Thursday, February 19, 2015
Here is another chapter from Building on Best Practices: Transforming Legal Education in a Changing World, (Deborah Maranville, Lisa Radtke Bliss, Carolyn Wilkes Kaas & Antoinette Sedillo Lopez, eds., Lexis, 2015):
Rethinking the Curriculum for Balance by Martin Katz & Kenneth R. Margolis.
From JD Journal:
According to the National Law Journal, the percentage of Hispanic and African American students enrolled in law school increased from 2010 to 2013, but the increase was seen mainly at those law schools that have lower admission standards.
Professor Aaron Taylor of Saint Louis University School of Law studied LSAT scores, enrollment numbers, and application patterns for both minority and white students in 2010 and 2013. His goal was to determine how the drop in law school applications across the country has impacted law school diversity.
What he discovered was that law schools that have the lowest median LSAT scores for incoming classes appear to rely disproportionately on Hispanic and African-American students to fill up slots in those classes. Interestingly, those law schools that require higher LSAT scores for admission suffered a decrease in African American and Hispanic students from 2010 to 2013.
Taylor said, “You’ve got more black and Hispanic students attending schools that are considered less prestigious in 2013. That could have long-term implications on the career paths and trajectories of minority students. Bar passage rates are part of the issue. But even if all of those people pass the bar, they will still have different careers,” compared to those who graduate from top schools.
You can read more here.
I think Professor Taylor’s conclusions are right. From what I hear, law schools concerned with raising LSAT numbers and ranking will be giving discounts (scholarships) not to weaker or students who may be more needy, but to students with high LSATs and g.p.a.s.
A big change is in the works. From re/code.net:
Samsung has discussed a deal with a payments startup that would help the smartphone maker unveil a wireless mobile payments system in 2015 to rival Apple, according to multiple sources.
The technology would allow people with certain Samsung phones to pay in the vast majority of brick-and-mortar stores by waving their phones instead of swiping with a credit card or cash. Samsung’s new smartphone is expected to be announced in the first half of 2015.
It is not yet clear if Samsung has reached a deal with the startup, Burlington, Mass.-based LoopPay. One source said the deal could still fall apart.
You can read more here.
Wednesday, February 18, 2015
Tenth Circuit Diagrams a Statute
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime .... [be sentenced to more time].
So, a defendant who had a firearm is punished more severely than one who didn't. How much more depends on the firearm and what he or she did with it. If it applies in a particular case it means at least five extra years, up to and including a life sentence. So it would seem kind of important that Congress write such a law in a way that people (like federal judges) can understand it. But it didn't.
This opinion shows the kind of detective work that judges sometimes have to do in order to figure that out, and this particular statute is so bad the court ended up diagramming it:
Diagramming is a great tool. Thanks to my 8th grade English teacher, Mrs. Fagles, for teaching me how, and thanks to Justin Kerner for letting me know about this case.
Tuesday, February 17, 2015
National Jurist Magazine has come up with a list of the Top 10 hottest alternative careers for lawyers based on the input from several legal career professionals including Charles Volkert, executive director of the legal staffing agency Robert Half Legal, Liz Brown, author of Life After Law, Casey Berman, author of the blog Leave Law Behind, Richard Hermann, author of number of books on legal employment and a professor of online courses at Concord Law School, Hillary Mantis, author of Alternative Careers for Lawyers and other experts. Here's what they came up with:
- Regulatory Compliance officer
- Cyber/Information Security Analyst
- Health Care
- Intellectual Asset Management
- Risk Management
- Electronic Discovery Consultant
- Litigation Management
- Alternative Dispute resolution Counselor
- Legal Information Providers
Below, my co-blogger, Lou Sirico, wrote about the Systematic Justice Program at Harvard Law School. He concludes with the following paragraph:
"Knowing only what I read in the Boston Globe, the program seems very academically oriented to me. I speak as someone who worked in the public interest world before joining the legal education world. I tried conveying what I had learned about public advocacy to my students; however, I found them not sufficiently grounded in the real, often complex world to really understand what I was trying to teach, much less apply it to real world problems. As a result, I think clinics and externships are the best ways to prepare future public advocates."
I agree with Lou; what we need to obtain social justice is not talking about it in academic or think tank-like settings, but showing law students how to achieve justice in action through litigation. Law schools need to train lawyers who can practice, not train lawyers who are specialists in writing policy papers. Instead of critical race theory classes, law schools need to offer classes in discrimination litigation with a strong experiential element.
