Friday, January 16, 2015
Two related stories from the Wall Street Journal Law Blog and Inside Higher Ed, respectively. The Wall Street Journal post is titled Fewer and Fewer Students Are Applying to Law School and notes that law school applications are down, on average, 8.5% from last year. Lowering the Bar is the article from Inside Higher Ed and reports, among other startling stats, that five years ago no American law school had an entering class with a median LSAT of 145 or less; today seven schools do.
"Setting the stage for a potentially historic ruling, the Supreme Court announced Friday it will decide whether same-sex couples have a right to marry everywhere in America under the Constitution.
The justices will take up gay-rights cases that ask them to overturn bans in four states and declare for the entire nation that people can marry the partners of their choice, regardless of gender. The cases will be argued in April, and a decision is expected by late June."
In case you're looking for a research problem for your students. For a detailed list, please click here on Wikipedia.
State-level proposals for the rescheduling of cannabis have met with mixed success. Currently, the states of Colorado, Washington along with the states of Alaska and Oregon have fully legalized marijuana. The District of Columbia's legalization is currently blocked by Congress. Twenty-four states have both medical marijuana and decriminalization laws. Nine states and Guam have legalized medical marijuana. Five states and the U.S. Virgin Islands have only decriminalized possession laws. And twenty-two states and four inhabited territories state that marijuana is illegal, a felony, or a misdemeanor.
Thursday, January 15, 2015
Hat tip to the ABA Journal Blog for this video and column, How to Look Smarter: The Tactics People Use to Look Intelligent Often Backfire; Fancy Words Don’t Work, from the Wall Street Journal on how to "manage" first impressions to project greater intelligence while also avoiding behaviors that make you seem less than smart. When it comes to the former, wear eyeglasses and use your middle initial in documents (the more initials, the better according to WSJ columnist Sue Shellenbarger). Also, look people directly in the eye when speaking to them and project confidence (Is it ever a bad idea to project confidence? If you can pull it off, I think it's safe to assume you should do it 24/7, no matter the context. Amiright?)
On the other hand, using pretentious language and putting on serious facial expressions makes people think you're somewhat lacking in the smarts department. As they say, you only get one chance to make a first impression so check out the full WSJ column (and short video) and polish up those "impression management" skills.
A hashtag has been collecting responses from academics on words that they don’t want to hear on a date. #RuinADateWithAnAcademicInFiveWords The Chronicle of Higher Education offers its summary of the responses. Here’s the advice for the nonacademic:
In hundreds of tweets, clear themes have emerged. Apparently, a sure way to kill the mood is to speak admiringly of astrology, Fox News, homeopathic medicine, The History Channel, or Malcolm Gladwell. Disavowals of coffee, evolution, and Oxford commas might not play well, either. And God help you if you suggest that academics get to “take summers off.”
You can read more here, but you probably need a subscription to the Chronicle.
On her blog, “Listen Like a Lawyer,” Jennifer Romig reflects on the core qualities of professional identity:
About a thousand law professors are gathering now at the Annual Meeting of the American Association of Law Schools. The first session I attended this morning was Incorporating Teaching Professional Identity into the Legal Education Curriculum, with speakers from Mercer Law School and the University of North Dakota School of Law. Both schools offer innovative courses in building a professional identity as a lawyer.
The new program on professional identity at North Dakota emphasizes twelve core professional qualities, which I quote here from their handout:
- Adaptability/Deals with Unpredictability
- Confronts Mistakes
- Integrity Under Pressure
- Professional Objectivity/Sympathetic Detachment
You can read her reflections here.
Wednesday, January 14, 2015
The Bureau of Labor Statistics is reporting that the legal sector gained 500 jobs in December after showing flat growth in November. The small gain means the net legal sector job loss for 2014 is 2,500, which is a slight improvement from the 3,000 year-to-date figure BLS was reporting in November. In 2014, September turned out to be the cruelest month with a net job loss of 4,600 for those keeping score.
You can read more at the American Lawyer here.
Law schools need to change the basis of legal education. They need to go from an instruction paradigm to a learning paradigm. Such a shift would alter legal education completely, ending the Langdellian method that has poorly served legal education for over 100 years.
