Saturday, December 11, 2021
"The student government of CUNY’s law school passed a resolution ripping the Jewish state last week — prompting an enraged rebuttal from a group of faculty members."
"The Law Student Government Association demanded that CUNY sever ties with Israel and accused the school of being “directly complicit in the ongoing apartheid, genocide, and war crimes perpetrated by the State of Israel against the Palestinian people through its investments in and contracts with companies profiting off of Israeli war crimes.”
"That salvo was met with outrage from an opposing group of CUNY faculty members who argued that the group was attempting to stifle pro-Israel opinion and demonize Jewish students."
From the faculty resolution:
On June 10 the Professional Staff Congress (PSC) of the City University of New York passed a grievous resolution littered with viciously demonizing misrepresentations of Israel and modern-day libels of Jews. The CUNY Alliance for Inclusion (CAFI), a group of CUNY faculty enthusiastically endorsing civil dialog and exchange of ideas and vehemently opposed to demonization, arose in response. Sadly, on December 2, the CUNY Law Student Government Association (LSGA) further magnified the PSC’s offense by passing a resolution that, following in historic antisemitism’s unreserved disparagement of Jews, “proudly and unapologetically” endorses Boycott Divestment, and Sanctions (BDS). The LSGA resolution attacks Israel with the mendacious, ahistoric chant of “apartheid, genocide, war crimes.” It launches a wholesale offensive maligning and attacking Jewish student groups and programs as well as faculty research and collaborations with a host of universities and corporations, attempting to shame such groups by name. Its 24 supporting organizations seek to exclude Jewish students who support Israel from a host of groups including those advocating for work against climate change, and those fighting for women’s rights. It thereby appropriates for itself the right to separate good from bad Jews and to quash Jewish self-expression it disfavors as it trashes academic freedom by seeking to bar opinions contrary to its own from CUNY and its groups. This directly contradicts Dean Capulong’s 2021 stated Law School goal to "recognize and respect one another's right to be part of our community."
The LSGA’s resolution reeks of historic redemptive anti-Judaism that demonizes Jews and Jewish institutions as satanic, with slanders that are precise inversions of the truth. For example, it is truly shameless to charge that Israel – whose people have experienced genocide in the recent past - with genocide against the Palestinian people, a population that has expanded manyfold since Israel’s founding, all while some Palestinian leaders actually call for the genocide of Jews. It is sad that, after millennia of being labeled stateless outsiders, the LSGA portrays the Jewish State as the outsider amongst nations. It is disheartening that this portrayal is from students supposedly learning to think clearly and rigorously in the service of fairness and justice who now misguidedly oppose these ideals. The rights of both pro-Israel and pro-Palestinian students must be supported.
A frenzy of anti-Semitic vilification of Israel under the cover of “anti-Zionism” is sweeping American education and, is metastasizing into attacks on Jewish life in the United States. In April 1933, the Law for the Restoration of the Professional Civil Service excluded Jews and the “politically unreliable” from civil service, including teaching at universities in Germany. Further legislation that month targeted Jewish student enrollment. Many German university administrators, professors and student fraternities supported these restrictions. In response to the CUNY LSGA resolution, which echoes a tragic period of Jew hatred, responsible CUNY administrators and officials in NYC and beyond must now speak out. A great university must champion diversity and cultivate a tradition of inclusive civil discourse and engagement on complex issues and conflicts and stand against historic hatreds and limitations upon speech and association."
Monday, November 22, 2021
"Legal scholar Akhil Amar says Yale Law School is ‘not living up to its highest standards.’
A prominent Indian American Yale Law School professor has blasted the school administration’s treatment of law student Trent Colbert and the Federalist Society, calling it 'dishonest, duplicitous, and downright deplorable.'"
"'I am not and have never been a member of the Federalist Society,' Amar said, adding that he is a life-long liberal Democrat, according to The Washington Free Beacon."
"But 'ideological diversity' is important for challenging 'implicit bias'—not just against members of other races, but those of other political persuasions, he said."
"Amar also spoke of the tension between 'real professors' and 'administrators,' who now outnumber faculty at Yale, and took a tacit shot at the law school’s diversity director Yaseen Eldik, who took the lead in the school’s conversations with Colbert."
"People 'who aren’t themselves educators are playing an increasingly large role in universities,' the Sterling professor of law was quoted as saying, adding that administrative bloat is a 'real problem.'"
"Law school dean Heather Gerken has announced an investigation into the situation but has thus far taken no concrete action, according to the Free Beacon."
Thursday, November 18, 2021
Students suing Yale Law show America’s elites have a low opinion of minorities by Glenn Harlan Reynolds.
"Yale Law School is failing."
"Now things have taken a turn for the worse. Two Yale Law School students have filed a federal lawsuit accusing the law school’s dean, Heather Gerken, associate dean, Ellen Cosgrove, and Diversity and Inclusion Director Yaseen Eldik of far more egregious behavior. The lawsuit claims that the defendants “worked together in an attempt to blackball two students of color from job opportunities as retaliation for refusing to lie to support the University’s investigation into a professor of color.” That professor was Amy Chua.
The two students charge that the law school administration tried to blackmail them into making false accusations against her. There’s much more, but that’s bad enough."
"In addition, the law school administration publicly shamed another student of color, who announced a Native American Law Students Association party in conjunction with the conservative Federalist Society, for, well, basically white supremacy. The student’s e-mail used the term “trap house,” a joking reference to drug culture, which the administration interpreted as a reference to black people (which seems kind of racist in itself). But the administrators were really unhappy about the Federalist Society, which they seem to regard as presumptively bad because, well, it’s not on the left.
The invitation’s author, law student Trent Colbert, was told, 'The e-mail’s association with FedSoc was very triggering for students that already feel like FedSoc belongs to political affiliations that are oppressive to certain communities through policies. . . . That of course obviously includes the LGBTQIA community and black communities and immigrant communities.'"
"Uh-huh. Meanwhile the administration summoned the Federalist Society’s president for a meeting and blamed him for somehow making the Native American student send the allegedly offensive e-mails: “I think you as a cis/het white man decided to have some fun and convinced a man of color with a backyard to send out an e-mail announcing a costume party where it wouldn’t be frowned upon if people came in blackface to eat some fried chicken while dancing to trap music.” (Note: The e-mail said nothing like that.)
