Sunday, December 31, 2017
That's the premise Professor Jane Grise argues for in a new article entitled Critical Reading Instruction: The Road to Successful Legal Writing Skills available at 18 W. Mich. U. Cooley J. Prac. & Clin. L. 259 (2017) (but not on SSRN). Basically, Professor Bloom argues that to help students become better legal writers, we need to teach them how to become better critical readers (something that linguistics scholar Naomi S. Baron also argues in her book Words on Screen (here and here)). From Professor Grise's introduction:
. . . . This article provides the results from the first empirical study to examine the impact of critical reading instruction on legal writing performance. Any impact on writing is significant as writing is a key skill for law school as well as law practice. As one legal writing authority has observed, “[g]ood writing is strength. If you are a better writer than other lawyers, your clients will have an advantage.”
This study arose from my work as a legal writing instructor as well as my examination of critical reading scholarship in legal education and research into general learning theory. My work with first-year students led me to explore why some students with good general writing skills displayed serious writing problems during the first semester of law school. It appeared that some of the writing and/or analytical deficiencies could be impacted by the students' failure to comprehend the underlying cases they were reading. It seemed logical to assume that students could become better writers if they understood the cases that formed the basis for their writing assignments. . . .
A legal professional addicted to alcohol or other drugs may hide the problem, but eventually, the addiction will catch up with him or her. From Attorney at Work:
Maintaining a life of active addiction while working in a high-pressure field, such as law, frequently translates to leading a double life. The person may exhibit a seemingly healthy persona, including going to the gym, eating regularly and looking good. However, people who look like they’re high-functioning may not actually be high-functioning. They may be spending extensive amounts of time double-checking their work following a hangover, having to stay up long hours into the night sending out emails and documents, or going to great lengths to conceal their unhealthy behaviors. They may be using their intelligence and extensive skills to minimize and hide the consequences of addiction and deny their problem both to themselves and others.
When we think of someone as high-functioning, it’s usually assumed the person has been managing their responsibilities and overall life, including their addiction, for years. They may keep up appearances for a long time, but disease progression varies from person to person. They may (and most likely will) continue their unhealthy behavior if their workplace enables them. If colleagues cover for them when they’re late, help them when they’ve forgotten something important, and look the other way at “out of character” behavior, the colleagues are contributing to the problem.
Having had an alcoholic administrative assistant, and, at another school, colleagues with alcohol problems, I know something about the problem. Frequently the functioning alcoholic covers for himself or herself, and then there’s the crash. It may be a literal crash, often getting into a car accident while inebriated. I won’t even mention students with addictions.
You can read more here.
Saturday, December 30, 2017
This is the 800th anniversary of England’s Charter of the Forest. Its principles have shaped today’s environmental law. From Bloomberg: Steven T. Miano & Isabelle Blouis, Practitioner's Insights: The Charter of the Forest – An Enduring Legacy:
Eight hundred years ago, in England, the Charter of the Forest of 1217 (a.k.a. Carta de Foresta) was established as a complement to Magna Carta. As noted by scholars, the Charter of the Forest is one of the world's first environmental statutes. It has influenced the evolution of law related to the management and protection of natural resources, environmental conservation and land use, over many centuries.
Despite its significance, the Charter of the Forest—sometimes referred to as “Magna Carta's Lost Sister”— seems to have been overlooked with the passage of time. Considering its enduring legacy and its particularly heightened relevance today, initiatives have been and are being undertaken in several areas around the world in order to commemorate and celebrate its 800th anniversary.
You can read more here.
Friday, December 29, 2017
This article from the New York Times reports the closing of the nation's fourth largest retail bookstore chain, Book World, due to the strong consumer preference for buying books online from (mostly) Amazon and Walmart. Interestingly, the article estimates that about half of all U.S. households have an Amazon Prime membership (that's incredible, isn't it?) which means they can have any book their heart desires delivered right to their doorstep within 48 hours. That kind of convenience, along with the ability of online retailers to sell books for much less than any brick and mortar operation is why Book World is closing its doors. The move will make Books-a-Million the nation's second largest physical bookstore retailer behind Barnes & Noble. Of particular interest to the legal educators who read this blog is the article's observation that the demand for physical books still remains robust compared to the digital variety. It's just that most readers prefer the convenience and cost advantages of buying their books online. Thus, law professors and other educators should keep in mind when ordering textbooks for class each semester that, statistically speaking, your students likely prefer the physical version over its digital counterpart.
p.s. Small, independent bookstores, unlike the bigbox variety, have been enjoying a resurgence much like record stores. (Click here for a list of links detailing the many success stories from across the nation). Please continue to support them.
