Saturday, September 30, 2017
Younger faculty members, especially those with less than full tenure want to let their colleagues know that they are smart and insightful. Yet, they may be hesitant to speak up at faculty gatherings for fear of asking a question or raising a point that may hurt their reputation.
At the Chronicle of Higher Education, Karen Kelsky offer good advice. She provides a list of types of questions that will make you look good and not seem dumb.
You can access her advice here.
Friday, September 29, 2017
Sometimes some secondary support for a proposition is better than no support. The Weil Gotshal & Manges law firm blog reports on what happens when lawyers cite to Wikipedia and focuses on one case in which the Texas intermediate court cited Wikipedia for the definition of a “welfare queen”—a defamation case.
The Texas Supreme Court was critical:
Ultimately, the Texas Supreme Court in D Mag Partners, L.P. held that the court of appeals improperly utilized Wikipedia as a primary source “to ascribe a specific, narrow definition to a single term that the court found significantly influenced the article’s gist.” 2017 WL 1041234, at *6 (emphasis added). Indeed, the main problem with the court of appeals’ decision was that it had relied on the Wikipedia definition “as the lynchpin of its analysis on a critical issue” despite the existence of other sources that offered a broader common meaning.
According to the high court, citation to Wikipedia may be permitted as “a starting point for research purposes” or when used sparingly for minor points in judicial opinions. Id. at *5.
Following the court’s guidance, lawyers should be wary to rely completely on Wikipedia to support arguments on dispositive matters. That said, more junior attorneys seeking a compendium of sources on a relevant issue may find Wikipedia an extremely beneficial – and cost effective – starting point.
You can read more here.
From the Lawrenceville Patch:
The U.S. Justice Department has weighed in on a lawsuit against Georgia Gwinnett College, arguing that a student wanting to spread his religious faith was unconstitutionally prohibited from doing so.
With its statement of interest in the case, the department, under Attorney General Jeff Sessions, drags GGC into a wider, ongoing debate about freedom of speech on the nation's college campuses.
"A national recommitment to free speech on campus and to ensuring First Amendment rights is long overdue," Sessions said in a statement on Tuesday. "Which is why, starting today, the Department of Justice will do its part in this struggle. We will enforce federal law, defend free speech, and protect students’ free expression."
The lawsuit, by Chike Uzuegbunam, was filed by the Alliance Defending Freedom, a conservative Christian organization that has been deemed "virulently anti-gay" by the Southern Poverty Law Center.
You can read more here.
Whatever the merits of the case, why did A.G. Jeff Sessions and his Justice Department decide to launch their crusade not against an elite university with sophisticated resources, but against a non elite college in small town Georgia?
Thursday, September 28, 2017
From the Wisconsin Lawyer:
According to FBI Special Agent Byron Franz, who works in a cyber unit in Milwaukee, 9/10ths of cyber-attacks occur through “phishing” or “spear-phishing” email ploys.
Hackers will email contacts in a mass distribution (phishing) or target individuals or smaller groups, like law firms (spear-phishing). The email will contain a link or an attachment in the hope that someone will click on it.
“If it’s malignant and people click on these things, it unloads and unfolds, like an evil flower, a virus in your computer or your network, allowing someone to introduce ransomware that encrypts all of your data, or steal proprietary information.”
Apply strict scrutiny to all links and attachments, even ones that look legitimate and purport to be sent by someone you know, says Franz . . . .
Here (under “Briefly,” Sept. 2017 issue).
Wednesday, September 27, 2017
I just learned the terrible news that a legal writing colleague, Professor Suzanne Ehrenberg of Chicago-Kent School of Law, has succumbed to cancer. I didn't know Suzanne well; early in my teaching career two decades ago we shared a podium at a legal writing conference where we were both speaking about a similar topic. After that, since we both lived in different parts of the country, we'd only occasionally run into each other at a conference here or there.
