Friday, March 31, 2017
So, what else is new? Here’s an in-depth study that confirms what most of us think.
All the analyses revealed an attractiveness bias in which the attractive candidates were evaluated more favorably than unattractive candidates.
A job sex-type X applicant sex interaction revealed that males were evaluated more favorably for male-typed positions and females for female-typed positions. . . .
The findings suggest that the bias is robust across stimuli as well as human participants. No evidence was found for a beauty is beastly effect. Exploratory analyses suggested that a bias against attractive females is limited to a narrow domain of jobs. [I fixed what appears to be a typo in the original.]
You can read more here, Robert Dipboye & Lyndsey Dhahani, Exploring the Effects of Physical Attractiveness in Job Applicant Evaluations: Taking Into Account Stimulus Variability.
Bob Dylan will be accepting his Nobel Prize in literature this weekend, according to the permanent secretary of the Swedish Academy. In a blog post Tuesday, Sara Danius announced the "good news" that members of the academy will be meeting with Dylan when he makes a tour stop in Stockholm.
"The Swedish Academy is very much looking forward to the weekend and will show up at one of the performances" Dylan is delivering on Saturday and Sunday, Danius writes. "The Academy will then hand over Dylan's Nobel diploma and the Nobel medal, and congratulate him on the Nobel Prize in Literature."
In a previous post, Danius was careful to note that the tour date in Stockholm had been planned well before Dylan won the prize, which he was awarded in October "for having created new poetic expressions within the great American song tradition," according to the Swedish Academy's citation.
Will Dylan ever deliver the required Nobel lecture? I doubt it. No class (IMHO)
You can read more here.
How are Law Schools Responding to the New Learning Outcome and Learning Outcome Assessment Requirements?
As you probably know, the ABA recently amended its standards to require law schools to adopt and assess learning outcomes. There have recently been two conferences concerning these issues: “The Next Steps of a Professional Formation Social Movement,” at St. Thomas School of Law on February 16-18–https://www.stthomas.edu/law/events/ symposium-21717.html and The University of Detroit-Mercy Law Review symposium, on March 2, 2017, which reviewed the impact of learning outcomes and assessment http://www.udetmercylrev.com/symposium/outcome-measure-legal-education-symposium. Professor Benjamin Madison has summarized these conferences on the Best Practices blog.
A few excerpts:
"Having taken part in two recent symposia on learning outcomes (PLOs) in legal education, I was encouraged to see the number of law schools that are taking advantage of the recognized pedagogical benefits of adopting and assessing learning outcomes."
"I saw evidence at each symposium that schools are going beyond the mandatory PLOs and are shaping their learning outcomes for knowledge, skills, and values beyond the minimum. That phenomenon suggest schools recognize the pedagogical value of outcome-based education and are seeking to provide more than the minimum."
Concerning the St. Thomas conference, "One of the primary themes of the conference was that between thirty and forty law schools had adopted learning outcome that incorporated professional formation, consistent with the third apprenticeship advocated by the Carnegie Institute’s Educating Lawyers," even though the standards don't require this learning outcome. "In short, the symposium demonstrated the steady increase of faculty and schools advocating for integration of professional identity formation into the legal curriculum." [I hope that more law schools will do so because professional formation is critical to 21st-century lawyers.]
The Detroit-Mercy Law Review Conference "reviewed the impact of learning outcomes and assessment—both institutional assessment of the degree to which students attain the outcomes law schools state as objectives, and more creative assessment in law school classes in the form of both formative and multiple summative assessments." "The symposium highlighted again PLOs being adopted by a wide range of schools that exceed the minimum of ABA Standard 302."
Professor Madison concluded, "The message of such a response to the advent of learning outcomes in legal education seems to be clear: law schools are willing to use this proven method of ensuring educational quality to improve their programs, not just in the least possible way but in a manner that will help law students achieve the most from their time in school." "Despite fears of widespread recalcitrance, a substantial number of law schools appear to be making a genuine effort to improve their programs."
When I learned of the ABA's new learning outcome requirements, I was hopeful that they would lead to significant improvement in legal education. Looking at outcomes, rather than inputs, causes a radical change in how one views education. I am happy to hear from Professor Madison that many law schools are using the new standards to improve the education they give to their students.
Thursday, March 30, 2017
We propose Court’s caseload with a “lottery docket” of cases selected at random from final judgments of the circuit courts. The Court currently possesses almost unfettered authority to set its own agenda through its certiorari jurisdiction. By rule and custom, the Court exercises that discretion by selecting cases that it sees as important, in a narrow sense of that term.
