 4) This deficiency has developed because, except for perhaps a half a class in legal writing, synthesizing rules is not usually taught in law schools. To help students develop this skill, first-year professors need to drill this skill, just like they do case analysis.
Synthesizing rules is important because the common law develops on a case-by-case basis. One judge decides case A. Another judge uses that case to decide case B, which is on similar facts. The next judge then relies on cases A and B to determine case C, which becomes a new precedent. In other words, each new case adds to the story of the rule.
Synthesis in the law involves synthesizing rules in connection with a set of facts. "Rule synthesis is the process of integrating a rule or principle from several cases." (Paul Figley, Teaching Rule Synthesis with Real Cases, 61 J. Leg. Educ. 245, 245 (2011)) More specifically, "Lawyers begin this process of synthesis by first identifying the pieces of authority relevant to a legal issue and then fitting these pieces together to determine the overall analytical framework they reasonably support." (Jane Kent Gionfriddo, Thinking Like A Lawyer: The Heuristics of Case Synthesis, 40 Tex. Tech L. Rev. 1, 4 (2007)) Most importantly, "Only in making sense of all of the cases will a lawyer be able to formulate a clear picture of the law to determine an appropriate solution to the legal problem at issue." (Id. at 6)
There is not just one formula for synthesizing a rule. How you synthesize a rule depends on the materials being synthesized. Sometimes the materials will produce a single factor; other times the synthesized rule will comprise two or more factors. Often, one case will provide a framework for the rule with other cases filling in. Other times will you have to combine cases to produce the rule.
Learning case synthesis begins with synthesizing a single-factor rule. First, one must find all the relevant cases on that issue in relation to the facts. This usually means assembling all the mandatory authority from the governing jurisdiction. You must also be able to understand what cases belong together (grouping). Once you have determined the relevant group, you should carefully read the relevant cases, making sure you fully understand their reasoning, both explicit and implicit.
Synthesizing a single factor requires that you blend the cases into a coherent whole. In other words, your synthesis must be consistent with all the case holdings and reasoning. To synthesize a single-factor rule, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcomes.
Synthesizing multiple-factor rules is similar to synthesizing single-factor rules, except you first must determine what factors the cases require to establish a test (there is a preliminary grouping stage into factors). Separate out the different factors. (A chart might help you to do this). Then, for each factor, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcome for that factor.
The final step in a synthesis is to test your synthesis. Have you accounted for all the relevant cases in your synthesis? Are the cases relevant to your facts? Is your synthesis convincing? Is there an alternative synthesis? If so, is the original or alternative synthesis better? Has your synthesis produced a clear rule that can be applied to your facts?
Of course, the above assumes that the law in real life is consistent. It isn’t. You can’t always reconcile all cases on a particular point. Judges sometimes don’t blend in a previous case, and sometimes they miss or misunderstand an earlier case.
There are a number of exercises on synthesizing cases in Chapter Five of my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013). Also, the Figley and Gionfriddo articles mentioned above have useful materials on case synthesis. Finally, Shapo, Walter, and Fajans' Writing and Analysis in the Law contains excellent exercises on case synthesis.
Monday, August 25, 2014
These tips come from Joseph Sullivan, of counsel at Holland & Knight and former Presiding Justice of Appellate Division, First Department, in New York. They are included in a special report from the New York Law Journal on appellate practice which you can access here.
Five Ways to Impress
- Prepare. To be effective, the appellate lawyer should begin preparation for the argument several days or even weeks in advance of the scheduled argument.
- Hit the salient point(s) immediately.
- Address adverse precedent squarely.
- Know the judges.
- Include in your brief a good, concise summary of the facts. Doing this requires the greatest skill
Five Ways to Depress
- Love thyself above all others. Don't become so carried away with your argument that you forget it an appellate argument and not a performance for the jury.
- Don't just read from your brief.
- Don't waste valuable time with a lengthy recitation of the facts.
- Recognize that the court is pressed for time and act accordingly.
- Don't use lengthy string cites in your brief especially for blackletter principles
You can read the complete version of Mr. Sullivan's tips for appellate lawyers here.
That’s the allegation. From the Miami Herald:
The co-authors of Miami Dade College’s main communications department textbook have been embroiled in accusations that some of the text may have been plagiarized.
One of those sections, ironically, deals with the very definition of plagiarism.
It’s there on page 37 of The Freedom to Communicate textbook: Plagiarism is taking someone else’s work without giving them credit. It is, the textbook states, “a serious problem in today’s society.”
That’s what Isabel del Pino-Allen, a communications professor at MDC, charged that her colleague and co-author Adam Vellone did with a handful of passages — including lifting language nearly word-for-word from a paper defining 10 different types of plagiarism produced by the anti-plagiarism software company Turnitin, without providing proper credit.
You can read the rest here.
Sunday, August 24, 2014
During a recent interview with the National Law Journal, SCOTUS Justice Ginsburg joined company with Justice Scalia in expressing the view that law school should remain a three year course of study, not two, or risk being perceived as a trade school. (See Scott Fruehwald's retort to Justice Scalia's comments about practical skills training in law school (and here) that Scalia made in that same speech). Justice Ginsburg told the NLJ, like Scalia before her, that the law is learned profession which means a third year is needed to help students become more academically well-rounded by giving them the chance to pursue courses a two year curriculum wouldn't allow. It also gives students the chance to gain some practical and public service experience before heading off to practice. From the NLJ interview:
I have a daughter who has been teaching [law] at Columbia for 25 years—I couldn’t believe it. I think a lot more is being done with the third year. One of the things that should be done is to require every student to have how many hours of public service. If you just needed the skills to pass the bar, two years would be enough. But if you think of law as a learned profession, then a third year is an opportunity for, on the one hand, public service and practice experience, but on the other, also to take courses that round out the law that you didn’t have time to do.
Two years—it does reduce the respect, the notion that law is a learned profession. You should know a little about legal history, you should know about jurisprudence. [Two years] makes it more of a craft like the training you need to be a good plumber.
You can read the entire interview with the NLJ here.