Sunday, November 19, 2017

Joe Kimble’s New Book on Plain English

Let me recommend Joe Kimble’s new book, Seeing Through Legalese (Carolina Academic Press). Joe is the recognized leader in the effort to bring a clearer, plainer style to legal writing and drafting.

In this book, he collects a number of essays that he has written. In the essays, Joe makes his case with examples of how plain English improves writing. The book is full of before-and-after versions of documents that we can use as illustrations in our teaching. You will enjoy this book and learn from it.

As Joe writes, the struggle for better writing and drafting is an ongoing endeavor:

Just know that more forces are at work for better legal writing than ever before — in the law schools, in the literature, in the CLE courses, in various pockets of government, and in multiple organizations and groups worldwide. No revolution; just a gradual cutting down and cleaning up of one verbose pile after another, until readers can see more easily through the legalese — to the light of clarity. 


November 19, 2017 | Permalink | Comments (2)

Saturday, November 18, 2017

Ethics Requires Civility at Discovery Sessions

From the Thompson Hines firm blog:

When a court orders you to meet and confer with opposing counsel about a discovery dispute, it requires you to do “something more than bickering with [opposing] counsel ….” That’s what a California state appeals court noted in affirming $12,600 in sanctions against a defendant represented by a large national firm. According to the opinion, a partner of the firm was uncivil, patronizing and condescending to the plaintiff’s counsel. The court cited the transcript of the meeting.

The court didn’t consider any ethics rules in making its ruling; but the case is still a reminder about professional conduct, including Model Rule 3.4(d) (failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party), as well as professionalism guidelines that your jurisdiction may have adopted, as my home state of Ohio has in its Lawyer’s Creed, for instance.

You can read the story here.


November 18, 2017 | Permalink | Comments (0)

Friday, November 17, 2017

ABA places Thomas Jefferson School of Law placed on probation

This has not been a good week for law schools. You may have heard that Valparaiso University Law School in Indiana will cease admitting students which some are understandably assuming means the school will be closing shortly though the school's Dean denies that. But the ABA Journal is also reporting that Thomas Jefferson School of Law in San Diego has been placed on probation due to bar passage and related academic and financial issues. You may remember that Thomas Jefferson went through a round of lay-offs and other financial problems several years ago which caused some to speculate the school might close at that time. (TJ was also in the news in connection with the so-called "law school scam" movement in which former students sued their law schools alleging they'd been deceived about job prospects).  TJ's dean has stated her disappointment with the ABA's decision to place the school on probation - which can obviously undermine the school's admissions and recruitment goals which would financially weaken the school - but vows to work with accreditors to rectify any compliance issues. You can read more about TJ's probation blues in the ABA Journal here and the San Diego Union-Tribune here.


November 17, 2017 | Permalink | Comments (0)

St. John’s will Accept GRE Scores instead of LSAT Scores

St. John’s Law School joins the small, but growing number of law schools that will accept GRE scores in place of LSAT scores.  From the official announcement:

St. John’s University School of Law announced today that it will accept Graduate Record Exam (GRE®) scores starting with applications for Fall 2018 admission to its J.D. program. St. John’s and Columbia Law School are now the only two law schools in New York State accepting GRE scores. 

In addition to the LSAT (Law School Admission Test), the School of Law will now accept the GRE, or both scores, for Fall 2018. The announcement was made by St. John’s University School of Law Dean Michael A. Simons, who said the decision came after a Faculty Council discussion.

You can read more here.


November 17, 2017 | Permalink | Comments (0)

Thursday, November 16, 2017

Questionable Nominations to the Federal Judiciary

The President has nominated individuals to the federal judiciary whose qualifications are problematic at best.

Take Brett Talley. From New York magazine:

Brett J. Talley has practiced law for less than three years. He has never tried a case — or even argued a motion.

But he does write a spirited, far-right blog: Shortly after the massacre at Sandy Hook elementary, Talley described Barack Obama’s proposal to expand background checks and restrict rapid-fire weapons as “the greatest attack on our constitutional freedoms in our lifetime.” One month later, he endorsed the idea that Americans “will have to resort to arms when our other rights — of speech, press, assembly, representative government — fail to yield the desired results.” During the 2016 campaign he derided the Democratic nominee a (NPR).s “Hillary Rotten Clinton.”