In the eyes of the Yale Law School administration, apparently only “cis/het white men” have any agency, and minority men are just putty in their hands."
"But leaving aside this bit of straight-up racism, the administration also threatened the students that a failure to play ball and apologize would put their chance of taking the bar at risk, presumably because of a negative reference from Yale Law School, just as it threatened the future employment of the two students who refused to lie about Professor Chua."
"What can you say about an institution that is willing to break faith with its members and engage in blackmail and the subornation of false statements to wage a political vendetta?"
Question: When is the Yale Law School faculty going to stand up to its senior administration? Deans and diversity officers should not be bullying students.
Monday, November 15, 2021
According to the Yale Daily News, two students have sued Yale Law administrators for alleged retaliation in Amy Chua case. "The students, both unnamed in the suit, argue the administrators kept them from obtaining fellowships and job opportunities after they refused to endorse a formal complaint against Chua."
"Two unnamed Yale Law School students filed a complaint Monday against three Law School administrators and the University for allegedly “blackball[ing]” them from job opportunities after they refused to endorse a statement in the ongoing investigation against Law Professor Amy Chua.
The students, referred to as Jane and John Doe throughout the lawsuit, sued the University and Yale Law School Dean Heather Gerken, Law School Associate Dean Ellen Cosgrove and Director of Diversity, Equity & Inclusion Yaseen Eldik on the grounds of breach of contract, intentional interference with prospective business relationships and defamation, among others."
“Two Yale Law School deans, along with Yale Law School’s Director of Diversity, Equity & Inclusion, worked together in an attempt to blackball two students of color from job opportunities as retaliation for refusing to lie to support the University’s investigation into a professor of color,” the complaint reads.
University spokesperson Karen Peart wrote in an email to the News that “the lawsuit is legally and factually baseless, and the University will offer a vigorous defense.”
Saturday, November 6, 2021
The ABA, AALS, LWI, CLEA, and All Law Schools Should Adopt the University of Chicago Principles of Free Expression
Freedom of expression on college campuses has been a hot topic lately, especially in light of MIT disinviting a distinguished geophysicist because he opposed affirmative action. A number of professors at MIT have urged their university to adopt the University of Chicago Principles of Free Expression. (here)
"We, the undersigned MIT faculty members, urge that the Institute improve its written commitment to academic freedom and free expression by officially adopting the Chicago Principles, as articulated in a 2014 University of Chicago report."
"Because MIT is committed to free and open inquiry in all matters, it guarantees all members of the MIT community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of the Institute, MIT fully respects and supports the freedom of all members of the MIT community 'to discuss any problem that presents itself.'"
"In a word, MIT’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the MIT community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the MIT community, not for MIT as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the MIT community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the Institute’s educational mission.
As a corollary to the Institute’s commitment to protect and promote free expression, members of the MIT community must also act in conformity with the principle of free expression. Although members of the MIT community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, the Institute has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it."
I now urge the ABA, AALS, LWI, CLEA, and all law schools to adopt the Chicago Principles. You can find the Chicago Principles here. These principles have been adopted by Princeton, Johns Hopkins, Columbia, BU, and 78 other universities and colleges.
Monday, November 1, 2021
A discussion group at the 2021 SEALS conference dealt with that question, and Proceedings: Online Journal of Legal Writing Conference Presontations has devoted its latest issue to that discussion. Defining Legal Writing Scholarship.
"This issue explores the possibility of defining “legal writing scholarship” and examines what might be gained or lost in such a definition. The essays memorialize and expand on a discussion group at the 2021 conference of the Southeastern Association of Law Schools (SEALS), “Discipline Building: Scholarship and Status in the Legal Academy.'"
"As moderator of this discussion group (Karen J. Sneddon), I posed the following six questions:
What is “legal writing scholarship”?
Does the discipline need to have (or agree on) a definition of legal writing scholarship?
How might a definition of legal writing scholarship advance the discipline? Might a definition of legal writing scholarship limit growth of the discipline or exclude the work of some?
Should the definition of legal writing scholarship include an interdisciplinary component?
To what extent should legal writing scholarship connect to the bench and bar?
Should the definition of legal writing scholarship include the characteristics of “serious scholarship” and, if so, what does “serious scholarship” refer to? How does a definition of scholarship move beyond issues of placement, length, and number of footnotes?
"Specifically, the essays and article published here consider the need, value, and perils of formulating a shared definition of legal writing scholarship to advance the discipline of legal writing."
Here is a provisional definition of legal writing scholarship from Kirsten K. Davis:
"Legal writing scholarship” is inter- and cross-disciplinary scholarship that is communication-centered and law-connected. It creates knowledge by offering new information or insights about the production of, reception of, and communication environments for texts that communicate about the law."
Wednesday, September 22, 2021
Gaslighting: " someone (a "gaslighter") who persistently puts forth a false narrative which leads another person (or a group of people) to doubt their own perceptions to the extent that they become disoriented and distressed. This dynamic is generally only possible when the audience is vulnerable such as in unequal power relationships or when the audience is fearful of the losses associated with challenging the false narrative." (Wikipedia)
Professor Philip Ewell shocked the music theory world at the Society for Music Theory conference in 2019 when he charged that American music theory was systematically racist. (here) Professor Ewell announced, “Music theory is white”–it is structured by a white racial, male framework. This is the whiteness—which manifests itself in the composers we choose to represent our field inside and outside of the classroom, and in the music theorists that we elevate to the top of our discipline—that one must practice, regardless of one’s own personal racial identity, in order to call oneself a music theorist.” The problem is not negative racial stereotypes, but “positive white stereotypes.” In addition, the problem is not so much prejudice, but that “racism is systemic or institutionalized.” He added: "Colorblind racism is the most significant form of racism in music theory’s white racial frame and has been used for decades to dismiss those who wish to cite our racialized structures and ideologies.” Ewell did admit, “The linking of Schenker’s racism with his music theories is necessarily speculative—this is obviously my interpretation."