From the Duane Morris law firm blog:
Many are betting on these five: Arizona, Florida, Michigan, Missouri and Nebraska. And of course New Jersey is expected to legalize adult use under new Governor-elect Phil Murphy. Certainly an interesting mix! Some don’t even have legal medical cannabis yet and would try to do both at the same time. Of these one would think Arizona, NJ and Florida, particular tourist destinations already, could really benefit from legalization.
You can read more here.
I have posted a list of the top legal education articles of 2017 on the TaxProf Blog. (here)
More 2017 top legal lists:
ABA Journal, Our 10 most-read stories of 2017
ABA Journal, The top 10 legal news stories of 2017
ABA Journal, The top 10 legal tech stories of 2017
Above The Law’s Top 10 Most Popular Posts Of 2017
Cleveland 19, Top 10 legal cases that made headlines in 2017
Financial Times, FT Top 10 legal innovators for North America
Indiana Lawyer, Top 10 legal stories of 2017 focus on law schools, court changes
The Legal Examiner, Top 10 Civil Justice Stories for the Year 2017: Part Two
Thursday, December 28, 2017
A new article by Professor Deborah Archer (New York Law School) explores how student decisions about which clinical courses to enroll in and whether their interests and goals match those of the courses in question can affect the overall educational experience. Professor Archer's article is called Open to Justice: The Importance of Student Selection Decisions in Law School Clinics and is available at 24 Clinical L. Rev. 1 (2017) and on SSRN here. From the abstract:
Clinical law professors have engaged in a significant amount of reflection and evaluation of the importance of clinic design, pedagogy, supervision styles, client selection, and case selection, but very little has been written about the significant impact student selection decisions have on the clinical experience and how clinical law professors should assess the applications of students whose fundamental values diverge from those of the clinic. A successful clinical experience is not just about what we are teaching or how we are teaching. Important issues arise when we think about who we are teaching and the context in which we are teaching them. The experiences, perspectives, and attitudes of the students are critical components of any clinical program. Student selection decisions impact the ability to meet the myriad goals of a clinical program, including the educational experience of the other students participating in the program and the quality of representation afforded to clients of that clinic. Our decisions about which students we admit or exclude from a particular clinic raise issues about clinical law professors’ educational obligation to our students and our representational obligations to the clients of the clinic.
As clinical legal education plays an increasing role in legal education, with a broader range of clinical offerings and intensified student interest, we must give greater consideration to the criteria we use to admit students into clinical programs and attend to the risks that divergence of student, clinic, and client values can create. Certainly, some clinical law professors do not believe that law schools should engage in any individualized student selection decisions, and instead encourage open enrollment in clinical programs. However, where student selection models are employed, it should be done with all of a clinic’s goals in mind, rather than isolating the singular goal of providing an opportunity for experiential learning. This essay endeavors to identify some of the challenges clinical law professors face in making student selection determinations that balance the multiple goals of clinical education.
Defensive pessimism is a strategy in which anxious individuals set unrealistically low expectations (relative to their past performance) and reflect extensively on potential pitfalls to prepare for upcoming events. Students employing this strategy may anticipate problems that could arise with an upcoming performance and take steps to avoid those problems from happening.
Is this strategy positively related to law students’ academic performance? According to a recent study, the answer is no. However, the study found a positive relationship between defensive pessimism and law students’ psychological distress:
These findings, together with our findings regarding academic performance, suggest that academic performance alone cannot be used as a proxy for psychological distress. Some law students will experience psychological distress, but that distress will not be reflected in their academic performance. While defensive pessimism may be an adaptive strategy in that it facilitates the performance of anxious individuals, defensive pessimism may not be adaptive because by facilitating performance, it may impede the identification and treatment of law students who are in psychological distress.
You can access the study here. Emily Zimmerman & Casey LaDuke, Every Silver Lining Has a Cloud: Defensive Pessimism in Legal Education, 66 Catholic University Law Review 823 (2017).
