Sunday, April 30, 2017
At the Lawyerist, attorney Stephen Embrey weight the pros and cons. Here is his conclusion:
So should lawyers resort to paper when they think it is better or force themselves to think and work digitally? This is typical of many technological decisions we face as lawyers: should I do what is comfortable and established under the guise that it gets me an immediate perceived better result, or do I do what is less immediately comfortable and hope for an improved experience down the road?
I started out thinking that since I think I do better with paper, I should use it more, not less, than digital. But now, I think that’s just my brain giving me an excuse to keep doing what is more comfortable. It is a cop-out for not pushing myself into what is clearly the future—less paper, more digital. Reverting to paper discourages my use of tools that are only available digitally. Also, reliance on paper lends itself to taking a similar stance on other technology—an attitude that I think has resulted in too many lawyers being too technologically behind.
So, paper is nice. I like writing in a Moleskine with a nice fountain pen. Reading a paper brief is like wearing an old comfortable pair of shoes. But that’s not the future. Wearing old shoes may be comfortable, but once you take the time to break them in, new shoes are better.
You can read his analysis here.
On Friday, May 12, Villanova is sponsoring a symposium on “Legal Writing in Business.” Attendees can receive 3 Pennsylvania Continuing Legal Education Credits. The registration fee is $50. If you are interested, please let me know (here).
Program: Legal Writing in Business
The program offers audience members three hours of continuing legal education credits. There are three 45 minute segments and one concluding hour-long segment. The cost is $50 per audience member. Faculty members and students may attend at no cost.
The program offers lawyers insights and practical advice in drafting business documents and completing business deals successfully. Speakers include highly experienced business lawyers.
9:00. Registration - continental breakfast
10:00. Welcome by the Dean.
10:10. Tone in Transactional Writing.
Mary Ann Robinson, Professor, Villanova University Charles Widger School of Law
11:00. Practitioners discuss legal writing in a round table format.
Samuel J. Arena Jr., Chair, Fidelity & Surety, Stradley Ronan
Michelle Tan-Torres, Associate Counsel, Quaker Chemical Corporation
Paul Quinones, Executive Director & Corporate Counsel, Development, Incyte Corporation
11:45. Legal Drafting Horror Stories
Louis J. Sirico, Jr., Professor, Villanova University Charles Widger School of Law
1:15. Adding Value to the Deal: Recognizing Business Issues
Tina Stark, Professor in the Practice of Law (retired), Emory University School of Law
Saturday, April 29, 2017
From The Guardian:
The former University of California, Berkeley, law dean whose sexual harassment case sparked national outrage has reached a deal with the school that allows him to maintain tenure, receive research funding and avoid charges.
Although university investigators concluded that Sujit Choudhry had sexually harassed his executive assistant while he was dean, the university is ending its disciplinary process and allowing the professor to remain a faculty member “in good standing” until he “voluntarily” resigns next year, according to newly released documents.
The settlement – which also stipulates that Choudhry will not teach courses in his final year, but can still access travel reimbursements and research funding of more than $97,000 . . . .
Although the university’s investigation substantiated her claims – and Choudhry admitted to touching her – the administration’s punishment constituted a salary reduction by 10% to $373,500 for one year.
Separate from the resolution in Choudhry’s disciplinary process, the university and Choudhry also reached a settlement agreement with Sorrell in the lawsuit she filed. As part of that agreement, Choudry has agreed to pay $50,000 to her attorneys and $50,000 to not-for-profit groups that focus on sexual harassment and assault.
Sounds like a sweet deal. You can read more here.
On April 24, 2017, Robert Pirsig passed away. He is best known as the author of the cult novel Zen and the Art of Motorcycle Maintenance. From his writings, Lithub has selected pieces of advice for living. Here are a few:
Anxiety, the next gumption trap, is sort of the opposite of ego. You’re so sure you’ll do everything wrong you’re afraid to do anything at all. Often this, rather than “laziness,” is the real reason you find it hard to get started. This gumption trap of anxiety, which results from overmotivation, can lead to all kinds of errors of excessive fussiness… The best way to break this cycle, I think, is to work out your anxieties on paper. Read every book and magazine you can on the subject. Your anxiety makes this easy and the more you read the more you calm down. You should remember that it’s peace of mind you’re after and not just a fixed machine.
