Friday, September 23, 2016

Illinois: No Equitable Property Distribution Between Ex-Domestic Partners

From the Sedgwick LLP blog:

In Blumenthal v. Brewer, the Illinois Supreme Court was asked to overrule its thirty-seven year old decision in Hewitt v. Hewitt and hold that Illinois would join the vast majority of states in recognizing a cause of action for equitable division of property between unmarried domestic partners. Last Thursday, a divided court declined that invitation, holding that recognizing such quasi-contract claims would be inconsistent with Illinois’ ban on common-law marriages.

Good topic for a Legal Writing problem. You can read more here.


September 23, 2016 | Permalink | Comments (0)

A Blog on Law School Assessment

Larry Cunningham has started a timely blog on law school assessment.  Law School Assessment

"There is a dearth of information about assessment in legal education and, hence, this blog was born.  My goal is to bring together resources on law school assessment in one place while also offering my observations and practical insights to help keep assessment from drowning in lingo and endless report writing.  I hope readers find it valuable."

"Later, as I learned more about assessment—including the differences between course-level and programmatic assessment—I came to the conclusion that, stripped of its at-times burdensome lingo, it was a simple process with a worthy goal: improving student learning through data-driven analysis. The process, I learned, was rooted in a scholarly approach to learning: define outcomes, measure and analyze direct and indirect evidence of student learning, and then use the information learned to improve teaching and learning."

(Scott Fruehwald)

September 23, 2016 | Permalink | Comments (0)

Thursday, September 22, 2016

New study suggests no relationship between student evals and learning

From Inside Higher Ed:

Zero Correlation Between Evaluations and Learning


A number of studies suggest that student evaluations of teaching are unreliable due to various kinds of biases against instructors. (Here’s one addressing gender.) Yet conventional wisdom remains that students learn best from highly rated instructors; tenure cases have even hinged on it.


What if the data backing up conventional wisdom were off? Anew study suggests that past analyses linking student achievement to high student teaching evaluation ratings are flawed, a mere “artifact of small sample sized studies and publication bias.”


“Whereas the small sample sized studies showed large and moderate correlation, the large sample sized studies showed no or only minimal correlation between [student evaluations of teaching, or SET] ratings and learning,” reads the study, in press with Studies in Educational Evaluation. “Our up-to-date meta-analysis of all multisection studies revealed no significant correlations between [evaluation] ratings and learning.”


These findings “suggest that institutions focused on student learning and career success may want to abandon SET ratings as a measure of faculty's teaching effectiveness,” the study says.


The paper considered end-of-course evaluations, not arguably more subjective ratings found on ratings websites.

. . . . 

Continue reading here.


September 22, 2016 | Permalink | Comments (0)

Learning About Teaching by Sitting in Colleagues’ Classes

In this essay, Professor David Gooblar encourages us to learn more about pedagogy by observing the classes of our colleagues (here).

I have observed colleagues as an evaluator for tenure and promotion purposes. I also team teach a course and get a long view of my colleague’s style; he is a prominent practitioner, and by observing him, I have learned ways to improve my teaching.

Professor Gooblar also says that by sitting in the back of a classroom, we get to see what classes are like from the student’s view point. Whenever I sit in a class, I get bored and restless. My experience confirms my belief that classes should be shorter rather than longer. I think 90 minute classes are too long. They are convenient for the professor, but not the student.

The exception is skills classes and other classes that are interactive and give the students the opportunity to break away from the podium format and to interact with one another and the professor.


September 22, 2016 | Permalink | Comments (0)

Wednesday, September 21, 2016

Photo of Holmes at Age 89

I came across this photo on the Lawbook Exchange, on sale for $125 (here). Justice Holmes was taking a stroll during lunchtime on his 89th birthday (1930). Here, listen to his radio broadcast on his 90th birthday. Here is the text of the broadcast:

In this symposium my part is only to sit in silence. To express one’s feelings as the end draws near is too intimate a task. But one thought that comes to me as a listener-in. The riders in the race do not stop short when they reach the goal. There is a little finishing canter before coming to a standstill. There is time to hear the kind voice of friends and to say to oneself that the work is done. But just as one says that, the answer comes: The race is over, but the work never is done while the power to work remains. The canter that brings you to a standstill need not be only coming to rest. It cannot be while you still live, but to live is to function. That is all there is. And so I end with a line from a Latin poet, who uttered the message more than fifteen-hundred years ago, “Death, death, plucks my ear, and says, ‘Live. I am coming.'”