Then seven years ago I was diagnosed with cancer myself. I'd never had any serious health problems so it was a real shocker to say the least. Although we probably hadn't been in touch for years, out of the blue Suzanne reached out to me, making a generous donation to a cancer fundraising campaign on my behalf. I've never forgotten that gesture which says much about the kind soul Suzanne was. At moments like this, when someone you've known is suddenly gone - life seems like an illusion. Rest in piece, Suzanne.
When I checked the news yesterday, I received a massive shock. The FBI is investigating my alma mater, the University of Louisville, for corruption in basketball recruiting. The NCAA had already put U of L on probation for earlier violations, including providing strippers to recruits. The FBI is also investigating at least five other basketball programs.
Sports stars are role models for children and adults. Lance Armstrong was a special role model. He won the Tour de France seven consecutive times after recovering from potentially fatal cancer. What a person for children to look up to. He had overcome all obstacles to attain success. But, he was a fraud. He had used long-term doping to achieve his success. A CNN story proclaimed, "The epic downfall of cycling's star, once an idolized icon of millions around the globe, stands out in the history of professional sports." (here)
Professional athletes cheat; university sports' programs cheat. Are there any role models left?
My alma mater's story is important for legal education because honesty and integrity are important to legal education, too. A key purpose of law school is to turn out graduates who have the highest character. The public puts its trust in the legal profession, and law schools must do their best to make sure their graduates live up to that trust.
Over the last ten years, law schools have often let down that trust. At least thirteen law schools were sued for defrauding their students. While the lawsuits were dismissed, they were mainly dismissed for lack of reasonable reliance with the misrepresentation claims not being litigated. Also, during this tine, many law schools hid their true employment scores, with an entire industry of law school scam critics arising. These law school scam critics, even though they were often wrong, severely damaged law school recruiting.
Because of the important societal role placed on law schools in helping to create the honesty and integrity of the legal profession, law school administrators and faculty must be above other professions like athletes and politicians. If students see their law schools cheating, they will think it is okay for them to cheat as lawyers. "What's wrong with lying; everybody does it?" "What's wrong with stealing from clients; everybody does it?"
In addition, I renew my call for all law schools to teach professional identity to their students. (here) Teaching the ethical rules alone is not enough. Law schools must reach for their students' souls.
"Where have you gone, Joe DiMaggio
A nation turns its lonely eyes to you
(Woo, woo, woo)
What's that you say, Mrs. Robinson
Joltin' Joe has left and gone away
(Hey, hey, hey, hey, hey, hey)"
Indeed it does! In his recent article in the Michigan Bar Journal, Mark Cooney explains how the choice of voice avoids ambiguity and, in some cases determines the outcome. Professor Cooney offers his lesson in the form of a story reminiscent of mystery writer Agatha Christy and the board game Clue.
You can access the article here: Mark Cooney, Give a Clue (A Linguistic Whodunit), Michigan Bar Journal 60 (June 2017).
Tuesday, September 26, 2017
At the Practice Manager blog, (Texas Bar Association, September 16, 2017)), Giselda Bradley gives step-by-step practical advice on trying to resume your practice after surviving a natural disaster. The most critical matter:
Contacting your clients is the most crucial aspect of your business continuation. If your clients have been impacted by the disaster as well, they will be happy to hear from you and know that you are concerned about their well-being. At the same time, they can tell you if they have new needs for your services. You will want to get an idea of the work that is coming in, and what kind of cash flow it will create. Prioritize the work to most urgent, somewhat urgent, and can wait a while, until your practice is fully functional again. It is important to know how much money you will need during the recovery period, and knowing what type of work is coming in, will help determine that number.
You can access the article here.