Here are the three components of the Harvard Program:
This course will employ insights from numerous disciplines, including history, the mind sciences, economics, and law to explore some of the deep, common, and overlapping causes of injustice. We will examine and draw lessons from a handful of well-known injustices—from antebellum slavery to twentieth-century marketing of tobacco. Focusing on varied sources of power, we will attempt to understand interconnections between policy problems and the cycles that contribute to inequality and injustice. Based on those understandings, the course will name and inventory causes of injustice, impediments to justice, and ways better to pursue justice through law and social activism. Finally, the course will pull those lessons into the present as students examine, workshop, and write about current problems.
Students will write a graded group or individual paper on a problem of their choosing.
The Justice Lab
The Justice Lab, in its first semester, seeks to develop a new way of approaching societal injustices, while providing students with experience operating in a think tank environment. Students will work in teams drafting policy papers and taking part in the running of The Justice Lab. Students will participate in the selection of “problems” for the lab to address, will identify a variety of relevant experts, stakeholders, and victims of injustice as part of researching the problem, and will coordinate and participate in drafting collaborative policy papers. Some papers will analyze a problem, identify possible solutions, and propose a set of potential policy reforms. Other papers will concern “problem causers,” the often unseen or unmanageably large forces that contribute to many specific problems. Class time will be devoted to presentations and discussions of the policy problems, and workshops relevant to participation in a think tank, including topics such as persuasive policy writing, presentation of data, writing a press release, and grant writing. Much of the work will be done outside of class in smaller groups and subgroups. There will be an opportunity for interested students to assist The Justice Lab in preparing brief memos on potential problem topics in the fall semester and, for those who wish to take a particularly active role, to receive written work credit for work that satisfies the written work requirements.
Writing about Justice
This seminar focuses on the important psychological, historical, economic, political, and legal sources of systemic injustice. Students will take an active role in planning and implementing the seminar. They will be expected to prepare readings, write substantial papers, and comment upon and edit other students’ papers. One goal of the seminar will be to create a collection of chapters or articles for eventual publication.
Shameless plug division: Nancy Schultz and I have completed the Fourth Edition of Persuasive Legal Writing (Wolters Kluwer/Aspen). Here is the write-up:
Persuasive Legal Writing offers complete instruction, exercises, and examples to teach students how to frame and assert arguments. Starting with an introduction to classical rhetorical devices and the psychology of persuasion, the authors explore every aspect of persuasive writing, from structuring sentences and paragraphs to writing style, tone, storytelling, audience analysis, the ethics of argument, and citing authorities. This concise books features consistent emphasis on the three keys to persuasive writing: writing simply and clearly; arguing ethically; writing for the audience and offers information on how to use all parts of a brief to frame and assert an argument.
Key New Features
- A new chapter on applying storytelling principles to legal argument
- A new chapter on using visuals in support of persuasive arguments
- New examples of empirical studies and analysis that support the lessons throughout the book
- New examples of particularly appealing use of language in Appendix A
We hope you will take a look.
From the Boston Globe:
The class is part of a new Systemic Justice Project at Harvard, led by [Professor Jon] Hanson and recent law school graduate Jacob Lipton. They’re also leading a course called the Justice Lab, a kind of think tank that will ask students to analyze systemic problems in society and propose legal solutions. Both classes go beyond legal doctrine to show how history, psychology, and economics explain the causes of injustice. A conference in April will bring students and experts together to discuss their findings.
Harvard’s project is an unusual one, but it arises out of a growing recognition that law students need to be trained to be problem-solvers and policy makers. As Hanson tells his students that first day, “If you’re thinking about systemic justice, you need to be thinking about legal education.” He believes that this education should be less about learning the status quo and more about how the next generation of lawyers can change it.
You can read more here.
Knowing only what I read in the Boston Globe, the program seems very academically oriented to me. I speak as someone who worked in the public interest world before joining the legal education world. I tried conveying what I had learned about public advocacy to my students; however, I found them not sufficiently grounded in the real, often complex world to really understand what I was trying to teach, much less apply it to real world problems. As a result, I think clinics and externships are the best ways to prepare future public advocates.
Monday, February 16, 2015
Hamline and William Mitchell have announced a plan to merge which the National Law Journal says may be the first evidence to suggest some schools are not viable, or shortly won't be if not for strategic moves like this. (And here from TwinCities.com) From the National Law Journal:
. . . .
Continue reading here.
Here is another preview of Building on Best Practices: Transforming Legal Education in a Changing World (Deborah Maranville, et al., eds., Lexis 2015):
Teaching Knowledge, Skills, and Values of Professional Identity Formation by Larry O. Natt Gantt, II & Benjamin V. Madison III.
