Legal Writing Prof Blog

where has all the narrative gone?

Ken Chestek, at U. Indiana -- Indianapolis, posted this thoughtful analysis on the listserve for legal writing professors and graciously agreed to let us share it here:

"Citizens United, in my opinion, is a great example of the kind of absurd decision that pure logic, uninformed by narrative reasoning, can lead to. Judges pride themselves on ruling based on 'the law,' which they take to mean legal rules and logic, and to filter out emotional reasoning of all sorts. And this process often produces absurdities like this decision. 

"If one begins with the major premise that corporations are people, and the minor premise that people have First Amendment rights, syllogistic reasoning leads inevitably to the conclusion that corporations have First Amendment rights. But narrative thinking would reject the major premise: corporations are NOT people. They are fictional constructs, invented by human beings to serve the needs of human beings, and therefore should be subordinate to the needs of humans. But corporations don't have the same needs as humans. They don't need clean air to breathe, fresh water to drink, healthy food to eat, etc. Instead, those things that humans value (i.e. a clean and healthy environment) actually work AGAINST the corporation's sole mission: generating monetary profits for its shareholders. 

"Thus, narrative thinking would reveal corporations to be the antagonist of the story, with human persons as the protagonists. But, since a majority of justices apparently reject narrative thinking as unworthy, we are left with a manifestly absurd decision. 

"BTW there is also a logos-based argument against the corporations-are-people premise, but the court ignored it. The notion that corporations are people with Constitutional rights is usually traced back to the Supreme Court decision in Santa Clara County vs. Southern Pacific, 118 U.S. 394 (1886). But that case really doesn’t stand for that proposition at all. In fact, the court’s opinion never even mentions it; the only reference to corporate constitutional rights appears in the court reporter’s syllabus, which of course is not part of the opinion and therefore has no weight of authority whatsoever. The Citizens United opinion avoids this trap by the simple expedient of not citing Santa Clara at all."

(spl)

Stephen Colbert Analyzes a U.S. Supreme Court Decision

Our blog focuses on legal writing and its teaching.  When we teach, we must teach ourt students about how to interpret and apply precedent.  On a recent sow, Comedian Stephen Colbert analyzed Chief Justice Roberts' concurrence in the U.S. Supreme Court decision that will now allow corporations to make political contributions and pay for political advertising without restriction.  He turns the word "precedent" to "prece-don't" and raises the question of whether other courts could use Roberts' reasoning to overturn that decision.   Click here to see the Colbert Show clip.

Hat tip to Richard Neumann

(mew)

in today's news ...

 Bob Sachs, at Rutgers-Camden, brought our attention to the "On Language" column in last Sunday's N.Y. Times Magazine section.  It shared a number of interesting headlines that show the English language run amuck:

 

"Squad Helps Dog Bite Victim"

 

"Red Tape Holds Up New Bridge"

 

"MacArthur Flies Back to Front"

 

"McDonald's Fries the Holy Grail for Potato Farmers"

 

"Gator Attacks Puzzle Experts"

 

"British Left Waffles on Falklands"

 

(spl)

Half a Million Page Views

This week our "Sitemeter" tells us that we've had more than 338,000 visitors and more than half a million page views.  Thank you for supporting the Legal Writing Prof Blog.

Nancy, Sue, Coleen, Mark, and Jim

New York Times reports on big changes coming to commercial legal research engines

As we previously reported, Monday marks the debut of a purported radically new Westlaw search engine that is designed to appeal to users who expect Google-like simplicity in all the search engines.  Lexis will roll-out a similarly new search engine sometime later this year.  The Legal Blog Watchcalls it the "Perfect Storm" of legal research engines.  Perhaps it's more like a harmonic convergence around the omnipotent Google. 

Even the New York Times is getting in on the act by covering the story here:

Westlaw and LexisNexis, the dominant services in the market for computerized legal research, will undergo sweeping changes in a bid to make it easier and faster for lawyers to find the documents they need.

Lawyers and researchers paying to go online to find court cases and other legal documents should find better-looking interfaces, more relevant search results and new tools for document-sharing and other collaboration.

The changes to the research services are a reaction by Westlaw and LexisNexis to lower-priced — sometimes free — rivals and arrive at a time when law firms are working to cut overhead. The two companies also want to cater to a younger generation of lawyers accustomed to slick Web services and the search interfaces presented by companies like Google and Microsoft.