Teaching Contract Drafting through Caselaw—a Syllabus and a Collection of My Musings about Contract Drafting Based upon Recent Cases by Glenn West
"Law Schools are under ever increasing criticism for their failure to teach lawyers how to actually practice law—particularly on the transactional side of the practice. That criticism is basically a criticism of the caselaw method of teaching law school subjects—a method that relies upon the reading of appellate decisions providing lessons in common law doctrine that are applied to a particular set of facts. While there are plenty of things to criticize in the current law school curriculum, the fundamental benefits of the caselaw method is actually not one of them—even for those who seek to become transactional lawyers rather than litigators. Indeed, to attempt to teach the "how" of contract drafting without a proper grounding in the "why" of contract drafting would be a waste of time. Certainly more practice skills courses taught by those that have actually practiced for a significant period of time would be a good thing—but not at the expense of the basic curriculum taught by the oldfashioned, but effective, caselaw method. Instead, what is needed is a recognition of the value of the caselaw method in actually teaching transactional practice skills as well as common law doctrine, the mastery of which is essential to becoming a good transactional lawyer. What follows, then, is a Syllabus created by the author for a contract drafting course that seeks to balance the teaching of practice skills with the importance of a solid grounding in relevant caselaw; together with a collection of blog postings by the author regarding how various contract provisions in the M&A arena should evolve (but not always have evolved) in response to developments in the caselaw. The blog postings are all available at https//privateequity.weil.com/glennwestmusings/. Many of the cases listed in the Syllabus are the subject of one of the blog postings that highlights the specific drafting issue and the common law doctrinal issue involved. This should be considered a supplement to my Contract Drafting 101: A Checklist Derived From Recent Case Law, http://ssrn.com/abstract=2805481."
Monday, September 25, 2017
The notions of grit and a growth mindset are in vogue today. I think we understand what grit is. As for the growth mindset, the idea is that many students and teachers assume that students have a fixed mindset, which limits them:
Fixed mindset individuals believe that intelligence and ability are innate. Their early lack of success in attempting anything new often supports the preconceptions about their skills and abilities, making their failure a self-fulfilling prophecy.
Growth mindset individuals, in stark contrast, believe that abilities and talents can be developed through effort and hard work. Because they realize that failing is a normal part of learning (in order to learn, we must fail), they seek challenges even in the face of failure.
A growth mindset may help develop grit. Or grit may help develop a growth mindset. Who knows?
At Academic impressions, we learn some ways of encouraging students to develop a growth mindset. You can access the article here. Princy Quadros-Mennella & Thomas Mennella, How to Encourage Academic Grit and a Growth Mindset in Your Students.
Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation by Linda Edwards
"On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.
The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers to the appellate case—with no vetting by cross examination or the rules of evidence. Yet, despite their controversial nature, they have thus far received little academic attention.
The time has come to ask some tough questions: Are these briefs legally permissible? Theoretically legitimate? How do they compare with other sources consulted regularly by the Court? Are they really so different from the policy arguments we have accepted without blinking for over a hundred years?
These foundational questions quickly take us into even murkier waters—legal and constitutional theory; narrative theory; framing; and cognitive science. Voices briefs prompt us to look at constitutional decision-making in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around. The analysis produces some surprising reasons why voices briefs can play an important role in constitutional interpretation and some realistic ideas about handling the undeniable concerns that still haunt their use."
Sunday, September 24, 2017
The legal staffing firm Robert Half Legal released the results of a recent phone survey of 175 lawyers with hiring authority within their respective firms and found that about 22% expect to increase the hiring of new associates next year while the majority, 67%, expect to neither increase nor decrease their hiring plans for new lawyers in the coming year. So, it would be fair to characterize this as "modestly" good news for law students expecting to graduate this spring. The executive summary doesn't say whether only large employers were surveyed but it does include respondents from both the U.S. and Canada. You can read the executive summary here.
The Department of Education has withdrawn its 2011 guidance documents on campus sexual assault and issued new guidance. From the Chronicle of Higher Education:
The department’s interim guidance gives colleges the discretion to use a “clear and convincing” standard of evidence, which is higher than the preponderance standard, in such cases. Many colleges had already abandoned the “clear and convincing” standard when the 2011 letter was issued.
The new guidance also states that colleges may facilitate informal resolutions, including mediation, if all parties agree to participate in that process.
