Legal Skills Prof Blog

ABC Settles “Pink Slime” Lawsuit

From Poynter:

ABC and Beef Products Inc. settled an important defamation case three weeks into a trial that alleged the network knowingly used false information in a series that asserted Lean Finely Textured Beef was "pink slime."

The product is blended with ground beef to reduce fat content. As a result of a 2012 series fronted by anchor Diane Sawyer and reported by correspondent Jim Avila, the privately held family company said it suffered huge negative consequences, including shutting three of four plants.

You can read the analysis here.

(ljs)

Winston Churchill on Writing Paragraphs and Chapters

When Churchill was writing The River Wars (1899), he gained an understanding of how to organize his writing. From My Early Life, Chapter XVI:

I affected a combination of the styles of Macaulay and Gibbon, the staccato antitheses of the former and the rolling sentences and genitival endings of the latter; and I stuck in a bit of my own from time to time. I began to see that writing, especially narrative, was not only an affair of sentences, but of paragraphs.

Indeed I thought the paragraph no less important than the sentence. Macaulay is a master of paragraphing. Just as the sentence contains one idea in all its fullness, so the paragraph should embrace a distinct episode; and as sentences follow one another in harmonious sequence, so the paragraphs must fit on to one another like the automatic couplings of railway carriages.

Chapterisation also began to dawn upon me. All the chapters should be of equal value and more or less of equal length. Some chapters define themselves naturally and obviously; but much more difficulty arises when a number of heterogeneous incidents none of which can be omitted have to be woven together into what looks like an integral theme.

Finally the work must be surveyed as a whole and due proportion and strict order established…. I already realised that ‘good sense is the foundation of good writing.

(my paragraphing of the text)

(ljs)

New Proposed AALS Section on Empirical Study of Legal Education and the Legal Profession

New Proposed AALS Section on Empirical Study of Legal Education and the Legal Profession , by Judith Wegner (former dean North Carolina and co-author of the Carnegie Report) on the Best Practices for Legal Education blog.

"We, as legal scholars and innovative professional staff, have begun to undertake important studies of key issues facing legal education and the legal profession. But we have not done so systematically, and we have not had a very effective support structure to bring our best efforts to bear through skillful research grounded in empirical methods. We also lack ready means to collaborate across the individual silos that separate administrators, podium faculty, clinicians, legal writing instructors, academic support professionals and admissions personnel.

We are getting close to building a stronger network of colleagues interested in taking up empirical research on legal education and the legal profession, through a newly proposed AALS Section on Empirical Study of Legal Education and the Legal Profession. We’ve secured nearly twice as many signatures as required under AALS Bylaws and will be presenting a proposal for the AALS Executive Committee to consider at its upcoming July 2017 meeting."

This sounds like an important proposal.  While the new teaching approaches have been tested extensively in other fields, there has not been as much empirical research in legal education.  For more information and to sign the petition for the new section click on one of the links above.

(Scott Fruehwald)

Did Bob Dylan Plagiarize SparkNotes?

When Bob Dylan finally presented the speech (though not in person) that he was obliged to give when he accepted the Nobel Prize, he made several references to Moby Dick by Herman Melville (here). At Slate, Andrea Pitzer tells us that she compared words in Dylan’s speech with the summary of Moby Dick in SparkNotes, a popular crib that lazy or confused students employ. Her research uncovers many similarities. She asked some academics whether Bob had committed plagiarism. Here are their mixed responses:

 Longtime Dylan fan and George Washington University English professor Dan Moshenberg told me no alarm bells went off for him while reviewing the passages. Gwynn Dujardin, an English professor from Queen’s University in Kingston, Ontario, had more issues with Dylan’s approach, noting the irony that “Dylan is cribbing [from] a contemporary publication that is under copyright instead of from Moby-Dick itself, which is in the public domain.” A final reviewer, Juan Martinez, a literature professor at Northwestern University, said, “If Dylan was in my class and he submitted an essay with these plagiarized bits, I’d fail him.”

