Tuesday, June 20, 2017
In the current political drama, my President has given new currency to the term “witch hunt.” At Lingua Franca, Lucy Ferriss offers us a history of the term. Interestingly, the term does not have an ancient history. It was coined in the late 1800s:
Yet according to the Oxford English Dictionary, the term witch hunt, which Donald Trump used last week to refer to the investigation into whether his campaign had ties to the Russian government, was first used in 1885, in H.R. Haggard’s fabulist novel King Solomon’s Mines. Before then, witches were suspected, tried, prosecuted, and condemned, but not hunted.
You can read more here. The article has a decided political slant.
Monday, June 19, 2017
Whoosh - Declining Law School Applications and Entering Credentials: Responding with Pivot Pedagogy by Laura Padilla
"Whoosh – that is the sound when the number of law school applications and entering law students and the credentials of those students, decline all at once. This trend has continued for many years, however, given the cyclical nature of law school applications, it will likely reverse eventually and credentials will improve, but not overnight. The first part of the article briefly discusses the decline in law school applicants and applications, including the confluence of perfect storm factors that resulted in more of the crash landing we experienced than a gradual drop. It also details the corresponding drop in entering credentials which accompanied that decline. The article focuses on what we can do as law professors in response to these declines to better equip students for success in law school, the bar examination and practice. The second part describes a range of responses to the storm: panic, paralysis, or pivot. While recognizing there is no single solution and certainly no perfect solution, pivoting seemed the only viable option and certainly the most effective. Pivot pedagogy is essentially a package of ideas to respond to declining applications, applicants, and entering statistics with the goal of improving student performance across the board, especially students with lower entering credentials. This part then details my classroom experiences and experiments with pivot pedagogy over the past two years, including empirical data. It closes with a plea for continued pivot pedagogy as a tool to engage students and improve performance."
From Above the Law:
Thirty firms, including DLA Piper, Paul Hastings, Jenner & Block, Morrison & Foerster, Blank Rome, and White & Case, have committed to abiding by a version of the “Rooney Rule” when promoting and hiring laterals . . . . [T]he Rooney Rule — named after the late owner of the Pittsburgh Steelers, Art Rooney — requires teams to interview at least one minority candidate when there is a head coach or general manager vacancy
Some firms are moving to develop the Mansfield rule:
The Biglaw version of the rule, named the Mansfield Rule after Arabella Mansfield, the first woman admitted to practice law in the U.S, . . . asks firms to consider two or more candidates who are women or attorneys of color when hiring for leadership and governance roles, promotions to equity partner, and hiring lateral attorneys.
And, if the firms can demonstrate 30 percent of the pool for these positions are diverse, they’ll be “Mansfield Certified.” That spiffy designation will allow firms to participate in a client forum hosted by 45 in-house legal departments, including companies like Facebook, HP, Microsoft, and PayPal.
You can read more here.
Juneteenth, June 19, commemorates the end of slavery in the United States. From Wikipedia:
Juneteenth, also known as Juneteenth Independence Day or Freedom Day, is a holiday that commemorates the June 19, 1865 announcement of the abolition of slavery in Texas, and more generally the emancipation of African-American slaves throughout the Confederate South. Celebrated on June 19, the word is a portmanteau of "June" and "nineteenth". Juneteenth is recognized as a state holiday or special day of observance in forty-five states.
The holiday is observed primarily in local celebrations. Traditions include public readings of the Emancipation Proclamation, singing traditional songs such as "Swing Low, Sweet Chariot" and "Lift Every Voice and Sing", and readings by noted African-American writers such as Ralph Ellison and Maya Angelou. Celebrations may include parades, rodeos, street fairs, cookouts, family reunions, park parties, historical reenactments, or Miss Juneteenth contests.
You can read more here.
Sunday, June 18, 2017
Contemporary Teaching Strategies: Effectively Engaging Millennials Across the Curriculum by Renee Nicole Allen & Alicia Jackson
Contemporary Teaching Strategies: Effectively Engaging Millennials Across the Curriculum by Renee Nicole Allen & Alicia Jackson.
