Wednesday, September 23, 2015

Avoid Incivility with Bias-Free Writing

In Precedent, the journal of the Missouri Bar, Professor Douglas Abrams explains that insensitive writing generates incivility. He offers advice on writing with respect regarding race, ethnicity, and gender.

You can access the article here.


September 23, 2015 | Permalink | Comments (0)

Several BigLaw firms assume responsibility for teaching associates the stuff they didn't learn in law school

As Bloomberg Law reports, several white-shoe NYC firms aren't relying on law schools to prepare practice-ready grads. Instead, they've created internal programs to train new hires in the specific skills they will need to succeed within the relevant practice areas. From Bloomberg Law:

For New Associates, Work Seems Like School

It’s like going back to school.

Before they begin to work, new lawyers at many big firms complete lengthy orientation programs that provide instruction on topics like basic accounting and finance.

But that’s not the only way that firms resemble school. In addition to substantive topics, associates are now greeted with resident advisers, on-call, in-house training staff, and even summer reading lists. It’s a not-so-tacit recognition that newly minted attorneys have educational gaps that need to be filled and, almost as importantly, they need and want oversight, extra help, and lots of feedback and career guidance.

“It’s become remarkably like going to college or law school,” said Jeffrey Knight, a partner at Pillsbury Winthrop Shaw Pittman LLP. “Law firms have been thinking more about the first year or two and providing more options for a structured learning environment.”

Pillsbury, like several other firms, runs boot camps for new lawyers. Other firms hold so-called mini MBA programs for those starting out. Lasting from one-to-three weeks, these programs incorporate business school classes with more general orientation, offering incoming associates the chance to learn finance and accounting skills they may not have learned in school.

. . . . 

You can continue reading here.


September 23, 2015 | Permalink | Comments (1)

Tuesday, September 22, 2015

Mo. Law Prof Sues Over Campus Gun Ban

From KOMU:

-A lawsuit involving guns on UM system campuses moved forward Monday.

MU associate law professor Royce de R. Barondes is suing the university for prohibiting guns on campus.

The current policy prohibits the possession of firearms on university property except regularly approved programs or by "university agents or employees in the line of duty."

Barondes is seeking to challenge the university's gun ban after new language was added to the Missouri Constitution's 2nd Amendment.

You can read more here.


September 22, 2015 | Permalink | Comments (0)

Awkward Moments at Work: How to Recover

Calling someone by the wrong name, being the cause of a burp or other bodily function, etc. How do you recover from an embarrassing moment. Daily Worth  (here) offers good suggestions.


September 22, 2015 | Permalink | Comments (0)

Monday, September 21, 2015

Bloomberg Law reports bar passage rates drop to lowest level since 1988

An excerpt from the Bloomberg Law story:

The average score on the multiple-choice portion of the July test fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided to Bloomberg by the National Conference of Bar Examiners. The mean score on this summer's exam was 139.9, down from 141.5 in July 2014.


"It was not unexpected," says Erica Moeser, the president of the NCBE, which creates the multiple choice part of the test. "We are in a period where we can expect to see some decline, until the market for going to law school improves."


Law schools have been admitting students with lower qualifications who "may encounter difficulty" when taking the bar, Moeser says.


About a dozen states have published their pass rates, and the numbers are even worse than last year, when graduates performed historically badly. Pass rates for students who took the test in July were down in most states that have reported results.


. . . .


The poor showing a year ago prompted a debate between law school deans and the organization that creates the exam. Deans said the test was unfair and that a software glitch that made it harder to submit test results may have hurt some students. The NCBE's Moeser pointed her finger right back, charging that schools were letting in students who didn't have a good shot at passing the test.


This year’s results are among the most important in the exam's history, because they will offer a clearer sense of whether last year’s failure rate was an anomaly or the start of a very bad run. So far, the numbers are pointing in the wrong direction for the nation’s law schools.

. . . .

You can read the full story here. The Wall Street Journal Law Blog has a similar report here.


September 21, 2015 | Permalink | Comments (0)

Law Prof Jobs Are Drying Up

Law Prof Jobs Are Drying Up

From Tax Prof Blog, here’s the chart.



September 21, 2015 | Permalink | Comments (0)

Should law students stop briefing cases for class? Addendum

I strongly disagree with Professor Varol that first-year law students should stop briefing cases.  When done right, briefing cases helps students develop the ability to "think like a lawyer."  By briefing a case, a student learns how judges reason so that they can do the same thing. While briefing is not directly tested, what students learn by briefing does affect how well they do on exams, including the bar.