This proposal is based on an article by Robert B. Barr & John Tagg, From Teaching to Learning–A New Paradigm for Undergraduate Education, 27 Change 12 (Nov./Dec. 1995). Key excerpts:
“A paradigm shift is taking hold in American higher education. In its briefest form, the paradigm that has governed our colleges is this: A college is an institution that exists to provide instruction. Subtly but profoundly we are shifting to a new paradigm: A college is an institution that exists to produce learning. This shift changes everything. It is both needed and wanted.”
“We call the traditional, dominant paradigm the ‘Instruction Paradigm.’ Under it, colleges have created complex structures to provide for the activity of teaching conceived primarily as delivering 50-minute lectures-the mission of a college is to deliver instruction. Now, however, we are beginning to recognize that our dominant paradigm mistakes a means for an end. . . . We now see that our mission is not instruction but rather that of producing learning with every student by whatever means work best.”
“Just as importantly, the Instruction Paradigm rests on conceptions of teaching that are increasingly recognized as ineffective. As Alan Guskin pointed out in a September/October
1994 Change article premised on the shift from teaching to learning, ‘the primary learning environment for undergraduate students, the fairly passive lecture-discussion format where faculty talk and most students listen, is contrary to almost every principle of optimal settings for student learning.’”
“Lacking such a vision, we've witnessed reformers advocate many of the new paradigm' s elements over the years, only to see few of them widely adopted. The reason is that they have been applied piecemeal within the structures of a dominant paradigm that rejects or distorts them.” [Isn’t this what has been happening in law schools over the past 25 years?]
“In the Instruction Paradigm, the mission of the college is to provide instruction, to teach. The method and the product are one and the same. The means is the end. In the Learning Paradigm, the mission of the college is to produce learning. The method and the product are separate. The end governs the means.”
“[I]n the Instruction Paradigm, a college aims to transfer or deliver knowledge from faculty to students. . . . In the Learning Paradigm, on the other hand, a college's purpose is not to transfer knowledge but to create environments and experiences that bring students to discover and construct knowledge for themselves, to make students members of communities of learners that make discoveries and solve problems.” “A Learning Paradigm college is concerned with learning productivity, not teaching productivity.”
“The Instruction Paradigm frames learning atomistically. In it, knowledge, by definition, consists of matter dispensed or delivered by an instructor. . . . The Learning Paradigm frames learning holistically, recognizing that the chief agent in the process is the learner. Thus, students must be active discoverers and constructors of their own knowledge.”
“The Learning Paradigm embraces the goal of promoting what Gardner calls ‘education for understanding’-‘a sufficient grasp of concepts, principles, or skills so that one can bring them to bear on new problems and situations, deciding in which ways one's present competencies can suffice and in which ways one may require new skills or knowledge.’ This involves the mastery of functional, knowledge-based intellectual frameworks rather than the short-term retention of fractionated, contextual cues.”
Shifting the educational paradigm can affect a law school’s structure and budget:
“The shift to a ‘Learning Paradigm’ liberates institutions from a set of difficult constraints. Today it is virtually impossible for them to respond effectively to the challenge of stable or declining budgets while meeting the increasing demand for post secondary education from increasingly diverse students. Under the logic of the Instruction Paradigm, colleges suffer from a serious design flaw: it is not possible to increase outputs without a corresponding increase in costs, because any attempt to increase outputs without increasing resources is a threat to quality. If a college attempts to increase its productivity by increasing either class sizes or faculty workloads, for example, academics will be quick to assume inexorable negative consequences for educational quality.”
The article includes extensive charts, comparing the instruction paradigm to the learning paradigm.
In response to the Barr/Tagg article, one author has written that “The most immediately practical application of Barr and Tagg’s work would go like this: Faculty at post secondary institutions should not be hired solely as experts in their discipline but as experts at communicating that discipline in a context that privileges learning rather than the simple transmission of information. In the learning paradigm, assignments do not press solely for exam-time recall but rather ask students to interact with material in a way that creates structures of understanding rather than discrete cataloging of information. It asks that we not assume that students will engage because what we have to say is so important but that we work at finding ways for them to engage the importance of the work and to make that work meaningful to their lives.” (here)
As the authors of the main article note, it will not be easy to change an institution from an instruction paradigm to a learning one. However, legal education is in a crisis that requires disruption. As Professors Barr and Tagg have declared, “Paradigms change when the ruling paradigm loses its capacity to solve problems and generate a positive vision of the future. This we very much see today. One early sign of a paradigm shift is an attempt to use the tools and ideas of a new paradigm within the framework provided by the old, or to convey information intelligible in the new paradigm through the channels of the old. This, too, is now happening.”
