Legal Skills Prof Blog

Will Coca-Cola Go Cannabis?

Scott Martin writes:

A lot has been said marveling over how mighty Coke is talking to Canadian producers to concoct cannabis-infused products. After all, there’s always a thrill of cognitive dissonance when the establishment shifts.

But while people talk about whether Coke is on the verge of harnessing disruptive power or simply trying to keep its $200 billion franchise relevant, we’ve seen it all before.

This is what happens when an alternative investment class hits the big time. And it raises big questions for high-net-worth   and those who work with them.

Still, Martin is more than cautious. He sees an investment in the project as highly risky. You can find out why by clicking here.

Some of us remember “New Coke.” Here is the company’s version. It offers a good teaching illustration on how to frame a history that is unfavorable to you. You might be interested in reading "Taste Test Problems" on the Wikipedia site for "New Coke."

(ljs)

How to Write the Perfect Sentence

At Lithub, we find an excerpt from Joe Moran’s new book, First You Write a Sentence: The Elements of Reading, Writing … and Life. It first appeared in The Guardian. Here are a couple of typical paragraphs—insightful, worth your time, poetic, and perhaps a bit heady.

A sentence is much more than its literal meaning. It is a living line of words where logic and lyric meet – a piece of both sense and sound, albeit the sound is only heard in the reader’s head. Rookie sentence-writers are often too busy worrying about the something they are trying to say and don’t worry enough about how that something looks and sounds. They look straight past the words into the meaning that they have strong-armed into them. They fasten on content and forget about form – forgetting that content and form are the same thing, that what a sentence says is the same as how it says it.

If a writer’s sentences have enough life and interest in them – with “every step an arrival”, as Rainer Maria Rilke put it – they will hold the reader and move the writing along. The writing finds a hidden unity that has no need of the mucilage of linking phrases. Each sentence is like a tidal island that looks cut off until, at low tide, a causeway to the mainland appears. A good lesson for any writer: make each sentence worth reading, and something in it will lead the reader into the next one. Good writers write not just in sentences but with sentences. Get them right and everything else solves itself or ceases to matter.

You can read more here.

(ljs)

University of Georgia School of Law seeking to hire Director of Prosecutorial Justice Program

Here are the details:

The University of Georgia School of Law is hiring for the position of Director of the Prosecutorial Justice Program. The PJP is a three-semester prosecutorial externship course that has been a part of the Law School’s clinic and externship offerings for over 40 years. The deadline for applications is October 6, 2018.

 

You can find further information about the position and its requirements here: http://www.ugajobsearch.com/postings/31294. You can direct inquiries about the position and the application process to Ellie Lanier, [email protected], our Associate Dean for Clinical Programs and Experiential Learning.

(jbl).

Judge Awards Nothing after an “Outrageously Excessive" $1 Million Fee Request

     

A recent Legal Intelligencer story by PJ D’Annunzio, “3^rd Circ.: Judge Was Right to Award Nothing After ‘Outrageously Excessive’ $1M Fee Request,” reports that a federal appeals court has upheld the denial of a $1 million fee request by a Scranton attorney in an auto insurance case that produced a verdict almost a tenth of the requested legal compensation.  In its denial, the U.S. Court of Appeals for the Third Circuit, joining other circuit courts, also held that it is within a judge’s discretion to award no attorney fees at all, especially if the fee request is deemed “outrageously excessive.”

The ruling stems from plaintiff Bernie Clemens’ bad-faith case against New York Central Mutual Fire Insurance over its handling of his auto accident case.  The claims went before a jury and ended with a $100,000 punitive damages award.  The defendants had settled Clemens’ uninsured motorist claim for $25,000.

The case was handled by Mike Pisanchyn of the Pisanchyn Law Firm in Scranton.  After the case was resolved, Pisanchyn asked the court to award the seven-figure fee amount.  However, U.S. District Judge Malachy Mannion of the Middle District of Pennsylvania was taken aback by the sheer size of the number—so much so that he awarded Pisanchyn and his firm nothing and referred Pisanchyn for disciplinary review.

You can read more here at the National Association of Fee Analysis.