Learning black letter law is not enough.  Lawyers have to understand the policy behind the rules and be able to apply them to facts.

Of course, briefing cases mechanically, as is often the case, is a waste of time. For a method of reading and analyzing cases effectively see Chapter Two of my book, Think Like a Lawyer: Legal Reasoning for Law Students and Legal Professionals (ABA Pub. 2013).

The most important thing in briefing is to understand the reasoning. Look at how the judge went from the existing rule to the new one. Look at how the judge applied the law to the facts.  What kind of legal reasoning did the judge use?

(Scott Fruehwald)


September 21, 2015 | Permalink | Comments (1)

Should law students stop briefing cases for class?

At a blog called The Law School Code, Professor Ozan Varol advises 1Ls that briefing cases for class is basically a waste of time since most of what they write is going to end up being incorrect anyway - at least in the beginning. Thus, students' time is much better spent getting a general overview of the material "at 30,000 feet," improving the quality of their class notes and finding more efficient strategies for summarizing the cases such as taking margin notes instead of writing "briefs." Professor Varol's acknowledges that not everyone should follow his advice because some students do in fact benefit by spending a lot of time polishing their case briefs as a way of prepping for class. But for most, Professor Varol thinks it's not a good use of their time since students aren't going to be tested on the quality of their case briefs. Though I agree with Professor Varol's point that 1Ls should not be mislead into thinking that refining their case briefs to a fare thee well is going to "count" toward their final grade (not directly anyway) - I disagree that it's not a worthwhile and very important exercise for them to engage in.  Only by putting forth great effort into briefing cases for class will students find out what they do and don't know.  Conscientious students will then spend time after class trying to figure out why their case briefs don't jibe with the professor's take on the material and that's where the rubber meets the road as far as deep learning and developing critical reading and thinking skills. I'm not entirely convinced that taking margins notes as suggested by Professor Varol can engage students as deeply as the time and effort it takes to dissect and reorganize each case into its component parts of facts, proceedings, holding, reasoning, etc. But hey, it's always good when someone challenges the status quo and maybe Professor Varol's approach will indeed be the best one for some students or at least they should try it to see if it helps them better understand the material compared to their present approach. 

You can read Professor Varol's complete post here.

Hat tip to JD Underground.


September 21, 2015 | Permalink | Comments (0)

Sunday, September 20, 2015

SCOTUS Opinions Borrow Language from Veteran Advocates


From the National Law Journal:

New evidence of the clout of veteran U.S. Supreme Court advocates and their law firms is revealed in a study showing that the language in their briefs appears in court opinions more often than that of newcomers to the court.

Covington & Burling and O’Melveny & Myers, as well as individual advocates including Sidley Austin’s Carter Phillips and Chief Justice John Roberts Jr., a former appellate litigation partner, are at the top of lists in the study, which shows language overlap between briefs and decisions.

You can read more here and access the study here.


September 20, 2015 | Permalink | Comments (0)

Harvard Law’s New Sexual Assault Policy

From The Harvard Crimson:

Under the Law School’s new system, an adjudicatory panel of non-Harvard affiliated professionals will rule on violations of Harvard’s University-wide sexual harassment policy, potentially after a hearing. The Law School will provide students involved in a case with an attorney if requested.

You can read more here.


September 20, 2015 | Permalink | Comments (0)

Saturday, September 19, 2015

ABA Reverses Experimental Waiver on LSATs

From preLaw:

One year after allowing high-achieving undergrads to apply to law school without taking the LSAT, the American Bar Association has reversed course and said, um, never-mind.

Only a few law schools were trying the concept and accepted such students for this year's class. However, that may have changed if the new admissions process had time to mature. Under it, undergrads could only apply to their graduate law schools. Law schools were limited to accepting just 10 percent of their enrolling class this way.

“We're a a little disappointed,” said Robert Harrison, associate dean of admissions and financial services for St. John's University School of Law, which admitted seven students this year through the new method. “We thought it would be an interesting experiment when it comes to judging other law school indicators besides the LSAT.”

You can read more here.


September 19, 2015 | Permalink | Comments (0)

How the Internet Treats Digital Data upon Death

From the Trust Advisor:

A user’s guide to how different Internet companies treat our digital data when we die:

Google: First to create an “Inactive Account Manager” tool to choose who should have access to emails, photos, documents, YouTube videos and other information when you die, and whether you want your account to be deleted. If you don’t take action, family members will typically need a court order to access your files.

