Monday, November 30, 2015

Marking Student Papers: A Method

Now that most of  us are deep into grading, I want to share my method. I think too many professors spend too much time marking up every shortcoming in every student paper. There's a limit on how much a student can absorb. Mark up too much and you're wasting your precious time.  Limit your comments in light of the limits of a student's ability and willingness to learn from your efforts. My method:

Read the students document. You will come across unfortunate words, phrases, and ideas that simply jump out at you. Comment on them. They should be limited in number.

Next, think about what you have read and identify the three big take-away messages that you want your student to get. I doubt that a student can absorb more than three. Write maybe a paragraph on each.

When you encounter truly disappointing papers, make an appointment with the student.

If after a student receives a grade and wants more feedback, oblige the student. Not many students will fall into this category.

That's it.


November 30, 2015 | Permalink | Comments (1)

Technology tips for the non-technology inclined lawyer

Recognizing that while lawyers have a professional duty to develop and maintain technological competence, it is becoming increasingly difficult to keep abreast of the many changes affecting contemporary law practice, legal tech blogger Dennis Kennedy has compiled for your convenience a "short list" of the key competencies for which most lawyers must now develop some level of facility. These include:

  1. Cybersecurity – an essential part of client confidentiality. Plays an increasing role in client concerns.
  2. Encryption – confidentiality and encryption continue to move closer together.
  3. Data location, storage and nature of evidence – potentially a concern in every matter.
  4. E-discovery – part of every litigation today, no matter how small?
  5. Metadata – protecting your documents and understanding weaknesses and hidden information in other documents and files.
  6. Track changes – redlining is a key component of nearly every negotiation of agreements.
  7. Forensics – understanding the basic details of how data can be found, revealed and recovered.
  8. Social media – a treasure trove of information on people – parties, witnesses, experts, opposing counsel, and much more.
  9. Smart phones – people use smart phones all of the time. There are many implications for lawyers.
  10. Digital estate planning – passwords, digital accounts.
  11. PDFs – from e-filing to transmitting “locked” documents, PDF is a fundamental tool for lawyers.
  12. Internet of Things – you ain’t seen nothing yet – sensors and data everywhere, from cars to surveillance cameras to watches to fitness trackers to, well, everything.

Dennis also offers calming words and practical advice for lawyers feeling overwhelmed by the new demands that technological competence has imposed on them. Check out the full column here


November 30, 2015 | Permalink | Comments (0)

Sunday, November 29, 2015

Chapter 10 of Developing Your Professional Identity: Creating Your Inner Lawyer

Developing Your Professional Identity: Creating Your Inner Lawyer.

Chapter Ten: Advanced Problems

This chapter’s purpose is to help students continue to develop their professional identities with advanced problems.  Its subjects include conflicts of interest, withdrawal of counsel,  subordinate attorneys, attorney-client privilege, confidential information, etc.

 It also introduces students to role playing, think-aloud exercises, and transfer exercises.  It ends with a practical wisdom problem.

(Scott Fruehwald)

November 29, 2015 | Permalink | Comments (0)

Should We Grade Blind or with Students’ Names?

In a recent article, David Gooblar addresses a familiar question: Should we grade students blind or should we know their names? Does knowing student names affect our objectivity? The limited empirical research gives mixed responses. Gooblar favors nonanonymous grading:

If I were to grade blind, I wouldn’t be able to chart a student’s progress throughout the term, from one assignment to another, nor would I be able to tailor my grading to the specific skills each student is working on. . . .

For me, at least, grading is as much a tool for pedagogy as it is a tool of assessment. Each assignment is an opportunity for student learning, and our personalized feedback is a crucial part of that opportunity. We should strive to grade as fairly and as objectively as possible. But to make sure we do that wisely as well, we need to keep our eyes open. Otherwise, we might lose sight of the fact that we are still teachers when we grade, and the authors of the papers are still our students.

I agree. I have found that while 1Ls often worry about nonanonymous grading, upper level students don’t really care. You can read more here.


November 29, 2015 | Permalink | Comments (0)

Saturday, November 28, 2015

Why Haven’t Most Law Reviews Transitioned from Print to Digital?