 The article (here) gives examples of the alleged infractions. You might run them by your students.Here is another article on the subject: Robert J. O’Hara, Moby Dylan: An Analysis of Bob Dylan’s Summary of Moby-Dick in His 2017 Nobel Lecture (here). Mr. O’Hara is harder on Bob and joins with Andrea Pitzer in making this suggestion: “I happily endorse Pitzer’s suggestion that Dylan contribute at least a portion of his Nobel Prize money to the anonymous editors of SparkNotes, without whose last-minute assistance his laureate haul might have been lost.”

(ljs)

Ten Tips for Writing Less Badly

In 2010, political scientist Frank Munger wrote an article for the Chronicle of Higher Education offering ten tips on writing less badly. It’s aimed at academic writers. Here are the headlines:

1. Writing is an exercise.You get better and faster with practice.
2. Set goals based on output, not input."I will work for three hours" is a delusion; "I will type three double-spaced pages" is a goal.
3. Find a voice; don't just "get published."Paradoxically, if all you are trying to do is "get published," you may not publish very much. It's easier to write when you're interested in what you're writing about.
4. Give yourself time.
5. Everyone's unwritten work is brilliant. When you are actually writing, and working as hard as you should be if you want to succeed, you will feel inadequate, stupid, and tired. If you don't feel like that, then you aren't working hard enough.
6. Pick a puzzle.Portray, or even conceive, of your work as an answer to a puzzle.
7. Write, then squeeze the other things in.Put your writing ahead of your other work.
8. Not all of your thoughts are profound. So start small. It is hard to refine your questions, define your terms precisely, or know just how your argument will work until you have actually written it all down.
9. Your most profound thoughts are often wrong.Or, at least, they are not completely correct. Precision in asking your question, or posing your puzzle, will not come easily if the question is hard.
10. Edit your work, over and over.Have other people look at it.

You can read the full explanations here.

(ljs)

Another Book on New Teaching Approaches

James Lang, Small Teaching: Everyday Lessons From the Science of Learning (2016).

 

"Cognitive psychologists, neuroscientists, and biologists all have produced a revealing body of research over the past several decades on how human beings learn, but often translating these findings into the classroom is overwhelming for busy instructors. Small Teaching bridges the gap between research and practice by providing a fully developed strategy for making deliberate, structured, and incremental steps towards tuning into how your students are hardwired to learn.

Developed by a global authority on teaching and learning, the practice of "small teaching" enables every type of educator in all disciplines to energize and boost student understanding by introducing small activities that require minimal preparation and grading. The models inside are specifically designed to be used as both one-time experiences to innovate a course session or unit plan as well as a menu of options that can be combined into an entirely new teaching approach. Each chapter gives examples of how a particular learning phenomenon appears in everyday life, supporting research and findings, up to five small-teaching models, guidance for customizing your own models, and quick-reference features when you need inspiration fifteen minutes before class. Small teaching techniques include brief classroom or online learning activities, one-time interventions, and small modifications in course design or communication with students that let you:

• Capture or recapture the students' attention, provide quick opportunities for student engagement, and introduce or wrap up new learning
• Deepen student understanding of material and expand their ability to analyze and improve their own learning
• Give students the tools, techniques, and principles to effectively practice a range of cognitive skills

Small Teaching gives you all the know-how and how-to for making big improvements to your learning environment."

(Scott Fruehwald) (hat tip: Renee Allen)

The Decline of the LSAT

At the Excess of Democracy blog, Derek Muller gives four reasons why the LSAT's value is in decline. The highlights:

First, schools have started to turn to the GRE in lieu of the LSAT.

Second, LSAC has become bizarrely defensive of its test. To the extent it intends to go to war with law schools over its own test--and go to war in ways that are not terribly logical--it does so at its own peril.

Third, prospective law student may now retake the LSAT an unlimited number of times. Given the fact that schools only need to report the highest score--and given the fact that the highest score is less reliable than the average of scores--we can expect the value of the LSAT to decline to a still-greater degree.

Fourth, LSAC will now administer the LSAT 6 times a year instead of 4 times a year. But given the unlimited number of opportunities to retake, plus the highest-score standard, we can expect, again, a still-greater decline in value of an LSAT score.