Ewell noted, “American music theory is based on the racist idea that whites are superior to POC, a sentiment stated explicitly by significant music theorists like François-Joseph Fétis (1784-1871) and Heinrich Schenker (1868-1935) in the nineteenth and early twentieth centuries.” Schenker's graphic method of analyzing musical structure has been particularly important in music theory since the 70s. (You can compare the importance of Schenker's approach to the importance of law and economics in legal scholarship.) Ewell compares the hierarchy that Schenker finds in music to the hierarchy between races. He points out that Schenker was a racist. (which is true; it was a part of the conservative German ideology of the time). Thus, the racism in Schenker's personal views transferred to his approach to music theory. (Follow that? Good, neither can I).
The Society for Music Theory immediately jumped on the Ewell bandwagon; Ewell gaslighted them. However, some Schenker followers fought back in a special issue of the Journal of Schenkerian Studies. While a few of the articles supported Ewell, most strongly criticized his presentation. Timothy Jackson wrote, “Schenker . . . was no privileged white man. Rather he was a Jew in prewar Germany, the definition of the persecuted other. The Nazis destroyed much of his work and his wife perished in a concentration camp.”
The Society for Music Theory immediately condemned Jackson and the authors of the other negative articles as racist in a letter signed by 900 music theorists. (here) SMT capitulated in light of Ewell's address: "A public statement from the President, authorized by the Executive Board and in accordance with the Policy on Public Statements, that SMT acknowledges the following three points: (a) that American music theory is historically rooted in white supremacy, the racist idea that whites are superior to nonwhites, (b) that these white supremacist roots have resulted in racist policies that have benefitted whites and whiteness while disadvantaging nonwhites and nonwhiteness, and (c) that these racist policies have resulted in injustices suffered by BIPOC at all stages of their careers. Further, we call upon the President, with the authorization of the Executive Board, to apologize to all BIPOC who have suffered such injustices, without equivocation."
The criticism of Jackson and the Journal led to the Journal’s suspension and Jackson being barred from the Journal. Jackson, in turn, sued some of his critics for defamation.
I have presented my criticisms to Ewell's article in detail here. In brief, I argued that cognitive scientists have demonstrated that 1) the human brain does not operate in a manner that is consistent with social constructionism, the foundation of Ewell's theories, 2) tonality is universal, confirming that the use of tonality in music is not racist, and 3) Schenker's approach to analysis reflects how the brain processes music.
Others have criticized Ewell's logic. Dr. John Halle, a composer and music theorist, criticized Ewell's ignorance of science. (here) He wrote, "While Ewell appears to be entirely unaware of them, the most elementary facts about perceptual psychology cited in 4 above supply “something else”. Namely, rather than being white, tonality, not only could be, but almost certainly is, a psychological universal. Hearing music according to a perceptual hierarchy of stability is a species property, deployed in organizing the pitched sounds we hear in much the same way as a “beat” is assigned by all members of our species to sufficiently periodic unpitched sounds. Our doing so is no more “a direct result of the power of colonialism and hegemony” than the attribution of three dimensional structure by our visual cortex, the semantic features of words, or predicate argument relationships and phrasal categories in all languages of the world."
Halle also noted the lack of scientific basis of the articles that Ewell cites in support of his arguments. For example, "Before discussing what these are, it’s worth correcting a minor error in Ewell’s text with respect to the misidentification of Robin di Angelo as “a scholar.” He noted that "Di Angelo functions as a corporate diversity consultant compensated by mostly Fortune 500 firms presiding over mandatory anti racist employee training sessions. More recently, the massive popularity of White Fragility has created a market for her public appearances and it appears that the bulk of her income is now derived from these." More importantly, "her book White Fragility: Why It’s So Hard for White People to Talk About Racism [, which is] conspicuously deficient in citing peer reviewed academic work is far from a scholarly study, as others have pointed out. " He added, "Given the lavish corporate sponsorship of these “anti-racist training sessions”, there’s plenty of reason to view Di Angelo and Ewell’s fashionable anti-racism within the centuries long tradition of capital’s efforts to use race to divide and obliterate what they have always understood to be their main enemy: working class solidarity."
Robert Tracinski goes the farthest in seeing the dangers in Ewell’s approach: “but the broader motive is the same as Ellsworth Toohey's: to herd us all into a collective and make us think about everything in terms, not of the individual, but of the group. Just as with the supposed ‘anti-racists’ who want us to see ‘hard work’ and ‘rational thinking’ as ‘white’ values, so Ewell lists the following among his catalog of ‘euphemisms for whiteness’: ‘authentic,’ ‘civilized,’ ‘classic,’ ‘function,’ ‘fundamental,’ ‘genius,’ ‘opus,’ ‘piano,’ ‘sophisticated.’ Oh, and also ‘science,’ ‘theory,’ and the calendar, because I guess the Gregorian calendar is colonialist. We are not allowed to think of anything independent of the political dogmas of the moment or outside of a ‘racial frame’—and this is billed, in the final insult to our intelligence, as ‘anti-racism.’” (here)
Tracinski continued, “In that regard, notice what this ‘woke’ analysis accomplishes for its contemporary Ellsworth Tooheys: It allows them to elevate themselves by tearing other people down. They do not have to discover a new continent or unlock the secrets of the universe; they do not need to found a free nation or fight a war to free other men from bondage; they do not need to write a play or a poem or a symphony, or develop their own theories of music; they need merely point out the flaws of the people who did all of these things. All they need to be better than the best is to display their mastery of the latest catchphrases.” He concluded, “He fights Beethoven and Shakespeare (and Rockefeller and Morgan) because he wants people to think of themselves as small and weak and thus to allow themselves to herded into undistinguished collectives in need of a ruler—someone like him.”
Based on the above, one can see how Ewell bullied SMT into adopting his views. By using antiracist theories like "White fragility" ("a state in which even a minimum amount of racial stress becomes intolerable, triggering a range of defensive moves"), Ewell made it almost impossible for anyone to disagree with him, especially in light of the events of last year. Those who did, like Timothy Jackson, were ostracized by the group. In other words, agree with me or get cancelled.