Many law journals distribute their articles online or have online supplements. However, the overwhelming number still publish in print. But how many readers look at the printed volumes and why do law schools continue to shoulder the burden of hard copy printing?

In 2009, a dozen law school librarians signed on to the Durham Statement on Open Access to Legal Scholarship calling on law journals to abandon print in favor of digital dissemination:

 “OBJECTIVE: The undersigned believe

that it will benefit legal education and

improve the dissemination of legal scholarly

information if law schools commit to

making the legal scholarship they publish

available in stable, open, digital formats

in place of print. To accomplish this end,

law schools should commit to making

agreed-upon stable, open, digital formats,

rather than print, the preferable formats

for legal scholarship. If stable, open, digital

formats are available, law schools should

stop publishing law journals in print and

law libraries should stop acquiring print

law journals.

— February 11, 2009

Although some specialized journals have gone digital, few general journals have. In his brief article, Benjamin Keele offers his thoughts on the reason for the slow transition:

This essay discusses why law journals have not readily transitioned to primarily digital publication. It suggests this is because of the perceived connection between prestige and print publication, and relatively weaker support for law journal editors for robust digital publishing. Finally, it offers suggestions to law libraries supporting digital publishing of law journals.

You can access the article here. Ironically, you will find the article easier to read if you download it and print it. I don’t think a major transition will occur until a main journal at a very elite law school makes the switch. Then, others will follow.


November 28, 2015 | Permalink | Comments (0)

The tax implications of post-graduate legal training including school supervised incubator programs

This is a new article by Professors Adam Chodorow (Arizona State) and Professor Philip Hackney (Louisiana State) entitled Post-Graduate Legal Training: The Case for Tax-Exempt Programs which is scheduled for publication next year in volume 65 of the Journal of Legal Education but a draft of which is available now on SSRN here. From the abstract:

The challenging job market for recent law school graduates has highlighted a fact well known to those familiar with legal education: A significant gap exists between what students learn in law school and what they need to be practice-ready lawyers. Legal employers historically assumed the task of providing real-world training, but they have become much less willing to do so. At the same time, a large numbers of Americans – and not just those living at or below the poverty line – are simply unable to afford lawyers. In this Article, we argue that post-graduate legal training, similar to post-graduate medical training, is a good way to address these market failures and reduce the gap in both skills and legal services.

We consider a number of questions regarding how best to structure post-graduate legal training programs, including whether law schools should take the lead in developing them, and, if so, whether to locate such programs within law schools. We then turn to the important tax issues such programs raise. Programs operated within law schools should generally not affect those schools’ tax-exempt status. Tax exemption for stand-alone programs is more complicated, but we conclude that properly structured programs should be granted tax-exempt status, both as a policy matter and under current IRS guidance. We offer suggestions about how best to design programs to come within that guidance and call on the IRS to issue clear guidance for these kinds of programs.


November 28, 2015 | Permalink | Comments (0)

Friday, November 27, 2015

NonLawyers Follow Plain English Principles

Mark Cooney has compared the tenets of legal plain English with the tenets observed by professionals in the literary field. They’re the same!

Plain language is just good writing. Period. That’s all it means. And it’s a writing

style that’s not only embraced but demanded (on pain of rejection) by literary

professionals outside the legal arena. In case you doubt this, let’s look at some submission

guidelines and advice from publishers and literary experts.

You can read more here.


November 27, 2015 | Permalink | Comments (0)

Thursday, November 26, 2015

Widener Law School's new incubator program gets off to a good start

The new issue of Pennsylvania Lawyer Magazine has a short article describing Widener's new incubator program which launched this fall with an initial group of three students. You can read the full article called A Good Start: Incubator Program Helps New Lawyers Learn the Basics of Running a Successful Practice at 37 Pennsylvania Lawyer 42 (November/December 2015) or download it from SSRN here. The following is a brief excerpt:

The three new lawyers sat in the training room at Widener University Commonwealth Law School in Harrisburg, listening to a Philadelphia attorney talk by Skype about how to market a law firm.