Thnx to Josh Blackman's blog.



September 21, 2016 | Permalink | Comments (0)

A Tightened Bar Passage Standard with Improved Teaching Methods to Help Minorities

Deans Daniel Rodriguez (Northwestern) and Craig Boise (Syracuse) have written an article in the National Law Journal that supports a tightening of the bar passage standard:  A Tightened Bar Passage Standard is Needed.  ("Under the proposed new accreditation standard, law schools must ensure that at least three-quarters of their graduates pass the bar after two attempts, rather than five, as is the case under the current standards.") The deans declare, "Law students invest substantial time, money and energy in law school and the prospect that their investment will not, at the very least, adequately prepare them to pass the bar examination is troubling."  They add, "passing a bar exam should be the minimum criterion against which we measure the choices a law school makes about the students it admits and the quality of its legal education program."

I agree with Deans Rodriguez and Boise that the ABA should enact the proposed standard.  Still, I am troubled by the effect this might have on minority admissions to law school.  Nevertheless, it does no good to admit students to law school if they don't pass the bar.  As the deans write, "The consequence of maintaining the status quo on this issue is distressing: students with a demonstrably small likelihood of success will continue to pay tuition to unscrupulous law schools."

The solution to this dilemma is to tighten standards and to improve teaching methods at the same time.  I have proposed this solution in my article How to Help Students from Disadvantaged Backgrounds Succeed in Law School (Texas A & M L.Rev. 2013).  Among these techniques are active learning, frequent formative assessments, especially in the first year, scaffolding, helping students develop a growth mindset, teaching students about metacognition, and creating self-directed learners.  The solutions I propose in this article have helped minorities in other academic areas succeed.  Of course, they will not help all students, but they will help a significant percentage of students pass the bar who would have failed it otherwise.

These new techniques will require hard work by law schools and professors, at least initially.  But if advocates of greater minority representation in the legal profession are truly dedicated to this goal, the work will be worth it.  Otherwise, those schools advocating greater diversity without significant pedagogical changes will fall into the unscrupulous category mentioned by Deans Rodriguez and Boise.

(Scott Fruehwald)

September 21, 2016 | Permalink | Comments (1)

Tuesday, September 20, 2016

Tips for beefing up your resume from National Jurist

We're well into OCI season by now so these tips from National Jurist magazine are on time and on point. They come from longtime NJM career advice columnist, Fordham pre-law program director and author Hillary Mantis.  Among Ms. Mantis' suggestions -  

  1. Take a leadership position in a law school club: Join or start a club at your law school. Volunteer to be the president or vice president, or take on some other sort of leadership role in the club. This will look great on your resume. Instead of just listing the club, write up a description of what the club does, and your role with it.
  2. Register for a legal clinic at your law school: Most law schools now offer several legal clinics where you receive course credit for helping clients and working on cases. In essence, it mirrors having a legal job. You will immediately have legal experience to describe on your resume.
  3. Join a legal bar association committee: Most major bar associations have student memberships, and these are often free. You can meet local lawyers, get involved in a committee in a practice area that interests you, and add it to your resume. Feel free to use several lines to describe the committee rather than just listing it.

Check out Ms. Mantis' remaining tips here.


September 20, 2016 | Permalink | Comments (0)

Before Answering a Question, a Juror Looks Upward. Is the Juror Dissembling?

From the Holland & Hart law firm blog:

There is quiet in the courtroom after the key witness on the stand is asked the critical question. As the jury, judge, and counsel wait for the answer, the witness pauses, looks up toward the ceiling, then looks back down, and answers.

That scenario invites two questions. One, why look up? The person asking you the question is at the lectern in front of you. The target for your answer is in the jury box to your side. Nothing – certainly not the answer – is on the ceiling. And two, what do the jurors make of that? Is it simply a thoughtful hesitation, a moment to collect your memories, or is it a sign of something worse?

Studies show that looking upward is not a form of “body language” suggesting untruthfulness. However, many jurors will assume the worst. For advice on how to deal with the problem, please click here.


September 20, 2016 | Permalink | Comments (2)

A Reply to An Inquistive Law Student's Letter

A few days ago, one of my co-bloggers wrote about a letter from a former journalist turned 1L student at U. Tulsa School of Law, who questioned the case method used in most first-year classes. Below, I respond to this letter.

