Wednesday, July 29, 2020
Below is the table of contents for Vol. 28, No. 1 of Perspectives: Teaching Legal Research and Writing along with links to each article. And with this issue, my time as EIC of Perspectives is finally at end (phew!)
James B. Levy
Karen J. Sneddon
Austin Martin Williams
You can download the entire issue here.
And if you'd like to subscribe to Perspectives, you can do so here. (you'll find the subscriber's link in the lower right corner of the screen)
Tuesday, July 28, 2020
Fortunately the bar exam administrators resolved the issues with ExamSoft after a short delay and all 733 test-takers who began a compressed version of the Michigan bar exam today were able to finish. From the Detroit Free Press:
Michigan's online bar exam crashed Tuesday about an hour into the exam, temporarily locking out aspiring lawyers taking the hours-long test.
After the test was complete later in the day, the Michigan Supreme Court and the state Board of Law Examiners issued a statement saying the crash was the result of a hacking attempt.
The glitch confirmed the fears of many test-takers, some of whom spent the days before the test asking for it to be cancelled.
The exam software cuts off Internet access for those taking the tests during each module. When each module was done, Internet access was restored and test takers were supposed to log into a secure website to get the password for the next module. The test takers were unable to get into that site and get the passwords, according to John Nevin, a spokesman for the Michigan Supreme Court and the state Board of Law Examiners.
Nevin said the test continued despite the password delays.
"As a result of this delay, test takers were notified via email that the testing day will be adjusted to allow additional time and account for those who got in late. The vendor will also be emailing the passwords for the remaining modules to avoid any further issues.”
Several hundred people took the test Tuesday. By the evening, the Board of Law Examiners announced all 733 people who took the test were able to complete it, despite the hacking attempt.
"ExamSoft experienced a distributed denial of service (DDOS) cyber-attack that prevented some test-takers from accessing their passwords," Nevin said around 7 p.m. Tuesday. "After a short delay for some applicants, ExamSoft was able to successfully thwart this attack, and at no time was any test-taker data compromised.
. . . .
Continue reading here.
Hat tip to Professor Michael Richmond.
Thursday, July 23, 2020
Second Expanded Edition of Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals
I have just issued the second expanded edition of my book Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals. Because I am self-publishing this version, I have cut the price from $59.95 to $35.00.
This book helps law students and lawyers develop their legal reasoning and problem-solving skills through self-correcting exercises. This type of self-guided active learning is especially important now when so much of the fall semester will be taught on line.
"This book’s purpose is to better prepare law students and lawyers for the practice of law by providing them with a firm foundation in legal reasoning, showing them how to apply legal reasoning skills to facts, and teaching them legal problem solving. I will do this by focusing explicitly on the different types of legal reasoning and the types of miniskills needed to develop the different types of legal reasoning.
The chapters in this book will present the different types of legal reasoning, the miniskills that are related to the different types of legal reasoning, and how to use these miniskills in combination. Chapter One discusses the five types of legal reasoning. Chapter Two will teach you how to be a critical and engaged reader and analyze cases, skills that are needed before you can learn the other miniskills in detail. Chapter Three concerns reasoning by analogy, which involves showing how your case is like a precedent case. Chapter Four examines rule-based reasoning, and how to apply rules to facts. Chapter Five involves synthesizing cases into rules, which is an important skill in establishing the law. Chapter Six investigates statutory interpretation. Chapter Seven brings the prior chapters together, by demonstrating how the different types of legal reasoning relate to the small-scale paradigm (how to organize a simple analysis). Chapter Eight fills in this paradigm by examining how to respond to opposing arguments and distinguish cases. Finally, Chapter Nine serves as a capstone to this book with its presentation of advanced problem solving and creative thinking. The appendices cover how the American legal system developed and canons of statutory construction.One of the purposes of this book is to allow law students to learn legal skills independently. I want students to be able to get immediate feedback on their learning. Consequently, I have put answers to the exercises at the end of each chapter."
Jan M. Levine (Duquesne), Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education
"On April 26-27, 2019, the Duquesne University School of Law hosted a conference titled “Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education.” Over those two days, more than 100 attendees were able to listen to nineteen presentations offered by thirty-one professors, educators, technology experts, and lawyers. The four articles in this symposium issue of the Duquesne Law Review resulted from that conference. All of the presentations from the conference are available on the Duquesne website, at: https://www.duq.edu/academics/schools/law/academics/legal-research-and-writing/2019-artificial-intelligence-conference."
Tuesday, July 14, 2020
Bari Weiss, a former opinion writer with the New York Times has resigned over bullying from other employees of the Times. She has written a bold resignation letter over the state of contemporary discourse.
"I joined the paper with gratitude and optimism three years ago. I was hired with the goal of bringing in voices that would not otherwise appear in your pages: first-time writers, centrists, conservatives and others who would not naturally think of The Times as their home."
"But the lessons that ought to have followed the election—lessons about the importance of understanding other Americans, the necessity of resisting tribalism, and the centrality of the free exchange of ideas to a democratic society—have not been learned. Instead, a new consensus has emerged in the press, but perhaps especially at this paper: that truth isn’t a process of collective discovery, but an orthodoxy already known to an enlightened few whose job is to inform everyone else."
"Stories are chosen and told in a way to satisfy the narrowest of audiences, rather than to allow a curious public to read about the world and then draw their own conclusions. I was always taught that journalists were charged with writing the first rough draft of history. Now, history itself is one more ephemeral thing molded to fit the needs of a predetermined narrative."