Professor Muller emphasizes consequences of relying on LSAT scores in the admissions arena:

Many of the problems I've identified here are principally driven by one concern: the USNWR rankings. Without them, enterprising (and risk-taking) law schools might consider only the average, or only the first two or three attempts, or consider the index score to a greater degree, or weight the quality of the undergraduate institution and difficulty of the undergraduate major to a greater degree.

I have heavily edited the posting. You can read the full posting here (June 6, 2017).

(ljs)

Lawyers' Fees and Claret: A Story Too Good to Pass Up

Off Topic (maybe not). I recently came across this story, originally posted on Faculty Lounge and reposted on Legal Ethics Forum.

Several decades ago, an American client asked me to help recruit some British barristers for an international project.  I flew to London and met in chambers with a QC and a junior, and we discussed other barristers who might be interested in joining the group.  After about thirty minutes, the conversation veered oddly off course, as the two barristers began talking about the need for “cases of claret.”  One of the possible recruits liked a particular type of claret, another one preferred some other claret, and they all seemed to be interested in acquiring it only by the case.  They went on this way for a good twenty minutes, matching barristers to claret and commenting on how many cases of claret each one usually brought home.

Finally, it dawned on me.  “Oh,” I said, in a direct manner that made my Chicago upbringing even more obvious, “you’re talking about money.”

The room fell deadly silent, as if I had uttered some unforgivable vulgarity in relation to the royal family. (This was in the days before scandal and divorce had rocked the institution, which was still spoken of in hushed and reverential tones.)

The junior barrister tensed in his chair, giving every indication that I had triggered the “fight or flight” reflex.  It was as though he had been surprised in a bordello raid, and was trying to decide whether to demand a search warrant from the constable or bolt for the back door.

The QC at first appeared paralyzed; his vigorously ruddy complexion having turned deathly ashen. Obviously shaken, he eventually stirred.  “Well, well,” he said, “that’s enough of that. Perhaps you should speak with the clerk.”  There was no more talk of claret, or money.  If my client had not been so internationally prominent, I am quite sure that I would have been shown the door.

(by Steven Lubet)

You can read the rest here and here.

(ljs)

Law School Assessment Blog

Last week, I mentioned an excellent post on formative assessment by Larry Cunningham, What Law Schools Can Learn about Assessment from Other Disciplines.  It is from a blog that Dean Cunningham started last year.  There is lots of info on his blog concerning formative assessment.

Law School Assessment

(Scott Fruehwald)

American Airlines Won’t Cut Leg Room by 2 Inches

Good news for travelers. From Conde Nast Travel:

Never do two inches feel quite so large as when you don't have them on an airplane—thus the previous outrage over American Airlines' announcement it would be cutting that much legroom in some economy seats on new planes. But now, the airline has changed course.

The largest carrier in the U.S. announced the change in plans in a company letter to employees Tuesday, according to CNN, citing "a lot of feedback from both customers and team members." Originally, the plan called for reducing seat pitch, or the space between the same spot on two seats, in three rows of economy class from 31 inches down to 29 inches on the airline's new 737 MAX jetliners. Additionally, the rest of economy would have seat pitch reduced to 30 inches in an effort to squeeze more seats on to the planes.

As a result, the airline will have a minimum of 30 inches of pitch for all main cabin rows on the 737 MAX planes.

You can read more here.

(ljs)

AAUP Takes Stand against Political Harassment of Faculty

Recently, a right wing media outlet has led attacks on faculty members for statements that faculty members and usually their schools complain were taken out of context. The American Association of University Professors has issued a statement on the matter. Here are the opening paragraphs:

We are dismayed that another faculty member, John Eric Williams of Trinity College, has become the target of a flood of threats following reports about his social media postings by the right-wing media outlet Campus Reform. In this case, the college was shut down for a day so that law enforcement officials could investigate threats to the college and to the faculty member. This is the second time this month that an institution of higher education has had to close down in response to threats, disrupting education and creating an environment of fear on campus.

We condemn the practice, becoming all too common, of bombarding faculty members and institutions of higher education with threats. When one disagrees with statements made by others, threats of violence are not the appropriate response. Such threatening messages are likely to stifle free expression and cause faculty and others on campus to self-censor so as to avoid being subjected to similar treatment. Targeted online harassment is a threat to academic freedom.

You can read the rest here.

For an article on the subject, please click here.