It signals to circuit courts that their decisions are unreviewable — and thus unaccountable — in unimportant cases. And it passes over many cases that are important in a less narrow sense. . . .
More fundamentally, we question the premise that only “important” cases deserve the Court’s attention. The legal system would be improved if every Term, the Supreme Court were forced to decide some unquestionably unimportant cases — run of the mill appeals, dealing with the kinds of legal questions that the lower courts resolve every day. Over the long run, a lottery docket would offset the pathologies of the certiorari system without depriving the Court of its ability to resolve questions that have divided the lower courts.
Whether the Court adopts the proposal (I doubt it, though some state supreme courts might consider it), the proposal encourages us to think about the shortcomings of the current certiorari system.
You can read more here, Daniel Epps & William Ortman, The Lottery Docket, forthcoming in the Michigan Law Review.
While we’re considering proposals for improving Supreme Court practice, let me shamelessly promote my article, Louis J. Sirico Jr. A Proposal for Improving Argument before the United States Supreme Court, 42 Pepp. L. Rev. 195 (2014) (here). I mailed reprints to all the SCOTUS Justices, and two of them we kind enough to send me letters saying that they had received the copies. Maybe other appellate courts will consider my proposal.
From the Miami Herald:
A Miami defense lawyer’s pants burst into flames Wednesday afternoon as he began his closing arguments in front of a jury — in an arson case.
Stephen Gutierrez, who was arguing that his client’s car spontaneously combusted and was not intentionally set on fire, had been fiddling in his pocket as he was about to address jurors when smoke began billowing out his right pocket, witnesses told the Miami Herald.
He rushed out of the Miami courtroom, leaving spectators stunned. After jurors were ushered out, Gutierrez returned unharmed, with a singed pocket, and insisted it wasn’t a staged defense demonstration gone wrong, observers said.
Instead, Gutierrez blamed a faulty battery in an e-cigarette, witnesses told the Miami Herald.
“It was surreal,” one observer told the Miami Herald.
You can read more here.
Wednesday, March 29, 2017
Sometimes, we receive too many requests on which to expend our time and resources, for example, one more committee assignment, one more request to review a manuscript. At the Chronicle of Higher Education, Professor Robin Bernstein offers suggestions for politely deflecting these requests. (I admit that I rarely say no and pay the price.). You may agree with some of these strategies (abridged):
Volunteer someone else — strategically. [For example] "I received your invitation to review ‘Boring Manuscript’ for Obscure Journal. Unfortunately, I have too many reviewing tasks on my plate right now, and I’m unable to add this one. Professor So-and-So at X University has published on this topic, and would be an ideal reviewer for this manuscript."
Don’t explain. [For example] "Thank you for this invitation. Unfortunately, I’m unavailable to participate. I appreciate your thinking of me."
Do explain. When you have an unassailable reason that will stop the conversation in its tracks, you may choose to volunteer it. If you want a person never to contact you again, you may say so. And again, don’t apologize or bargain.
[For example] "I have no expertise in your journal’s subject area or discipline. I will never be an appropriate person to review a manuscript for your journal. Please do not contact me again. Thank you."
Set your own policies. Create guidelines to help you decide when to say no. These policies can be publicly stated ("I never write a recommendation with less than two weeks’ notice") or privately avowed.
For example, every year, I commit to 12 external-review projects (evaluating article manuscripts, book manuscripts, grant applications, or tenure-and-promotion dossiers). That number doesn’t include reading work by my students, mentees, or friends. After I’ve said yes to 12, I say no to all further requests.
Just hit "delete." Some requests are unreasonable or inappropriate, and they issue from people who have no power over you. [I don’t agree with this one. LJS]
You can read more here.
Tuesday, March 28, 2017
What is the Oxford comma? An article in The Guardian (here) explains:
The Oxford comma is used before the words “and” or “or” in a list of three or more things. Also known as the serial comma, its aficionados say it clarifies sentences in which things are listed.
As Grammarly notes, the sentences “I love my parents, Lady Gaga and Humpty Dumpty” and “I love my parents, Lady Gaga, and Humpty Dumpty” are a little different. Without a comma, it looks like the parents in question are, in fact, Lady Gaga and Humpty Dumpty.
In a recent case in Maine, a statute omitted the Oxford comma, and, as a result, drivers for a dairy company were entitled to overtime pay. The statute included an exemption from the obligation to provide overtime pay”
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.
You will note that there is no comma after “shipment.” Therefore, the First Circuit held that the exemption applies only to employees who both pack and distribute the enumerated items. Here the drivers only distributed the items, so the exemption does not apply to them and therefore they are entitled to overtime:
Specifically, if that [list of exemptions] used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform . . . .
You can access the opinion here.
Of course, in some cases, the comma is not necessary for clarity, but these instances should be the exception rather than the rule.
Opposition to Proposed Elimination of Rule Requiring Full-Time Faculty to Teach at Least Half of Every Law School’s Upper-Level Courses
"The American Bar Association is considering deep-sixing a rule requiring full-time faculty to teach at least half of every law school’s upper-level courses—a proposal likely to ruffle the feathers of professors who fear it would allow schools to essentially outsource the second and third year to adjuncts." (Law.Com) "Eliminating the requirement would provide law schools more room to experiment with how they deliver classroom instruction and would also allow them to cut costs, according to the ABA committee that proposed the change." Professor Paul Horwitz supports the proposal: "If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice."
However, the Society of American Law Teachers (SALT) strongly opposes the proposal "to preserve the quality of students’ educational experiences." "Students need to have access to faculty members outside of classroom time to be able to go over things that confuse them, to be counseled on how their education fits with their career aspiration and things like that," said Denise Roy, the director of externships at Mitchell Hamline School of Law and co-president of the Society of American Law Teachers, the largest group of law faculty in the country. "Adjunct faculty typically are not available on campus outside their teaching hours." "Having full-time professors teach only first-year courses would create a problem when it comes to the full-time faculty’s mandated role in shaping all three years of legal education, Roy cautioned." "The faculty has responsibility for the overall educational program, according to the standards," she said. "I’m talking about responsibility for designing and setting policy, and determining what’s going to be offered and when. It’s hard to imagine how that would be done if the full-time faculty only taught in the first year. How would they have the experience and context to be able to make the decisions needed for the coursework beyond the first year?"
I agree with SALT but for a more fundamental reason. Law students need to be taught by professors who are experts at teaching. Good teaching requires not only subject-matter expertise, but also the ability to convey the material to students and to help students become self-regulated learners. Part-time teachers generally can't do this. I agree that most law schools need to adopt a more practice-driven approach, but this should be done by hiring full-time professors who have practice experience, as clinicians and legal writing professors currently do.
We should not be doing innovation for innovation's sake. We should only adopt innovations that better legal education.
Disruption is a craze right now, but we need the right kind of disruption. Johann N. Neem of Inside Higher Ed has recently cautioned that "Let’s Not Rush Into Disruptive Innovation." He writes, "Everywhere one turns, the idea of disruptive innovation continues to spread, even as academics have cast doubt on the theory’s validity. Put on the agenda by scholars such as Clayton M. Christensen and Henry J. Eyring, the idea presumes that old institutions, including colleges and universities, will be hard-pressed to change fast enough to meet new external environments. Instead, new technologies and organizations will outcompete the old, even if -- and, in fact, because -- the new ones offer a subpar but cheaper product."
"But such claims have often been married to the presumption that new technologies have sped up the rate of social change, making existing institutions even more vulnerable. And it is this piece -- the narrative of speed -- that has led so many advocates of disruption to believe that we must act now or be left behind."
He continues, "Policy makers and university administrators who advocate disruptive innovation are right that all institutions -- and colleges and universities are no exception -- must account for changing external environments. And no institution is ever static. But their proclamations to adapt or die ignore the fact that human environments are the products of human agency. Society is a human construct, not a natural process. Institutions can shape as well as reflect the society and culture around them. True courage is trying, even in the face of hostility and skepticism, to defend what colleges and universities do. But giving in is easier."
"In fact, despite all the talk of innovation, what is perhaps most surprising is how familiar and uninteresting recent models of disruptive innovation really are. Yes, they use computers. But the structures of institutions like Western Governors University, Southern New Hampshire University’s College for America and the ever-expanding Arizona State University online programs are really premised on ideas that date back to the industrial revolution. Managers control the organization. Labor is subdivided into discrete tasks (what WGU calls the disaggregated faculty model) and alienated from the products of their work. In turn, those products -- including curriculum and assessment-- are standardized and work routinized. This is quite old-fashioned.
In contrast, forward-looking companies try to emulate traditional colleges and universities by building large, idyllic campuses where people can interact and be creative. 'There is something magical about sharing meals,' said former Google CFO Patrick Pichette a few years ago on why Google discourages telecommuting. 'There is something magical about spending the time together, about noodling on ideas, about asking at the computer, ‘What do you think of this?' That sounds a lot like the traditional college experience, but, in new-model universities, fundamental aspects of traditional ones -- such as personalized teaching, green lawns, academic freedom, shared governance, meaningful exposure to liberal arts education, and time and autonomy for reflection -- are deemed irrelevant."