So much for judicial temperament. You can read more here and here. And then there’s nominee Jeff Mateer. From The Hill:

President Trump's nominee for a federal judgeship in Texas once described transgender children as part of “Satan’s plan,” compared homosexuality to bestiality and advocated for gay conversion therapy.

You can read more here. These and other nominations are passing through the Senate Judiciary Committee on party line votes.

These future judges may be disappointed when they realize that most of their cases do not deal with hot button political issues, but with complex commercial and corporate disputes and run-of-the-mill criminal cases.


November 16, 2017 | Permalink | Comments (0)

Behavioral Legal Ethics

Three law professors have a blog called Behavioral Legal Ethics--Tigran W. Eldred, James G. Milles, and Molly J. Walker Wilson.

There is the introduction to the website:

"Behavioral Legal Ethics* is a place for a wide-ranging discussion about the intersection between behavioral science, law and ethics. The conversations will appeal to anyone interested in the ways in which empirical psychological research can inform questions about how legal institutions and practices encourage ethical behaviors in legal and non-legal actors."

"*Thanks to Jean Sternlight and Jennifer Robbennolt, whose influential article Behavioral Legal Ethics coined the phrase."

There is a wealth of interesting information on this blog.  The most recent post is Behavioral Legal Ethics and Accurate Science.

(Scott Fruehwald)

November 16, 2017 | Permalink | Comments (0)

Wednesday, November 15, 2017

Creating a “Belonging Mindset”

Most of us are acquainted with Carol Dweck’s notion of a growth mindset—that you can develop your basic abilities with hard work and dedication. At Best Practices for Legal Education, Carrie Sperling advocates a “belonging mindset”: Students will have a better chance for success if they have not only a growth mindset but also belief that they belong in law school:

Belonging mindsets: When students feel they belong in an educational environment, they perform better and are less likely to drop out of a program. This is particularly true for underrepresented students who, by virtue of being different, often feel they don’t belong.

When negative stereotypes exist, members of the stereotyped group worry about whether they fit in, whether they will succeed in law school, and whether the legal profession is for them. These worries can deplete students’ cognitive resources, zapping them of their motivation and their ability to bounce back from setbacks. Because learning depends on motivation, students without a sense of belonging fall behind.

That’s why educators must be in tune with the kind of environment they create. Do you work to encourage belonging mindsets?

You can read more here (Nov. 2, 2017).


November 15, 2017 | Permalink | Comments (0)

Tuesday, November 14, 2017

Advice on Taking the Bar Again

About this time of year, former students who didn’t make the cut on the bar exam are starting to gear up to take the exam a second time. Joe Regalia has written a helpful article that should help comfort the bar failers and help them plan their study strategy. Here are his three big take-aways:

Frequently test yourself to see how many rules you can remember from each subject—without any crutches!

Create your own detailed schedule; don’t rely on the commercial bar services—and start practicing essays and MBE questions early and often.

Have a defined, step-by-step process for answering essays and attacking MBE questions.

You can read the full article here.


November 14, 2017 | Permalink | Comments (0)

Monday, November 13, 2017

Villanova Law Seeks Ass't Dean of Admissions & Financial Aid

Here's the ad. Villanova is a great place to work, and the staffs of the admissions and financial aid departments are great people. 

November 13, 2017 | Permalink | Comments (0)

ABA Warns More Schools about Bar Passage Rates

From the National Jurist (excerpts):

The American Bar Association has warned two more law schools that they are “significantly out of compliance” with accreditation requirements, primarily related to poor bar exam performance. That brings the total number of schools with current warnings to five, and several more schools could receive warnings in the next year or so. 

Florida Coastal School of Law and Atlanta’s John Marshall Law School were the latest schools to receive warning letters from Barry Currier, the ABA’s managing director of Accreditation and Legal Education.

In its response, Florida Coastal pointed out that its incoming credentials are better than 23 other law schools. 

"[W]e do not believe we are out of compliance at the present," the school stated in a letter to the local newspaper. "The ABA’s decision was based on historical data and likely influenced by our recent bar passage results. It was also made before the ABA could have seen the 90 percent improvement in our Florida first-time bar pass results from February to July."