We’re in such a hurry most of the time we never get much chance to talk. The result is a kind of endless day-to-day shallowness, a monotony that leaves a person wondering years later where all the time went and sorry that it’s all gone.
The solutions all are simple—after you have arrived at them. But they’re you simple only when you know already what they are.
You can read more here.
Friday, April 28, 2017
Writing is hard work. We can find some comfort in realizing that it is a challenge for even the most talented professionals. At the Los Angeles Times, Pulitzer Prize winner Viet Thanh Nguyen offers a narrative of his long journey in developing as a writer. Here is an excerpt:
But even more challenging for me was that I wanted the book to be as much a creative work as a critical work, just as I wanted my fiction to be as critical as it was creative. But I didn’t know how to do this, and no one could teach me this, and it took the discipline of sitting in a chair for countless hours over 20 years before I could even approach bringing together the critical and the creative.
I’ve told this story about my ignorance and my naiveté, of my struggles and my doubts, because most readers are only aware of the final product of a writer or scholar’s efforts. That final product, the book, appears brimming with confidence and knowledge. Confidence and knowledge, and the “metrics” of evaluation and advancement that saturate our lives in schools, corporations and bureaucracies obscure the mysterious, intuitive and slow — sometimes very slow — ways in which art and scholarship often operate. At a time in which the demand for productivity and the measuring of outputs has increased in the university — indeed, everywhere — it is important to acknowledge how much of what is crucial in the work that matters to us, no matter what our field, can neither be quantified nor accelerated.
What is valuable about my worlds of the arts and humanities is that they create spaces for this type of slow thinking. And by this I mean that we value the arts and humanities not simply for the material possibilities and rewards they may bring, like a Pulitzer Prize. Rather, we should value the arts and humanities for their privileging of the mystery and intuition that makes moments of revelation and innovation possible.
You can read more here.
Law student mental health has been a frequent topic of discussion over the last few years. Larry Kramer and the AALS Section on Balance in Legal Education have done much to raise awareness of law student mental health issues. A new article on Above the Law discusses an important topic in this area--how students are reacting to failing the bar.
Law School Graduates Would Rather Die Than Fail The Bar Exam by Staci Zaretsky.
"Results from the February 2017 bar exam are out in several states, and we’ve received a deluge of emails concerning law school graduates’ bar-exam-related despair."
"I wanted to add some more color to the issue of people fearing their bar exam results and contemplating the worst in the event of failure. It so happened that the day I was set to receive my bar exam results (NY), I was also waiting to hear from my doctor about whether or not a surgical biopsy of lymph nodes would come back benign or malignant. The pressures of law school are so great, and the thoughts of failing the bar so daunting, that I seriously hoped that if I had to fail one, it would be the biopsy. I thought that my chances of surviving cancer were greater than my chances of surviving failing the bar. Happily, I received good news on both fronts that day. But it strikes me that something is seriously wrong with our profession if this is how we approach these results."
Since bar exam failure is such a traumatic event, which can cause great mental suffering and lead to suicide, don't law schools have a duty to do the best they can to make sure their students can pass the bar? Should law schools admit students who are unlikely to pass the bar? (I vaguely remember an ABA standard on this one). And, shouldn't law schools be using the best approaches to educating students, rather than clinging to the failed methods of the past. (I vaguely remember reading a couple of reports on this about ten years ago.)
Law schools can't guarantee the well-being of their students. But, they shouldn't do anything that can make it worse, like admitting students who are unlikely to ever pass the bar.
Thursday, April 27, 2017
Jon Maner, a professor of management and organizations at Kellogg School of Management, has studied a specific breed of bad boss—those who intentionally sabotage their teams’ cohesion in order to protect their own status as leader. . . .
