Wednesday, December 23, 2015

The Importance of Casebooks in Legal Education

I have emphasized several times on this blog that for legal education to change we need to produce casebooks that better educate our students by following the latest research in how learning works.  Professor Carol L. Chomsky has written an important article on this subject.

Casebooks and The Future of Contracts Pedagogy.


"Contracts teachers have long relied on the casebooks they adopt to help them build and shape both the content and the pedagogy of their contracts classes. The Knapp, Crystal, & Prince casebook has been particularly noteworthy in this regard, helping generations of new and experienced law teachers learn and explore contracts doctrine under the guidance of Chuck Knapp and his co-authors. As casebook authors take seriously the forces and trends in academic publishing, the casebooks are bound to change in significant ways, leading to innovation and even transformation of the course itself. Driving the change are at least six developments and concerns: (1) recognition that the course must include more attention to the concepts and skills that matter to practicing lawyers; (2) new accreditation standards that require identification of learning outcomes expected from our courses; (3) the need (if not yet the reality) to have the bar exam be focused less on knowledge and more on skills; (4) perhaps most importantly, increasing knowledge about what good learning practice requires in the classroom; (5) availability of new technologies to deliver more dynamic content; and (6) changing demands from publishers and students, partly as a result of the other forces mentioned. Our teaching is already adapting to the new law school environment, and visionary casebooks, in contracts as elsewhere in the curriculum, can and should lead the way."

Professor Chomsky has summarized the principles of effective learning:

1.  Learning is deeper and more durable when it is effortful and when it is active.
2. Students learn better when new facts and concepts are connected to what they already know and experience.
3. To learn effectively, students need to identify what they do not yet know or have not yet mastered.
4. Testing helps students learn because it interrupts forgetting. It forces information retrieval, which results in more durable memory. Repeated testing reinforces learning, especially if time elapses between learning and testing, and between first testing and later testing, so that retrieval is from long-term rather than short-term memory.
5. Students learn better if multiple topics are interwoven in presentation, and students retain more of their learning if they “jump around” through multiple concepts as they practice or apply their knowledge.
6. The kind of retrieval practice that proves most effective is one that reflects what you’ll be doing with the knowledge later.
7. Self-reflection—after attempting to solve a problem, considering what went right, what went wrong, and what to do differently next time—is a form of information retrieval that reinforces learning the facts and concepts, in addition to helping develop analytical skill.
8. Students learn better by trying to solve a problem before knowing the solution and then filling in the knowledge necessary to solve it.
9. Students learn better when both visual and verbal channels are accessed together.
10. Reading anything, and particularly reading legal materials (cases, statutes, Restatements, and contract documents), is a skill that can be taught through attention to and articulation of the often unspoken methods experts use to read.
11. Students need to progress through increasingly demanding and complex stages of learning, often described by reference to Bloom’s Taxonomy, which specifies that mastery of a subject requires accessible knowledge, comprehension, and the ability to apply, analyze, synthesize, and evaluate.
12. And, finally, students need to understand these principles and research results so that they will appreciate what is asked of them and approach their own studying in a way designed to produce effective results.

(Scott Fruehwald)

December 23, 2015 | Permalink | Comments (0)

Tilting at Stratification: Against a Divide in Legal Education

Tilting at Stratification: Against a Divide in Legal Education by Rebecca Roiphe.

Abstract: Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. This idea is not new. A similar proposal emerged in the early twentieth century. This article draws on the historical debate to argue that this simplistic approach cannot solve the myriad problems facing the legal profession and legal education. Supporters of separate tiers of law school rely on a caricature of the early history to argue that the Bar is acting in a protectionist way to ensure its own monopoly and keep newcomers out of the profession. A closer analysis of the debate in the 1920s demonstrates that those in favor of two separate educational tracks were similarly motivated by status and elitism. They hoped to relegate the bottom tier of the profession to a permanent lower caste. The article draws on the history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers -- not just those who graduate from elite schools -- ought to be trained in the complex nature of the law and its relation to society, culture, and politics.