Mario Cuomo was a great politician, a great moral force, and a great rhetorician. Here is a USA Today column by my college classmate Lanny Davis. In these days political divisiveness, it tells a story of politicians who could overcome their differences. Worth reading.
Tuesday, January 13, 2015
At its Decembere 5-6 meeting, the Council of the ABA Section on Legal Education and Admissions to the Bar made the following decisions:
Granted provisional ABA-approval to Lincoln Memorial University Duncan School of Law.
Granted acquiescence to Seattle University School of Law in its application to establish a separate location in Anchorage, Alaska.
Reported on the Syllabus, the Section’s e-newsletter (Winter 2014-15) (here).
In these tough time for law schools, I wish these new schools the best of luck.
Monday, January 12, 2015
As mentioned several times on this blog, outcome assessment is becoming an important tool in legal education. Albany Law School administers a diagnostic test to its second-year students to determine what they have retained from their first year and to help them prepare for the bar. (here)
"For the first time, all second-year students will take diagnostic exams to measure their knowledge retained from core courses and gauge essay writing in preparation for the bar exam.
The exam will produce individual reports for each student, and also report on groups that will show student performance by subject matter and skills. While students will learn of their own strengths and weaknesses for the test, the data will also help the school identify appropriate coursework for the student, track individual progress and develop and direct academic support resources.
'These are not graded tests,' emphasized Penelope (Penny) Andrews, President & Dean of Albany Law School. 'The student will receive an objective evaluation from a bar-exam specialist more than a year before taking the exam. This is a new approach and we think it will benefit all students, alleviate a good portion of the stress associated with the exam, as well as benefit the school’s cumulative performance.'
The exam is administered jointly by Kaplan/PMBR Bar Review and Albany Law School under the supervision of Professor Jill Dunn. Professor Dunn is a former Assistant Examiner for the New York State Board of Law Examiners, where she wrote New York multiple choice questions, graded New York and MPT essays and reviewed draft questions for comment to the Board to the National Conference of Bar Examiners.
The four-hour exam—two two-hour sections with a 45-minute break between components—will measure each student’s substantive knowledge across criminal, constitutional law, contracts and property, while assessing both essay writing and multiple choice testing skills. The analysis will offer students a deeper understanding of the reasons behind their score and how to improve performance in future exam opportunities, and specifically the bar exam.
The cumulative diagnostic report will provide valuable data to the faculty, the curriculum committee and the administration in assessing subject matter coverage in core and upper level courses, prerequisite and graduation requirements, and academic support resources. The analysis highlights specific tendencies, traps, errors, and omissions that may have caused an incorrect answer, which the student can then address with faculty members."
preLaw, a National Jurist Magazine publication, invited law schools to nominate clinics based on subject matter, structure or community served. The magazine's editors then narrowed the list to the top 15 along with 10 runners up. Go here to read a more detailed description of each clinic on the list and why preLaw's editors think they shine. For now, here's the list:
Low income clinics
- Wayne State
- Villanova (honorable mention)
- U.C. - Berkeley
- U.C. - Irvine
- Quinnipiac (honorable mention)
- St. Thomas (Minn.) (honorable mention)
- Widener (DE) (honorable mention)
- Washington & Lee
- Georgia State (honorable mention)
- Cardozo (indie film clinic (!))
- McGeorge (public policy)
- Georgetown (social enterprise & nonprofit law)
- Lewis & Clark (animal law)
- Indiana Tech (law clerk clinic)
- Miami (honorable mention for children & youth law clinic)
- BU (human trafficking clinic)
- Penn State (rural economic development)
- U. Miss. (pro bono initiative)
Here are two examples of translating legalese into plain English, perfect for classroom use. They come from Joseph Kimble’s book, Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law. Joe is a pioneer in the plain English movement.
