Saturday, November 22, 2014

New employment numbers by BLS suggests law school class of 2016 will have better job prospects

The ABA Journal Blog has the story here.  What it boils down to is that the Bureau of Labor Statistics has changed the way it calculates projected job openings in the legal services sector.  Until now, the BLS based its job projections on the assumption that those who enter the legal profession stay until they get old or retire.  In reality, many lawyers - I recall reading a story several years ago that put the figure at 50% within 10 years - leave the profession much earlier than that to pursue alternative careers.  As a result, the BLS may have been greatly understating the number of new jobs openings in the legal services sector.  From now on, the BLS will measure measure attrition through survey results rather than relying on assumptions about cradle to grave career paths.


November 22, 2014 | Permalink | Comments (0)

Should the Drop in MBE Scores Affect our Teaching?

As we have reported, scores on the Multistate Bar Exam have declined, and that decline has raised a minor ruckus. Over at Best Practices for Legal Education (Nov. 14), Margaret Moore Johnson raises a difficult issue: would traditional doctrinal teaching help our students pass the bar more than does the sort of teaching that many of us now advocate? (my words, not hers):

But at a time when law schools are focusing on teaching integrated doctrine, skills, and values, an already ambitious undertaking, is it backtracking to reconsider the multiple choice test – like LSAT prep all over again – instead of progressively developing knowledge and true professional competence? Or is it appropriate to simultaneously develop the skills students need to pass the (often criticized) bar exam?


November 22, 2014 | Permalink | Comments (0)

The Harpo Marx Family Rules


November 23 is Harpo Marx’s Birthday. In honor of the late comedian, here are his Family Rules:

Harpo Marx Family Rules
1 Life has been created for you to enjoy, but you won't enjoy it unless you pay for it with some good, hard work. This is one price that will never be marked down.
2 You can work at whatever you want to as long as you do it as well as you can and clean up afterwards and you're at the table at mealtime and in bed at bedtime.
3 Respect what the others do. Respect Dad's harp, Mom's paints, Billy's piano, Alex's set of tools, Jimmy's designs, and Minnie's menagerie.
4 If anything makes you sore, come out with it. Maybe the rest of us are itching for a fight, too.
5 If anything strikes you as funny, out with that, too. Let's all the rest of us have a laugh.
6 If you have an impulse to do something that you're not sure is right, go ahead and do it. Take a chance. Chances are, if you don't you'll regret it - unless you break the rules about mealtime and bedtime, in which case you'll sure as hell regret it.
7 If it's a question of whether to do what's fun or what is supposed to be good for you, and nobody is hurt whichever you do, always do what's fun.
8 If things get too much for you and you feel the whole world's against you, go stand on your head. If you can think of anything crazier to do, do it.
9 Don't worry about what other people think. The only person in the world important enough to conform to is yourself.
10 Anybody who mistreats a pet or breaks a pool cue is docked a months pay.


November 22, 2014 | Permalink | Comments (0)

Friday, November 21, 2014

"What's New About the New Normal: The Evolving Market for New Lawyers in the 21st Century"

This is a new article by Professor Bernard Burk (North Carolina) available at 41 Fla. St. U. L. Rev. 541 (2014) and on SSRN here.  From the abstract:

Everyone agrees that job prospects for many new law graduates have been poor for the last several years; there is rather less consensus on whether, when, how, or why that may change as the economy recovers from the Great Recession. This Article analyzes historical and current trends in the job market for new lawyers in an effort to predict how that market may evolve. 

The Article derives quantitative measurements of the proportion of law graduates over the last thirty years who have obtained initial employment for which law school serves as rational substantive preparation (“Law Jobs”). In comparing entry-level hiring patterns since 2008 with those in earlier periods, a significant development emerges: While other sectors of the market for new lawyers have changed only modestly during the Great Recession, one sector — the larger private law firms colloquially known as “BigLaw” — has contracted proportionally six times as much as all the others. Entering BigLaw classes overall are now roughly one-third smaller than they were seven years ago. And though BigLaw hiring has historically accounted for only 10% to 20% of each graduating class, it is responsible for over half the entry-level Law Jobs lost since 2008. 