Arizona Summit School of Law, is on probation for noncompliance with ABA admissions and academic standards.  Only nine of Arizona Summit’s 2017 graduates who took the Arizona Bar Exam passed the test. The school’s total pass rate for the July 2017 exam was 20.1 percent.

 “In May 2017, two other law schools — Thomas Jefferson School of Law and Appalachian School of Law — received similar warning letters regarding admissions practices and academic programming.

You can read the full article here.


November 13, 2017 | Permalink | Comments (0)

Teaching Behavioral Legal Ethics

I have been doing a lot of research on cognitive biases recently, and I ran across a great article on teaching cognitive biases in a legal ethics class:

Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility by Tigran Eldred.


"The field of behavioral legal ethics — which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers — has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This Article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective. Reflections on the approach, including the encouraging response expressed by students to this interdisciplinary method of instruction, are also discussed."

As I have said many times on this blog, law students need to be exposed to how cognitive biases affect their thinking and the thinking of others.  Professor Eldred does an excellent job of showing how an ethics teacher can integrate these lessons into a professional responsibility course.  All legal ethics professors need to read this article.

(Scott Fruehwald)

November 13, 2017 | Permalink | Comments (0)

Sunday, November 12, 2017

Avoid Toxic Co-Workers

From Northwestern’s Kellogg School of Management:

The people we sit near at work inevitably impact our day. They may brighten our day. What’s more, our work neighbors can actually change how well we do our own jobs.

Researchers looked at the 25-foot radius around high-performers at a large technology firm and found that these workers boosted performance in coworkers by 15 percent. That “positive spillover” translated into an estimated $1 million in additional annual profits, according to new research from Dylan Minor, an assistant professor of managerial economics and decision sciences at the Kellogg School.

Of course, the flipside is that bad eggs impact their neighbors, too. Negative spillover from so-called toxic workers is even more pronounced—sometimes having twice the magnitude of impact on profits as positive spillover. Yet, while this toxic spillover happens very quickly, it also dissipates almost immediately once that worker is either fired or relegated to the far physical reaches of the company.

In addition, working around toxic co-workers may make you toxic—a spillover effect.

You can read more here.


November 12, 2017 | Permalink | Comments (0)

Saturday, November 11, 2017

Detroit Mercy Law Review call for proposals and papers on Sanctuary Cities

Here are the details:

The Return of Sanctuary Cities: The Muslim Ban, Hurricane Maria, and Everything in Between The University of Detroit Mercy Law Review is pleased to announce its annual academic Symposium to be held on March 23, 2018 at University of Detroit Mercy School of Law.

This Symposium will contemplate a broad range of issues associated with Sanctuary Cities –presentations may focus on a specific era – past, present, or future – or may discuss a subject through the past, present and propose future solutions. Presentation topics could include, but are not limited to:

• The potential consequences of Trump’s immigration policies (including the Muslim Ban);
• The ability or inability of Trump and ICE to carry out these immigration policies;
• The constitutionality of Trump’s and ICE’s policies and actions;
• The efficacy of Program 287(g) and the potential consequences thereof;
• The impact of the Countering Violent Extremism (“CVE”) program;
• The efficacy of states’ Sanctuary legislation, like (pro) California and (anti) Texas;
• The ability or inability of cities and states to provide protection to undocumented citizens;
• The rights that undocumented citizens, particularly youth, should enjoy;
• Strategies and policies that cities and states can adopt to protect their undocumented citizens;
• The potential benefits or consequences for cities and states who adopt Sanctuary laws;
• The consequences for the changes made to the DACA program and possible solutions; and
• The position that SCOTUS would take on these issues, including existing legislation & DACA.

The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 300-400 words that details their proposed topic and presentation. Included with the abstract should be the presenter’s name, contact information, and a copy of their resume/curriculum vitae. Since the above list of topics is nonexhaustive, the Detroit Mercy Law Review encourages all interested parties to develop their own topic to present at the Symposium. In addition, while submitting an article for publication is not required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the 2018-2019 edition of the Law Review.

The deadline for abstract submissions is December 3, 2017. Individuals selected to present at the Symposium will be contacted by December 10, 2017. Law Review editorial staff will contact those selected for publication in 2018 regarding details and deadlines for full-length publication.