(Scott Fruehwald)

December 23, 2015 | Permalink | Comments (0)

Tuesday, December 22, 2015

The Growth Mindset and the Power of “Not Yet”

From the Best Practices for Legal Education blog:

Professor Carol Dweck talks about a powerful message:  “not yet”  Her studies demonstrate that when students understand that learning occurs on a continuum and they simply have “not yet” mastered a concept, they develop a “growth mindset” that leads to significant learning gains.

Professor Dweck notes that students with a “growth mind set” engage with the material and develop a passion for learning. They want to see how far they can push themselves. They realize they can improve and that they just have to figure out how to do so. This growth mindset actually engages neurons – a physiological process which paves the way to significant learning gains.

In contrast, she notes that students with a “fixed mindset” seek external validation of their self-worth via a “good grade”.  A fixed mindset causes students to run from failure rather than look at mistakes and failure as opportunities to learn. Students with a fixed mindset literally activate many fewer neurons than those with a growth mindset.

I don’t necessarily buy into Carol Dweck’s whole philosophy, but her thinking here makes sense—if you can get students to think beyond grades as their motivation. You can read more here (Dec. 4).


December 22, 2015 | Permalink | Comments (0)

Tips for avoiding mistakes during a job interview

While some of this is common sense, it's still worth repeating since many law students don't have a lot of experience interviewing for jobs. On the other hand, tips like avoiding the dreaded "chameleon resume" may not occur to a lot of job candidates. And since the job market continues to be a tough one, students need to be well-informed from the start in order to maximize every interviewing possibility. From the Legal Intelligencer

10 Reasons You Weren't Called Back After Interview: Part I


  1. Specifications Were Not Met

In a perfect world, candidates who don't meet a firm or company's specifications should be eliminated from consideration. For instance, if a firm will only consider partners with a $1 million-plus book, there is no point in bringing in a service partner who can't meet that standard, unless some unusual exception is in play. Similarly, if an in-house legal department needs a corporate tax lawyer, someone who doesn't fit that bill should not even apply.


In cases like those, things are relatively clear-cut. Where things get murky, and lead to puzzlement as to a lack of a call back, is when the hiring entity has not spent an appropriate amount of time, before a search ensues, in clearly framing what it needs. Clients such as this may engage in a fishing expedition that unfortunately casts aside good candidates who interviewed well but did not fit the ultimate specifications that came together over time.


Candidates sometimes also trigger this issue by creating chameleon-like resumes that track posted job specifications. This most often occurs in corporate law department searches and can be enormously frustrating to HR departments and general counsel. . . . . 


    2. Insufficient Preparation


It is somewhat hard to fathom, with the wealth of information available at our fingertips, that some candidates do not adequately prepare for an interview. Nevertheless, this happens more often than one may imagine, as has been reported by firms and companies.


Hiring entities look for candidates who have done their homework; this is doubly so for lawyers, whose hallmark is preparation. A review of a firm's website is a start, but thorough preparation, which separates candidates (and leads to call backs), goes much deeper. A review of industry trends, research on competitors, and consideration of key developments in the organization, among many other factors, can be found by conducting more intensive online study. 

. . . . 

Continue reading here.


December 22, 2015 | Permalink | Comments (0)

Monday, December 21, 2015

Christmas and the State of the Nation

At some point, we can’t be silent in the face of awful things going on in our country. Here is a column by my college classmate, journalist Martin Snapp (Dec. 20, 2015). He titles it “A Christmas Jeremiad.”


December 21, 2015 | Permalink | Comments (0)

Should Law Librarians Have Voting Rights?

At many, if not most law schools, library directors have voting rights. But what about the other librarians? I hear that a number of schools are just considering that question.

Librarians usually teach Legal Research to 1Ls, and a growing contingent teach a course in Advanced Legal Research. Librarians often have more of a personal relationship with students than do other faculty members. They are an integral part of their schools. Shouldn’t they have a role in governance?


December 21, 2015 | Permalink | Comments (0)

Wrap Up: Developing Your Professional Identity: Creating Your Inner Lawyer

Michael Hunter Schwartz has written the following in his introductions to the innovative Context and Practice series from Carolina Academic Press:

"The problems with tradition law school instruction begin with the textbooks law teachers use.  Law professors cannot implement Educating Lawyers and Best Practices using texts designed for the traditional model of legal educationMoreover, even though our understanding of how people learn has grown exponentially in the last 100 years, no law school text to date even purports to have been designed with educational research in mind."