I do not want to see the same thing happen to legal education concerning law school standards reform. As six present or emeritus holders of Sterling Professorships of Law at Yale Law School declared, "The new proposed requirements of standards 303(b)(3) and (c), to the contrary, are altogether different in kind for they attempt to institutionalize dogma, mandating instruction in matters that are unrelated to any distinctively legal skill, hence intruding on the right and obligation of every professor to determine what to teach in a class and how to teach it. Mandating the content of such courses misconstrues the accreditation function and what a successful institution of higher learning seeks to inculcate in its students: to teach them skills, but not to require students to adopt a specific world view. Institutions of higher education challenge students intellectually and provide them with the analytical capacities to think for themselves and reach their own conclusions."
Similarly, Professor Steven Solomon has stated, "However well-intentioned, I write to protest against your proposed standards. As an initial matter they constitute unconstitutional viewpoint discrimination. I have no doubt if they were adopted they would bring immediate lawsuit. Second, they are ill-informed and based upon invalid social science which has not been established. More specifically, your proposals are based on pseudo-science on race relations which has no valid backing."
In sum, law school accreditation standards should help create debate in the law classroom, not dogma based on "pseudo-science on race relations which has no valid backing."
“Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.”
George Orwell, 1984
Tuesday, September 21, 2021
For the seventh year in a row, Florida International University has attained the highest bar pass rate for first-time takers on the Florida July bar exam. Miami Herald, Want to Attend Law School in Florida? These Have the Highest Bar Passage Rates
"The Florida Board of Bar Examiners released the results Monday for the most recent Bar exam administered in late July among Florida’s law schools. The results show the law schools of Miami-based Florida International University and Coral Gables-based University of Miami outperformed all other Florida law schools in their percentage of people who passed the Bar exam."
"FIU, the largest public university in South Florida, led the rankings of Florida’s 11 law schools with a whopping 88.8% passing rate. Out of the 116 FIU graduates who took the exam this summer, 103 passed it." "The statewide passing rate was 71.6 percent."
“I’m just so very proud and impressed by our Bar takers,” said FIU law dean Anthony Page. “They have shown an enormous amount of resilience and persistence and legal skill given all of the travails of the last year.” Page credited FIU’s success to its Academic Excellence Program, which offers students optional courses about cognitive learning science. “The key is it’s not about memorization or Bar preparation; it’s about teaching students how to teach themselves or how to more effectively learn,” he said. “We’re teaching people how to be better learners, which frankly, will make them better lawyers.”
Update: FIU is a majority minority school with a 2020 makeup of 330 minority students out of a total of 509. As I said in 2013 (How to Help Students from Disadvantaged Backgrounds Succeed in Law School), minorities can pass the bar if a school uses the proper teaching techniques based on cognitive science.
Wednesday, September 8, 2021
I have now had a chance to carefully read Law School Rankings and The Impossibility of Anti-Racism by Rory D. Bahadur. No matter how much I dislike the U.S. News law rankings and like to see them debunked, I find Bahadur's article to be unconvincing.
Monday, September 6, 2021
One of the most important skills that law students need to learn in is how to synthesize rules from cases. Yet, studies have shown that second- and third-year law students are not good at synthesizing rules. I have heard two conference presentations by Professor James Stratman in which he has stated that, while second- and third-year law students are generally proficient at applying a single case to a set of facts, they are poor at synthesizing rules and applying several cases to a set of facts. (see also here at 4) This deficiency has developed because, except for perhaps a half a class in legal writing, synthesizing rules is not usually taught in law schools. To help students develop this skill, first-year professors need to drill this skill, just like they do case analysis.
Synthesizing rules is important because the common law develops on a case-by-case basis. One judge decides case A. Another judge uses that case to decide case B, which is on similar facts. The next judge then relies on cases A and B to determine case C, which becomes a new precedent. In other words, each new case adds to the story of the rule.
Synthesis in the law involves synthesizing rules in connection with a set of facts. "Rule synthesis is the process of integrating a rule or principle from several cases." (Paul Figley, Teaching Rule Synthesis with Real Cases, 61 J. Leg. Educ. 245, 245 (2011)) More specifically, "Lawyers begin this process of synthesis by first identifying the pieces of authority relevant to a legal issue and then fitting these pieces together to determine the overall analytical framework they reasonably support." (Jane Kent Gionfriddo, Thinking Like A Lawyer: The Heuristics of Case Synthesis, 40 Tex. Tech L. Rev. 1, 4 (2007)) Most importantly, "Only in making sense of all of the cases will a lawyer be able to formulate a clear picture of the law to determine an appropriate solution to the legal problem at issue." (Id. at 6)
There is not just one formula for synthesizing a rule. How you synthesize a rule depends on the materials being synthesized. Sometimes the materials will produce a single factor; other times the synthesized rule will comprise two or more factors. Often, one case will provide a framework for the rule with other cases filling in. Other times will you have to combine cases to produce the rule.
Learning case synthesis begins with synthesizing a single-factor rule. First, one must find all the relevant cases on that issue in relation to the facts. This usually means assembling all the mandatory authority from the governing jurisdiction. You must also be able to understand what cases belong together (grouping). Once you have determined the relevant group, you should carefully read the relevant cases, making sure you fully understand their reasoning, both explicit and implicit.
Synthesizing a single factor requires that you blend the cases into a coherent whole. In other words, your synthesis must be consistent with all the case holdings and reasoning. To synthesize a single-factor rule, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcomes.
Synthesizing multiple-factor rules is similar to synthesizing single-factor rules, except you first must determine what factors the cases require to establish a test (there is a preliminary grouping stage into factors). Separate out the different factors. (A chart might help you to do this). Then, for each factor, look at the outcome of each case for that factor and how the similarities and differences among the facts and reasoning of those cases affected the outcome for that factor.
The final step in a synthesis is to test your synthesis. Have you accounted for all the relevant cases in your synthesis? Are the cases relevant to your facts? Is your synthesis convincing? Is there an alternative synthesis? If so, is the original or alternative synthesis better? Has your synthesis produced a clear rule that can be applied to your facts?
Of course, the above assumes that the law in real life is consistent. It isn’t. You can’t always reconcile all cases on a particular point. Judges sometimes don’t blend in a previous case, and sometimes they miss or misunderstand an earlier case.
There are a number of exercises on synthesizing cases in Chapter Five of my book, Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013, 2020).
Tuesday, August 31, 2021
This professor thinks so.
Rory D. Bahdur, Law School Rankings and The Impossibility of Anti-Racism.