The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Symposium Director, Jessica Gnitt at Please cc the Detroit Mercy Law Review Editor-in-Chief, Matthew Tapia, at


November 11, 2017 | Permalink | Comments (0)

Five Business Lessons from “The Founder”

The movie, The Founder, chronicles Ray Kroc’s success story in creating the McDonald’s fast food empire. At Attorney at Work, consultant Jared Correia finds five business lessons in the movie:

  1. You have to get lucky.
  1. People won’t like what you’re doing.Whenever you try to do something new or different, haters gonna hate.
  1. You have to want it more than anything (or anyone) else. 
  1. It’s not always about being nice. So, here’s the thing: Ray Kroc was kind of a dick — even if “The Founder” establishes that point at its own pace. He’s the salesman’s salesman. The deal goes downhis way; everything else is secondary. The list of people Kroc screws over could appear at the front of “The Iliad.”
  1. You don’t have to be an innovator.“The Founder” stands for the proposition that successful businesspeople don’t have to have the best ideas … if they can steal the best ideas.

You can read the full explanations here.


November 11, 2017 | Permalink | Comments (0)

Friday, November 10, 2017

US News Promotes Legal Writing

In spite of all the mischief that U.S. News rankings cause, sometimes the periodical does something constructive. Recently it published a short article advising would-be law students to check out the legal writing programs of the schools that they’re thinking of applying to (here).

US News does rank legal writing programs at law schools. As with all its rankings, I would take this one with a grain of salt. The high ranking schools have great legal writing programs, but many other schools have programs that are equally as good. In fact, today, most schools with which I am acquainted have great programs.


November 10, 2017 | Permalink | Comments (1)

Thursday, November 9, 2017

U. Dayton seeking to hire Assistant Professor of Academic Success

Here are the details courtesy of Lawyering Skills Professor Victoria L. VanZandt:

Assistant Professor of Academic Success– POSITION SUMMARY


The University of Dayton School of Law invites applications for one Assistant Professor of Academic Success. This is a non-tenure track position with an initial appointment of one year and the possibility of renewal for long-term (three or five-year) appointments after three years of satisfactory service.


The focus of the Academic Success Program at the School of Law is to help students develop the skills necessary for law school success and first-time bar passage. Responsibilities of the Assistant Professor of Academic Success will include:


· teaching academic success courses related to legal reasoning, critical reading, exam- writing, and bar examination preparation;


· providing academic advising and professional development counseling for students;


· supervising and evaluating the Law School’s Learning Communities program, including designing student-led sessions and working with upper-level Dean’s Fellows;


· participating in the larger community for academic success professionals through regular attendance or presentations at conferences and other relevant endeavors to support the faculty member’s professional development;


· delivering and assessing a comprehensive program of academic support from orientation until graduation.


Applicants must have a J.D. degree from and a record of high academic achievement at an ABA- accredited law school and recent experience in legal education or law teaching in an American law school, particularly in designing and teaching academic success courses or those related to legal reasoning, critical reading, exam-writing, and/or bar examination preparation. Applicants must also articulate a commitment to academic support, including implementing the best models and practices available to encourage student success and utilizing recent developments in pedagogy in American law schools.


We prefer candidates with:


· Demonstrate a commitment to academic support, including implementing best models and practices available to encourage student success and utilizing recent developments in pedagogy in American law schools;


· Demonstrate successful experience providing effective academic advising and professional development counseling for students;


· Recent successful experience developing and administering structured intervention and counseling programs for at-risk students;


· Recent successful program administration, including delivering and assessing all aspects of a program, especially if the experience relates to academic support;


· Demonstrate successful experience compiling and analyzing data for statistical analysis, including familiarity with the most commonly used statistical software programs;


· Excellent written and oral communication skills, including effective presentation skills;


· Effective interpersonal communication skills with various constituencies;


· Ability to work collaboratively with colleagues;


· Demonstrate successful experience mentoring and working with students from diverse backgrounds; and


· Expressed willingness to engage with Catholic and Marianist educational values.


The University of Dayton, founded in 1850 by the Society of Mary, is a top ten Catholic research university. The University seeks outstanding, diverse faculty and staff who value its mission and share its commitment to academic excellence in teaching, research and artistic creativity, the development of the whole person, and leadership and service in the local and global community.