PETITION FOR REHEARING
Needless to say, we disagree with much that is set forth in the Court of Appeal's Opinion herein. Nevertheless, this Petition for Rehearing is restricted to but a single aspect of the said Opinion. This single aspect is the one which pertains to that ratification of an act of his agent which is submitted to flow from the facts as represented by Mr. Jones to the Superior Court (Opinion: page 4, line 2 to page 5, line 2, page 11, line 7 to page 12, line 19). Specifically, we respectfully submit that the Court of Appeal's views relative to the assumed non-existence of such ratification, are predicated upon a factual assumption which is disclosed by the record to be incorrect. This being so, we submit that the actual facts, revealed by the record, are such as clearly to entitle us to prevail in respect of the ratification theory.
PETITION FOR REHEARING
Although we disagree with much of the Court of Appeal's opinion, we limit this Petition for Rehearing to a single aspect: The question of whether Mr. Jones ratified the act of his agent. The Court found that he did not (Opinion, pp. 4-5, 11-12). We respectfully submit that this finding was based upon a misreading of the facts. The Court assumed facts that were clearly contrary to those in the trial record which pointed to ratification. We are, therefore, entitled to a rehearing.
Old Rule (Fed. R. App. P. 3(e)):
(e) Payment of fees.— Upon the filing of any separate or joint notice of appeal from the district court, the appellant shall pay to the clerk of the district court such fees as are established by statute, and also the docket fee prescribed by the Judicial Conference of the United States, the latter to be received by the clerk of the district court on behalf of the court of appeals.
(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.
Sunday, January 11, 2015
Legal Writing Exercises: A Practical Guide to Clear and Persuasive Writing for Lawyers by E. Scott Fruehwald. Available from ABA Publishing in paperback or as an ebook.
How is this book different from other books on legal writing? It mainly teaches you editing and writing through exercises. Many books on legal writing have few editing exercises. However, educational researchers believe that the most effective way to learn is through active learning–through doing. Active learning also helps turn items in short-term memory into long-term memory. In addition, educational experts think that repetition helps one retain knowledge in long-term memory; a pattern needs to be retrieved again and again to become a permanent memory or skill. Similarly, the key to becoming a good writer and editor is awareness. Fixing writing problems once you find them is usually easy. The hard part is finding the mistakes in your writing. The exercises in this book will help you develop the ability to find problems in your writing and the writing of others. I believe that the numerous exercises in this book will help you improve your writing much more than books that contain no exercises or only a few exercises.
This book is also different because it covers subjects that other legal writing books don’t cover, such as creating emphasis, continuity and flow within paragraphs, continuity and flow between paragraphs, small-scale organization, and a holistic approach to writing. Producing clear and effective writing involves much more than being able to change passive voice to active voice and eliminating wordiness. It concerns being able to combine the mechanics of writing with a conceptual (holistic) view of writing.
I have written this book to help lawyers and law students improve their writing. This book is self-contained (the answers to the exercises are located immediately following the exercises). Lawyers in any stage of their career can use it to help improve their writing skills, or they can use it to become aware of what they should correct in the writing of their employees. Law students can employ this tome to improve their writing immediately before law school or while they are taking legal writing. Legal writing professors can adopt it as a supplement in legal writing class. Writing and academic support specialists can use it to help struggling law students. Finally, while I have written this book specifically for lawyers, most of it can be used by anyone who wants to write better.
Back in October, we told you about a recommendations by the ABA's Task Force on the Future of Legal Education that state bars consider licensing non-lawyers to deliver limited legal services as a way of improving access to justice for clients who otherwise might not be able to afford a lawyer. That post also summarized an article Professor Elizabeth Chambliss (S. Carolina) discussing programs then underway by three Washington state law schools to train legal paraprofessionals who would become eligible to deliver legal services by 2015.
Well, 2015 is now here and the latest issue of the ABA Magazine has a story profiling Washington's inaugural graduating class of limited license legal technicians who at present are only permitted to offer their services in domestic relations matters. Some lawyers are understandably worried that the LLLTs are going to take work away from them though proponents argue that the LLLTs don't directly compete with lawyers because they are reaching an otherwise neglected segment of the marketplace.