"The U.S. News and World Report Law School Rankings invoke ideas about excellence and high achievement in the legal academy, but under the surface, they also operate as a catalyst for systemic racism. They do this by capitalizing on system justification, a palliative evolutionary mechanism that forces all members of society, from privileged high socioeconomic groups to the disenfranchised, to buttress the societal status quo pervasively and unconsciously.
These responsive desires to keep the status quo invoked by the rankings are the same ones responsible for the perpetuation of the caste system in India, and every other division of human societies into dominant and disenfranchised groups. This system justification is not subject to introspection because it operates through powerful unconscious mechanisms. As a result, consciously antiracist people do not experience dissonance when making institutional decisions based on the rankings, even though those decisions perpetuate deeply rooted structural racism.
The only schools enrolling black students at the same level as their representation in the general population are the schools U.S. News ranks so poorly that they are not even assigned a numerical ranking, listed only as Tier 2 schools. This is because the metrics used to evaluate success are themselves racist metrics which devalue blackness and overvalue whiteness and wealth. Undoing this cycle of perpetuating and reinforcing racism requires the reexamination of fundamental assumptions on which our society is based. Assumptions like America being a meritocratic society and that we live in a just world perpetuate systemic racism. Mechanisms that mitigate the impact of systemic racism in legal education and beyond exist, but while corporations are now widely adopting these mechanisms and decreasing racial inequity, legal education is unlikely to follow suit because real antiracism in legal education will reduce institutional profitability."
What do you think?
Friday, August 27, 2021
The Council of the ABA Section of Legal Education and Admissions to the Bar met both virtually and in-person in Chicago on Aug. 20 to consider recommendations, reports and other issues on its agenda. The Council took these actions, among others:
• Approved final revisions for Standards 205, 303, 507 and 508, and will send them to the ABA
House of Delegates for concurrence at the Midyear Meeting in February 2022. All four
proposals were subject to previous Notice and Comment.
o Standard 205 addresses non-discrimination and equality of opportunity and was
expanded to include military status, ethnicity, and gender identity and expression.
The standard now covers race, color, religion, national origin, gender, sexual
orientation, age and disability. The change would make the standard consistent with
the ABA’s non-discrimination policy as well as some law schools in including military
status, and clarifies that a law school that is part of a university may rely on the
university’s non-discrimination policy provided the policy complies with the Standard.
o Standard 303 adds a professional identity formation requirement and a requirement
that students receive education in bias, cross-cultural competency and racism both at
the beginning of their legal studies and later during their law school careers. The
reference to “training” was changed to “education” to avoid implying a requirement to
a particular method of education. Also, Interpretation 303-8 was added to specifically
state that nothing in the Standard prescribes the type and content of the education on
bias, cross-cultural competency and racism. The final language also clarifies that the
second occasion for education can also take place as part of a law clinic or a field
o Standard 507 requires all admitted students receive information on resources related
to financial aid and student loan debt and individual student loan counseling. The
resources can be provided by the law school, the parent university or third-party
services. There were no changes to this proposal.
o Standard 508 adds information on law student well-being resources to the range of
student services that a law school is required to offer.
Under ABA procedures, the House of Delegates has two opportunities to review changes to rules
and standards and can concur, reject or make recommendations for changes. But final approval
to change ABA Standards and Rules of Procedure for Approval of Law Schools rests with the
Thursday, August 26, 2021
"The Standards Committee of the American Bar Association has recommended, as a condition of accreditation for American law schools, “requiring law schools to provide education on bias, crosscultural competency, and racism.” It suggests employing “guest lectures or trainings by experts in the areas of bias, cross-cultural competency, and racism,” a proposal that envisions money flowing into the pockets of Robin DiAngelo, Ibram X. Kendi, and their ilk. The ABA also proposes “setting and publishing goals related to diversity and inclusion” in faculty hiring and student admissions. These proposals are unsubtle code for the kinds of racialist, Marxist-influenced ideology and racial quotas that undermine the promise of equal justice under law.
Given that it is all but impossible to practice law in the United States without graduating from an ABA-accredited school, the adoption of these proposals would amount to government-backed mandates, especially as applied to the nation’s many state-run law schools. Some of them are likely illegal, as they involve the promotion of race-conscious hiring and admissions and the invasion of the academic freedom of graduate-level university professional schools. The ABA blew by a number of critical comments by prominent scholars of varying political stripes warning of this.
Even aside from the legal challenges, what the ABA’s move reflects is that the Left is still on the offensive in culture-war fights to control educational curricula, with, in this case, the longer-term objective being the corruption of the legal system itself. Except perhaps in the scale of the ambition that this particular project reveals, this ought not really to be news, unless you have listened only to left-wing critics of efforts by Republicans and conservatives to fight back against critical race theory and other leftist efforts at political indoctrination of students. Here, too, every legal means should be on the table to resist these proposals. The goal of that resistance should not be to dictate an orthodoxy, but to prevent the enforcement of one.
Finally, it is long past due for the ABA to lose its privileged position in legal education, much as Republican presidents have lately worked to eliminate its privileged position in the judicial-nomination process. There can no longer be an illusion that the ABA is some sort of politically neutral arbiter of professional standards. It is an openly ideological organization, and should be given no powers that would be denied to any other openly ideological group."
Monday, August 23, 2021
ABA Council Approves Addition of Bias, Cross-Cultural Competency and Racism Training Requirement to Law School Accreditation Standards
From the ABA Journal:
"The council on Friday did approve other proposed standards revisions, which are expected to go to the ABA House of Delegates for approval at the midyear meeting in February. They include: . . .
"Adding a new requirement that law schools provide education about bias, cross-cultural competency and racism to Standard 303, which focuses on curriculum. The offerings should take place at the start of a student’s legal education program and at least once more before graduation."
Does any other higher education accreditation agency mandate ideological training?
Thursday, August 19, 2021
Washington Free Beacon,
Legal scholars say mandates could force law schools to violate federal law.
"The American Bar Association is poised to mandate diversity training and affirmative action at all of its accredited law schools, a move top legal scholars say could jeopardize academic freedom and force schools to violate federal law.