While some observers predict a return to business as usual as the economy recovers, this Article is skeptical of that account. The Article identifies significant structural changes in the way that the services BigLaw has traditionally provided are being produced, staffed, and priced that diminish BigLaw’s need for junior lawyers, both immediately and in the longer term. These observations suggest that entry-level BigLaw hiring, and thus the market for new lawyers overall, will remain depressed below pre-recession levels well after demand improves to or beyond pre-recession levels. At the same time, even though entry-level demand may remain static, new lawyers’ job prospects may nevertheless improve as the con-traction in the legal academy now underway reduces the number of new graduates competing for work.


November 21, 2014 | Permalink | Comments (0)

An Exercise in Drafting an Opening Argument

Here is the opening paragraph from Apple’s brief in its patent suit against Samsung:

Samsung is before the court and on trial, because Apple alleges that Samsung copied Apple’s iPhone and iPad.  This conduct was the result of a deliberate decision on the part of Samsung. In its history, Apple has created innovations in product design and user interface technology, which resulted in strong and solid intellectual property rights. With respect to those property rights, Samsung has infringed on them. Try as it might, Samsung cannot deflect the attention it has received from its conduct in copying the patents that it has asserted that it claims that Apple has taken from it.

Here is my rewrite:

Samsung deliberately copied Apple’s iPhone and iPad. It infringed on Apple’s intellectual property rights, that is, its innovative product design and user interface technology. Sumsung unsuccessfully attempts to deflect attention from its copying by alleging patent infringement by Apple. However, as this trial will disclose, Samsung slipped its patents into the UMTS wireless standards. It deceived the international body responsible for creating these standards and thus illegally monopolized technology markets. 

Although my version contains only a few less words than Apple’s, it seems more concise and to the point. It is direct. The focus is on Samsung; Samsung is the subject of every sentence. As a result, the paragraph has direction and tells a story supporting Apple’s case.


November 21, 2014 | Permalink | Comments (0)

Nov. 22, 1963: The Death of President Kennedy

On November 22, we observe the assassination of President Kennedy. Many of us remember how painful a time that was.

Here is a 10 minute video excerpted from the final presidential debate between then-Senator Kennedy and Richard Nixon. The quality of the debate reminds us how political debates once had substance and spoke well of the participants.


November 21, 2014 | Permalink | Comments (0)

Thursday, November 20, 2014

Improving the 'Performance' of the Performance Test: The Key to Meaningful Bar Exam Reform

We have argued several times on this blog that the bar exam needs to be revised to better test what lawyers will do in practice.  Here is an article by Ben Bratman on how to imrove the bar exam.

Improving the 'Performance' of the Performance Test: The Key to Meaningful Bar Exam Reform


If there are going to be bar exams in the United States—and there are, for the foreseeable future—then the lingering question is how to improve them to better serve the goal of evaluating minimum competence. The bar exam is roundly and rightly criticized by academics and practitioners as disconnected from the actual functions that lawyers perform. The focus of the exam, critics say, is too much on knowledge and memorization of law. That focus is exacerbated by the recent addition of a seventh substantive subject, Civil Procedure, to the Multistate Bar Examination (MBE).

The path to meaningful bar exam reform does not run through the MBE or the essay examination; it runs through the performance test. The Multistate Performance Test (MPT) or a comparable state-produced version appears on the bar exam in nearly 80 percent of U.S. jurisdictions. It evaluates real-world lawyering skills that simply cannot be tested to anywhere near the same extent, if at all, by the MBE or essay examination, each of which requires knowledge of extensive doctrinal content.