Maner’s research shows that leaders will intentionally sideline high-performing team members, limit communication and social bonding among team members, or compile ill-matched teams if they think it will help ensure their own place at the top. . . .
Maner and collaborator Charleen Case, a doctoral student at the Kellogg School, found that leaders who were driven by a desire for power (or dominance motivated) were more likely to undermine a group’s communication and cohesion than those who were motivated by a desire for respect (or prestige motivated). Those power-hungry leaders were most inclined to behave this way when they were told that the power hierarchy in the group was unstable and they may lose their position at the top. And they were most likely to undermine group cohesion by isolating the one highly skilled member of the group.
The researchers offer suggestions on how to prevent sabotage.
You can read more here.
Jill Switzer, an alum of Whittier Law School, has written a moving tribute on the demise of her alma mater. I think the last four paragraphs are especially significant:
"If you’ve never read Brian Tamanaha’s blistering indictment of law school education, Failing Law Schools (affiliate link), then you should.
The Washington University law professor justifiably rips apart legal education for failing to do what it’s charged with doing. As I’ve said before, a revolution in legal education is overdue.
The appalling disregard for educating law students and getting them ready for practice is shameful. Students are on their own. As I saw Whittier’s bar results drop over the decades, I cringed and mourned the death of the kind of education I had received.
Whittier College made a business decision. Some think that it abandoned its law school by pulling the plug after looking at recent lousy bar results and equally lousy post bar employment rates. I think the law school abandoned its students." (emphasis added)
Wednesday, April 26, 2017
Here’s the abstract:
The use of the Internet and other digital media to disseminate scholarship has great potential for expanding the range of voices in legal scholarship. Legal blogging, in particular, with its shorter, more informal form, seems ideal for encouraging commentary from a diverse group of scholars. This Chapter tests this idea by exploring the role of blogging in legal scholarship and the level of participation of women and scholars of color on the most visible academic legal blogs. After noting the predominance of white male scholars as regular contributors on these blogs, we analyze the relative lack of diversity in this emerging form of scholarship. Finally, we offer suggestions for reversing these trends and creating a more inclusive blogosphere and enriching its potential for lively, informed scholarship.
Jane C. Murphy & Solangel Maldonado, Reproducing Gender and Race Inequality in the Blawgosphere (here).
Tuesday, April 25, 2017
The D.C. Bar blog leads us to an interview with San Francisco Superior Court Judge Curtis Karnow:
San Francisco Superior Court Judge Curtis Karnow says the reputation an attorney establishes in one judge's courtroom will spread far beyond that room. Karnow emphasizes that attorneys should keep their audience in mind, simplify their language and avoid legal jargon when interacting with juries and witnesses.
You can access a thoughtful interview with him here published at The Recorder. The interview also includes a podcast.
Monday, April 24, 2017
Apropos of the recent United Air debacle: from the Conde Nast Traveler:
Here's the full list of the worst airlines and their rates, in terms of oversale IDBs.
According to the Department of Transportation's most recent Air Travel Consumer Report, the unfortunate crown goes to Southwest Airlines, with a rate of 0.99 IDBs per 10,000 passengers in 2016. Effectively, that means for every 10,000 people who get on Southwest planes, one is getting kicked off. And remember: just because you bought a ticket, it doesn't mean you're guaranteed a seat.
- Southwest Airlines 0.99
- JetBlue Airlines 0.92
- American Airlines 0.64
- Frontier Airlines 0.58
- Spirit Airlines 0.58
- United Airlines 0.43
- Alaska Airlines 0.40
- Virgin America 0.12
- Delta Air Lines 0.10
- Hawaiian Airlines 0.05
You can read more here.
Sunday, April 23, 2017
In case you were wondering what an Emergency Bill of Discovery looks like, here is the one filed by the attorneys for David Dao, the man who was dragged off the United Air plane in Chicago.
A nice classroom exercise would be to have students list the potential discovery items that they would want preserved and then compare their results with what the attorneys requested.
Saturday, April 22, 2017
From Education Week:
We don't choose familial situations, but we can choose to make the most of what we are given. Harry clearly doesn't fit with the Dursleys, but they are his family and they are the only ones he has known.