Here's an excerpt from the ABA Magazine article:
. . . .
Within a profession that so guardedly polices its practice, many may see Cummings [one of the first group of LLLt's licenses in WA] and her classmates as representing the proverbial camel's nose under the tent. So far, Washington stands alone in formally licensing nonlawyers to provide legal services. But California is actively considering nonlawyer licensing, and several other states are beginning to explore it. New York has sidestepped licensing and is already allowing nonlawyers to provide legal assistance in limited circumstances while also looking to expand their use.
In its January 2014 final report, the ABA Task Force on the Future of Legal Education called on states to license "persons other than holders of a JD to deliver limited legal services." Now this issue of allowing nonlawyers to provide legal services is among the topics being taken up by ABA President William C. Hubbard's Commission on the Future of Legal Services.
"I fully anticipate that it will be one of the concepts that will be addressed by the commission," Hubbard says, noting that his appointees to the 28-member commission include both Barbara A. Madsen, chief justice of the Washington Supreme Court, which promulgated the LLLT rule, and Paula Littlewood, executive director of the Washington State Bar Association, which administers the LLLT program.
"The states are the laboratories of invention," Hubbard adds. "This is a good example of that. I think there is growing acceptance by regulators and private practitioners of law that we need to do things differently."
Proponents maintain there is simply no other way to address the justice gap in the United States. They cite multiple state and federal studies showing that 80 to 90 percent of low- and moderate-income Americans with legal problems are unable to obtain or afford legal representation. The economics of traditional law practice make it impossible for lawyers to offer their services at prices these people can afford.
If lawyers cannot fill the gap, the proponents say, we must find some other way.
. . . .
Continue reading here.
The 2014 Word of the year is #blacklivesmatter. From the website:
The hashtag #blacklivesmatter took on special significance in 2014 after the deaths of Michael Brown in Ferguson, Mo. and Eric Garner in Staten Island, N.Y., and the failure of grand juries to indict police officers in both cases. It became a rallying cry and vehicle for expressing protest, fueled by social media.
The word hashtag itself was the ADS Word of the Year in 2012. Now, two years later, hashtags were recognized with their own special category in the voting, which was also won by #blacklivesmatter.
“While #blacklivesmatter may not fit the traditional definition of a word, it demonstrates how powerfully a hashtag can convey a succinct social message,” Zimmer said. “Language scholars are paying attention to the innovative linguistic force of hashtags, and #blacklivesmatter was certainly a forceful example of this in 2014.”
If you go to the website (here), you can find words of the year in subcategories.
From JD Journal:
Matthew Diller, the dean for the Benjamin N. Cardozo School of Law, has been named the new dean of Fordham Law School, according to a press release from Fordham Law School. The announcement was made by Fordham on Monday. The school said that Diller will begin work as the law dean with the next academic year.
You can read more here.
Once again, legal technology expert Dennis Kennedy has awarded our blog a “Blawggie” for the best law professor blog.
Here is his write-up:
Best Law Professor Blog – Legal Skills Prof Blog
Although, I’m nominally a contributing editor of the Legal Skills Prof Blog, I’m way more a reader than a contributor. As the debate about the future of legal education blossomed and took on a sense of urgency in 2014, the “practical skills” approach in law school programming started to get a lot of attention. This blog’s coverage of those issues was excellent and it’s a great place to keep up-to-date on discussions about the future of legal education, analysis of current trends, and generally helpful links and information.
Saturday, January 10, 2015
This is a new article by Cassie DuBay, a Research and Faculty Services Librarian at SMU Law School, called Specialized Legal Research Courses: The Next Generation of Advanced Legal Research at available at 33 Legal Ref. Serv. Q. 203 (2014). From the introduction:
This article examines the current state of Advanced Legal Research (ALR) courses and the emergence of Specialized Legal Research (SLR) courses. It surveys the curriculum of all ABA-accredited law schools and provides updated statistics of ALR course offerings. It also identifies for the first time (1) the law schools currently offering SLR courses, (2) the most popular SLR course topics, and (3) the role of the law library in determining whether to implement a SLR course. The results of the survey will hopefully educate law schools about the trends and variety of legal research course offerings.