What Dean Schwartz has said about law textbooks in general applies even more strongly to the teaching of legal ethics.  Teaching the rules and how to apply the rules is not enough.  Law schools need to help their students develop their professional identities.  Law professors must help students understand who they are, what the legal profession involves, and how they can fit into this profession.  While this journey requires that students understand the ethical rules, it also requires that they learn to how make difficult judgments that affect themselves, other people, and society.  To do this, law students need to able to look within themselves.  This is why my book consists mostly of reflection and problem-solving exercises.

It was a pleasure writing this book, and I hope that students benefit from my book.

Download sample chapter.

(Scott Fruehwald)



December 21, 2015 | Permalink | Comments (0)

The use and abuse of cognitive enhancing drugs in law school

A new student authored law review article explores issues surrounding the use and abuse of so-called cognitive enhancing drugs like Ritalin and Adderall in law school and what, if anything, legal educators should do about it. As author Tessie Smith notes, as of yet there are no empirical studies on how widespread a problem the illicit use of these drugs is among law students though there is plenty of anecdotal evidence suggesting it is indeed a serious problem. Ms. Smith, a recent graduate of University of Dayton School of Law, outlines the medical, ethical and professional issues the use of these drugs raise and suggests ways that law school administrators and the ABA can address the problem. The article is entitled Worshiping at the Altar of Progress: Cognitive Enhancing Drugs in Legal Education and is available at 40 U. Dayton L. Rev. 225 (2015). From the introduction:

“We worship at the altar of progress, and to the demigod of choice, . . . [b]oth are very strong undercurrents in the culture and the way this is likely to be framed is: ‘Look, we want smart people to be as productive as possible to make everybody's lives better. We want people performing at the max, and if that means using these medicines, then great, then we should be free to choose what we want as long as we're not harming someone.”‘ - Anjan Chatterjee MD


When Dr. Anjan Chatterjee, professor of neurology, made this statement, he boldly defended the use of drugs to enhance cognition. Several years prior, he predicted sweeping impacts from cognitive enhancing drugs like Adderall and Ritalin; he believed in their use and in the possibility that their benefits could resuscitate failings in all areas of academia. He labeled the use of cognitive enhancers as “cosmetic neurology” and compared their uplifting, self-improving affects to that of cosmetic surgery-which was also once scorned by the public. As promising as that sounds, there are side effects that must be considered, questions that must be asked. Can abusing cognitive enhancers give unfair advantage in academics or in the workplace? Can they in fact be harmful to users and to others?


Society demands a certain level of achievement of each and every individual from a very young age and a deep desire for approval takes hold of the human psyche. This desire for approval on its own is powerful enough to drive and shape an individual to push for lofty achievement and six-figure success; success becomes an addiction. As a result, it is not uncommon for people to go to extreme measures to achieve their goals and end ahead of the rest; extreme measures to cheat the system. In our ever competitive world, some have even said, “[i]f you're not cheating, you're not trying” hard enough. And people will cheat by any means possible, even subjecting themselves to illegal practices and sometimes drugs. Consider, for example, the story of Eldo Kim, an average twenty-year-old Harvard undergraduate, who in 2013 sent false bomb threats to his school in hope of avoiding finals for which he was unprepared. Think of Caroline D., a fifty-two-year-old mother, who allegedly posed as her nineteen-year-old daughter and sat for an English exam.


In specific professions, performance-enhancing drugs have become the preferred method of cheating. In sports, for example, the use of steroids, stimulants, and growth hormones has a very extensive history and has been documented and debated for decades. Now, the abuse of cognitive enhancing drugs that help students get ahead are quickly gaining popularity and the implications are slowly being realized. Similar to the competitive world of sports, students in the academic arena are collapsing under the debilitating competitive pressures and feeling like they too can no longer refuse these drugs. In no level of education is there the amount of competitive pressure placed on students as you can find on students in law schools.