Saturday, September 23, 2017
A whistleblower’s lawsuit has led to the disclosure that federal prosecutors are conducting a criminal investigation of now-defunct Charlotte Law School and its parent corporation. A recent New York Times article highlights some disconcerting allegations:
Last January . . . Charlotte’s local public radio station, WFAE, broadcast recordings of a Charlotte Law school dean describing paying at-risk students to delay taking the bar and enroll in a bar preparation course. In the recordings, a dean noted that without deferring 21 students for the July 2015 exam, the pass rate “would have likely been 20-something percent.”
The dean allegedly offered to pay each of the students $5000.
The fraud practices alleged in the [whistleblower’s] lawsuit include evading federal requirements that for-profit schools receive at least 10 percent of revenue from sources other than federal student loans.
You can read the full article here.
A posting on the blog of the Holland & Hart law firm gives advice on introductions and relies heavily on the work of Professor Cathren Page. Here are the headlines:
Set the Tone
Intrigue the Audience
Allude to the Story's Theme
Prime the Audience for What's to Come
For fuller explanations and illustrations, please click here. You can learn more by reading Professor Page’s article, Not So Very Bad Beginnings: What Fiction Can Teach Lawyers about Beginning a Persuasive Legal Narrative Before a Court, 86 Mississippi Law Journal 315 (2017) (here).
Friday, September 22, 2017
University President Drew G. Faust and Law School professor Annette Gordon-Reed unveil a monument commemorating the school’s connections to slavery on Tuesday afternoon.
Harvard Law School unveiled a memorial dedicated to slaves owned by the Royall family, whose donations helped endow the institution, at an event Tuesday evening.
The plaque, which sits on a rock in the plaza between Langdell Hall and the Caspersen Student Center, reads, “In honor of the enslaved whose labor created wealth that made possible the founding of Harvard Law School. May we pursue the highest ideals of law and justice in their memory.”
University President Drew G. Faust, newly appointed Dean of the Law School John F. Manning, and Law School professors Annette Gordon-Reed and Janet E. Halley each spoke at the dedication.
The plaque marks the second time Harvard has memorialized its historical ties to slavery in recent years. In 2016, Faust dedicated a plaque on Wadsworth Hall to the four enslaved people who lived and worked there in the 18th century. The Law School has also grappled with its connections to the Royall family in the past when it removed the family’s crest as its official seal; it has yet to select a new one.
You can read more here at the Harvard Crimson.
Thursday, September 21, 2017
Each August since 1998, Beloit College has released the Beloit College Mindset List, providing a look at the cultural touchstones that shape the lives of students entering college this fall.
Prepared by Beloit’s former Public Affairs Director Ron Nief and Keefer Professor of the Humanities Tom McBride, the list was originally created as a reminder to faculty to be aware of dated references. It quickly became an internationally monitored catalog of the changing worldview of each new college generation.
I rarely agree with Brian Leiter (except, of course, for his criticisms of the U.S. News Law School Rankings), but his post excoriating USD Law Dean Stephen Ferruollo for his failure to defend one of his professor's First Amendment rights and academic freedom needs to be broadcast as widely as possible.
Professor Leiter begins, "USD Law Dean Stephen Ferruolo should either resign or issue a public apology for his abject failure of leadership in one of his central duties as head of an academic institution: to defend freedom of speech and inquiry by faculty and students on both scholarly matters and matters of public concern. It is not his role to express his own opinions about positions defended by his faculty, either in their scholarship or in their contributions to public debate. If he wants to express his own opinions, he should step down from the Deanship and rejoin the faculty. But as Dean, his job is to defend freedom of speech and inquiry, even when it is unpopular. He has failed."
Although he is critical of the Wax/Alexander op-ed, he asserts, "the job of academic administrators is to administer a university environment, which includes protecting the space for scholarly and political debate. An administrator can only do that if he or she does not enter that space and take sides against members of the faculty or the student body." He concludes, "The Dean speaks for that community, and the way Dean Ferruolo has spoken has now endangered the community he was charged with shepherding."
As has been often stated, our First Amendment freedoms are our most important ones because they allow our other freedoms. Our right of free speech is endangered today, especially on college campuses. All of us in academia must do everything we can to protect free speech, even when we disagree with that speech. I salute Professor Leiter's post.
Wednesday, September 20, 2017