Friendship often comes with a simple kindness. Harry had no idea where he'd find his place in this new wizarding world, but his closest friendship is literally stumbled upon.
- Helping those in need always has its rewards.
- We often misjudge what we don't fully understand. Harry often thinks that Snape is out to get him, but we learn at the end of the first novel that Snape was actually protecting Harry.
- Breaking the rules is sometimes necessary. In order to do what is right, we often have to bend the rules to accomplish these feats. Harry and his friends often choose to do what they know is wrong but for the benefit of everyone else.
- Having rules to break is also necessary. Rules establish boundaries and boundaries are necessary for students to thrive. Neville understands this and stands up to Harry, Ron and Hermione when they could possibly get Gryffindor in trouble for sneaking out. Additionally, Hogwarts has a whole system of points that helps students win and
- Love is a great protector. When we give love purely like Lily Potter does to Harry, that love provides protections that we don't even know the full reach of until much later on.
- Every child has the power to take on great evils. There are many things our kids have to overcome and like Harry who literally has to fight odds to take on Voldemort, he believes that he can do it.
- The choices we make define us. At different times, almost every character in the Harry Potter novels has a moment where he or she makes a choice that defines him or her. Starting at the beginning, Hagrid uses magic despite the fact that he isn't supposed to so that he can help Harry.
- Learning happens everywhere, we just have to take the time to notice. The characters of the Harry Potter novels are always learning new things whether they going to the library and digging through books they shouldn't be looking in or they notice something on the back of a card that came with chocolate, they are deeply cued into the fact that there so many things to learn(ljs)
- You can read full explanations here.
Friday, April 21, 2017
Climbing the best seller lists is Admiral William McRaven’s inspirational Make Your Bed. The book is based on a commencement speech he delivered at the University of Texas in which he offered life lessons he learned as a Navy Seal. To view the speech, please click here.
Thursday, April 20, 2017
Two interesting items came past my desk this morning. (Actually, past my computer screen.) The first one concerned the news that Whittier Law School will be closing. (This is very sad news for the students and faculty.) The other was a study of the effectiveness of formative assessment for student learning. I think these two very different stories are related.
Law schools have changed radically over the last fifty years. More students are going to law school, and these students come from very diverse backgrounds. In addition, many of these students come from poor educational backgrounds. Furthermore, colleges seem to be dumbing down their curriculums, particularly in the areas of writing, logical thinking, and critical reasoning.
Some law schools have reacted to the new type of students; others haven't. I wonder if Whittier's low bar score isn't largely due to the fact that it failed to change in reaction to the new type of students it was admitting.
I have argued that formative assessment with prompt and frequent feedback is critical to teaching the new type of law students. (E. Scott Fruehwald, How to Help Students from Disadvantaged Backgrounds Succeed in Law School, 1 Texas A & M Law Review 83 (2013) (here).) I think that formative assessment is particularly vital in the first year when students are developing their legal reasoning and problem-solving skills.
Now, a group of scholars at Ohio State has written an important study concerning the effectiveness of formative assessment on law student learning: Deborah Jones Merritt, Ruth Colker, Ellen E. Deason, Monte Smith and Abigail B. Shoben, Formative Assessments: A Law School Case Study.
"Several empirical studies have shown that formative assessment improves student learning. We build on those studies by reporting the results of a natural experiment at The Ohio State University Moritz College of Law. Students in one of three first-year sections had the opportunity to complete a formative assessment in their spring-semester Constitutional Law course. The assessment consisted of an essay question that the professor had used on a prior exam. Students who submitted an essay answer received prompt, extensive written feedback; they also had the chance to discuss their answer with the professor.
Over the course of three years, about half of the students enrolled in the section took advantage of the formative assessment. Those students achieved significantly higher grades on the final exam even though the assessment score did not factor into their course grade. Notably, students receiving this formative feedback also secured a significantly higher GPA in their other spring-semester classes. Both of these effects persisted after controlling for LSAT score, UGPA, gender, race, and fall-semester grades. These controls helped reduce any effect of selection bias on our findings.