The association, which accredits nearly every law school in the United States, is mulling a plan that would require schools to "provide education to law students on bias, cross-cultural competency, and racism," including a mandatory ethics course instructing students that they have an obligation to fight "racism in the law." Schools would also be required to "take effective actions" to "diversify" their student bodies—even when doing so risks violating a law that "purports to prohibit consideration of" race or ethnicity.
he proposal has sparked fierce blowback from legal scholars across the country, including 10 emeritus professors at Yale Law School, who called it a "problematic" and "disturbing" attempt to "institutionalize dogma" through the accreditation process. Violating federal law is "not legally defensible conduct for any institution," they wrote in a public comment on the plan in June, nor is it "a legally defensible requirement by an organization certifying law schools."
Those arguments have so far fallen on deaf ears: When the plan was submitted for final review on Aug. 16, it contained all of the provisions to which the Yale professors had objected."
"Few accreditors, however, are as influential as the American Bar Association. There are fewer than 250 law schools in the United States, and 199 of them are accredited by the association. In most states, attending an ABA-accredited school is a prerequisite for taking the bar exam. So when the association sets standards for law schools, it is effectively setting them for the entire legal system: corporate lawyers, criminal prosecutors, state judges, and Supreme Court justices will all be educated in whatever ideology the association dictates—even if it is indifferent to the rule of law itself."
"The proposed standards would institutionalize that indifference throughout legal academia. Laws prohibiting schools from considering race in admissions are "not a justification for a school's non-compliance" with the diversity requirement, one standard reads. According to the Yale professors, "It would appear that [this language] instructs schools to risk violating state or federal law in order to retain certification." Though the plan does tell schools to pursue diversity "by means other than those prohibited," it never specifies what those means are, an omission the Yale professors say could encourage legally dubious activities."
"Such activities might include using "personal ratings" to establish unofficial racial quotas, a practice that has landed Harvard in the Supreme Court. Though universities can use race as a "plus factor" in admissions, they cannot set hard floors or ceilings for any particular racial group. The ABA’s accreditation plan would encourage law schools to set those ceilings anyway, through the same sort of chicanery Harvard allegedly employs."
"t would also encourage students to see existing law as illegitimate. The plan mandates a course on "professional responsibility" that stresses lawyers' "obligation" to fight racism in the legal system—implying the legal system is racist—and requires students to learn about "bias, cross-cultural competency, and racism" at least two other times before graduating. "Courses on racism and bias in the law" are one way of satisfying that second requirement. Insofar as this curriculum assumes the law is unjust, it supplies a justification for disobeying it."
"he curricular mandates have elicited the strongest pushback from law professors, who see them as a fundamental threat to academic freedom. Brian Leiter, a legal theorist at the University of Chicago Law School, told the American Bar Association that its plan would "almost certainly violate the academic freedom rights of faculty at many (probably most) schools." Kate Stith, a professor and former dean at Yale Law School, was even more blunt, calling the proposal a "shocking" act of overreach."
"It is totally inappropriate for a group like the American Bar Association to intrude into the content of law school curricula," she told the Washington Free Beacon."
"The American Bar Association, which did not respond to a request for comment, will make a final decision on the plan next year."
"The most shocking thing about the proposal may be Yale's intense institutional opposition to it. Yale Law School has one of the most leftwing faculties in the country, with fewer self-identified conservatives than Stanford, Harvard, or the University of Chicago law schools."
Tuesday, August 17, 2021
What an embarrassment. (Criticisms of the proposed changes available here including from all the Sterling Professors at Yale Law School, as well as David Bernstein [George Mason], Eric Biber [Berkeley], Thomas Gallanis [Iowa], Alan Z. Rozenshtein [Minnesota], and Steven Davidsoff Solomon [Berkeley], among others--direct link to all comments here.) The Committee has obviously been captured by special interests, who are more concerned with posturing than the costs it is imposing on law schools. If this wasteful and ill-considered proposal is to be stopped, it will have to be at the next stages.
ADDENDUM: Twitter commentary from Professors Jonathan Adler (Case Western) and David Hoffman (Penn).
Monday, August 16, 2021
Despite strong opposition, The Standards Committee has issued its Final Recommendation Concerning Standard 303(C) with only minor tweaks. Below is the relevant part of the Recommendations. The underlinings are mine.
Standard 303: CURRICULUM
Summary: The proposed revisions include a new section of the Standard and new Interpretations 303-6 and 303-7 requiring law schools to provide education on bias, cross-cultural competency, and racism. There was strong support at the October 2020 Roundtables for mandating this education, and a few commentators supported adding the requirement during the Notice and Comment period following the February 2021 Council meeting. Other groups of deans, faculty, and affiliates have also written to the Council expressing the need for this education. The revisions also include a proposed new definition of professional identity in Interpretation 303-5 based on comments from the Notice and Comment period following the February 2021 Council meeting. Comments Received: All but eight comments specifically referenced Standard 303 or seemed to address these revisions without specifically mentioning Standard 303. The vast majority of these commentors expressed concerns about the revisions. Among the concerns were ABA overreach and interference with law school policies and curricula; imposition of certain ideology and corresponding First Amendment issues; academic freedom issues; discussion on these topics not incorporating differing perspectives; and differences in opinion on common theories that may be taught and the effectiveness of training in bias, cross-cultural competency, and racism.
Recommendation: We recommend the Council approve the changes to Standard 303 as presented in the redline below, which includes a few clarifications to address some of the concerns expressed. These clarifications are highlighted in yellow [italics]. First, “training and education” has been changed to “education” to avoid implying a requirement of a particular method of education. Similarly, Interpretation 303-8 was added to specifically state that nothing in the Standard prescribes the type and content of the education on bias, cross-cultural competency, and racism. Lastly, it is now clearer that this second occasion for education can also take place as part of a law clinic or a field placement.
Redline of Standard 303 [italics]
Standard 303: Curriculum
(c) A law school shall provide education to law students on bias, cross-cultural competency, and racism:
(1) at the start of the program of legal education, and
(2) at least once again before graduation. For students engaged in law clinics or field placements, the second educational occasion will take place before, concurrent with, or as part of their enrollment in clinical or field placement courses. . . .
Interpretation 303-6 With respect to 303(a)(1), the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.