(ljs)

Needed: A New Bar Exam

Over at the Best Practices for Legal Education blog (June 8, 2017), Ben Bratman call for a rethinking of the bar exam. He argues that the National Conference of Bar Examiners stands in the way of innovation:

Written performance testing was the last meaningful innovation in bar exam testing. In thinking about who might lead an effort toward the next one that introduces greater clinical evaluation, including possibly of oral skills, I think not of a top-down effort from the resolutely conservative NCBE. It is focused on getting as many jurisdictions as possible to adopt its Uniform Bar Exam (26 and counting as of today). Rather, I think of a bottom-up effort by individual states—perhaps with California in the lead—serving as laboratories for testing methods that could ultimately spread to other jurisdictions, thereby persuading or forcing the NCBE to join.

The biggest barrier to innovation at the state level is the NCBE’s influence, which increases with each state that adopts the UBE and thereby constrains itself to offer the conventional bar exam that the NCBE requires it to.

He concludes:

Today, 24 years after the MacCrate Report, 20 years after the advent of the MPT, and 10 years after the Carnegie Foundation Report, the legal profession needs a better bar exam.  I join Professor [Deborah Merritt’s call for a national task force on the bar exam, sponsored by AALS, the Conference of Chief Justices, the ABA Section of Legal Education and Admissions to the Bar, and maybe even the NCBE.  As Professor Merritt writes, such a task force could “study current approaches to the bar exam, develop a more realistic definition of minimum competence, and explore best practices for measuring that competence.”

You can read more here.

As I write this posting, I think about my newly-graduated students on the first floor of the building sitting through an expensive commercial bar review course viewing mostly videos. I wonder if this exercise in memorizing lots of rules and some test-taking techniques is the best way for them to prepare for their professional futures.

(ljs)

How to Write So Judges Will Like You

At the Adams and Reese blog, we read the results of interviews with a dozen judges on the topic of legal writing. The blog relates the many points on which judges agree. Here is the concluding paragraph:

“The skill of a lawyer,” said one judge, “is to make a complicated problem simple.” Your writing is how you tell the court what you want and why you are due to get it. It’s how you make your case and advocate for your client. It’s a large part of how you win. So the next time you sit down to write something to a judge, from a discovery motion to a bet-the-farm appellate brief, remember that you are only one among many other things on the court’s to-do list. Make your work product stand out. Make the judges breathe a sigh of relief as they turn the page. They’ve already told you how.

You can access the blog posting here.

(ljs)

Larry Cunningham on Assessment

What Law Schools Can Learn about Assessment from Other Disciplines

Some great advice:

I came away from the conference with the following takeaways about how these other disciplines are using assessment:

• They use assessment data to improve student learning, both at an individual and macro level.  They are less focused on using assessments to “sort” students along a curve for grading purposes. Driven in part by their accreditors, the sciences use assessment data to help individual students recognize their weaknesses and, by graduation, get up to the level expected for eventual licensure, sometimes through remediation. They also use assessment data to drive curricular and teaching reform.
• They focus on the validity and reliability of their summative assessments.  This is probably not surprising since scientists are trained in the scientific method. They are also, by nature, accepting of data and statistics. They utilize item analysis reports (see bullet #3) and rubrics (for essays) to ensure that their assessments are effective and that their grading is reliable. Assessments are reused and improved over time. Thus, a lot of effort is put into exam security.
• They utilize item analysis data reports to improve their assessments over time. Item analysis reports show things like a KR-20 score and point biserial coefficients, which are statistical tools that can help assess the quality of individual test items and the exam as a whole. They can be generated by most scoring systems, such as Scantron and ExamSoft.
• They utilize multiple, formative assessments in courses. 
• They collect a lot of data on students.
• They cooperate and share assessments across sections and professors.  It is not uncommon for there to be a single, departmentally-approved exam for a particular course. Professors teaching multiple sections of a course collaborate on writing the exam against a common set of learning outcomes.
• They categorize and tag questions to track student progress and to assist with programmatic assessment. (In law, this could work as follows. Questions could be tagged against programmatic learning outcomes [such as knowledge of the law] and to content outlines [e.g., in Torts, a question could be tagged as referring to Battery].)  This allows them to generate reports that show how students perform over time in a particular outcome or topic.
• They debrief assessments with students, using the results to help students learn how to improve, even when the course is over.  Here, categorization of questions is important.
• They utilize technology, such as ExamSoft, to make all of this data analysis and reporting possible.
• They have trained assessment professionals to assist with the entire process.  Many schools have assessment departments or offices that can setup assessments and reports. Should we rethink the role of faculty support staff? Should we have faculty assistants move away from traditional secretarial functions and to assisting faculty with assessments? What training would be required?