(ljs)

Podcast on how Artificial Intelligence is changing legal research

The podcast is the second in a series by Thomson Reuters (nee Westlaw) called "Insights from the Edge" in which "Insight Attorneys" sit down with industry experts to discuss hot topics related to the legal services industry. This installment of "Insights from the Edge" is called "The Meaning of AI for Legal Research" and discusses in general how Artificial Intelligence is changing the work of attorneys and, more specifically, how it's changing the task of legal research.  You can listen to the 13 minute podcast here.

(jbl).

Ralph Nader’s Best Advice to Students

My old boss has given this advice to students. Feel free to pass it on.

One morning when you are middle aged, you may wake up feeling hollow inside. You will be financially successful and have a good professional reputation. But there still will be that hollow feeling. You will wonder, “What am I doing with my life?” “Is that all there is?”

Ralph would say that you can avoid felling hollow and find fulfillment by engaging in public service and by helping society and other people. I would add that you need to work on your spiritual growth. You need to pay attention to your interior life.

A few weeks ago, I read a long newspaper article about a well-known movie actor. Despite his success, he was stuck. Why bother making another it movie? He was asking that familiar question, “Is that all there is?” Nowhere in the article did I see any mention of his engaging in social causes or helping others. Perhaps an editor cut out that part of the story; I don’t know—but maybe not.

I suspect that if that actor used some of his considerable influence to further a social cause or to help others, his malaise would evaporate.

(ljs)

10 hot practice areas according to National Jurist Magazine

Here they are:  

1. Financial Services
2. Cyber Security/Data Protection
3. Elder Law
4. Health Care Law
5. Energy Law
6. Immigration Law
7. Intellectual Property and Trademark
8. Labor and Employment
9. Litigation
10. Real Estate

You can read the companion article by National Jurist here.

(jbl).

Will Trying New Teaching Techniques Tank My Student Evaluations? No!

The TaxProf Blog discusses two studies on the above question.  The conclusion: "we present data from a survey of 431 physics instructors who had attended the Physics and Astronomy New Faculty Workshop and attempted to incorporate active learning into their introductory course. Nearly half of respondents (48%) felt that their student evaluations increased, one-third (32%) felt that their student evaluations had not been impacted, and one fifth (20%) felt that their student evaluations decreased. Thus, contrary to common fears, for these instructors the most likely result from the incorporation of active learning was an increase in student evaluations."

(Scott Fruehwald)

Another “Hot Coffee” Case

You probably remember the McDonald’s case. Here’s a report of a new Starbucks case. Based on the limited facts here, I would favor the plaintiff:

Starbucks Corp. beat back an appeal by a woman who alleged she was severely burned by hot coffee that spilled onto her legs when the lid separated from the cup.

Bettye Erchul, a passenger, got a large coffee from a Starbucks drive through. When she first picked up the cup, coffee came out between the lid and the cup, spilling onto her lap.

Erchul said she was “shocked” and either dropped the entire cup of coffee onto her lap or crushed the cup in her hand, causing the rest to spill onto her thighs. The spill caused severe burns on her legs that required surgery.

A written warning on the cup said: “Careful the beverage you’re about to enjoy is extremely hot.” Erchul said she knew the coffee was hot, but alleged Starbucks was liable because its employee had failed to properly secure the lid.

You can read more here.

(ljs)

If you're going to listen to music while you read, choose instrumentals

A new meta-analysis of 65 studies that looked at the effect of background noise on reading comprehension found that all auditory distractions have some detrimental effect but "intelligible speech" and music with lyrics had the biggest negative impact. The researchers also found that the negative effect background noise has on reading comprehension is about the same for children and adults. The take-away?  If you're going to listen to music while you work or study, choose The Ventures rather than The Beach Boys. The study is called Auditory Distraction During Reading: A Bayesian Meta-Analysis of a Continuing Controversy and can be found at 13 Perspectives on Psychological Science 567 (June 2018) and available here. From the abstract:

Everyday reading occurs in different settings, such as on the train to work, in a busy cafeteria, or at home while listening to music. In these situations, readers are exposed to external auditory stimulation from nearby noise, speech, or music that may distract them from their task and reduce their comprehension. Although many studies have investigated auditory-distraction effects during reading, the results have proved to be inconsistent and sometimes even contradictory. In addition, the broader theoretical implications of the findings have not always been explicitly considered. We report a Bayesian meta-analysis of 65 studies on auditory-distraction effects during reading and use metaregression models to test predictions derived from existing theories. The results showed that background noise, speech, and music all have a small but reliably detrimental effect on reading performance. The degree of disruption in reading comprehension did not generally differ between adults and children. Intelligible speech and lyrical music resulted in the biggest distraction. Although this last result is consistent with theories of semantic distraction, there was also reliable distraction by noise. It is argued that new theoretical models are needed that can account for distraction by both background speech and noise.