The conference at U. Georgia School of Law in Athens on March 9 - 11, 2018 will mark the 20th Anniversary of the very first such conference in 1997 to examine and discuss the pedagogy of law school externships. Mark your calendars now and here the details at present (more to follow):
The conference includes plenary sessions on the past, present, and future of externship teaching; on advocating for externships within the legal academy; and on the justice mission of externships. It offers 35 concurrent sessions with over 95 presenters, as a well as a Town Hall on current issues in externship education. Registration also includes two pre-conference sessions, one for new externship teachers, the other on scholarship for externship teachers. A full program appears on the conference website.
Join us as we celebrate and take stock of the past, present, and future of externship teaching. Externships 9 will bring our community together to network, assess issues relevant to field placements and legal education, welcome new members of our community, and have fun.
University of Georgia School of Law
For the Externships 9 Planning Committee
Timothy Floyd, Mercer University School of Law
Alexi Freeman, Sturm College of Law at the University of Denver
Carole Heyward, Cleveland-Marshall College of Law
Bob Jones, Notre Dame Law School
Carrie Kaas, Quinnipiac University School of Law
Kendall Kerew, Georgia State College of Law
Lisa Mead, UCLA School of Law
Millicent Newhouse, University of Baltimore School of Law
Bridgett Ortega, John Marshall Law School (Atlanta)
Esther Park, University of Washington School of Law
Meg Reuter, University of Missouri Kansas City School of Law
Sue Schechter, U.C. Berkeley School of Law
Sarah Shalf, Emory University School of Law
Wednesday, December 27, 2017
At the Michigan Bar Journal (Dec. 2017), Professor Cara Cunningham Warren explains how she teaches client interviewing in an effort to aid both new lawyers and mentors of students and new lawyers. She identifies the interviewing task and the specific challenges it entails:
One of the most difficult tasks for any interviewer is creating an environment of trust and mutual respect while also delving deeply into the conflict that compelled the potential client to seek legal assistance. I help students address this specific challenge by focusing on facilitative communication and rapport-building behaviors and fact-gathering techniques.
On each of these topics, she gives detailed advice.
You can read her valuable article here.
During his "book of the week" segment this past Sunday on CNN, host Fareed Zakaria recommended a new work by MIT Professors Andrew McAfee and Erik Brynjolfsson called Machine, Platform, Crowd: Harnessing Our Digital Future which discusses how technology, including Artificial Intelligence, will transform many jobs from truck drivers to law firm associates. Mr. Zakaria interviewed both authors who posited a future less dire than some Terminator-like predictions in which technology and AI will undoubtedly replace some jobs but in other instances it will be used to do the scut work ordinarily done by humans who will then be freed-up to do other tasks that machines can't replicate. One example discussed during the segment is the use of technology to replace attorneys for discovery work whose jobs will shift to supervising the work of the machines in order to catch mistakes. Mr. Zakaria's segment from last Sunday doesn't seem to be posted online yet so in the meantime, here's a link to Professor McAfee's and Brynjolfsson's new book. The following is the publisher's description:
From the authors of the best-selling The Second Machine Age, a leader’s guide to success in a rapidly changing economy.
We live in strange times. A machine plays the strategy game Go better than any human; upstarts like Apple and Google destroy industry stalwarts such as Nokia; ideas from the crowd are repeatedly more innovative than corporate research labs.
MIT’s Andrew McAfee and Erik Brynjolfsson know what it takes to master this digital-powered shift: we must rethink the integration of minds and machines, of products and platforms, and of the core and the crowd. In all three cases, the balance now favors the second element of the pair, with massive implications for how we run our companies and live our lives.
In the tradition of agenda-setting classics like Clay Christensen’s The Innovator’s Dilemma, McAfee and Brynjolfsson deliver both a penetrating analysis of a new world and a toolkit for thriving in it. For startups and established businesses, or for anyone interested in what the future holds, Machine, Platform, Crowd is essential reading.
Tuesday, December 26, 2017
At Best Practices for Legal Education (Dec. 1, 2017), Professor Emeritus John Lande offers a letter giving advice to “Kelly,” a future law student. It is the sort of advice that urges the student to hold on to her ideals and visions. He concludes by suggesting some articles:
For more detailed advice, I encourage you to read my former colleague, Steve Easton’s, article, My Last Lecture: Unsolicited Advice for Future and Current Lawyers, and my sequel, My Last Lecture: More Unsolicited Advice for Future and Current Lawyers, as well as my article, Escaping From Lawyers’ Prison of Fear.