Dear Mr. McClendon:

I am impressed by the fact that you are questioning your legal education so early in your first year. A questioning mind is one of the key components of being a successful lawyer. I agree with many of the things you mention in your letter, but I also want to elucidate a few things about learning the law.

First and most importantly, law school is hard because learning is hard. Learning researchers agree that the first principle of learning is that learning is hard work. There are no short cuts to becoming an expert. Thus, you are correct that you should do the case briefings yourself, rather than relying on canned briefs and commercial outlines. You will be happy you did this when grades come out, while your classmates that took short cuts will not be.

The reason you should be briefing cases is that you learn processes through briefing that you cannot obtain from canned briefs and commercial outlines. First, deriving rules is an essential part of being a lawyer. As you will learn in your legal research class, law comes in pieces like a jigsaw puzzle, and lawyers must assemble it. The exact, synthesized law of a jurisdiction is not written down anywhere. Yes, there are treatises and encyclopedias that contain many rules, but these are just summaries. In addition, the law is constantly changing. You must be able to take the rule from a new case and synthesize it with all other cases on that area of law. Even statutory analysis involves reading cases.

It is often hard to find the rule in a case. Courts don’t generally say “here is the rule.” In addition, many judges are poor writers, and you will have to ferret out the rule. Moreover, rules are subject to interpretation. In fact, being able to interpret a rule in your client’s favor is key to being a persuasive lawyer. Finally, you can’t just rely on one case; you must be able to synthesis the rule from many cases.

A second purpose of case briefing is to help you understand the reasoning of the case–how the court derived the rule and reached its conclusion by applying the law to the facts. You will have to do similar reasoning every day as a lawyer. Those who skip this step by relying on canned briefs will become poor lawyers.

While case analysis (the term I prefer) is necessary, you are correct that it could be taught better. Christopher Columbus Langdell invented the case method/Socratic method over 140 years ago. Current education scholarship has demonstrated that there are better ways to educate adults.

You complain about “hiding the ball.” I agree that this is a problem with how the case method is currently taught. As I stated above, law students need to analyze cases to develop the skills to become effective lawyers. However, as you point out, law professors should give students better tools to do so.

All law schools teach students how to brief cases, but this introduction is often superficial. Law students need to be taught to deeply read a case. This includes what to look for in a case, how to connect prior knowledge with new knowledge from the case, and how to evaluate the case. Students also need to learn how to talk back to the case–to question the case, reflect on the case, create couterarguments, etc. Students must also develop the skill of monitoring their learning to determine whether they actually understand the case and its reasoning.

While I do not believe that law professors should tell the students the answer before they read a case, as you declare, they can better set up students to read a case. For example, some casebooks today put questions before a case to focus the reader. Others provide an introduction to the area of law.

Finally, students should not walk out of the classroom confused. A major fault with Langdell’s method is that he expected students to be able to determine the law just from the Socratic discussion in class. A little bit of hide the ball is good; too much creates confusion and hinders learning. Professors should summarize after each case and after each section.

The good news is that many law schools and professors are adopting new, more effective approaches to teaching, which reflect the latest scholarship on how the mind works. I would recommend that you read Michael Hunter Schwartz, Expert Learning for Law Students (2008), Michael Hunter Schwartz & Denise Riebe, Contracts: A Context and Practice Casebook, and my book Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013). Chapter Two of my book covers reading and analyzing cases.

Mr. McClendon, your letter raises questions that many law students share. I hope the above has answered some of those questions. While law school will always be hard, it can be taught in more effective ways. It will also be more enjoyable when professors abandon ineffective methods like hiding the ball.

(Scott Fruehwald)

September 20, 2016 | Permalink | Comments (0)

Monday, September 19, 2016

When to Use a Colon

In legal writing, colons are vastly underused. I find them helpful in improving the conciseness of my writing. I think the problem is that many people are unsure of when and how to use a colon. From the University of North Carolina’s Writing Center (here):

You can use a colon to connect two sentences when the second sentence summarizes, sharpens, or explains the first. Both sentences should be complete, and their content should be very closely related. Note that if you use colons this way too often, it can break up the flow of your writing. So don’t get carried away with your colons!


Life is like a puzzle: half the fun is in trying to work it out.

The Writing Center also explains how to use a colon to introduce a list, a quotation, or an explanation. For example:

We covered many of the fundamentals in our writing class: grammar, punctuation, style, and voice.