As this Comment will show, using cognitive enhancing drugs, such as Adderall and Ritalin, impacts competition in legal education the same way steroid usage influences the outcome of a race or game. That is to say, stimulant abuse yields unfair competitive advantage, which can cause harm to both the user and others. Although stimulant abuse represents a problem at nearly every level of education, the effects and consequences for students in law schools are especially troubling. In addition to their fiercely competitive environments, law schools are institutions that hold high values, and follow specific ethical codes, restrictions, and professional oaths that set law students and graduates apart from the general public. Therefore, failing to address this problem undermines the integrity of the entire legal profession.


This Comment reveals how and why using performance enhancers to cheat the system is a persistent and timeless problem by discussing the most common cognitive enhancers, Adderall and Ritalin. Section II specifically explores the effects cognitive enhancing drugs have on their users, and exposes the ease of access, both in obtaining a prescription and buying it on the black market. Section II also details the dangers these drugs pose to non-prescription users.


Additionally, Section II addresses the prevalence of cheating with cognitive enhancing drugs in education, how law schools are environments of particular concern, and how right now, the “perfect storm” is brewing for abuse within legal education. Section II discusses the impact of off-script scholastic steroid use. It describes how the legal profession suffers both in and out of law schools by detailing the history and tradition of high ethical standards and professionalism every lawyer promises to follow. Finally, Section II focuses on the vehement competition in the legal education system and how both the system and current legal job market drives students to cheat.


Section III suggests and analyzes potential solutions to calm this storm through law schools and the American Bar Association (“ABA”), who have the power to stop this form of cheating. This Section specifically examines the honor code system in place within law schools and significant Fourth Amendment litigation regarding various drug screening programs, which have been implemented in the United States. This Comment closely examines suspicionless drug screening programs that have been held Constitutional and discusses similar formats that could be initiated by the ABA. Regardless of the resulting solution, the purpose of this Comment is to initiate contemplative discussion of this important issue.


December 21, 2015 | Permalink | Comments (0)

Sunday, December 20, 2015

Tulane to Offer Masters in Labor & Employment Law


Tulane University Law School is launching a new online program leading to a master's degree in labor and employment law. Scheduled to begin in May, the program will let students from around the world receive a high-quality legal education in employment law, Tulane said.

Leading the program is Joel Friedman, a 40-year Tulane Law faculty member and an authority on employment and labor law. The degree offers a 25-credit hour master's degree and may be completed in less than two years. It is designed to help human resources professionals and other workforce leaders advance their careers in the employment field.

Tuition for the program will cost $32,000. All coursework is designed and taught by Tulane faculty.

You can read more here.


December 20, 2015 | Permalink | Comments (0)

Lawmakers in 10 States Calling for Debt Free College

From Time:

Local lawmakers in ten states including New Hampshire, Iowa and Massachusetts announced a new push for legislation on Monday to make attending public colleges in their states debt-free.

The state legislators are introducing different pieces of the debt-free college agenda as well as resolutions and study committees. The effort is part of a national campaign among progressives to make college more affordable, a push that has swayed the Democratic candidates for president.

You can read more here. Debt free law schools? Probably not soon.


December 20, 2015 | Permalink | Comments (0)

Saturday, December 19, 2015

College Admissions, Affirmative Action, and the Mismatch Theory

In the oral argument in Fisher v. University of Texas at Austin, Justice Scalia set out the “mismatch theory”:

Justice Scalia: There are — there are those who contend that it does not benefit African-Americans to —  to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well. One of — one of the briefs pointed out that — that most of the — most of the black scientists in this country don’t come from schools like the University of Texas. Mr. Garre: So this court — Justice Scalia: They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them.

Is Justice Scalia correct? The answer is not entirely clear if we are speaking about underprepared students in general and not about a particular racial class. Here is support for Justice Scalia from Professor Richard Sander (UCLA Law). And here is disagreement from Mathew Chingos (Urban League) in a Brooking Research Paper. I don’t think the mismatch theory has been proven, and I think that opponents are correct in calling for more empirical research. Of course, focusing the discussion on African Americans is appalling.

As far as responsible law schools go, they focus heavily on the bar pass rate and employment statistics. The importance of these criteria steers them away from admitting students who might diminish their statistical success.