You can read the letter here. When I was in law school, I consistently stuck to my ideals and visions, but I would have appreciated a bit more support.
Monday, December 25, 2017
Using the serial comma, also known as the Oxford comma, can avoid ambiguity and litigation. At the Journal of the Missouri Bar, Vol. 73 (July/August 2017), Professor Douglas Abrams relates the unfortunate story of a statute that failed to include the comma and the ensuing litigation that cost Maine’s Oakhurst Dairy about $1.7 million.
The lesson: When you have three or more elements in a series, place a comma immediately before the conjunction that separates the last of the elements.
Example from thewritepractice.com:
Amanda found herself in the Winnebago with her ex-boyfriend, an herbalist and a pet detective.
Amanda found herself in the Winnebago with her ex-boyfriend, an herbalist, and a pet detective.
How many people are accompanying Amanda? With the Oxford comma, the answer is three. Without it, the answer is one.
You can read more here.
Sunday, December 24, 2017
The Institute for Law Teaching & Learning along with Texas A&M University School of Law are co-sponsoring a one-day conference on April 28, 2018 for new law professors and adjuncts. The details are below for planning purposes with registration to follow at a later date.
Sessions will address topics such as
Additionally, master teacher Gerry Hess, Professor Emeritus, Gonzaga University School of Law, will be on hand for one-on-one mentoring sessions throughout the day for a limited number of participants. By the end of the conference, participants will have concrete ideas to bring back to their students, colleagues, and institutions. And each participant will receive a copy of Teaching Law by Design for Adjuncts or Teaching Law by Design.
- Course design and learning outcomes creation
- Assessment methods
- Active learning approaches
- Team-based learning
- Technology and teaching
Registration information coming soon!
According to the ABA’s Standing Committee on Ethics and Professional Responsibility, the general answer is no. Independent fact investigation is not permissible. Here is the summary:
Easy access to a vast amount of information available on the Internet exposes judges to potential ethical problems. Judges risk violating the Model Code of Judicial Conduct by searching the Internet for information related to participants or facts in a proceeding. Independent investigation of adjudicative facts generally is prohibited unless the information is properly subject to judicial notice. The restriction on independent investigation includes individuals subject to the judge’s direction and control.
Here are the guidelines that a judge should attend to:
When deciding whether to independently investigate facts on the Internet, the judge should consider:
- Is additional information necessary to decide the case? If so, this type of information generally must be provided by counsel or the parties, or must be subject to proper judicial notice.
- Is the purpose of the judge’s inquiry to corroborate facts, discredit facts, or fill a factual gap in the record? If the facts are adjudicative, it is improper for a judge to do so.
- Is the judge seeking general or educational information that is useful to provide the judge with a better understanding of a subject unrelated to a pending or impending case? If so, the inquiry is appropriate. Judges may use the Internet as they would other educational sources, like judicial seminars and books.
- Is the judge seeking background information about a party or about the subject matter of a pending or impending case? If so, the information may represent adjudicative facts or legislative facts, depending on the circumstances. The key inquiry here is whether the information to be gathered is of factual consequence in determining the case. If it is, it must be subject to testing through the adversary process.
For further explanation plus hypotheticals, please click here.
Saturday, December 23, 2017
From Progressive Law Practice:
Attorneys are more stressed out at work than they were nearly a decade ago, according to a recent survey from Robert Half Legal.
Of the lawyers interviewed, 42% cited reduced stress levels as the one aspect of their job they would like to change. That's up 11 percentage points from the last time the survey was conducted in 2008. Further, 22% of those surveyed called for fewer hours at work and more personal time as the lone aspect they would change, down 8 percentage points from 2008, according to the survey.
What to Do?
Jamy Sullivan, executive director of Robert Half Legal, said keeping employees satisfied with perks and benefits, ultimately, is how many firms plan to bolster employee retention rates. "Unrelenting job stress and long hours can lead to staff attrition and productivity declines," Sullivan says. "To address these issues and retain key talent, legal employers are offering flexible schedules, telecommuting and remote work options, as well as additional vacation days."
Additionally, according to information in the survey, “greater professional autonomy” and “accelerated career growth” checked in as the next most desired improvements for lawyers at 7% and 6%, respectively. Only 2% of those surveyed said they would not change anything, given the opportunity.
You can read more here.