(jbl).

 

Why Law School Applications are Increasing

I’m not sure they’re increasing very dramatically, but, in any case, from Bloomberg:

When students began flocking back to law school after enrollment dropped precipitously starting in 2010, no one could explain why it regained its allure.

So the Association of American Law Schools asked nearly 25,000 undergraduates and first-year law students about their reasons.

Along with Gallup, the association undertook a national survey that found students largely are choosing law school for public-spirited reasons, including viewing the three-year professional degree as a pathway to a career in public service, politics or government.

Some 44 percent of respondents said a law degree was a career path, and a similar percentage said they chose to pursue one because of their strong interest in public interest work.

Slightly lower figures—35 and 32 percent, respectively—said their top reasons were to give back to society and to advocate for social change.

You can read more here.

(ljs)

Average Student Debt for Graduating Seniors

From The Institute for College Access & Success (TICAS):

Nationally, about two in three (65 percent) college seniors who graduated from public and private nonprofit colleges in 2017 had student loan debt, a slight decrease from 2016. These borrowers owed an average of $28,650, which is only [!] 1 percent higher than the 2016 average of $28,350.

State averages for debt at graduation ranged from a low of $18,850 (Utah) to a high of $38,500 (Connecticut), and new graduates’ likelihood of having debt varied from 38 percent (Utah) to 74 percent (New Hampshire). In 18 states, average debt was more than $30,000.

You can read more here.

(ljs)

For law students from the ABA - tips for surviving law school

The ABA's Student Lawyer magazine has devoted the September issue to tips and advice to students for surviving law school. Below is a partial table of contents with links - maybe you'll find something that's helpful (if you're a student) or maybe you'll see something you think is worth passing along to your students (for the profs who read this blog)

• Knowing the science of studying may help you succeed

• Join a study group or not? That’s up to you—literally

• Technology for studying: How to use it to your advantage

• Five students on how they faced their biggest challenges in law school

• The delicate art of studying: A balance worth achieving

Get the full table of contents with all the articles for the September issue here.

(jbl).

ABA: 8th Circuit Nominee is Not Qualified

From Bloomberg:

Jonathan Kobes isn’t qualified to sit on the U.S. Court of Appeals for the Eighth Circuit, according to the American Bar Association.

The ABA Standing Committee on the Federal Judiciary gave Kobes a “Not Qualified” rating, the sixth such rating for President Donald Trump’s judicial nominees.

Kobes is the second of Trump’s nominees to the Eighth Circuit to receive such a “Not Qualified” rating. The first, Steve Grasz, was confirmed by a 50-48 vote.

Four of Trump’s district court nominees have also been rated “Not Qualified.” Two of them have been confirmed, one was withdrawn, and one is pending.

None of President Barack Obama’s nominees received a “Not Qualified” rating, but his administration worked with the ABA to pre-screen candidates before announcing their nominations. The Trump Administration opted out of this pre-screen process, as did President George W. Bush’s administration, which also saw some nominees rated “Not Qualified.”

Kobes, who is currently general counsel to Sen. Mike Rounds (R-S.D.), came under scrutiny at his confirmation hearing for comments about immigration, which were attributed to him by a Dutch newspaper.

The paper quoted Kobes as saying that Republicans oppose immigration because it waters down the culture.

Kobes testified that he believed such a perspective on immigration was unfair, and that it didn’t reflect his personal position.

You can read more here.