"What makes such reforms so hard to resist is the presumption that the world is moving too fast to take stock. All hands must be on deck. The ship is sinking. Legislators are impatient. Faculty members are complacent. But is this true? Is the world changing so fast that all the things colleges and universities are supposed to do and have done have been rendered irrelevant? Are the forces of disruption really that powerful?"
"Some parts of our world may be changing fast, but it’s not clear that one can speed up the rate of change in higher education without significant damage. . . . When we believe we have no time to slow down because the world is changing too fast, we prevent ourselves from asking what kinds of institutions we need."
"What these visionaries ignore is that institutions and ideas do not become outdated just like Apple computers. Moreover, disruptive innovation is a language of change but not always a description of the reality of it. As Harvard University historian Jill Lepore has written, disruptive innovation is 'not a law of nature. It’s an artifact of history, an idea, forged in time; it’s the manufacture of a moment of upsetting and edgy uncertainty. Transfixed by change, it’s blind to continuity.'"
"But we need continuity, too. . . . It is this ability of institutions to create spaces insulated from fast change that enables them to maintain forms of knowing that might otherwise disappear, to invest in scholarship that takes decades to pay off, and to educate students with ideas and perspectives that are not always prevalent in public discourse."
"In such a context, true courage requires saying that enough is enough. It requires defending the college or university as an academic institution. It requires making clear that some things are worth saving and even savoring -- that continuity has benefits."
"If we had courage, we would celebrate the fact that academic life moves slowly. Research takes time. Teaching does, too. To educate a human being requires her or him to step outside of the busyness of daily life. Developing new skills and knowledge takes years. It is even harder to inculcate in students such intellectual virtues as curiosity."
"Education is a slow but necessary effort to transform people."
"If we had courage, we would acknowledge that education cannot be done by machines or be done too fast. We would argue, as do Daniel F. Chambliss and Christopher G. Takacs in How College Works, that true learning depends on the cultivation of personal relationships. We would conclude, based on the evidence Richard Arum and Josipa Roksa assemble in Academically Adrift, that the best way to improve student success is to put students on campuses that set high expectations and emphasize the liberal arts and sciences. Maybe we would invoke the work of cognitive scientist Daniel T. Willingham or biologist James E. Zull, who have explored why real learning is tough and takes trust and time. Perhaps we would even stand up for the humanistic and civic goals of liberal education."
Conclusion: "But those of us who -- as citizens, legislators, administrators, faculty members and students -- want to pass down the opportunities we have had to future students and professors, and who aspire to increase access to it for first-generation students, must have the courage of our convictions. We must remember what colleges and universities are for and ensure that those purposes are sustained, even as our institutions continue to evolve. In short, we must respond deliberatively, not out of fear that the world is moving too fast for thought."
Eliminating the requirement that full-time faculty teach at least half of every law school's upper-level courses would be a disruptive innovation. But, it would not be a beneficial one. What law schools need to do is to do better what they already do--teach students how to become lawyers and further knowledge concerning the law. The ABA proposal would have the opposite effect by putting inexperienced teachers into the classroom.
Monday, March 27, 2017
This is a new article recently posted on SSRN describing potential legal skills for new lawyers that involve new tools and big data in the realm of statutory interpretation. It is authored by Associate Chief Justice of the Utah Supreme Court Thomas R. Lee and Stephen C. Mouritsen, Associate at the University of Chicago Law School and Adjunct Professor of Law and Corpus Linguistics at Brigham Young University. Here's the abstract:
Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there — out of respect for the notice function of the law or deference to the presumed intent of the lawmaker.
Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation.
We agree with the diagnosis of important scholars in this field — from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs — but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language — linguistics.
We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning — from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.
When we speak of ordinary meaning we are asking an empirical question — about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.
At Literary Hub, Ben Blatt conducted an empirical study. The results:
The median fan-fiction author used 154 -ly adverbs per 10,000 words, which is much higher than either of the professional samples. The 300-plus megahits in the bestseller category averaged just 115 -ly adverbs per 10,000 words. And the 100 [literary] award winners have a median of 114 -ly adverbs. It’s not an apples-to-apples comparison, but the novels that sell well in bookstores come in with 25% fewer adverbs than the average novel that amateur writers post online. Less than 12% of all number one bestsellers had more than 154 adverbs, even though half of all fan fiction does.
While Ernest Hemingway used 80 adverbs per 10,000 words, Toni Morrison uses 76 per 10,000 words.
You can read more here.