Facebook: Users can choose if they want their account memorialized (setting up a permanent or temporary online memorial) or permanently deleted from the social network after they die.

Yahoo: Deletes inactive accounts and will not discloses a user’s files upon death, citing the privacy terms each user agrees to before signing up for account.

Microsoft: Deletes inactive Outlook/Hotmail accounts; discloses some data to heirs upon request or court order.

For more on the intricacies, please click here.



September 19, 2015 | Permalink | Comments (0)

Friday, September 18, 2015

"Fifty Plus Years and Counting: A History of Experiential Learning and Clinical Opportunities at Thurgood Marshall School of Law"

This is a new article from Professors Martina Cartwright and Thelma Harmon (Thurgood Marshall) and available at 39 T. Marshall L. Rev. 187 (2014). From the abstract:

The shortcomings of today's law graduate lies not in a deficient knowledge of the law, but that he has little, if any training in dealing with facts or people-the stuff of which cases are really made. It is a rare graduate, for example, who knows how to ask questions-simple, single questions, one at a time, in order to develop facts in evidence in interviewing witness or examining him in a courtroom. 
Experience and properly trained lawyers greatly contribute to the expeditious and nonreversible trial of criminal and civil courts. Graduates . . . should be prepared properly to represent the citizens of Texas in the courtrooms.

September 18, 2015 | Permalink | Comments (0)

A Solution to Declining Bar Passage Rates

Above the Law has an article on the declining bar passage rates.  The article concludes,

"According to Professor [Derek] Muller, 'There isn’t a lot that schools can do. You can only train students so far and so much, a lot depends on ability.' That being said, there seems to be an obvious solution to the problem, but we doubt it’s one that law schools will take. Law schools must accept the fact that in order to produce graduates who will be able to pass the bar exam, they must heighten their admissions standards. In doing so, their classes will be small — very small — and their coffers won’t be as full as they used to be. Some law schools will have to close for this to happen, and it’ll be a traumatic experience for all involved.

Until law schools realize they’re doing a disservice to everyone — their students, their graduates, and their graduates’ future clients — things will only continue to get worse."

There is another alternative: Better educate law students by using teaching approaches that have been shown to work by general education researchers.  I may sound like a broken record, but better teachings methods will solve many of the woes that face law schools.  Law schools particularly need to employ better teaching methods for first-year students because most colleges are not giving them the cognitive skills they need to succeed in law school.

Professor Mueller and Above the Law seem to be suffering from the fixed mindset, which both Deborah Jo Merritt and I have attacked this week.  (here, here)  In other words, they believe that nothing can be done about the abilities of the students who enter law school.  However, a great deal of education research has demonstrated that this is not true.  Students who have a growth mindset can increase their intelligence through hard work and deliberate practice.   I have previously set out several ways law students can increase their abilities (here),  so I won't repeat them in this post.

I am concerned about what we will learn over the next few weeks as we see bar results from more states.  However, declining bar passage rates are not a disaster; they are an opportunity.  We can overcome the problem of declining bar passage rates with better educational methods.

(Scott Fruehwald)


September 18, 2015 | Permalink | Comments (3)

Nine Mistakes New Teachers Make

From Education Week, and designed for K-12 teachers, but most apply to us as well:

1. Inconsistency

2. Focusing on Lesson Planning Rather than Student Learning

3. Grading Everything

4. Avoiding Parent Contact

5. Not Setting Boundaries With Students

6. Being Afraid to Ask for Help

7. Being Afraid to Speak Up

8. Burning Out

9. Forgetting the Joys of Teaching

Ultimately, educators at every level make mistakes. While there may not be a “Ctrl+Z” function for the classroom, each morning represents a chance to start fresh, make amends, and try again. Children are resilient and incredibly forgiving. Give your students your best, and you will be amazed at what you can accomplish year after year, imperfections and all.

For detailed explanations, please click here.



September 18, 2015 | Permalink | Comments (0)

Thursday, September 17, 2015

Bar Exam Scores Drop to Their Lowest Point in Decades

Bloomberg Business.

"The average score on the multiple-choice portion of the July test fell 1.6 points from the previous year, reaching its lowest level since 1988, according to data provided to Bloomberg by the National Conference of Bar Examiners. The mean score on this summer's exam was 139.9, down from 141.5 in July 2014."