“Who are you? What’s unique about you? What do you offer?” Jennifer Ellis asked the group, prompting silent reflection about what the three bring to potential clients. They also got a lesson in Google AdWords, content management systems for websites and where to buy affordable stock photos to illustrate websites without getting into copyright trouble.


The talk isn’t about zealous representation, but it is critical for new lawyers who are launching solo or small-firm careers in a modern, tight legal market. And it is just one component of a new program based in central Pennsylvania that is initiating new attorneys as much into the business of law as the practice of it.


A joint effort of Widener Law Commonwealth and the Dauphin County Bar Association (DCBA), the incubator project kicked off early this year as the first based entirely in Pennsylvania. It provides new legal professionals with Harrisburg office space, computer and printing equipment, training in the work of building a law practice, mentoring and networking support.


The three inaugural participants are recent Widener Law Commonwealth graduates who, in exchange for their acceptance into the one-year program, agreed to pay for their malpractice insurance and commit to 100 hours of pro bono legal work through MidPenn Legal Services, a nonprofit providing free civil legal assistance to low-income families in crisis. Participants are also encouraged to take on “low bono” clients.


“This program is dynamic because it not only gives the new attorneys legal experience and business skills, it adds affordable legal services to the community,” according to Robyn L. Meadows, who was serving as interim dean of the law school when the incubator program launched in January. “We hope it will build a lasting appreciation for the importance of assisting the underserved, no matter here the attorneys’ careers take them.”


. . . .


The three initial participants in the Dauphin County program, Patrick Daniels, Mark Calore and John Sweet, were all given office space on the lower level of the DCBA building on Front Street in Harrisburg. It is a professional setting in the prime business district. The bar association provides furniture, utilities and wireless Internet service as well as other less glamorous things such as mail service and trash removal, important but pesky details to new lawyers trying to get a foothold. The law school provides computers and space for files.


. . . .


Participation in the program includes a series of training sessions coordinated by the law school, such as the law-firm-management session with Ellis. Other training topics have included financial planning and setting up business bank accounts to comply with regulations, setting up accounts for tax purposes, keeping client funds separated and marketing. The DCBA makes networking opportunities available. The participants are welcome to attend all the weekly lunch-and-learn sessions at the bar association at no cost. They learn from the speakers and from the lawyers sitting next to them. “That’s a good networking opportunity,” said Daniels, who is making the continuing-education programs a priority. “It’s just an added benefit to the experience.”


. . . .


November 26, 2015 | Permalink | Comments (0)

Word of the Year

The Oxford Dictionaries announces the “word of the year”: an arguably nonword, an “emoji.” What is an emoji? Here is an extensive list of these typographical wonders. Specifically, The prize goes to  the "tears of joy" emoji:

Apple's Face With Tears of Joy  Here are the runner-up candidates:

ad blocker, noun: A piece of software designed to prevent advertisements from appearing on a web page.

Brexit, noun: A term for the potential or hypothetical departure of the United Kingdom from the European Union.

Dark Web, noun: The part of the World Wide Web that is only accessible by means of special software, allowing users and website operators to remain anonymous or untraceable.

lumbersexual, noun: a young urban man who cultivates an appearance and style of dress (typified by a beard and checked shirt) suggestive of a rugged outdoor lifestyle.

on fleek, adjective (usually in phrase on fleek): extremely good, attractive or stylish.

refugee, noun: A person who has been forced to leave their country in order to escape war, persecution or natural disaster.

sharing economy, noun:  An economic system in which assets or services are shared between private individuals, either free or for a fee, typically by means of the Internet.

they (singular), pronoun: Used to refer to a person of unspecified sex.

You can read more here. :)

Jennifer Romig has created a library of emojis that professor can use in commenting on student papers. You can access this marvelous collection here.


November 26, 2015 | Permalink | Comments (0)

Wednesday, November 25, 2015

Thanksgiving Dedication

On this Thanksgiving day, I would like to thank all those teachers, law professors, and and law firm colleagues who helped me become the legal professional I am today.  In particular, I would like to single out one person who helped me most to develop my personal identity as a lawyer--Robert I. Cusick.