The process of forming students’ professional identities requires exposing them to explicit areas of knowledge, skills, and values. This section of the forthcoming book Building on Best Practices: Transforming Legal Education in a Changing World (Lexis 2015) builds on Best Practices’ thesis concerning what it means to be a legal professional first by identifying more specifically the content of that knowledge and the nature of those values and skills, and then by discussing particular teaching methods aimed at promoting students’ professional identity formation. Because formation of developing lawyers’ professional identities requires pervasive efforts, a law school that has embraced the goal of formation ought to combine the practices suggested in this section with those in the other sections of Building on Best Practices.
Sunday, February 15, 2015
I believe that the most important thing that law schools should be doing is creating self-directed learners. Neil W. Hamilton has just posted an article on SSRN on self-directed learning:
This article presents both a clear learning outcome for students to address this challenge regarding self-directed learning and a curriculum called ROADMAP: THE LAW STUDENT'S GUIDE TO PREPARING AND IMPLEMENTING A SUCCESSFUL PLAN FOR MEANINGFUL EMPLOYMENT (forthcoming ABA Books 2015) designed to help each student grow toward the learning outcome. The article provides an evaluation of the effectiveness of the ROADMAP curriculum at helping students achieve the learning outcome.
In a new article by Professor Simon Canick (William Mitchell), the argument is made that law schools must do more to teach students the substantive technology skills they will need as lawyers in practice. Professor Canick mentions a few schools that have created stand-alone law practice tech courses including Georgetown, Duke, Stanford, and Suffolk, and says that even if schools do not yet have such a course, there are plenty of ways professors can incorporate tech skills into existing courses. Professor Canick's article is called Infusing Technology Skills into the Law School Curriculum and can be found at 42 Cap. U. L. Rev. 663 (2014) and on SSRN here. From the abstract:
Legal education has never considered technological proficiency to be a key outcome. Law professors may debate the merits of audiovisual teaching tools: do they work when they should?; do they facilitate learning objectives or are they just toys?; whom should they call when something breaks?; and so on. Teachers use course management sites like TWEN and Blackboard to share information and manage basic course functions. Many fear that laptops and other devices distract students in class, and some institute outright bans. Among many law teachers, technology is warily accepted, but only for the purpose of achieving traditional educational objectives.
What if educators viewed technology as a competency that students need to master in order to succeed in practice? This paper will identify gaps between the use of technology in practice and in our classrooms; suggest ways that we can change what we teach, and the way we teach, to address the disparity; consider the benefits/drawbacks of developing new courses, or infusing technology-related outcomes throughout the curriculum; and propose methods to encourage professors to teach with technology in ways that model the practices of successful attorneys.
From the introduction to David Grenardo, Long Live Bohatch: Why a Law Firm Partner Can and Should Be Fired for Following the Rules of Professional Conduct:
Every semester in law schools across the country, law students and professors
struggle with the situation presented in the Texas Supreme Court case of Bohatch v.
Butler & Binion.2 In the case, a law firm partner named Colette Bohatch suspected
another partner of overbilling.3 Pursuant to Bohatch’s ethical duties, she reported the
suspected overbilling attorney.4 As a result of following her ethical duties, the law firm
fired Bohatch.5 The Supreme Court of Texas held that Bohatch needed to follow her
ethical duty to report the overbilling, but the law firm could properly fire her for doing so
because, among other things, the trust and confidence needed for a partnership trumped
any purported policy to protect a whistleblower in a law firm.6 And once she reported
her fellow partner, Bohatch lost the trust of the partnership.7
You can access the article on SSRN (here) (34 Miss. C. L. Rev. (Forthcoming)
I cannot agree with the author. Please note the firm’s tactics in degrading Bohatch’s standing in the firm after she made her report. I know of other situations where ethical employees reported wrongdoing and were fired. The standard and accepted custom is to report alleged wrongdoing internally to the higher-ups and not to go outside the firm unless necessary. Bohatch followed this custom, but it did her little good.
Saturday, February 14, 2015
I know of no proof that academic grades naturally fall into a bell curve or any other normative distribution. Here are a few quotes.
From the University of Illinois Center for Innovation in Teaching and Learning http://cte.illinois.edu/testing/exam/course_grades.html:
Grading on the Curve
This method of assigning grades based on group comparisons is complicated by the need to establish arbitrary quotas for each grade category. What percent should get A's? B's? D's? Once these quotas are fixed, grades are assigned without regard to level of performance. The highest ten percent may have achieved at about the same level.
Those who "set the curve" or "blow the top off the curve" are merely among the top group; their grade may be the same as that of a student who scored 20 points lower. The bottom five percent may be assigned F's though the bottom fifteen percent may be relatively indistinguishable in achievement. Quota-setting strategies vary from instructor to instructor and department to department and seldom carry a defensible rationale.