(ljs)

Six Ways to Beat Writers Block

At the Chronicle of Higher Education, Professor Rachel Toor explains the six ways. Here are the headlines plus some brief elaborations:

• Work up a sweat. That inveterate walker, old Hank Thoreau, was just one among many who believed that physical activity leads to intellectual productivity:
• Take a quick trip. A change of venue often shakes things loose. Just a weekend away — camping or visiting friends and not thinking about work — can act as a restart.
• Just keep at it. It takes time, energy, and money to get out of Dodge. You might not have any of those. In that case, try sticking to your writing routine.
• Heed Anne Lamott’s clarion call. In her 1994 book on writing, Bird by Bird, Lamott offered her famous advice to write a "shitty first draft."
• Try the "compost" method. An environmental-historian friend gets unstuck using a similar process, which he calls "composting." He writes down a bunch of admittedly crappy ideas and then lets them molder. He mulls things over as he walks, and in the great pile of waste usually finds something worth cultivating.
• Remind yourself that even the best writers get stuck. Remember: Even when you’re not writing, your brain is still churning like a background app. It always feels like a gift when the ideas and the words start flowing again. It’s easy to forget how stuck you were. Life has returned to normal. We tend to take normal for granted and forget to count ourselves fortunate during good times.

You can read the full explanations here.

(ljs)

Designing a positive psychology course for lawyers

This sounds interesting . . . . A new article by Professor Lisle Baker (Suffolk) entitled Designing a Positive Psychology Course for Lawyers and available at 51 Suffolk U.L. Rev. 207 (2018). From the abstract:

Legal education is slowly beginning to include not only education in critical thinking and legal knowledge, but also education in complementary qualities of personal conduct and early professional formation. Positive psychology, with its emphasis on the evidence-based study of how people can thrive, not just be treated for mental illness or emotional difficulty, can aid these additional educational objectives. This Article examines some of the ongoing pedagogical choices involved in creating a law school course on positive psychology oriented around experiential student learning. Highlighted are a few key insights from the field, including resilience, character strengths, positive values, and enhanced relationships with other people. While only an introduction, this course is designed to help law students become sufficiently grounded in these insights and others from positive psychology to continue their education after law school. Because the course is experimental, the hope is that it will lay the foundation for initiatives by other law professors to make the application of positive psychology more broadly available to law students in general.

(jbl).

New York Times: France bans smartphones in schools yet some teachers question whether that strategy will work

My co-blogger Scott had previously posted about France's Education Ministry's decision to ban smartphones in all first through ninth grades classes on the premise that it will help students learn better (apparently Denmark is considering similar action). The New York Times has a more extensive report here describing the rationale for the ban and that some teachers question whether it will actually work as students may find ways to surreptitiously use them anyway. The rationale for the ban, of course, is that the distractions smartphones cause interfere with learning and that students are going to have to learn to unplug anyway once they get into the workforce. Here are some pertinent excerpts from the NYT story:

France Bans Smartphones in Schools Through 9th Grade. Will It Help Students?

. . . . .

 

France’s education ministry hopes that its smartphone ban, which took effect at the beginning of September and applies to students from first through ninth grades, will get schoolchildren to pay more attention in class and interact more, and several studies suggest such correlations.

 

Some experts are skeptical that the ban can be enforced, and some teachers question the merits of insulating children from the internet-dominated world they will face outside school. But the French government believes that without minimizing distractions, children will never learn the basics.

 

“If we want to prepare children in the 21st century, we must give them the tools of modernity: mastery of math, of general culture, the ability to flourish in social relationships, a capacity to discuss with others, to understand and respect others and then very strong digital skills,” said Education Minister Jean-Michel Blanquer.

 

“It’s a message we send to society: Do not always be on your phones.”

. . . . . 

About 60 percent of French junior high schools already had similar bans, said Frédérique Rolet, the secretary general of a national teachers union.

 

Under the new law, students can bring their phones to school but must keep them out of sight in their school bags or lockers. If they are caught using them, the phones can be confiscated for a day.

 

Yet students say they know how to get around the ban.

 

Grace, the eighth grader, said that even after her school, Françoise Dolto middle school in Paris, introduced its rule last year, she continued to film her friends for Snapchat and Instagram. She just did it clandestinely.

 

Teachers also doubt whether the ban is enforceable, especially with young teenagers for whom rebellion often trumps any inclination to follow a teacher’s instructions.