"My own forays into Wrongthink have made me the subject of constant bullying by colleagues who disagree with my views. They have called me a Nazi and a racist; I have learned to brush off comments about how I’m 'writing about the Jews again.'" [Ms. Weiss has written an important book on anti-Semitism.]
"some coworkers insist I need to be rooted out if this company is to be a truly “inclusive” one. . ." [You can't be inclusive unless you are exclusive.]
"There are terms for all of this: unlawful discrimination, hostile work environment, and constructive discharge. I’m no legal expert. But I know that this is wrong."
"I do not understand how you have allowed this kind of behavior to go on inside your company in full view of the paper’s entire staff and the public. . . . Showing up for work as a centrist at an American newspaper should not require bravery." [Didn't the Times come out against bullying?]
"What rules that remain at The Times are applied with extreme selectivity. If a person’s ideology is in keeping with the new orthodoxy, they and their work remain unscrutinized. Everyone else lives in fear of the digital thunderdome. Online venom is excused so long as it is directed at the proper targets."
"Op-eds that would have easily been published just two years ago would now get an editor or a writer in serious trouble, if not fired."
"The paper of record is, more and more, the record of those living in a distant galaxy, one whose concerns are profoundly removed from the lives of most people. This is a galaxy in which, to choose just a few recent examples, the Soviet space program is lauded for its “diversity”; the doxxing of teenagers in the name of justice is condoned; and the worst caste systems in human history includes the United States alongside Nazi Germany."
"All this bodes ill, especially for independent-minded young writers and editors paying close attention to what they’ll have to do to advance in their careers. Rule One: Speak your mind at your own peril. Rule Two: Never risk commissioning a story that goes against the narrative. Rule Three: Never believe an editor or publisher who urges you to go against the grain. Eventually, the publisher will cave to the mob, the editor will get fired or reassigned, and you’ll be hung out to dry."
"But I can no longer do the work that you brought me here to do—the work that Adolph Ochs described in that famous 1896 statement: 'to make of the columns of The New York Times a forum for the consideration of all questions of public importance, and to that end to invite intelligent discussion from all shades of opinion.'"
"Ochs’s idea is one of the best I’ve encountered. And I’ve always comforted myself with the notion that the best ideas win out. But ideas cannot win on their own. They need a voice. They need a hearing. Above all, they must be backed by people willing to live by them."
It is a sad, sad day in America when one of the strongest voices against anti-Semitism is bullied out of her job because she is not "woke" enough.
Tuesday, July 7, 2020
"A statement signed by 150 people incl. Bill T. Jones, Wynton Marsalis, Jennifer Finney Boylan, Noam Chomsky, J.K. Rowling, Margaret Atwood, and Salman Rushdie expresses concern over the illiberal trend intensified by our national reckoning."
Harper's Magazine July 7, 2020.
""Our cultural institutions are facing a moment of trial. Powerful protests for racial and social justice are leading to overdue demands for police reform, along with wider calls for greater equality and inclusion across our society, not least in higher education, journalism, philanthropy, and the arts. But this needed reckoning has also intensified a new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity. As we applaud the first development, we also raise our voices against the second. The forces of illiberalism are gaining strength throughout the world and have a powerful ally in Donald Trump, who represents a real threat to democracy. But resistance must not be allowed to harden into its own brand of dogma or coercion—which right-wing demagogues are already exploiting. The democratic inclusion we want can be achieved only if we speak out against the intolerant climate that has set in on all sides.
The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted. While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty. We uphold the value of robust and even caustic counter-speech from all quarters. But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought. More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms. Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes. Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal. We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.
This stifling atmosphere will ultimately harm the most vital causes of our time. The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation. The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away. We refuse any false choice between justice and freedom, which cannot exist without each other. As writers we need a culture that leaves us room for experimentation, risk taking, and even mistakes. We need to preserve the possibility of good-faith disagreement without dire professional consequences. If we won’t defend the very thing on which our work depends, we shouldn’t expect the public or the state to defend it for us."
You can find a complete list of signatories here.
Wednesday, July 1, 2020
This excellent article claims that metacognition is changing legal education, and I agree. From Socrates to Selfies: Legal Education and the Metacognitive Revolution by Jaime Lee.
"Metacognitive thinking, a methodology for mastering intellectually challenging material, is revolutionizing legal education. Metacognition empowers people to increase their mental capabilities by discovering and correcting flaws in their thinking processes. For decades, legal educators have employed metacognitive strategies in specialized areas of the curriculum. Today, metacognition has the potential to transform legal education curriculum-wide.
Current scholarship is rich, generous, and creative in exploring how metacognition can be used to enrich specific sectors of the law curriculum. What is missing, however, is a holistic examination of how metacognitive theory and practice have developed across these different sectors, with the purpose of improving the theoretical framework and increasing its effectiveness. This Article comprehensively reviews the many facets of the metacognitive revolution, drawing parallels for the first time between experiential and non-experiential pedagogies and further relating them to recent accreditation mandates. It then addresses the likelihood that an important phase of the metacognitive revolution—the mandate to implement formative assessments with meaningful feedback—might be widely but poorly implemented, and thus cause more harm than benefit. To mitigate this problem, the Article suggests two new ways of conceptualizing what constitutes “meaningful feedback.” The first is that for feedback to be meaningful, it must be accompanied by metacognitive reflection. The second is that feedback takes on meaning when prefaced by the deconstruction and abstraction, or “naming,” of legal thinking processes. Both insights emerge only upon a holistic examination of metacognitive theory and practice as they have developed across disparate sectors of the legal curriculum."