"American Bar Association (ABA) Standard 314, Assessment of Student Learning, requires law schools to “utilize both formative and summative assessment methods in its curriculum to measure and improve student learning and provide meaningful feedback to students.” This article will connect multiple formative assessments to Bloom’s taxonomy to demonstrate how law teachers can transform and enhance student learning, while promoting keys steps in the self-regulated learning cycle. First, it is imperative law teachers understand the education background and social landscape that our students, mostly Millennials, bring to law school. We can acknowledge that our Millennial students are different, but what does this really mean and how does this affect our teaching and their learning? Next, effective application of ABA Standard 314 requires law teachers to understand self-regulated learning and the connection between the stages of learning and various formative assessments. To ensure that we are meeting this challenge, law teachers must become facilitators of learning. By serving as facilitators, we acknowledge the importance of involving students in the learning process from the very beginning. This will ultimately result in shifting the focus from the instructor’s teaching to student learning. While there are various teaching methods, we will explore contemporary teaching strategies as means of encouraging a student-centered learning environment. Utilizing contemporary teaching strategies fosters an environment that is ripe for effective formative assessment in our courses.
This article will address contemporary teaching strategies for effectively engaging Millennials across the law school curriculum. Part I will examine the experiences that define Millennials and how they learn best. In Part II, we analyze the impact of ABA Standard 314 on law schools. Part III discusses self-regulated learning and metacognition as tools for lifelong learning. In Part IV, we explore how the student-centered classroom enhances student learning. Finally, Part V demonstrates how Bloom’s Taxonomy can serve as a framework for effective formative assessment."
Formative assessment may be the most important tool for helping law students learn better. Not only does it provide active learning, it helps students understand how they are grasping concepts and processes. I like how the authors of this article have connected formative assessment with Bloom's taxonomy. Students need to develop all their cognitive processes.
Yale Professor Jonathan Reuning-Scherer packs in student at his statistics course. The prize-winning prof recently revealed a major insight:
“When I think about what keeps people’s attention,” Reuning-Scherer considers, “it’s not who has the coolest example or flashiest slides: it is tone of voice.” The details of his presentation extend far beyond course material; breathing, cadence, and volume all are tested methodically for effect. “Where I pause, when my voice goes up or down, when it disappears altogether, or when I tell a stupid joke…being conscious of that has had the greatest effect” on sustained engagement in his class. With a sample size of some 300 students, retaining attention demands ingenuity—and, often, a herculean effort.
Saturday, June 17, 2017
Defining “reasonable doubt” to a jury has always been a difficult endeavor. On Friday, July 15, 2017, the jury in the Bill Cosby case asked the judge to clarify the meaning of this standard. At this point, the jury was deadlocked. The judge responded by giving the jury Pennsylvania’s standard jury instruction on the subject. I think the instruction is quite good.
Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt and to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime. A reasonable doubt must be a real doubt; it may not be an imagined one, nor may it be a doubt manufactured to avoid carrying out an unpleasant duty.
I sometimes have asked my students to draft an instruction on reasonable doubt. They have never been very successful at the task.
I recently read an article about 20 graduating nursing students at Duquesne University who failed to receive diplomas (here). The school selected a minimum score on The Health Education Systems Incorporated exam or HESI, a national test. The students argue that they should not be assessed on a single high-stakes test. Though I have no personal knowledge, flunking 20 out of 156 students at the end of their studies does cause me to raise my eyebrows.
The controversy got me to think about the high stakes tests in legal education. The LSAT is a high stakes test that plays a major role in determining whether a student gains admission or where a student gains admission. US News rankings rely heavily on LSAT scores and thus perpetuate their status as a high stakes test. Law school courses that base grades on a single end-of-term exam also employ high stakes tests. The bar exam is a high stakes test.
Are high stakes tests the best way to assess the ability of law students?
Friday, June 16, 2017
The perhaps surprising answer is yes—and to a shocking degree. According to one study:
The article focuses on the three fields in which such foreign case law has either influenced the U.S. Supreme Court decisions or otherwise impacted the judges' reasoning: laws targeting homosexual conduct; federalism; and the death penalty.
It singles out the relevant passages of each U.S. Supreme Court decision, explores the European sources that it points to, and evaluates how accurately the court depicts them. It turns out that all the references that the U.S. Supreme Court has made to European jurisprudence are either mistaken or misleading. (my emphasis).
There are other areas in which the Court sometimes goes astray, for example “law office history.”
Thursday, June 15, 2017
From the N.Y. Times:
Now the Library of Congress has named Ms. Smith its new poet laureate, the nation’s highest honor in that field. With the appointment, announced on Wednesday, Ms. Smith will take on a role held by some of the country’s most revered poets, among them Rita Dove, Louise Glück, Billy Collins, W. S. Merwin, Charles Simic and most recently, Juan Felipe Herrera.