"About a dozen states have published their pass rates, and the numbers are even worse than last year, when graduates performed historically badly. Pass rates for students who took the test in July were down in most states that have reported results."

“'The decline in student quality continues to affect the results,' says Derek Muller, a professor at Pepperdine University School of Law. As fewer people apply to law schools, the programs have started filling their campuses with students who aren’t as qualified as they used to be. That strategy produced a crisis in 2014, when scores on the multiple-choice portion of the test registered their largest year-over-year drop in four decades."

 "This year’s results are among the most important in the exam's history, because they will offer a clearer sense of whether last year’s failure rate was an anomaly or the start of a very bad run. So far, the numbers are pointing in the wrong direction for the nation’s law schools."

(Scott Fruehwald)

September 17, 2015 | Permalink | Comments (0)

How to Work with Boomers, Gen-Xers, and Millennials

Here is a great infograph offering a good bit of information on how to work with these three generations.

As a Boomer, the descriptions fit me extremely well. And I think the descriptions are on the mark for my offspring who bridge the Gen-X and Millennial categories. .  Please click here.  (From Cornerstone)


September 17, 2015 | Permalink | Comments (3)

Wednesday, September 16, 2015

Assessing professional communication skills in law school

This is a new article by Professor Denitsa R. Mavrova Heinrich (Barry) which is forthcoming in the North Dakota Law Review and available now on SSRN here. From the abstract:

Legal education has faced much criticism in recent years. That criticism has largely focused on law schools’ failure to prepare students for the practice of law. Critics have thus urged law schools to establish learning outcomes aimed at teaching students how to become practice-ready professionals and have called for the adoption of effective assessment tools to evaluate and improve student learning. 

While slow to respond to the call for reform, last August, the American Bar Association adopted new accreditation standards on learning outcomes and assessment measures. The adoption of these standards represents a shift in legal education — a shift from educational inputs to learning outputs. In other words, the new standards now require law schools to shift from teaching students how to think like lawyers toward assessing whether students are in fact learning how to be lawyers. 

This Article examines the new ABA standards on learning outcomes and assessment and their potential impact on reforming legal education. The Article argues law schools should embrace the new standards as a valuable method to reflect, evaluate, and improve legal education in their quest to producing practice-ready professionals. And through the lens of a course developed to teach professional communication skills to law students, the Article illustrates how law schools can engage in small-scale experimentation of articulating learning outcomes and utilizing assessment tools, at the individual course level, all the while focusing on the central purpose of assessment — the improvement of student learning.


September 16, 2015 | Permalink | Comments (0)

Who Reviews 10,000 Cert. Petitions for Justice Alito?

His clerks do. The other Justices place all the petitions in a pool and divide them among their clerks. Justice Alito opted out of the pool and places the burden of reviewing the petitions on his clerks—about 10,000 petitions annually.  

Why? The Justice’s explanation has not been clear, and Court watchers have a variety of theories. To evaluate them, please click here on this article in the National Law Journal.


September 16, 2015 | Permalink | Comments (0)

Active Learning in Law Schools. It Is Time To Act!

On Monday, I mentioned an article in the New York Times that states that active learning helps all college students, but helps minorities and the poor more because they come to college already behind.  (here)  The Best Practices for Legal Education Blog (here) has a post on the article.  The post ends, "The studies cited in this NY Times article provide support for increasing active learning in legal education, both to improve all students’ learning and to level the playing field."

I believe that this last sentence is not strong enough.  The article demonstrates that all law professors must incorporate active learning into their teaching if they are serious about their students. It is time to end the rhetoric and act. We know how to help minority students improve their learning. Many, many articles have concluded the same thing as those mentioned in the Times article. There is no doubt that active learning is more effective than passive approaches.  Active learning is like penicillin. It doesn’t need more testing.

All law professors should do problem-solving exercises in their classes.  They should employ formative assessment.  They should require students to do memos and briefs.  This is not as hard as it sounds.  There are many texts out there, such as [beware: shameless plug approaching] my text A Companion to Torts: How to Think Like a Torts Lawyer (2015).

We cannot wait to act.  Let's not lose more students to outdated teaching approaches.  We can help minorities and the poor succeed in law school.

(Scott Fruehwald)

P.S. I am not criticizing the blogger of the post at Best Practices.  She is one of the strongest supporters of legal education reform.  However, I am talking to those who advocate diversity and equality but do nothing  to help them be achieved.  Don't be an arm-chair liberal; be a doer.

September 16, 2015 | Permalink | Comments (0)