Grammar Girl (here) gives a practical tip for determining when you can use a colon:

A quick and dirty way to decide whether a colon is acceptable is to test whether you can replace it with the word namely. For example, you could say, "Grammar Girl has two favorite hobbies, namely, watching clouds and seeing how long she can stand on one foot." Most of the time, if you can replace a colon with the word namely, then the colon is the right choice.


September 19, 2016 | Permalink | Comments (0)

Sunday, September 18, 2016

Looking Beyond the Trends: Whose Our Curriculum Really For? by Pam Armstrong

From the Best Practices Blog: Looking Beyond the Trends: Whose Our Curriculum Really For? by Pam Armstrong.


"But I did, however, recently listen at a ceremony where the head of a non-law institute spoke eloquently about the goal of that educational institution as doing justice and having their faculty involved in field-work toward helping others establish workable justice systems.  Non-lawyers.

Whenever students struggle with understanding a statute or regulation and where I sense a disconnect, I encourage asking who benefits from a policy or something being advocated.  Then, recognizing how easy it is to go along with an idea that is being advocated when it is self-benefitting, I encourage students to ask who is left out and, if appropriate, why we continue to allow others’ priorities to be that determinative."

(Scott Fruehwald)

September 18, 2016 | Permalink | Comments (0)

How Gratifying Should a Legal Career Be?

Career consultant David Behrend has developed a gratification index for assessing how gratifying lawyers find their jobs. I suppose it applies to legal academics as well:

When I ask a client prior to a career consultation session, in the office or via telephone, about their satisfaction or, more likely, dissatisfaction, what I hear is illuminating, heartfelt and very honest. I have developed a “Behrend Gratification Index,” which roughly measures a lawyer’s enjoyment of what he/she does day in and day out in the office or courtroom. Under the Behrend Gratification Index, I believe the everyday work — forgetting pay, supervision, etc. — should be about 75 percent gratifying. A satisfaction level of 66 2/3 percent reminds me of my math grades in school — barely passing. Fifty percent is totally unacceptable. A few lawyers do achieve approximately 90 percent, be it an equity partner with Big Law, or in some cases, a solo practitioner who has found his/her “calling” and made a nice living from it over the years.

If you are not above 66 2/3 percent, he encourages a career change.

You can read more here at At Issue, the newsletter of the Pennsylvania Bar Association’s Young Lawyers Division.


September 18, 2016 | Permalink | Comments (0)

Legal Writing Out of the Box‏

From Kirsten Davis:

Dear Friends,

I hope by now many of you have received in the mail the Stetson Institute for the Advancement of Legal Communication’s newest project, Legal Writing Out of the Box: Ideas Inside.   This is a resource-sharing project and a labor of love for us, and we hope you will join this project by writing a teaching idea card for The Box in the future.  Email us at to get involved.  We will be adding new cards every year.

 If you have any feedback for us on The Box, please let me know.  In addition, if you would like to have The Box sent to a colleague, email

 To learn more about this project, see

(Scott Fruehwald)

September 18, 2016 | Permalink | Comments (0)

A law student perspective on the case law methodology

A former journalist turned 1L student at U. Tulsa School of Law offers his perspective on the traditional case law classroom methodology used since Langdell's day and - guess what? - like generations of students before him, he finds it an unnecessarily frustrating experience. The student, Robert McClendon, is also an occasional columnist for where this piece appears.

Dear Law Professors: Please Stop Hiding the Ball


I’m about a month into my first semester, and the average week has me spending about 60 hours in class or studying, and I would do more, but the subsequent extra-credit course in Divorce and Family Law would only add to my workload.


To be fair, I may be doing more than is strictly necessary to produce competitive results. Some of my fellow students at the University of Tulsa College of Law insist that book briefing and commercial outlines can carry the day come finals. I’m more inclined to believe the conventional wisdom: Law school is just hard. If you want to succeed, you have to put in the work.


So, I diligently brief all my cases. I outline as I go. There are flashcards.


I suspect that at least some of this is needless effort, though, the result of law school’s decision to teach via the case law method. This mystical system, we are told, is a highly effective way of teaching students to “think like a lawyer.”


Yet I’m left wondering, why not simply explain the rule and give us a bunch of novel fact patterns to show us the nuances and make sure we understand it?


. . . .