Ms. Smith, 45, said she planned to use the position to be a literary evangelist of sorts, by visiting small towns and rural areas to hold poetry events.
From Bloomberg Big Law Business:
More and more women are being hired for the top lawyer jobs in Fortune 500 companies, and more of them are being hired via external searches instead of promoted from within, a new study has found.
In 2016, 35 percent of new Fortune 500 general counsel jobs were filled by women, whereas in 2012, women made up only 24 percent of new hires, according to an advance copy of the study provided to Big Law Business. What is more, the number of women hired as GC from external positions has jumped in the past three years. Traditionally, women have joined the GC ranks primarily through inside promotions, but in 2016, as many women GCs were hired from externally as internally. . . .
[Maria]Green said the structure of corporations can be more meritocratic than law firms, where business is often passed on through relationships.
“Nobody cares who you socialize with or who you play golf with,” she said. “Because you don’t have the pressure of billing hours or bringing in work, it’s just about how well you do the work. It’s a system where it’s easier for the cream to rise to the top.”
You can read more here.
Wednesday, June 14, 2017
Off-topic: Tips for rebooking, getting compensation, and keeping comfortable while you wait. Summer is a time for travel and sometimes a time when the weather or your airline lets you down. From AFAR, here is some practical advice for dealing with travel delays. The headlines are:
- Go rogue when asking for help.
- Lounge while you wait.
- Seek trip delay protection from credit cards.
- Know your options.
- Claim your miles.
You can read much more here.
Tuesday, June 13, 2017
The race is between Justices Ginsburg and Sotomayor. From the US Law Week: On the Merits blog:
Though no one can quite remember when it officially began, every term the justices dash to see who can churn out the quickest opinions.
In modern times, the race has been dominated by two individuals: "Rapid" Ruth Bader Ginsburg and "Swift" Sonia Sotomayor.
Rapid Ruth has long dominated the competition. But the then-newbie Swift Sonia pulled off an upset during the 2010 term. According to SCOTUSblog statistics, she managed to dash off her opinions in an average of just 84 days from the time of the oral argument. Rapid Ruth put up an uncharacteristically high number that term, taking 95 days on average to finish her opinions.
But Rapid Ruth shot back with back-to-back wins during the 2011 and 2012 terms. In 2012, she walloped the competition, taking just 60 days to turn out a decision. Swift Sonia took 93 days.
You can read more here.
In case you missed it, many Legal Writing Profs felt their hearts beat more quickly when they heard this exchange:
Here is the exchange James Comey had with Senator James Risch from Idaho:
RISCH: Yesterday, I got, and everybody got, the seven pages of your direct testimony that’s now a part of the record, here. And the first — I read it, then I read it again, and all I could think was, number one, how much I hated the class of legal writing when I was in law school.
And you were the guy that probably got the A, after — after reading this. So I — I find it clear, I find it concise and, having been a prosecutor for a number of years and handling hundred — maybe thousands of cases and read police reports, investigative reports, this is as good as it gets.
And — and I really appreciate that — not only — not only the conciseness and the clearness of it, but also the fact that you have things that were written down contemporaneously when they happened, and you actually put them in quotes, so we know exactly what happened and we’re — and we’re not getting some rendition of it that — that’s in your mind. So...
COMEY: Thank you, Senator.
RISCH: ... so you’re — you’re to be complimented for that.
COMEY: I had great parents and great teachers who beat that into me.
(Thnx to the Appellate Advocacy blog, June 12, 2017).
For a great examination of James Comey’s prepared testimony, see the analysis of Professor Kirsten Davis at Lady (Legal) Lawyer (here).
Monday, June 12, 2017
A couple of week's ago, I wrote that I had just published a book on overcoming cognitive biases. You can find a sample chapter on SSRN: Overcoming Cognitive Biases: Chapter One.
Here is the table of contents:
Table of Contents
1. Understanding Cognitive Biases 1
2. Discovering Yourself 17
3. Optimism Biases 27
4. Negativity Biases 45
5. Biases Concerning Others 57
6. Behavioral Economic Biases 73
7. Other Cognitive Biases 103
8. Other Techniques for Overcoming Cognitive Biases 119
9. Application 131
Contracts, Cases, Text, and Problems, 2016 Edition by Charles R. Calleros & Stephen Gerst: Sample Chapter
A few years ago, I mentioned an excellent ecasebook by Charles Calleros and Stephen Gerst. I liked the book because it did a good job of putting cases and other materials in context and included problem-solving exercises. Carolina Academic Press has now issued a new edition of this book in hard copy.