Designed to evaluate several of the fundamental lawyering skills identified in the ground breaking MacCrate Report, the performance test had great potential. But in significant ways it has not yet fulfilled that potential. A review of MPT questions administered to date reveals a narrow and stagnant testing vehicle that is not adequately evaluating the range of competencies central to the work of today’s newly licensed lawyer. The MPT has even failed to test on some of the skill sets listed within its published scope of coverage. Moreover, the performance test still remains the smallest part of the bar exam, relegated to third fiddle behind the MBE and essay examination.

Especially in light of empirical evidence that competent performance of many specific lawyering skills is more important to the work of beginning lawyers than knowledge of law, bar examiners should reinvigorate the performance test. Improved and expanded performance test questions could more thoroughly evaluate a wider array of the skills that bar applicants need upon entry to the profession. In addition, more performance test questions could be administered on each bar exam, and, notwithstanding psychometric limitations, examiners could increase the test’s scoring weight relative to that of the other exam components. It is through these reforms that the bar exam can become an instrument that truly evaluates competency to practice law more than knowledge of law.

November 20, 2014 | Permalink | Comments (0)

Georgetown seeking teaching fellow for community justice clinic

The deadline is December 20. Here are the details:

Seeking a Graduate Teaching Fellow for the Georgetown Law School Community Justice Project

Application Process

Please submit your C.V. and a letter of interest to Professor Jane H. Aiken at  All applications should be received by December 20 2014.  Those selected to interview will be interviewed during early January with selection following shortly.  Start date is July 1, 2015 and the fellowship is for two years, ending June 30, 2017.

Description of the Clinic

The Community Justice Project opened in the Fall of 2010. The Clinic provides students with training and practice in many lawyering skills and stimulates students to think broadly about the myriad ways to effect change within the legal system. The Community Justice Project cuts across many subject matter areas. Students in this clinic use multiple tactics to achieve client objectives, including advocacy, public relations, the use of media, lobbying, legislative and policy drafting and community organizing.

The clinic embraces a focused and explicit use of clinical education to enhance the students' commitment to social justice. In short, in addition to specific traditional legal skills, The Community Justice Project teaches students about the commitment that will sustain and energize people over the long haul, the tactics that can produce success in particular cases, and the sense of strategy that looks to long-term (perhaps very long-term) success, and participation in a protracted struggle for justice.

Students represent individual clients in Unemployment Insurance Appeal cases, starting with an initial interview and ending with an administrative hearing two weeks later. In addition to their direct representation cases, students are also assigned to a Project Team for the semester. The Projects vary in their substance, size of Project Team, type of client, type of responsibilities, and timelines. Through these projects, students are able to engage in a breadth of lawyering and creative advocacy skills. These Projects provide a platform for students to think strategically about the project of justice and redefine what "winning" means.  Our students have done work in the community to provide justice in many areas. For more detail on specific projects, please visit our website at

Description of the Fellowship


The Community Justice Project hires one individual to serve as a clinical teaching fellow and supervising attorney each year, for a two year term.  Fellows have several areas of responsibility, with an increasing role as the fellowship progresses.  First, fellows supervise students in direct representation cases, as co-supervisors with experienced fellows and faculty and then on their own.  Second, fellows co-supervise one or more Project Teams of students.  Third, the fellows and faculty share responsibility for teaching seminar sessions.  Fourth, fellows share in the administrative and case handling responsibilities of the clinic.  Finally, fellows participate in a clinical pedagogy seminar and other activities designed to support an interest in clinical teaching and legal education.


Qualifications Sought

We will only consider applicants with at least 3 years of post J.D. legal experience.  Applicants must be admitted or willing to be admitted to the District of Columbia Bar.  We are most interested in applicants with experience in direct representation, commitment to social justice, and an interest in clinical teaching and legal education.