Continue reading here.


September 18, 2016 | Permalink | Comments (0)

Saturday, September 17, 2016

Great iPad Apps for Trial

In the August 2016 issue of the Michigan Bar Journal, trial lawyer Jennifer Auer Jordan offers advice on a number of Apps to use before and during the trial. Most of the advice is for Apple users.

With technology developing so quickly, article like this one are very helpful for keeping current.

You can access the article by clicking here.


September 17, 2016 | Permalink | Comments (0)

Friday, September 16, 2016

Ruth Anne Robbins: Named a Top Woman in Law

Each year, the New Jersey Law Journal recognizes the outstanding work being done by female attorneys across New Jersey who have had notable achievements in recent years, or who have otherwise made an extraordinary impact on the legal profession. These outstanding attorneys are all making strides to push the profession forward for women.

Professor Ruth Anne Robbins at Rutgers-Camden is one of 25 women named a 2016 Top Woman in Law. She is the only law professor receiving this honor.

Those of us in legal education have long recognized Ruth Anne’s contributions to our field. It is wonderful to see her gaining recognition in the larger legal world.


September 16, 2016 | Permalink | Comments (0)

The Five Stages of Every Legal Career

According to LawCrossing, they are:

  1. Orientation: You figure out the rules of the game.
  2.   Challenge: You prove your competence.
  3.   Establishment: You climb the ladder.
  4.  Cruising: You operate on a comfortable plateau.  5. Disengagement: You begin to let go.

For more elaboration and brief advice on handling each stage, please click here. I think these stages apply to legal educators as well.


September 16, 2016 | Permalink | Comments (0)

Duquesne Conference: Drafting Statutes and Rules

On December 3, Duquesne University School of Law will host its annual Colonial Frontier Legal Writing Conference, this year considering “Drafting Statutes and Rules: Pedagogy, Practice, and Politics”:

Practicing attorneys frequently engage in statutory, regulation, and rule drafting whether it be drafting corporate governance documents, crafting legislative initiatives for non-profit clients, or engaging with highly regulated industries. Despite increasing need for such skills in law practice, the drafting of statutes, ordinances, regulations, and rules (for public laws or governance of non-governmental entities) remains one of the least common law school subjects. Commonly, instruction focuses on the repercussions of poorly written statutes or rules, on the courts’ efforts at application and interpretation of statutory language, and on scholarly criticism of statutes. Instead, law schools should teach students and practitioners how to better draft statutes and similar documents to avoid confusion, ambiguities, disagreements, and litigation.

Duquesne University School of Law's 2016 legal writing conference offers attendees an opportunity to hear from academicians who teach how to write statutory materials, practitioners who craft statutes and similar rules, and other scholars who study all forms of legislation. Lawyers representing corporate and non-profit clients, as well as those practicing in highly regulated areas of law, will find this program helpful in developing both skills in the art of statutory and rule drafting, and in learning about resources available to clients in need of such drafting.

The conference offers many valuable presentations and well-known authorities. You can learn more about the conference here.)


September 16, 2016 | Permalink | Comments (1)

Thursday, September 15, 2016

Hiring Student Law Clerks and Avoiding Conflicts of Interest

From the Thompson Hine law firm blog:

It’s common for law students to clerk for a couple different firms during their law-school years. When a law clerk or a law school graduate you hire has clerked for a firm representing a party adverse to your client, what happens? Is the student or newly-minted lawyer disqualified from working on your matter? Is your whole firm disqualified? Can you screen the clerk/former clerk and solve the problem? Two recent ethics opinions out of Texas and Ohio clarify the rules.

It’s common for law students to clerk for a couple different firms during their law-school years. When a law clerk or a law school graduate you hire has clerked for a firm representing a party adverse to your client, what happens? Is the student or newly-minted lawyer disqualified from working on your matter? Is your whole firm disqualified? Can you screen the clerk/former clerk and solve the problem? Two recent ethics opinions out of Texas and Ohio clarify the rules.

The short answer: The law firm is not disqualified, but must screen the clerk/former clerk from any personal participation in a matter in which he or she had substantial responsibility.

You can read more here.


September 15, 2016 | Permalink | Comments (0)

Program Alert: Dan Markel Murder

ABC News 20/20 Friday, Sept. 16 at 10 p.m. EDT

(Scott Fruehwald)

September 15, 2016 | Permalink | Comments (0)