From the dedication to Developing Your Professional Identity: Creating Your Inner Lawyer (2015):

I dedicate this book to the memory of Robert I. Cusick, who was my mentor in legal ethics. Ric was a long-time partner at the law firm of Wyatt, Tarrant, & Combs in Louisville, Ky. Ric “helped draft the Kentucky Bar Association’s procedural ethics rules and served as Chairman of a KBA committee that revised the substantive ethics rules. He also served as a Bar Examiner for the KBA for a number of years.” In 2006, President George W. Bush nominated Ric as Director of the Office of Government Ethics, and he served in this post for five years.

What others have said about Ric:

“Mr. Cusick led a life of service to others. ‘He was a man of character and honor whom treated everyone he met with dignity and respect.’ He was described by many as a ‘lawyer's lawyer.’"

“He was noted for having a special gift for investigating and piecing together ‘what really happened.’”

“He was a man of character and honor and treated everyone he met with dignity and respect. He was a terrific raconteur. He could be counted on. He will be missed.”

OGE's current Director, Walter M. Shaub, Jr., recalls that, "Ric Cusick was a strong advocate for the principle that public service is a public trust, a core principle to which OGE remains committed. He was an ardent believer in the non-partisan values underlying the government ethics program. I admired him for that and considered him a friend. I know that all of us at OGE who had the privilege of working closely with him are going to miss him."

I treasure the time I worked with Ric at Wyatt, Tarrant, & Combs, and I am indebted to him for what he taught me.

[citations omitted]

(Scott Fruehwald)

November 25, 2015 | Permalink | Comments (0)

Should the Bluebook Offer More Citation Signals?

Professors Mark Roark and Warren Emerson believe that current signals like see and cf. are insufficient and offer 13 new ones. Here is their abstract:

Currently, The Bluebook recommends twelve signals that give direction to the author’s intended use of sources. Bluebook signals communicate how the author believes the work cited is relevant to the proposition. But Bluebook signals could communicate so much more.

This Essay recommends thirteen new signals for The Bluebook’s next edition. Indeed, this is no love sonnet to Baby Blue, but rather an urging to sample the selections of intention with the pairings of rote form. These signals would provide more than just form, and delve into the author’s voice in selection of authorities and his or her intention when citing a particular work. They may further do away with the need for parentheticals in some instances, making law reviews more concise, or may expand the need for parentheticals, which would also be good.

Either way, law reviews prevail as these new signals dictate a further march towards author clarity in the pursuit of meaning. While these citations may indulge some level of frivolity, we assure you, they are no mere joke. They relate to the way authors perceive the substance of their work, their position in the academy, and the moral equivalency of their place, substance, and words. This article proposes new signals arranged in taxonomy to their function – elucidating substance, elevating status, and un-equalizing moralities.

Despite the authors’ protestations, the reader might detect a bit of humor here. You can access the article here.


November 25, 2015 | Permalink | Comments (0)

Happy Thanksgiving!

Happy Thanksgiving!

To celebrate, here’s an 8 minute cartoon, Donald Duck’s Nephews (There’s a turkey in here somewhere.)

And here’s Aaron Copeland’s Appalachian Spring.


November 25, 2015 | Permalink | Comments (0)

Add Michigan to the list of states with declining bar pass rates

A hot topic across the legal blogosphere this week has been the nationwide drop in bar pass rates which some attribute to the allegedly declining credentials of law students (and here) resulting from the drop in applications since the number of law school matriculants peaked in 2010 at 52,500. Others argue that the drop in bar pass rates is due to an increasingly difficult exam (here and here). Whatever the reason, with many of the state bar pass rates now accounted for, legal bloggers (here, here here and here) as well as national media outlets like the Wall Street Journal have been reporting this troubling trend.  My co-blogger Professor Sirico posted a handy graphic below that summarizes the data state-by-state. Now you can add Michigan to the list of states reporting a decline in bar pass rates from 2014 when 63% of all test-takers passed to this year when only 61% passed. While the overall percentage drop is not especially disturbing, it's the results from Cooley (now Western Michigan University) that are likely to raise eyebrows. While bar pass rates for U. Michigan  actually increased from last year when 87% for all test-takers passed to this year when 92% passed, for Cooley its bar pass rates for all takers dropped from 44% in 2014 to 39% this year. Of course this is most concerning to the students affected but since Cooley has been a lightening rod for criticism that schools are accepting students who are not otherwise qualified to pass the bar in order to fill empty seats due to declining applications, this will no doubt become a story. Cooley and the other Michigan schools affected by the drop in bar pass rates will likely offer their own explanations for the drop this year while also trying to figure out, like many other law schools nationwide, how to goose up the numbers for next year. 