While some instructors defend the use of the normal or bell shaped curve as an appropriate model for setting quotas, using the normal curve is as arbitrary as using any other curve. It is highly unlikely that our college and university student abilities or achievement are normally distributed. Grading on the curve is efficient from an instructor point of view. Therein lies the only merit in the method.
On the invalidity of the bell curve in employee evaluation in the business world, please see this article in Forbes magazine: http://www.forbes.com/sites/joshbersin/2014/02/19/the-myth-of-the-bell-curve-look-for-the-hyper-performers/
Here is a quotation from an anonymous law professor in Deborah W. Post, Power and the Morality of Grading - A Case Study and a Few Critical Thoughts on Grade Normalization, 65 UMKC L. Rev. 777, 806 (1997):
There is no such thing as a normal class or a normal distribution of students in a class. Anyone with significant teaching experience knows that this is not so, that there are classes with a large number of better students and classes of an unusually large number of poorer students and everything recognizable in between. Normalization fails to give students the grades they deserve
The New York Times DealB%K column has an article profiling several schools that now offer business skills "boot camps" for students including Brooklyn, U. Maryland, U. Colorado (and here) and Cornell among others. (See also here and here for post-law school programs designed to teach new associates business skills). Here's an excerpt:
A group of 170 Brooklyn Law School students cut short their winter break and headed back to campus in January for an intensive three-day training session. But not in the law.
Instead, they spent the “boot camp” sessions learning about accounting principles, reading financial statements, valuing assets and other basics of the business world — subjects that not long ago were thought to have no place in classic law school education.
“The boot camp helps you learn more of the nitty-gritty,” said Ricky Liang, 26, a third-year student who attended the workshop. “A lot of students hear phrases like mergers and acquisitions, and it sounds enchanting, but they don’t really know what it is.”
Like Brooklyn Law, more law schools are adding business-oriented offerings to better equip students to compete in a job market that is being reshaped and slimmed down as more routine legal work is being outsourced and corporate budgets cut back. And in the contracting market, students are more focused on trying to land a well-paying job to pay off sizable student loans.
“There’s a broader shift for law schools to prepare students to be more practice-ready when they graduate,” said Brian Z. Tamanaha, a law professor at Washington University in St. Louis who tracks changes in the legal profession and wrote the book, “Failing Law Schools.”
Law schools as diverse as Brooklyn, Cornell and the University of Maryland are offering focused sessions that aim to bring students up to speed on business practicalities. Like Brooklyn, many are offering brief business-centered workshops, prompted by the lack of exposure many graduates have to teamwork, business strategy, client interaction and other fundamentals of running a corporation.
. . . .
Continue reading here.
Friday, February 13, 2015
From the Pennsylvania Bar Associations Criminal Justice Section newsletter (Feb. 9, 2015):
Governor Tom Wolf has nominated Duquesne University law school Dean Ken Gormley and Centre County President Judge Thomas Kistler to fill vacancies on the Supreme Court of Pennsylvania.
The nominations are subject to confirmation by a two-thirds majority of the state Senate.
Gormley has been a member of the Duquesne University School of Law faculty since 1994 and specializes in constitutional issues. He is a Harvard University Law School graduate and lives in Forest Hills, Allegheny County, where he has served as mayor.
Kistler was elected judge in Centre County in 1997 and led efforts to improve safety for children involved in family court proceedings as a result of domestic violence. Kistler, who lives in Potter Township, Centre County, is a graduate of Penn State University and Dickinson Law School.
Good news for a court that has been mired in scandal.
From JD Journal:
According to ABC News, St. Louis County prosecutor Bob McCulloch is scheduled to visit the students, faculty, and staff of Saint Louis University Law School to deliver a lecture. However, many students and professors who question McCulloch’s handling of the Michael Brown shooting investigation have openly expressed their disapproval of the upcoming event. The lecture is scheduled for February 20, when the law school hosts an event on police practices after Ferguson. In addition to McCulloch, County Police Chief Jon Belmar will be present at the symposium, as well as five social scientists from other schools.
You can read more here.
The question is what will the students learn from hearing McCulloch?
Thursday, February 12, 2015
The Wall Street Journal Law Blog is reporting that Citi's Private Bank Law Group says 2014 was a very good year for the AmLaw 50 with profits per partner up 7.2% from the year before. In particular, transactional practices were especially busy this past year. And according to Citi's prognosticators, 2015 looks to be an even stronger year for top firms. You can read the full story from the WSTLB here.