December 19, 2015 | Permalink | Comments (1)

The Practice Value of Experiential Legal Education: An Examination of Enrollment Patterns, Course Intensity, and Career Relevance

Important new study of experiential education:

The Practice Value of Experiential Legal Education: An Examination of Enrollment Patterns, Course Intensity, and Career Relevance by Margret Reuter & Joanne M. Ingham.


"How will law schools meet the challenge of expanding their education in lawyering skills as demanded from critics and now required by the ABA? This article examines the details of the experiential coursework (clinic, field placement, and skills courses) of 2,142 attorneys. It reveals that experiential courses have not been comparably pursued or valued by former law students as they headed to careers in different settings and types of law practice. Public interest lawyers took many of these types of courses, at intensive levels, and valued them highly. In marked contrast, corporate lawyers in large firms took far fewer. When they did enroll in such courses, they too found the courses delivered good value to their preparation for practice, but at distinctly lower levels. The analyses provide three valuable takeaways relevant to most, if not all, law schools — i) all lawyers, whatever their practice, give high value marks to experiential learning courses that had certain intensity characteristics (e.g., level of student responsibility, time-on-task, multiple experiential learning courses); ii) career relevance is fundamental to understand how well the learning value of experiential learning coursework endures and supports graduates’ early practice; and iii) schools should acknowledge that students with certain profiles have systematically dodged experiential learning courses. If a school wants to avoid malcontents in the classroom, they should address experiential learning course intensity and career relevance as they plan to meet the ABA’s new standards requirements for experiential education."
The article begins with this quote by John Dewey:
"The belief that all genuine education comes through experience does not mean that all experiences are genuinely or equally educative. . . . The central problem of education based on experience is to select the kind of present experiences that live fruitfully and creatively in subsequent experiences."

This is an important point.  Now that law schools are adopting more experiential education, we need to determine what types of experiential education work best.


December 19, 2015 | Permalink | Comments (0)

Friday, December 18, 2015

Weekend Fun: "Knowledge comes to those who follow the chicken"

It's been a long stretch since the New York Times last treated us to a dramatic reading from a wacky deposition transcript and this most recent installment in the Op-Doc series does not disappoint.  It's a verbatim excerpt from a 2001 deposition of a plaintiff in property dispute filed in Mississippi. As you'll see and hear, the plaintiff has a very special affinity for the chicken which, according to him, is more fierce and brave-hearted than the mighty eagle. In the deponent's words: "the chicken will carry you down the darkest alleys of the world" while "the eagle will take you down that [same] road by yourself to get you killed."    Enjoy. 


December 18, 2015 | Permalink | Comments (0)

How to Conduct Internet Research

Here is a short, helpful article on conducting internet research on secondary sources. Gijs Van Dijck, How to Conduct Legal Academic Research When Relying on Internet Sources? What makes it stand out is that it offers a methodology. Worth passing on to your students. Here is the article’s conclusion:

This paper discusses how to identify and select relevant publications when mainly relying on Internet sources. It is argued that an effective search strategy relies on a combination of three techniques: identifying relevant experts, reference tracking (or snowballing), and conducting an independent literature search. Google Scholar, Google Books, SSRN, ResearchGate, and are search engines or databases that can or do provide for academic publications without charge. However, one may need to narrow-down the search results. Several heuristics are available to make such a selection without having to read every single publication. These heuristics include looking at publication ranking, publication recency (in what year was the publication published?), publication outlet, author status, and article length. However, heuristics cannot replace reading. In the end, it is about content.


December 18, 2015 | Permalink | Comments (0)

Christian Canadian Law School’s Grads Can Practice Law

A British Columbia Supreme Court judge has reversed a decision by the province’s law society that would have banned graduates of a Christian law school from practicing law in the province.

The Law Society of British Columbia (LSBC) originally agreed to recognize graduates of the proposed law school at Trinity Western University (TWU), the largest Christian university in Canada, in April 2014.

They reversed their decision in October 2014 with a vote of the members of LSBC, citing as the reason a covenant that all TWU students sign promising they will not have sex outside of a marriage between a man and a woman, as well as uphold other biblical ideals.

Of the approximately 13,000 members of LSBC, 74 percent voted to deny accreditation to TWU graduates.