Hat tip to JD Underground.


November 25, 2015 | Permalink | Comments (1)

Tuesday, November 24, 2015

Bar Pass Rates, State by State

Reported results so far. Not great. From Bar Exam Stats:               (ljs)

Screen Shot 2015-11-10 at 8.08.34 AM

(Alaska results not yet reported.) (Hawaii results: 76% pass rate)

November 24, 2015 | Permalink | Comments (0)

Monday, November 23, 2015

Rhodes Scholar Announced: Elite Schools Win

The Rhodes Trust has announced the names of the 32 men and women chosen as Rhodes Scholars from the United States for 2016. The scholarships cover all expenses for two or three years of study at the University of Oxford, in England.

The American winners were chosen from 16 districts across the United States and represent 22 colleges and universities. American citizens may apply for the scholarships through either the state where they legally reside or the state where they have attended college for at least two years. (From the Chronicle of Higher Education)

You can access the list here. The statement that the winners hail from 22 colleges and universities is accurate, but perhaps misleading. 9 of the 22 come from Ivy League universities. Most others come from other elite universities. It’s hard to believe that those schools have a near monopoly on the best and brightest.


November 23, 2015 | Permalink | Comments (0)

A Ranking: Colleges Where Grads Earn More Than Expected

From the Economist (here):

The Economist’s first-ever college rankings are based on a simple, if debatable, premise: the economic value of a university is equal to the gap between how much money its students subsequently earn, and how much they might have made had they studied elsewhere. Thanks to the scorecard, the first number is easily accessible. The second, however, can only be estimated. To calculate this figure, we ran the scorecard’s earnings data through a multiple regression analysis, a common method of measuring the relationships between variables.

Here are the top ten (more on the website):

Rank %ile College State Expected earnings Median earnings Over/Under
1 99 Washington and Lee University VA
2 99 Babson College MA
3 99 Villanova University PA
4 99 Harvard University MA
5 99 Bentley University MA
6 99 Otis College of Art and Design CA
7 99 Lehigh University PA
8 99 Alderson Broaddus University WV
9 99 Texas A & M International University TX
10 99 California State University-Bakersfield CA

Some surprises here.


November 23, 2015 | Permalink | Comments (0)

Some examples of artificial intelligence applied to the practice of law

Coinciding with the publication of Richard Susskind's new book, The Future of the Professions, which makes predictions about the way technology will change many of the "thinking" professions like lawyering, a U.K. blog called Legal Week notes that a few artificial intelligence applications are already being used by some firms to provide more cost efficient legal services. In a post called Is Artificial Intelligence the Key to Unlocking Innovation in Your Law Firm? legal technology expert Greg Wildisen notes that Foley & Lardner is using technology to offer its clients "an outsourced, turnkey compliance solution" to help them navigate legal issues arising under the Foreign Corrupt Practices Act (Foley partner David Simon describes in a short YouTube video how this new technology-based compliance service works).  Mr. Wildisen also describes how a company called Neota Logic (where he is a managing director) developed a series of employment law apps called ComplianceHR in cooperation with the firm of Littler Mendelson to provide legal assistance to human resource departments.  One of the apps helps users assess whether an individual qualifies as an employee or independent contractor under the laws of 51 separate jurisdictions by accessing some 1,400 cases and considering 80 different factors.  And way back in 2011, a Boston, Massachusetts company called Fair Outcomes had already developed software to help resolve legal disputes with optimum efficiency while eliminating the transactional costs associated with hiring lawyers to negotiate a settlement. Mr. Wildisen also notes that the seminar created a few years ago at Georgetown Law School in which students learn to develop legal apps (and here) to help dispense legal advice is an idea that has spread to other law schools which will accelerate the use of AI-type solutions to the practice of law.  Though many lawyers may be nervous about the potential for AI to replace the need to hire lawyers for certain tasks, Mr. Wildisen reminds us that so many legal questions go "un-lawyered" these days that rather than fear the inevitable spread of technology, lawyers should instead look for ways to leverage it to address some of these unmet needs for cost efficient legal services.  You can read Mr. Wildisen's full post at Legal Week right here.