In addition to exploring these relationships between formative assessment and academic achievement, we discuss several race and gender effects that emerged in our analyses. Women, for example, were significantly more likely than men to complete the formative assessment. Women also received significantly higher grades than men in a spring-semester course on Legal Analysis and Writing; men, conversely, received significantly higher grades than women in a Legislation course. A race effect, meanwhile, emerged for students with LSAT scores at or above the school median: Among those students, nonwhite students who completed the formative assessment achieved significantly higher grades in Constitutional Law than white students who submitted the same exercise.
All of these relationships deserve further empirical study. In particular, our results suggest the importance of examining the transfer effects of formative feedback, gender differences in law school learning, and paths for improving the academic experience of minority students."
If law schools do nothing else to improve law student learning and, consequently, their bar passes rates, they should add frequent formative assessment to their first-year classes. The studies show that this will significantly improve student learning.
Update: "Whittier College President Sharon Herzberger said in an interview that the board 'was concerned about the student outcomes at the law school' — namely how many students were graduating, passing the bar exam and finding employment in the legal profession." (here) So, the law school is being shut down because it isn't doing an effective job of educating its students. I hope other law schools with low bar pass rates or poor placement results are paying attention.
Further update: "Whittier College President Sharon Herzberger told the Wall Street Journal bluntly that students were not being prepared well enough to pass the bar exam and secure legal jobs. Fewer than a quarter of Whittier Law school’s graduates who took the July 2016 bar exam passed the test, the worst performance among accredited law schools in the state, according to the Journal.
Out of 128 graduates in 2016, only 45 went on to find jobs that required a law degree." (here)
P.S. The study showed that a major formative assessment in one class also helped improve grades in other classes taken during that semester. What do you think would happen if all classes included frequent formative assessment?
Summer’s on its way. It brings free time in which you can work on your writing projects. Still, it’s so easy to fritter that time away. Yet, scholarship remains the coin of the realm in academia, no matter what anyone says.
From the Chronicle of Higher Education, twelve professors share their tips for getting the work done. You can access their tips here.
Wednesday, April 19, 2017
"Trustees of the Whittier Law School said on Wednesday that it would close down, making it the first fully accredited law school in the country to shut at a time when many law schools are struggling amid steep declines in enrollment and tuition income."
"The trustees of the school, in Costa Mesa, Calif., said in a statement that they had voted not to enroll new first-year students in the fall but were 'committed to ensuring that students currently enrolled will have an opportunity to complete their degree in a timely fashion.' The trustees did not set a date for when the school would close."
Spamhaus (here) keeps track of spammers worldwide. The top spammers sell their services to companies, states, and individuals who want to spam or hack. These spammers make a lot of money.
Up to 80% of spam targeted at internet users around the world is generated by a hard-core group of around 100 known persistent spam gangs whose names, aliases and operations are documented in Spamhaus' Register Of Known Spam Operations (ROKSO) database.
This TOP 10 chart of ROKSO-listed spammers is based on Spamhaus views of the highest threat, least repentant, most persistent, and generally the worst of the career spammers causing the most damage on the internet currently.
|The 10 Worst Spammers|
|As of 11 April 2017 the world's worst spammers and spam gangs are:|
|Canadian Pharmacy - Ukraine
A long time running pharmacy spam operation. They send tens of millions of spams per day using botnet techniques. Probably based in Eastern Europe, Ukraine/Russia. Host spammed web sites on botnets and on bulletproof Chinese web hosting.
|Michael Boehm and Associates - United States
Snowshoe spam organization that uses large numbers of inexpensive, automated VPS hosting IPs and domains in whatever TLD is currently cheapest to send high volumes of spam to extremely dirty, scraped lists. Operates under many business and individual names.
|Yair Shalev / Kobeni Solutions - United States
High volume snowshoe spammer from Florida, (former?) partner-in-spam of ROKSO spammer Darrin Wohl. Son-in-law of ROKSO-listed spammer Dan Abramovich. Sued for fraud by the US FTC in 2014.