You can read more here. A different world from ours.


December 18, 2015 | Permalink | Comments (0)

Thursday, December 17, 2015

Survey of Salaries at “Big Law” Law Firms

Professional Identity Formation: Working Backwards to Move the Profession Forward

In her article on professional identity formation, Professor Christine Cerniglia Brown declares, "Imagine if all law school courses set the development of personal conscience through self-reflection as a learning goal in order to endorse this trait as a core value for future professionals." 

Professional Identity Formation: Working Backwards to Move the Profession Forward by Christine Cerniglia Brown.


This article seeks to identify the core values that necessary for future legal professionals to have and discusses the need to ensure that legal education incorporates appropriate learning objectives that fosters the development of these values. As “digital natives”, students of the millennial generation possess a unique set of skills but may require opportunities in legal education to address a deficit in the social skills required to be successful attorneys. Millennials may offer hope for the future based on their sense of community and their ideals for success but legal educators should work to encourage behavior we want to ultimately see in future lawyers, to address the needs of our current student body, and to cultivate core values in future professionals.



December 17, 2015 | Permalink | Comments (0)

Wednesday, December 16, 2015

LSAC has revised upward the number of law school applicants for Fall 2016

A little over a week ago, the LSAC had reported that the number of law school applicants was up only 0.6% from last year while the number of applications was down 4.1%. That seemed odd given that the number of prospective law students taking the LSAT had increased compared to the previous year for each of the last four administrations of the exam. But now the LSAC has revised its figures by reporting that the number of law school applicants has increased 3.4% from this time last year (as of 12/11/15, to be exact) and that the number of applications is now down only .5% compared to last year. The LSAC reports the data here and provides some charts showing the month-to month numbers for both applicants and applications for each of the past 3 years.

Hat tip to the Brian Leiter's Law School Reports Blog via the Tax Prof Blog.


December 16, 2015 | Permalink | Comments (0)

Another School Sued Over Allegedly Misleading Employment Statistics

Another School Sued over Allegedly Misleading Employment Statistics

This time, it’s Thomas Jefferson. You can read more here at the Orange County Register. What is the ABA’s response to these lawsuits?

Barry Currier, managing director of accreditation and legal education at the ABA, said the organization isn’t done improving the employment data it releases, but warned that more information would not necessarily help prospective students.

He said the LSAT was not a good way of determining whether a student would pass the bar, and said some of the criticism of schools fails to account for changes in the job market for law school graduates.

“We’re letting our concerns about employment and the job market, over which law schools have no control, drive too much of this conversation,” he said.


December 16, 2015 | Permalink | Comments (0)

And another law school cuts tuition in an effort to ease student debt

The Wall Street Journal Law Blog is reporting that Texas A & M Law School is cutting tuition for in-state students to $28,000 per year though tuition will stay the same for out of state candidates. Currently non-residents pay $33,092. As the Wall Street Journal notes, other schools that have cut tuition have benefited by a boost in enrollment.

Another Law School Cuts Tuition, This Time in Texas


In the face of staggering debt loads for law school graduates, one Texas school is lowering its price tag.


Texas A&M University School of Law is dropping tuition and fees for Texas residents by 15%, the school said last week, to $28,000.


The price for students coming from outside Texas, currently $33,092, isn’t dropping. However, Texas A&M said it’s going to hold the line on tuition for all new and current students starting next fall, with rates locked in for four academic years from the date of enrollment.


The changes will kick in next fall, three years after Texas A&M acquired the law school, which was previously a private institution called Texas Wesleyan University School of Law. The move aligns Texas A&M with the majority of public law schools, which have lower rates for in-state residents.


Public law schools accredited by the American Bar Association charged in-state students a median price of $22,209 in tuition and fees in 2013, the most recent year available, compared to $33,752 for out-of-state students.


Milan Markovic, a law professor at Texas A&M, said concerns about rising student debt drove the change. “We want our students to be able to have less difficulty obtaining the full value from their law degrees,” Mr. Markovic said, noting that the vast majority of the school’s students come from Texas and will benefit from the change.


. . . . 

Continue reading here.


December 16, 2015 | Permalink | Comments (0)