Interpretation 303-7 Standard 303(c) may be satisfied by:
(1) Orientation sessions for incoming students on bias, cross-cultural competency, and racism;
(2) Guest lectures by experts in the areas of bias, cross-cultural competency, and racism;
(3) Courses on racism and bias in the law; or
(4) Other educational experiences that educate students in cross-cultural competency.
While law schools need not add a required upper-division course to satisfy this requirement, law schools
must demonstrate that all law students are required to participate in a substantial activity designed to
reinforce the skill of cultural competency and their obligation as future lawyers to work to eliminate
racism in the legal profession.
Standard 303 does not prescribe the form or content of the education on bias, cross-cultural competency, and racism required by Standard 303(c).
August 2021 Council Meeting Open Session
Friday, August 20, 1 – 3 p.m. (Central)
To register to attend the virtual Open Session, please visit: https://americanbar.zoom.us/webinar/register/WN_GXMullBBT6apCDUpxiSlYw.
Monday, August 9, 2021
RIPS-SIS Legal Research Text Review
How to Teach Lawyers, Judges, and Law Students Critical Thinking.
By E. Scott Fruehwald. (2020), 194 pages, ISBN: 9798608999987. $35
Subject: How to be a better teacher
Useful for: Useful for law teachers, as well as lawyers, judges, law students, and other
legal professionals seeking to improve their critical thinking skills.
Format: Chapters, with exercises and problems throughout, and two appendices
detailing sample Socratic dialogue.
How to Teach Lawyers, Judges, and Law Students Critical Thinking is a helpful guide
not only for law teachers but also lawyers, judges, law students, and other legal
professionals seeking to improve their critical thinking skills. The author calls attention
to a lack of focus on critical thinking skills in multiple areas of traditional legal education
and provides suggestions for how to incorporate an increased focus on critical thinking
skills and processes in the law school classroom. He provides exercises and problems
throughout each chapter and additionally includes two appendices with sample Socratic
dialogue to be used for such purposes.
While Chapter 1 details the need for critical thinking in legal education, Chapter 2
discusses the basics of critical thinking as a more generalized skillset. Chapter 3
discusses domain-specific characteristics of the law and asks the reader to reflect not
only on what it means to “think like a lawyer” but also to delve deeper into specialized
areas of law and thus “think like a criminal [or torts] lawyer.” By way of multiple
proposed methods, Chapter 4 discusses how to teach critical thinking in law schools,
and Chapter 5 looks specifically at the use of the Socratic method and suggests a new
approach to Socratic questioning. Chapter 6 discusses the connection between critical
thinking and law teaching and provides suggestions for pedagogical growth. Chapter 7
discusses critical thinking in the context of the legal (research and) writing classroom,
while Chapter 8 details the benefits of critical thinking for judges. Chapter 9 concludes
with a reminder that the process of critical thinking is never complete and provides two
lists of the most important aspects of critical thinking, the first more generalized and
the second focused specifically on law students, lawyers, and judges.
How to Teach Lawyers, Judges, and Law Students Critical Thinking is an interesting
read that will benefit legal professionals seeking to more effectively teach critical
thinking skills and/or improve their own critical thinking skills. With a host of exercises
and problems throughout, it serves as a reminder that, while too often neglected,
critical thinking remains a crucial part of the study and practice of law, and thus further
reminds us that we must seek to delve deeper and ask “why” as we continue to study
and/or teach law ourselves.
Reviewed by: Ashley Arrington, University of Houston Law Center, in 2020.
Wednesday, August 4, 2021
Professor Deborah Jones Merritt has posted an article on the Best Practices for Legal Education Website: Racial Inequity on the Bar Exam. In this article, she points out disparities among results for racial groups: "Stark racial disparities mark our profession’s licensing system. Last year, 88% of White candidates passed the bar exam on their first try. For BIPOC candidates, pass rates were significantly lower: 66% for Black candidates, 76% for Latinx candidates, 78% for both Hawaiian and Native American candidates, and 80% for Asian candidates. These racial disparities have existed for decades. Why do they persist? And why do we, as a profession, tolerate them?"
The main solution she offers is dealing with the stereotype threat. "Test-takers who belong to groups that our culture stereotypes as low-performing on a particular test will perform less ably than they would absent that stereotype."
I offer a different solution--better teaching methods.
These disparities in bar exam results are unacceptable, but it is questionable that dealing with them through the "stereotype threat" is the answer. Just look at the criticisms of stereotype threat in the Wikipedia article. For example, "According to Paul R. Sackett, Chaitra M. Hardison, and Michael J. Cullen, both the media and scholarly literature have wrongly concluded that eliminating stereotype threat could completely eliminate differences in test performance between European Americans and African Americans. Sackett et al. argued that, in Steele and Aronson's (1995) experiments where stereotype threat was mitigated, an achievement gap of approximately one standard deviation remained between the groups, which is very close in size to that routinely reported between African American and European Americans' average scores on large-scale standardized tests such as the SAT." Similarly, "A meta-analysis by Flore and Wicherts (2015) concluded that the average reported effect of stereotype threat is small, but also that the field may be inflated by publication bias. They argued that, correcting for this, the most likely true effect size is near zero."
Instead of using a questionable social science approach, law schools should use a direct approach--use better teaching techniques. There is a mountain of general educational research on teaching approaches, as well as on legal education. For example, research has shown that on the average minority students entering law school lack metacognitive skills. Such skills are necessary for success in law school and in passing the bar.
I have discussed these issues in depth in:
1. How to Help Students from Disadvantaged Backgrounds Succeed in Law School, 1 Texas A & M Law Review 83 (2013)
2. Think Like a Lawyer: Legal Reasoning for Law Students and Business Professionals (2020) [for law students]
4. How To Succeed in Law School (2019) [for law students]
Trina Tinglum: A Dedication and Remembrance
By Debbie Borman
Friendship is a marvelous and strange thing that cannot be defined in any one particular way. Just by happenstance we meet people who both enhance our lives and change our worldview forever, even if our friendship is limited by distance or availability or both.
Such was my friendship with Trina.
I first met Trina in 2009 or 2010 at a conference in a West Academic booth. We connected and began to discuss the possibility of a book contract. These discussions continued over the years at conferences, on the phone, in email, over wine, at AALS, LWI, in San Francisco, New York, and any place we could sneak off and have a private conversation. Trina and I exchanged life stories and gave each other solicited and unsolicited advice. We provided an ear for each other when we had the opportunity. Because of our hectic personal and professional lives those conversations were not frequent. But I always felt that if I needed her, she would be there for me.