To attain its Catholic and Marianist mission, the University is committed to the principles of diversity, inclusion and affirmative action and to equal opportunity policies and practices. As an Affirmative Action and Equal Opportunity Employer, we will not discriminate against minorities, females, protected veterans, individuals with disabilities, or on the basis of sexual orientation or gender identity.


Applications will be accepted until November 21, 2017. To be considered as a candidate for this position, you must apply online at: Cover letter and CV should be submitted electronically on the website at the time of application. The cover letter should address the applicant’s ability to meet the minimum and preferred qualifications. For more information about the School of Law or the Academic Support Program, please visit our website at or contact the chair of the hiring committee, Professor Victoria VanZandt, University of Dayton School of Law, 300 College Park, Dayton, Ohio 45469-2772.


November 9, 2017 | Permalink | Comments (0)

Can a Judge Radically Change his Philosophy?

The answer is yes. Consider the late Honorable Charles Halleck who moved from being a conservative firebrand to an outspoken liberal. From the Washington Post:

Charles W. Halleck, an outspoken crew-cut conservative who transformed into a bearded, bell-bottom-wearing progressive during a 12-year stint as a D.C. Superior Court judge, stoking the anger of prosecutors and police officers while championing marginalized groups such as gays, prostitutes and marijuana users, died Oct. 31 at a nursing home in Portola Valley, Calif. He was 88.

You can read more about his colorful life here.

His father was Charles Halleck, sometime majority and minority leader of the Republicans in the  House of Representatives. Though he was quite conservative on most issues, he championed civil rights in the 1960s.

The lesson: Don’t write off people with whom you disagree. People can change.


November 9, 2017 | Permalink | Comments (0)

Sean Parker on Facebook: We created a monster

Sean Parker on Facebook: We created a monster

Sean Parker, co-founder of Facebook talks about the dangers of social media.  Excerpts:

Facebook “literally changes your relationship with society, with each other,” “God only knows what it’s doing to our children’s brains.”

Facebook is designed to exploit “a vulnerability in human psychology” to get its users addicted.

“The inventors, creators — it’s me, it’s Mark [Zuckerberg], it’s Kevin Systrom on Instagram, it’s all of these people — understood this consciously,” he said. “And we did it anyway.”

“We need to sort of give you a little dopamine hit every once in a while, because someone liked or commented on a photo or a post or whatever,” Parker said. “And that’s going to get you to contribute more content, and that’s going to get you … more likes and comments.”

“The thought process that went into building these applications, Facebook being the first of them, … was all about: ‘How do we consume as much of your time and conscious attention as possible?’” he said.

In other words, Facebook and other social media are using cognitive biases to manipulate their readers.

I have written about this manipulation and how to overcome it in my book, Overcoming Cognitive Biases: Thinking More Clearly and Avoiding Manipulation by Others (2017).

"Comedian Bill Maher recently declared, “Apple, Google, Facebook, they are essentially drug dealers.” Similarly, 60 Minutes had a segment on “brain hacking.” What were Maher and 60 Minutes talking about? Brain biases that clog up our thinking and allow us to be manipulated by others."

(Scott Fruehwald)

November 9, 2017 | Permalink | Comments (0)

Wednesday, November 8, 2017

The 10 things every college professor hates when it comes to student behavior

This list was compiled by Professor Lisa Wade, a professor of sociology at Occidental College. If you're a law professor, how many of these pet peeves do you share? How many of these rules do you enforce?  (via The Business Insider and originally published at the blog The Society Pages):

  • Don’t use unprofessional correspondence.

  •  Don’t ask the professor if you “missed anything important” during an absence.

  •  Don’t pack up your things as the class is ending.

  •  Don’t ask a question about the readings or assignments until checking the syllabus first.

  •  Don’t get mad if you receive critical feedback.

  •  Don’t grade grub.

  •  Don’t futz with paper formatting.

  •  Don’t pad your introductions and conclusions with fluff.

  •  Don’t misrepresent facts as opinions and opinions as facts.

  •  Don’t be too cool for school.



November 8, 2017 | Permalink | Comments (0)

Leonard Cohen’s Novels

Before Leonard Cohen decided to devote his life fully to music, he wrote novels. Here is Tim Falconer’s memoir on reading them. From Lithub.


November 8, 2017 | Permalink | Comments (0)