Send application by e-mail to:
The Community Justice Project


November 20, 2014 | Permalink | Comments (0)

Streamlining Citations

At the Student Lawyer, Bryan Garner makes the case for streamlining citations. For example, here is the original:

In K-Mart v. Ponsock, 103 Nev. 39, 40, 732 P.2d 1364, 1371 (1987), abrogated (in part) by Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 112 L.Ed. 2d 474 (1990), the Nevada Supreme Court addressed the basis of the public-interest element: whether contractual damages alone would fail to make the victim whole and hold the bad-faith perpetrator accountable. Such situations arise when the contract’s aim is to secure peace of mind and to protect from property loss. Cf. Great Am. Ins. Co. v. General Builders, Inc., 113 Nev. 346, 355, 113 P.2d 257, 263 (1997). Several states have also applied this element to special transactions without a profit-motivation, again for security, peace of mind, etc. See Embry v. Innovative Aftermarket Sys. L.P., 2010 Okla. 82, 247 P.3d 1158, 1160; Ammondson v. NW Corp., 2009 MT 331, 353 Mont. 28, 48, 220 P.3d 1, 16; Rogoff v. Grabowski, 200 Cal. App. 3d 624, 631, 246 Cal. Rptr. 185, 190 (Ct. App. 1988).

In Garner’s streamlined form, that passage would read like this:

In K-Mart v. Ponsock, the Nevada Supreme Court addressed the basis of the public-interest element: whether contractual damages alone would fail to make the victim whole and hold the bad-faith perpetrator accountable. (Nev 1987 at 1371.) Such situations arise when the contract’s aim is to secure peace of mind and to protect from property loss. (Cf. Great Am., Nev 1997 at 263.) Several states have also applied this element to special transactions without a profit-motivation, again for security, peace of mind, etc. (See Embry, Okla 2010 at 1160; Ammondson, Mont 2009 at 16; Rogoff, CalApp 1988 at 190.)

 Garner's system depends on using electonic research; you plug in the state, the date, and maybe the page number, and you pull up the case.You can read more here.

I think a bigger problem is the excessive number of citations that often clog up a document. In academic writing, still another problem is excessive and lengthy textual footnotes—a phenomenon you rarely see in other disciplines.


November 20, 2014 | Permalink | Comments (0)

Wednesday, November 19, 2014

A new book on tips for contract drafting

Ross Guberman, author of the wildly successful Point Made: How to Write Like the Nation's Top Advocates, has a new book just out called Deal Struck: The World's Best Drafting Tips.  You can order the book here on Amazon and according to Ross's website he's running a promo deal on the book that will help several worthy charities.  Here's the publisher's summary: 

A colorful, user-friendly, and authoritative guide to the best contract-drafting tips for commercial agreements. The tips cover everything from language of rights and obligations to key boilerplate provisions and such stumbling blocks as indemnity and formulas. A novel red-yellow-green "use this term, not that term" system allows for easy reference for busy lawyers. The authors scoured thousands of pages of drafting books and treatises along with hundreds of articles. They also consulted with dozens of corporate practitioners. The guidelines that made it into this hand-held guide all had to satisfy two tests: Would the guideline help make a contract enforceable? And is the guideline realistic given the priorities of real-world commercial practice?

By the way, if you're looking for tips on legal writing generally, click here to check out Ross's extensive bibliography. He's got numerous articles on many aspects of legal writing and drafting.


November 19, 2014 | Permalink | Comments (0)

Helping Introverts in the Classroom

Over at the Law School Academic Support blog, Lisa Bove Young gives a link to a TED talk on the subject by Susan Cain and offers ways to help introverted students contribute in the classroom:

  • Rethink participation during class and provide alternative means to have students engage with the material or with each other.
  • See each student as an individual who expresses their ideas and knowledge in multiple and various ways.
  • Have students sign up to be the expert for a particular class period or for a particular set of cases.
  • Use think- pair-share prior to full classroom discussions about a topic, case, or set of problems.
  • Distribute or post discussion questions with the reading assignment prior to class.
  • Allow students to pass in class (within reason).
  • Teach students how to brief cases and prepare for class discussions.  This type of transparency will create more engaged students and lead to a more a dynamic discussion.
  • Do not call on students too quickly.  Let the question stew with the class and allow introverts more time to reflect and process. 
  • Consider a flipped classroom so that students feel more prepared to discuss and/or participate during class time. 
  • Use technology in the classroom.  Technology is ubiquitous, and can be integrated it into the classroom to provide added layers of participation and engagement- especially for diverse learners.
  • Create learning groups, which will help make a large law school classroom more accessible to introverts.
  • Reflect on your own learning style and personality.  How do they affect your teaching style and how is your delivery received by extroverts and introverts?  How can alter your style to be more inclusive?

You can access the information here.


November 19, 2014 | Permalink | Comments (0)

Tuesday, November 18, 2014

Helping Minority Students Succeed in Law School

Retired Dean Arthur Frakt has posted some thoughts on law school admissions and the bar on the Faculty Lounge.  I thought that this excerpt was particularly relevant to legal education today:

"What I have come to conclude over my years in legal education is that applicants do not have to be brilliant LSAT takers to attain success in law school, at the bar exam, and in practice.  Whether a majority or minority applicant, if an individual has an LSAT score at or near the median and has demonstrated serious application of his or her abilities to undergraduate studies as reflected by good grades in challenging courses, a legal education is a very reasonable graduate program for him or her to pursue.  On the other hand, when an applicant's LSAT scores fall much below the 40% level, the ability to apply legal reasoning and solve legal problems is greatly diminished and he or she might be well advised to pursue another professional program for which his or her talents are better suited.

In sum, there is, in my opinion, great merit in a law school which offers an opportunity to students with modest aptitude but with proven dedication to undertake a challenging curriculum taught by dedicated professors.  These students must understand  it is not enough to merely get by with minimal grades and they cannot rely on either luck or last minute bar cramming to succeed."

I agree with Dean Frakt's conclusion.  While there is a minimum for success in law school, almost every student a law school admits should be able to do well in law school as long as they are willing to work hard and are taught in the right way.

However, law schools are generally not teaching in a way that leads to success for students from disadvantaged groups.  First, law schools must help students from disadvantaged groups overcome the "fixed" mindset, which is the idea that students are born with all the intelligence they will ever have and that working hard is a waste of time.  Recent research has shown that intelligence is not immutable, but that intelligence can be improved.  (Carol S. Dweck, Mindset: The New Psychology of Success (2006))  Consequently, law schools need to instill a growth mindset in their students–that with effort and the proper approach any student that is qualified to enter law school can succeed in law school and become a competent lawyer.

New approaches to teaching and learning need to be added to the growth mindset.   First, many students come into law school lacking metacogntive skills.  (Metacognition is thinking about thinking.)  Therefore, they often approach learning in an ineffective and inefficient manner.  Law schools need to teach students better study skills and how to better listen and learn in the classroom.  They also need to teach students how to develop strategies and how to make strategic choices.

Law professors also need to develop better teaching techniques for the classroom.  General education scholarship has demonstrated that students remember more and can more effectively use their knowledge with active learning.  Accordingly, law professors should frequently use problem-solving exercises in their classes, and simulations and clinics are vital for the second and third years of law school.

The above just scratches the surface on how law schools and law professors can help students that enter law school in the bottom of their class.  (more here)

If law schools truly want to help minority students and send them out into the world to do justice, they must make the commitment to better educate these students.  While minority students can succeed in law school and become successful lawyers, it will require change and hard work by students, law schools, and professors.

(Scott Fruehwald)

November 18, 2014 | Permalink | Comments (0)

How to Drink with Coworkers

Here’s advice to pass on to your students. When they are in the working world, they may forget that in that world, drinking too much often is not so easily forgiven. Heavy drinking with colleagues and the conduct it generates can get a career off to a bad start. Here is advice from Daily Worth.