The authors have posted a sample chapter on SSRN: Charles R. Calleros & Stephen Gerst, Non-enforcement of Contract Obligations for Illegality, Violations of Public Policy, and Unconscionability
"This chapter, on Illegality, Public Policy, and Unconscionability, is from a first-year textbook that the author first drafted in 2008 and has used many years in electronic format, but which appeared this year in updated form and for the first time in hardcover. The latest version of the book includes two additional chapters from co-author Stephen Gerst.
Entitled Contracts: Cases, Text, and Problems, the book reflects a combination of case method and problem method with an added emphasis on presenting material in the way that an associate would approach a legal problem in a law office: (1) secure a general understanding of the topic by reading from a secondary source, (2) focus on primary authority in the form of case law or statutory text, and (3) apply the newly learned legal principles to facts. Accordingly, the book (1) introduces each topic with legal background to provide general context, (2) moves to specific case law or statutory text, and (3) provides numerous exercises and practice exams for students to apply their acquired knowledge. This student-friendly approach has facilitated learning, helped to reinforce lessons in students' legal research and writing courses, and helped to prepare them for work in a law office.
The chapter on Illegality, Public Policy, and Unconscionability is representative of the book’s method of combining hornbook style orientation and excerpts from scholarly articles, primary law such as case law, and numerous exercises including queries about legislative proposals. Indeed, the topic of noncompetition agreements is presented primarily through text and problems. As a further link to the practice of law, the chapter presents a particularly interesting unconscionability analysis by a trial court and then invites students find the case on appeal to determine its fate (which turns out to be a less interesting tool for teaching and debate)."
Here the February pass rates for California's ABA accredited and non accredited law schools:
California Western School of Law – 44 percent
Concord University School of Law – 9 percent
Golden Gate University – 36 percent
Humphreys College Laurence Drivon School of Law – 10 percent
Loyola Law School – Los Angeles – 65 percent
McGeorge School of Law – 32 percent
Monterey College of Law – 21 percent
Northwestern California University – 13 percent
Pacific Coast University – 11 percent
Pepperdine University – 53 percent
San Joaquin College of Law – 36 percent
Santa Barbara College of Law – 40 percent
Santa Clara University – 54 percent
Southwestern Law School – 41 percent
Thomas Jefferson School of Law – 29 percent
Trinity Law School – 12 percent
University of California – Los Angeles – 65 percent
University of San Diego – 53 percent
University of San Francisco – 52 percent
University of California Hastings College – 48 percent
University of W. LA-San Fernando Valley – 19 percent
Western State University – 46 percent
You can read more here at JDJournal.
If you’re looking for a new topic for a legal writing problem, you might consider implied warranties.
From the Hudson Cook Law blog, here’s a quick summary of the law:
However, when it comes to disclaiming implied warranties, state law (in most states) simplifies things by providing that a dealer can disclaim the implied warranties of merchantability and fitness for a particular purpose by using the words "as is," "with all faults," or other language that, in common understanding, calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. Even when a dealer uses these words, however, there are times when an implied warranty disclaimer may not be effective. . . .
The lesson here is that a disclaimer of implied warranties can be a strong defense, but only when it is not rendered ineffective by the dealer's conduct.
You can read more here.
The University of North Texas at Dallas College of Law has been granted provisional approval for accreditation from the American Bar Association after initially being denied accreditation last fall.
The ABA Council of the Section of Legal Education and Admission to the Bar announced its decision on June 3 following a positive recommendation from the ABA Accreditation Committee and a review of documents and testimony provided by UNT.
The provisional approval means that the school’s progress will be closely monitored by the ABA, which will determine whether the school should receive full accreditation. Provisional accreditation gives the school and its graduates all of the rights and recognition of a fully approved law school, according to the ABA. But UNT will have to wait at least three more years before it can gain full accreditation, assuming it meets all the standards set by ABA. In years two and four the ABA will visit the school for a full evaluation. . . .
The positive recommendation came less than a year after the ABA denied the school accreditation in August 2016. The ABA released its initial recommendation alongside a 21-page report, citing concerns about the school’s admissions policies and financial conditions.
You can read more here.