November 23, 2015 | Permalink | Comments (0)

Chapter 8 of Developing Your Professional Identity: Creating Your Inner Lawyer

Developing Your Professional Identity: Creating Your Inner Lawyer (2015).

Chapter Eight: The Legal Profession and Society

This chapter's purpose is to help students understand how the legal profession views itself and how society views the legal profession.  It takes a unique pedagogical approach to teaching students about the legal profession: it presents quotes about lawyers and the legal system then asks students to reflect on those quotes.


A. Reason as the Basis of Law.

Reason as the Basis of the Law: Sir Edward Coke

“Reason is the life of the law; nay, the common law itself is nothing else but reason…The law, which is perfection of reason.”
Sir Edward Coke

Reflection Questions

  1. What does Coke mean by this quote?
  2. Do you agree with Coke?

B. Law as Experience.

The Nature of the Law: Justice Holmes

“The life of the law has not been logic; it has been experience.”
Oliver Wendell Holmes Jr.

Reflection Questions

1. What does this quote mean?
2. Do you agree?
3. How does Holmes’s view differ from those of Coke, Johnson, and Aristotle?

E. The Common Good as the Basis of Law.

A Republican View of the Origin of Ethics Codes

“The consensus among leading commentators on legal ethics issues is that the legal ethics codes embody an adversarial ethic. An examination of the historical roots of the legal ethics codes in the work of George Sharswood, a nineteenth century jurist and scholar provides an alternative interpretation. Although largely ignored by commentators today, Sharswood's essay on ethics was the original source of most of the modern legal ethics codes. Sharswood believed that a lawyer's principal obligation was the republican pursuit of the community's common good even where it conflicts with either her client's or her own interests. Sharswood defined the common good as the protection of order, liberty, and property in order to provide individual with the opportunity to perfect themselves.”


  1. What is the republican view of legal ethics?
  2. How does having a republican view of the role of the legal system affect lawyers’ professional identities?
  3. Which basis of law do you think is better?
  4. How does our modern view of the legal system reflect these bases?

G. Utilitarianism as the Basis of Law.

“The greatest happiness of the greatest number is the foundation of morals and legislation.”
Jeremy Bentham

Reflection Questions

  1. What does this quote mean?
  2. Do you agree?
  3. What are the alternatives to utilitarianism?
  4. How does Bentham’s concept of law differ those of the other authors in this section?
  5. How does Bentham’s view affect individual rights?
  6. Is our legal system based on utilitarianism? Partially?
  7. Reflect on how a system based entirely on utilitarianism would look.

(Scott Fruehwald)

November 23, 2015 | Permalink | Comments (0)

Sunday, November 22, 2015

Chapter 9 of Developing Your Professional Identity: Creating Your Inner Lawyer

Developing Your Professional Identity: Creating Your Inner Lawyer.

Chapter Nine: My Role in the Legal Profession

This chapter's purpose is to help students discover their role in the legal profession.  It includes sections on

What Area of Law Do I Want to Practice?

My Clients

My Place in the Legal Profession

Standards of Civility

Dealing with Subordinates

As with most of the other chapters, I develop the students professional identities in this chapter mainly though reflection questions and problem solving exercises.

The chapter ends with a discussion of an important part of practical wisdom--moral courage.

(Scott Fruehwald)

November 22, 2015 | Permalink | Comments (0)

10 Ways to Bounce Back After Failing the Bar

At this time of year, we all know law graduates who can use a little reassurance and advice.Not everyone passes the bar exam on the first attempt. Here, Harrison Barnes gives level-headed advice for those who need to move on and try again. Good advice to pass on to students.

In addition, he lists seven famous people who failed the bar on their first attempt. You will be surprised. You know them all.


November 22, 2015 | Permalink | Comments (1)