It’s not just students who get in trouble with drinking. In my early teaching years at another school, I can remember a few faculty members who could not control their intake and embarrassed themselves on more than one occasion.


November 18, 2014 | Permalink | Comments (0)

Monday, November 17, 2014

For law students hoping to make a favorable impression on employers, load-up on practical skills courses

And here's another relevant offering from the new issue of the ABA's Student Lawyer Magazine that some of our readers will no doubt be interested in.  The article is called Been There, Done That—Stand Out with Practical Training by Erin Bins who is the Director of Career Planning at Marquette U. Law School. Here's an excerpt:

Practical experience is irreplaceable, so be open-minded about opportunities. Don’t perseverate on perfect fit when considering the options immediately before you. Think globally in terms of your career. Courtroom confidence and poise are traits learned equally well in criminal and civil contexts, so the fact the externship is with the DA doesn’t preclude you from a future of civil trials.

. . . . 

Your learning is in your control. Put yourself a step closer to being practice ready at graduation by gorging on curricular and training opportunities that equip you with skills.

Course selection. Enroll in courses with practical skills components. Advanced writing and research classes, contract drafting workshops, and pretrial and trial practice courses are great examples of classes that simulate practice through hands-on assignments. Negotiation and mediation workshops cultivate skills that invade nearly every corner of the profession.

In many instances these classes are instructed by adjunct professors. The residual benefits of having a teacher who still practices are many. Often class discussions encourage you to think about laws in the context of client objectives and outcomes and assignments are given with an emphasis on the present state of laws and procedures. “Best practices” are (hopefully) modeled and a conduit to a lawyer who knows you and your work is established.

Additional options for curricular choices that move you closer to being prepared to practice include courses that expose you to advanced civil and criminal procedures, evidentiary rules, and administrative law processes.

. . . . 

Get more tips on how to boost your practical legal skills resume by continuing to read here at the Student Lawyer Magazine.


November 17, 2014 | Permalink | Comments (0)

Running an Active Learning Classroom

At the Inspiring Ideas for the Teaching and Learning of Law blog, you can access a 5:33 minute video in which Linda Fraser (McGill) illustrates the working of an actual active learning classroom. It includes as much commentary from the students as it does from the professor.


November 17, 2014 | Permalink | Comments (0)

Sunday, November 16, 2014

Training a New Breed of Lawyers

The ABA Student Lawyer has an article on how law schools are developing new ways of training their law students.  (here)

A few excerpts:

"Schools like Northwestern have expanded their clinic offerings—and other schools have been busy revamping curricula to make them more practice ready—in response to the sea change that has swept over the legal profession in the past several years since the Great Recession. With employers no longer willing or able to provide traditional mentoring in the early years, schools increasingly have come under pressure to infuse the practical skills of practicing law into their offerings."

"Such skills are increasingly becoming less of a luxury and more of a 'must' for graduating law students, Mascherin said. 'There’s more pressure on students to be able to perform quickly,' she explained. 'It’s not as forgiving a profession as it was 5, 10, 20 years ago. . . . Any kind of practical experience that gives a junior lawyer coming into the firm the confidence to know that they can figure out what they’re asked to do—that they’ve done it before, or something close to it, so you don’t have to go through those awkward first couple of drafts' is a plus."

"Clients are in the driver’s seat and demanding efficiency from their law firms, which in turn forces firms to demand the same of their first-year attorneys."

"Scott Schutte, partner at Morgan, Lewis & Bockius LLP in Chicago, said clients with whom he works will sometimes flat out state they don’t want a first-year associate working on their case."

"Other schools also have recognized the heightened importance of practice-ready education and have begun revamping their curricula to meet this new demand."

"Margaret Drew, who has taken over as director of clinical programs and experiential learning at UMass, said employers are typically looking for two things in graduating students: that they research and write well, and that they have had some practical experience."