My book was published by West in January 2019. Long before that date, Trina left publishing and began her career as a legal writing professor. We were then able to continue our discussions on different terms: as colleagues in the same profession.
The sad news last March that Trina died was shocking and hard-hitting. I went back to the last email correspondence I had with her in September 2019 – before she became sick. We were making plans to see each other. I did not know she had become ill. We were always both so busy we did not reach out regularly. I am still looking at her mobile number in my phone, incredulous and overcome with sadness that I cannot make a call and hear her voice again.
For those of you who did not know Trina, she joined the University of Wisconsin Law, her alma mater, as faculty in 2012. She taught Legal Research and Writing I and II, Legal Sources, Law Firm Writing Workshop, and Writing for Law Practice. Prior to working at UW Law, as noted above, she was an acquisitions editor at West Publishing. She also taught legal research and writing at Hamline University and was a law librarian and legal research instructor at the University of St. Thomas Law School. Trina also earned an M.S. In Library and information Science from UW.
Recognition for the people who do and did not crave the spotlight is often overlooked in academia. I collected some thoughts from Trina’s friends and colleagues so we can always remember her contributions to publishing and to academia, and forever remember her as a wonderful friend:
Tessa Boury, Director, Hudson Hospital Foundation
As long as I knew Trina, she was a teacher. I worked with her at West Academic Publishing and she taught me the role of an acquisitions editor. But Trina taught me much more than that. She taught me to be a working, professional mother. She taught me how to challenge myself while remaining true to myself. I watched her do the same in her career at UW. She taught me kindness, authenticity, good style, grit, forgiveness, and tenacity. Trina taught me what it was to be a genuine friend. And anybody who knew her was lucky to be her student.
Julie Oseid, St. Thomas Law School
Trina was supportive and encouraging, but it was her positive attitude that set her apart.
When I started as a faculty member at the University of St. Thomas Law School, I had been a stay-at-home parent for 13 years. I had not touched a legal resource during that time, let alone kept up with new developments. My self-confidence was low, but I knew I had to pull it together. Trina to the rescue! I confessed my inadequacy to Trina. She smiled, nodded, and said, "We will figure this out. You can do this. And I'll help." And she was true to her word. She was always willing to help as I learned and relearned legal research skills. She was calm, positive, and sympathetic. When I left her office, I was uplifted and ready to face a new challenge. She was an inspiration for my own teaching. I hope my support uplifts and empowers my students.
Carrie Sperling, University of Wisconsin
When I first arrived at the University of Wisconsin, I remember that Trina was one of the first to enthusiastically welcome me. Trina came in a small package but exuded outsized warmth and energy. Like all good teachers, Trina brimmed with curiosity. She always searched for better ways to engage and teach her students, and we bonded over that. Together, we forged a collaboration between legal writing students and my clinic, the Wisconsin Innocence Project.
The students drafted a research memo on a complex issue we were planning to litigate for a real-life client.
Trina and I spent so much of our casual time together chatting about the effects of a growth mindset on student learning, we decided to present our thoughts, research, and a fun experiment at the LWI Biennial Conference. The fun experiment was an idea we had that Trina put into practice. She wanted to learn a new skill while her students were learning legal writing. Trina chose juggling, which she had never tried to master. Trina engaged her class with her quest to learn how to juggle while they were learning how to write. She dropped a lot of balls in class, but she kept improving and having fun. And isn’t that the point! Is there any question that her students and I will miss her terribly?
Liz Reppe, State Law Librarian, Minnesota State Law Library
I met Trina when I was a law librarian at Hamline and she was our West rep. We became fast friends, and later colleagues as she moved into law librarianship. She was very smart, compassionate, and incredibly dedicated to the students. I’m glad she and I had a chance to cross paths in life. I send my sincere condolences to her family.
Vicente E. Garces, Reference Administration & Web Services Librarian, University of Minnesota Law Library
Trina was a wonderful colleague, very dedicated, and very active in MALL. It's no surprise that she went on to have such a highly successful career. She'll be missed by those of us who had the pleasure and honor to have her as a colleague.
Brenda Tofte, U.S. District Court, Northern District of Iowa
She had that gift of making everyone feel like they were the most important person in her life. She remembered everything you ever told her and always asked about family, projects, etc.
Trina also believed in “making the circle bigger.” When she taught legal research and writing to undergraduates at Hamline University, she would seek out others she knew wanted to enter the profession to co-teach with her as a way to help them get more teaching experience. I was one of the people she reached out to in this way and I will be eternally grateful for her mentorship, good humor, and generosity. Truly one of those people you could pick up with right where you left off.
Kim Peterson, University of Wisconsin Law
Trina was a popular teacher who was devoted to her students both academically and personally. Even while battling cancer, she sought to help her students through a difficult year and offered office hours that were quickly filled to capacity. A beloved friend and colleague, Trina will be remembered for her kindness, dedication, and empathy toward others. She felt that teaching was her calling and often said, “How lucky I am to get to do a job I love so much.”
Daniel P. Tokaji, Fred W. & Vi Miller Dean and Professor of Law
University of Wisconsin Law School
Trina was a graduate of UW Law and joined our faculty in 2012, after having served as an acquisitions editor at West, where I had the good fortune of getting to know her. She received a Master's Degree in Library & Information Science and taught legal research at the University of St. Thomas Law School and Hamline University.
Trina was an extraordinary member of our community. Her devotion to her students and to our Law School is legendary. Even after her diagnosis and during her treatment, Trina was offering office hours to our students – which were, of course, filled to capacity.
Kimberly Holst, ASU Sandra Day O’Connor College of Law
I met Trina when I was teaching at Hamline Law School, and she was teaching both at Hamline and at St. Thomas. When I left Hamline, I found myself seeking out Trina’s bright smile at conferences where I knew she was attending or presenting. Trina was the kind of person with whom you could fall naturally into a comfortable conversation. It didn’t matter if it had been months or years since you’d last seen each other. Our community lost someone truly special with Trina’s passing.