|Dante Jimenez / Aiming Invest - United States
Spamwarez, lists, "bulletproof" hosting in the finest South Florida tradition. Working with worst cybercriminal botnet spammers. Now mostly involved in massive botnet spamming with hosting on hacked servers and Eastern European hosters.
|Alvin Slocombe / Cyber World Internet Services - United States
Bulletproof spam host operating Cyber World Internet Services / e-Insites, and currently spamming using a variety of aliases such as Brand 4 Marketing, Ad Media Plus, Site Traffic Network, RCM Delivery, and eBox.
|Michael Lindsay - United States
Lindsay's iMedia Networks is a full-fledged spam-hosting operation serving bulletproof hosting at high premiums to well known ROKSO-listed spammers. His customers spam via botnet zombies with spam payloads hosted offshore, tunneled back to his servers. He and the gang have been hijacking (stealing) IP address space from companies for years to spam from. Illegal in the USA.
|Peter Severa / Peter Levashov - Russian Federation
A spammer who writes and sells virus-spamming spamware and botnet access. Is probably involved in the writing and releasing of viruses & trojans. One of the longest operating criminal spam-lords on the internet. Works with many other Easter Euro and US based botnet spammers. Was a partner of American spammer Alan Ralsky.
|RR Media - United States
A high volume spam operation based in or run from Huntington Beach, CA, USA. The operation uses a variety of different names.
|Yambo Financials - Ukraine
Huge spamhaus tied into distribution and billing for child, animal, and incest-porn, pirated software, and pharmaceuticals. Run their own merchant services (credit-card "collection" sites) set up as a fake "bank."
|Michael Persaud - United States
Long time snowshoe type spammer, raided by FBI then indicted in 2017 on federal wire fraud charges tied to his spamming operations.
Here they are. #7 was recently arrested while vacationing in Spain. (Lesson: If you are participating in questionable activities, don’t go on vacation.)
From the American Bar Association news release:
WASHINGTON, D.C., April 19, 2017 — The American Bar Association will conduct its annual effort to connect policymakers with constituents in the legal profession this week during its ABA Day 2017 from April 25-27.
This year, lawyers from all 50 states will come to Washington to speak to members of Congress and their staffs and inform them of the importance of funding Legal Services Corporation, which provides civil legal aid to nearly 1.9 million low-income people annually who desperately need help to navigate the legal process so they can get equal access to justice. LSC serves the most vulnerable individuals and families in every congressional district. That includes children, seniors, veterans, victims of domestic violence and victims of disasters.
ABA lawyers also will speak to congressional members about issues affecting veterans. The ABA will advocate for legislation (H.R. 1993, the Homeless Veterans Legal Services Act) authorizing private-public partnerships with the Department of Veterans Affairs to improve access to justice for homeless veterans.
You can read more here.
Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of the Negativity Bias by Kenneth D. Chestek
Because I have been working on a book on cognitive biases for several months, I was delighted to discover a newly-posted article on SSRN by Kenneth D. Chestek concerning the effects of the Negativity Bias on persuasive writing.
Fear and Loathing in Persuasive Writing: An Empirical Study of the Effects of the Negativity Bias. (Legal Communication & Rhetoric: JALWD, Vol. 14, 2017)
"Cognitive psychologists have identified a phenomenon they call the "negativity bias," in which humans seem to remember and be affected by negative information more strongly than by positive information. What are the implications of this bias for legal writers? Should they focus on negative themes (describing the opposing side as bad) instead of positive ones (describing their clients as good and worthy)? More specifically, to trial judges fall prey to the negativity bias?
This article describes an empirical test in which 163 judges were asked to read different versions of a Preliminary Statement to a trial brief (some using positive themes, others using negative ones) to measure whether (and by how much) the judge's perceptions of the parties were affected. The study concludes that, in many (but not all) cases, negative themes did seem to have more impact on the judicial reader."
Congratulations to Professor Chestek on a rigorous and convincing article.