(Scott Fruehwald)

November 16, 2014 | Permalink | Comments (0)

"Training the Transactional Business Lawyer: Using the Business Associations Course as a Platform to Teach Practical Skills"

This is a new article by Professor Constance Wagner (St. Louis) and will be published at 59 St. Louis U. L. J. __ (2015) but is available now on SSRN here.  From the abstract:

Drawing on her own practice background as a business lawyer and her law school teaching experience, the author argues for the importance of introducing transactional lawyering skills into the law school course on business associations. She notes that business law practice is transactional in nature, but that the traditional method of teaching business associations centers on case law analysis. This litigation-focused approach misleads students about the nature of business law practice, which requires lawyers to act as problem solvers and planners and to engage in preventative lawyering. To bolster her argument, the author draws on some of the recent literature onlegal education reform that calls for introducing students to an enhanced range of skills needed for law practice while they are still in law school. She suggests ways in which practical skills relevant to a transactional business law practice can be incorporated into the doctrinal course in business associations or to a transactional skills course tethered to the business associations course. The author also includes a bibliography of selected literature on teaching business law and transactional law and selected studies on reform of legal education.


November 16, 2014 | Permalink | Comments (0)

Can You Trust Wikipedia?

At 16 Vanderbilt Journal of Entertainment and Technology 857 (2014), Professor Jodi L. Wilson offers an in-depth analysis of the reliability of Wikipedia as a source of authority: Proceed With Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies.  With a growing number of citations to Wikipedia by courts and advocates, we can no longer dismiss Wikipedia or rely on it. The citing party has to use discrimination. Here is the abstract:

Courts and advocates have shown an increasing willingness to cite to Wikipedia. This trend has piqued the attention of scholars, who have considered the permanency concerns raised by citations to Wikipedia and critiqued how courts and advocates have used Wikipedia. This Article adds to the growing scholarship on the Wikipedia citation trend by examining the contours of the Wikipedia contributor crowd and the principles underlying Wikipedia’s content in order to better inform the evaluation of Wikipedia as a potential authoritative source. Part I provides an overview of the Wikipedia citation trend in cases and federal appellate briefs. Part II describes the ongoing judicial and scholarly debate about citation to Wikipedia. Part III first examines the size and demographics of the Wikipedia contributor crowd by using systems data and published surveys. Part III then examines Wikipedia’s editorial and content policies, which guide the Wikipedia contributor crowd in creating content. Finally, Part IV considers the Wikipedia contributor crowd and the editorial and content policies discussed in Part III in the context of traditional evaluative criteria. This evaluation calls into question some of the assumptions underlying the justifications for relying on Wikipedia. Thus, despite the trend, legal writers should proceed with extreme caution when considering reliance on Wikipedia.

Here is the article’s concluding passage:

With respect to Wikipedia in particular, a cursory understanding of Wikipedia as an online collaborative encyclopedia that anyone can edit merely scratches the surface. Before a legal writer embraces Wikipedia as an authoritative source, she must understand, at a minimum, who the contributors are and what the contributions represent. Moreover, based on that knowledge, she must critically assess whether she can reasonably conclude that the Wikipedia article is authoritative for the purpose for which she intends to cite it. As demonstrated in this Article, the contours of the Wikipedia contributor crowd and the content and editorial policies controlling Wikipedia's content call into question some of the assumptions underlying the common justifications for reliance on Wikipedia. Accordingly, the legal writer should proceed with extreme caution when it comes to relying on Wikipedia.