 

“I just don’t know how the law will be put in place,” said Cécile Dhondt, who teaches students who have trouble keeping up in class at College Jean Jaurès middle school in a suburb of Lille, in northern France.

 

As for taking away phones if students refuse to put them away, she said, “If I confiscated them, my students would not come anymore to class, and that is not the objective.”

 

David Scellier, who teaches French language and literature at a school in a Paris suburb, said that he doubted the law would be an effective “answer to the addiction problem,” and that responsibility was being put in the wrong place.

. . . . 

Continue reading here.

(jbl).

Will Cal-Berkeley No Longer be Called “Boalt Hall"?

Will Cal-Berkeley No Longer be Called “Boalt Hall?

Probably yes. From the ABA Journal:

In light of racist views held by 19th-century mining industry baron John Henry Boalt, a University of California Berkeley law school committee has suggested removing his last name from a campus building, as well as in internal communications and casual namings.

A Nevada attorney who came to California in the 1880s, Boalt wrote a piece the previous decade titled “The Chinese Question,” which argued in favor of preventing immigration from China because “Caucasian and Mongolian races are non-assimilating races,” and the Chinese were seen as inferior to white Americans. In his writing, Boalt also expressed negative views about blacks and Native Americans, according to the committee report released Monday.

After John Boalt died, his widow, Elizabeth Boalt, donated two parcels of San Francisco land valued at $100,000 to the law school in 1906, with instructions that the property be sold and the proceeds go toward a new building for what was then known as the School of Jurisprudence. A week later, the San Francisco earthquake occurred, and the school could only sell one parcel of land, notes Charles Cannon, Berkeley Law’s senior assistant dean and chief administrative officer.

Cannon also chairs the law school’s committee on the use of the Boalt name. He says the group determined that the original Boalt Hall name was philanthropic based on the gift, but when the law school moved to a new building in 1950, Boalt was part of honorific naming.

After her death in 1917, Elizabeth Boalt’s estate created two endowed faculty chairs, and there appears to be requirements to keep the Boalt name associated with those, Cannon says.

The law school stopped using the Boalt name in branding 10 years ago, in part because its former dean felt that the Berkeley name was more recognizable outside California, Cannon adds. However, he says that many still refer to the school as Boalt Hall, and the name is used in internal communications and in the name of some student group.

You can read more here.

(ljs)

Momento Mori - there's an app for that

Let's file this one under "midweek morbidity." The concept behind momento mori is that we will savor the gift of life much more if we spend a small amount of time each day contemplating our own death.  One way to do it that gained favor in an earlier era was to keep a human skull on hand in ye olde sitting room or parlor. Look at the skull, contemplate death, be happy! Simple, right? Now a company called "We Croak" - seriously, that's its name - has developed an app for your smartphone that will ping you at five random times per day as a handy, more convenient electronic substitute for contemplating your departed uncle's skull each day. As the website explains:

Each day, we'll send you five invitations to stop and think about death. Our invitations come at random times and at any moment, just like death. When they come, you can open the app to reveal a quote about death from a poet, philosopher, or notable thinker. 

 

We encourage you to take one moment for contemplation, conscious breathing or meditation. We believe that a regular practice of contemplating mortality helps us accept what we must, let go of things that don't matter and honor the things that do.

Maybe this will become a new trend in mindfulness training for law students and lawyers (or not). Check out the "We Croak" app here.

(jbl).

 

Judge Files Ghostwritten Decree

You find plagiarism in the strangest places. From the American Bar Association Journal:

A district judge in Iowa has vacated a couple’s divorce decree because it was ghostwritten by a lawyer without the knowledge of opposing counsel.

District Judge Jeffrey Neary said Thursday that the marriage of Troy and Audra Presuhn is still dissolved but other aspects of their divorce are vacated, the Sioux City Journal reports.

A review of Jacobson’s decisions released in June had found he failed to notify opposing parties in at least 13 cases that he was using proposed rulings written by lawyers. Most of the rulings were in family law cases. Jacobson retired last fall.

In the Presuhn case, Jacobson had called a lawyer for Audra Presuhn in June 2016 and asked her to write a final decree that mostly favored her client. He filed the document as a final decision after correcting one typographical error.

You can read more here.

(ljs)