Sunday, March 26, 2017
The answer seems to be yes. According to a recent study:
Just before U.S. Presidential elections, judges on the U.S. Courts of Appeals double the rate at which they dissent and vote along partisan lines. Increases are accentuated for judges with less experience and in ideologically polarized environments. During periods of national reconciliation — wartime, for example — judges suppress dissents, again, especially by judges with less experience and in ideologically polarized environments. We show the dissent rate increases gradually from 6% to nearly 12% in the quarter before an election and returns immediately to 6% after the election.
Draw your own conclusions. You can read more here, Carlos Berdejó & Daniel L. Chen, Election Cycles among U. S. Courts of Appeals Judges.
Professor Otto Stockmeyer offers his reflections. Here is the abstract.
A veteran of the law school classroom offers his thoughts on why Contracts is the most significant course in the first-year curriculum, why the study of contract law should begin with the subject of remedies, and why the “hairy hand” case of The Paper Chase fame makes an ideal starting point. The author also shares his first-day advice on how to succeed in law school. Along the way he explains why he prefers a problems-based casebook, opposes use of commercial briefs and outlines, and makes robust use of a course website.
You can read more here.
From NYU Law News:
NYU School of Law has announced that Preet Bharara will join the Law School as a distinguished scholar in residence on April 1, 2017. Bharara comes to NYU Law at the conclusion of his tenure as United States attorney for the Southern District of New York, one of the longest for anyone holding that position.
The school has not yet decided whether he will teach any classes.
You will recall that he was fired from his position as U.S. Attorney. He has stated that President Trump had previously assured him that he could continue in that position.
Three other (now-former) U.S. Attorneys also have chosen to enter the groves of legal academe:
Barbara McQuade: University of Michigan
David Hickton: Pitt
Paul Fishman: Seton Hall
Saturday, March 25, 2017
In his more than 10 years as a judge on the U.S. Court of Appeals for the Tenth Circuit, U.S. Supreme Court nominee Neil Gorsuch was recused in more than 1,000 cases, according to documents submitted to the Senate Judiciary Committee in advance of his March 20 confirmation hearing.
The high overall number of recusals appears to reflect the rigorous recusal procedures of his court, as well as Gorsuch’s stated desire to avoid even the perception of bias when it comes to cases involving a wide range of friends, former clients and colleagues. Only a sliver of the recusals were triggered by financial interests, according to his responses.
You can read more here.
Friday, March 24, 2017
In a recent article, Ira Robbins says yes. “And/Or' and the Proper Use of Legal Language (March 6, 2017).” Maryland Law Review, forthcoming. His argument:
And/or, however, is not ambiguous at all. It has a definite, agreed-upon meaning: when used properly, the construct means “A or B or both.” In most areas of law, there simply is no compelling reason to avoid using and/or. The term is clear and concise. It derives criticism mainly from the inability of people to use it correctly. Pleadings, contracts, statutes, and patent claims all allow for a cogent use of and/or.
My problem with his argument: Not everyone gives “and/or” the meaning that Professor Robbins ascribes to it. Hence, ambiguity arises.
You can read the article here.
The Real Legacy of American Legal Realism by Hanoch Dagan.
"Brian Leiter famously described the legacy of American legal realism as a ‘naturalized jurisprudence predicated on a pragmatic outlook’. This essay offers a critical analysis of Leiter’s ambitious and provocative account of legal realism. I argue that, beside many insights, Leiter makes several related mistakes that, eventually, obscure the most important promise of the realist legacy. Leiter understates the realist indeterminacy critique of pedigreed sources, misses the realist distinction between doctrine (or pedigreed sources) and law, and is wrong in classifying the legal realists as tacit hard positivists. Studying these mistakes reveals why Leiter must be incorrect in reducing legal realism to a descriptive theory of adjudication. A further contribution is the return to the realist robust understanding of law as an ongoing institution (or set of institutions) distinguished by the difficult accommodation of three constitutive yet irresolvable tensions: between power and reason, science and craft, and tradition and progress."
Thursday, March 23, 2017
Last week, I wrote a post criticizing Professor Jason Yackee for his lack of awareness of the role and importance of legal writing professors in law schools, as expressed in his two comments on the TaxProf Blog. (here)
Now, I have just found two youtube videos in which Professor Arthur Miller stresses the importance of research (and other skills) to law school graduates and lawyers. In other words, he does exactly the opposite what Professor Yackee did by recognizing the central importance of skills training to legal education. As you watch these videos, pay attention to Professor Miller's comments on the doctrine/skills divide.
As we continue to reform legal education, we need to start from Professor Miller's comment that 90% of law school graduates will become practicing lawyers, not philosophers.
What these videos also demonstrate is that doctrinal professors and skills professors need to work together to create the best law graduates.
(Scott Fruehwald) (hat tip: Ralph Brill)