(Scott Fruehwald)

Student’s Mic Cut During Graduation Speech

The graduating high school senior issued some polite, but critical remarks about the school’s administration, and suddenly, his mic was cut off. The other students gave him a standing ovation.

When will administrators ever learn? Cutting off speech is not the best way to handle these sorts of surprises. You can read the story here and also see a short video of his truncated speech. I’m glad he’s coming to Villanova.

(ljs)

GOP Senate Health Care Bill Explained

Politico has a detailed graphic comparing Obamacare and the House and Senate proposals. You can access it here.

(ljs)

World's Longest Legal Cases

Some may remember Jarndyce v. Jarndyce, the fictional case in Bleak House by Charles Dickens. It was based on the real case of Jennens v. Jennens, which continued for 117 years until the legal fees exhausted the estate.

And there’s the New Orleans case that lasted 57 years. Unfortunately, the successful plaintiff died six years before the case concluded.

The D.C. Bar’s magazine, Washington Lawyer features a short article about other cases that lasted a very long time (here).

(ljs)

Exercises in Legal Writing: Part I (With Answers)

In the June 2017 issue of the New York State Bar Association Journal, Judge Gerald Lebovits offers his first set of writing exercises:

This multi-part series is designed to help you exercise your legal-writing skills. In Part I, the Legal Writer will review some of the most important concepts in legal writing, including the passive voice, writing in the positive, metadiscourse, and gender neutrality.

Below are exercises to test you on the concepts you’ve learned, or which you already know. Edit the sentences: Change the words, rearrange them, add or delete them. After you’ve edited the sentences, look at the answers at the end of this article to determine whether you’ve edited them correctly.

He provides suggested answers. You can access the article here.

(ljs)

Alliteration at the Supreme Court

Here is the opening sentence in Justice Gorsuch’s opinion in Henson v. Santander Consumer USA, Inc. (here).

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry.

(ljs)

The Further Politicization of Judicial Nominations

From the Legal Intelligencer:

A political action committee named Concerned Veterans for America has begun running an ad asking readers to call their senators and urge a vote in favor of Stephanos Bibas, a Penn Law professor who was recently nominated to fill a vacancy on the U.S. Court of Appeals for the Third Circuit.

The committee is a nonprofit 501(c)(4) organization, and is widely reported to be backed by Charles G. and David H. Koch, the politically influential conservative billionaire owners of Koch Industries.

The simple online ad displays a photo of Bibas on a blue background. In white and red the ad asks the viewer to "Tell your senator to confirm Stephanos Bibas to the US 3rd Circuit Court of Appeals," and below is a box asking the viewer to "Contact your senator now." When clicked, the ad takes the reader to the Concerned Veterans for America website where the user can fill out a form asking that Bibas be confirmed.

Although the ad was accessible on PennLive.com, it appeared to target viewers based on their search history.

Bibas, through a spokesman, declined to comment. Concerned Veterans for America, which lists the same phone number as that used by Americans for Prosperity—a political advocacy group that the Koch brothers founded—did not return a message seeking comment.

Although it was not immediately clear whether the group is only running ads for Bibas, two press releases from the group issued earlier this month touted fellow nominees Allison Eid, nominated for a spot on the Tenth Circuit, and Ralph Erickson, who was nominated for a spot on the Eighth Circuit.

Bibas, however, may have a unique connection to the organization, as earlier this year University of Pennsylvania Law School announced it received $2.2 million from the Charles Koch Foundation to establish a new criminal justice research initiative.

I should note that many law schools and universities, including mine, have received money from the  Koch Foundation with the proviso that no political strings are attached. If you have access, you can read more here.

(ljs)