November 16, 2014 | Permalink | Comments (0)

Saturday, November 15, 2014

A student article on the failure of the ABA and law schools to adequately prepare lawyers to handle ethical delimmas

This is a law review note written by Sabrina Narian who graduated last spring from Western State College of Law.  It's called  A Failure to Instill Realistic Ethical Values in New Lawyers: The ABA and Law School's Duty to Better Prepare Lawyers for Real Life Practice and available at 41 W. St. U. L. Rev. 411 (2014).  From the introduction:

You have been with the district attorney's office for less than four years. During this time, you have successfully prosecuted two murder suspects. However, shortly thereafter, the convictions have been called into question. And after further investigation you discover new evidence proving the two murder suspects are innocent. Immediately, you tell the district attorney (DA). The DA's response is, “I do not care. Go into that court hearing on the reversal of the convictions and defend the case.” The DA has admitted that if you do not defend the case, your caseload will be reassessed.


You were the only attorney in the district assigned to this case, and the only one there throughout the trial, and the only attorney for the hearing about the reversal of the convictions. Therefore you are in the best position to know that all of the evidence weighs in favor of overturning the convictions. You have heard of the phrase “throwing a case” to the defense to assist in the reversal, but you have also heard of the repercussions of such conduct including impacts on your salary, bonuses, and most importantly your reputation in the district. What do you do? Did you miss this chapter in your Professional Responsibility course? Unlikely, because it was probably never there.


. . . .


The purpose of this Article is to increase awareness about the lack of ethics courses offered at American Bar Association (ABA) accredited law schools, and the need for the ABA and its members to offer courses that are not solely meant to assist in passing the Multistate Professional Responsibility Exam (MPRE). Aside from a Professional Responsibility course, law schools are rarely paying attention to the social and cultural contexts of the legal practice. In fact, surveyed students have reported that law school did not prepare them well to deal with the ethical dilemmas they face as a practicing attorney. Law students are simply not ready to ethically practice law without such exposure.



The problem became apparent after having taken an ethics course outside of the Professional Responsibility course at my law school. After much research on the issue, it appears that the opportunity to contemplate ethical dilemmas ex ante is not as prevalent as one would expect. Being exposed to such problems ex ante decreases the risk of breaking rules of ethics and possibly causing harm to yourself, the firm, or your client. It has been argued that irrational decisions stem from not having time to fully contemplate situations through or being ethically uneducated and facing powerful organizational pressures, forcing one to balance the individual's sense of right and wrong with pleasing their boss.


This Article begins with an examination of the changes that were made to the legal ethics codes since 1908 and why those changes were important to instilling a code of ethics in attorney work life. The Article will then explain that although the ABA may not have an express duty to require additional ethics courses, the ABA's vigorous establishment as the national representative of the legal profession may give an implied duty to the ABA and its laws schools to require more ethical courses. The ABA should ensure that its lawyers enter into the practice of law with awareness of ethical dilemmas they may face. Some examples in both civil firms and the district attorney's office will exemplify conflicting ethical situations law students would not be exposed to without such courses. The Article will then suggest a resolution to implement in-depth studies on ethics. The resolution proposes that the adoption of an “ethics clinic” is an effective way to fulfill the school's duty to increase exposure, such as the ethics clinics offered at California Western School of Law and Yale Law School. Specifically, an ethics clinic would expose students to ethics by either advising real practicing attorneys who are currently facing ethical dilemmas, or by exposing students to hypotheticals derived from real life situations and requiring students to resolve those dilemmas under pressure taking into account different cultural and personal factors


November 15, 2014 | Permalink | Comments (0)

Nov 16: Anniversary of My Heart Transplant

In June 1995, I was attending a conference in Minneapolis when I went in into cardiac arrest. I remember nothing of that time. Thanks to the firefighters and their defibrillator, I survived.  Within a few weeks, I was back in Philadelphia in a hospital bed where I waited four months for a new heart. I expected that a heart transplant would keep me going for a few years. However, here I am, 19 years later, working full time.

The shortage of organs is real. People do die because the waiting list is too long. And transplant recipients also survive. Among the thriving survivors are two of my former students—one with a new heart and one with a new kidney. My driver’s license bears the words “organ donor” I hope you will encourage others to offer themselves as potential donors.


November 15, 2014 | Permalink | Comments (1)