“I think Westlaw and Lexis have been balancing the needs of an older-generation of lawyers accustomed to using their services with bringing things up to the 21st century,” said Carolyn Elefant, a lawyer who practices in Washington and writes the MyShingle blog. “My guess is that they saw an opportunity to update their platforms with the legal industry in such a state of flux.”

You can read more about these development from the Legal Blog Watch, here, the New York Times, here, and the Law Librarian Blog here and here.

I am the scholarship dude.

(jbl)

Two new web-tools that link legal citations to the sources they reference

Here are a couple of new tools, one called Citer developed by the Cornell Law School Legal Information Institute, the other called Jureeka, that both connect legal citations in webpages with a free, full text version of the cited source.  The WisBlawg describes them this way:

Citer is a new tool from the Cornell Law School Legal Information Institute that looks for legal citations in ordinary web pages and points to a free, full-text version of the cited source. The concept is very similar to Jureeka, but Citer works in multiple browsers including IE, Firefox, Safari, Chrome and Opera. Jureeka is only available for Firefox and Chrome.

With Citer, you select an area of text on a web site that contains the cite you would like to look up, click a button in the browser bookmark linkbar, and Citer will attempt to transfer you to a page containing the content.

Jureeka is a little different in that it actually turns the citation into a live link which you simply click on to take you to a page containing the content.

Currently Citer covers the follow citation formats: US Code, US Supreme Court and Circuit court opinions, CFR and Federal Register, Statutes at Large, and federal public laws. They are working to expand it to state courts and some law reviews.

Jureeka's coverage is broader, covering selected federal, state and international sources, as well as some law reviews. See their spreadsheet for complete coverage.

Of the two, I prefer Jureeka - it's less cumbersome and has better coverage (at least for now). But, if you don't use Firefox or Chrome, then Jureeka is not an option for you. Citer is certainly a very good alternative.

Hat tip to the Legal Blog Watch where you can read a more extensive review of both products.

I am the scholarship dude.

(jbl)

Professionalism alert: Should lawyers use emoticons in emails?

In an interview with the New York Times, Bryan Cave managing partner Don Lents advises young lawyers that emoticons should not be used in client correspondence.  Emoticons, as we know, are often used to compensate for the shortcomings of email which are so easily misinterpreted due to the lack of visual and aural cues like body language and intonation which help establish meaning.  Young lawyers have grown up using emoticons as a normal and regular part of their drafting lexicon and thus may not recognize there are some circumstances when clients will look askance at their use:

Emoticons may work in personal communications. But [Mr. Lents] . . . doesn’t like seeing them in business communications. If you’re depending on a smiley face to communicate a thought to a client or a distant colleague, he tells young lawyers in his firm, you should probably step away from the keyboard, get on a plane and communicate in person. Especially if the communication involves any kind of dispute.

. . . .

“In texting and e-mails or even videoconferencing, you can’t always gauge the reaction and sometimes things can have a tendency to be misunderstood, or they can ratchet up to a level of seriousness that you didn’t anticipate,” he added. “In person, you see that somebody reacting in a way that you didn’t expect. Then you can stop and figure out what’s going on, and adapt.”

You can read more about young lawyers' use of emoticons here courtesy of the New York Times.

Big hat tip to the online ABA Journal blog.

I am the scholarship dude.

(jbl)

visiting legal writing professors needed in Ohio

 The Ohio State University Moritz College of Law will have openings for visiting professors to teach the first-year course in legal writing for the 2010-2011 academic year.  Their first-year legal writing course is taught in the spring semester, but depending on the course package of the individual, either year-long or one-semester visits are possible.  Send resumes to:  Donald Tobin, Associate Dean for Faculty, The Ohio State University Moritz College of Law, 55 W. 12th Ave, Columbus, Oh  43210.  E-mail submissions should be directed to [email protected]

1.  The position advertised is a one-semester or one-year visitorship.
2.  The professor hired will not be permitted to vote in faculty meetings.
3.  The school anticipates paying the person's usual salary plus an amount above that to compensate for travel, etc.
4. The number of students enrolled will be no more than 40 legal writing students in two sections.  If one section of legal writing and one of something else, no more than 20 legal writing students.

hat tip:  Mary Beth Beazley

(spl)

Partner to associates: sometimes there's no substitute for face-mail

Writing emails is great but one partner reminds firm associates that sometimes there's no substitute for face-time with a client.  In a New York Times interview, Bryan Cave chairman Don Lents advises young lawyers that

“if you think you are going to have a difficult interaction with a colleague or a client, if you can do it face to face that’s better, because you can read the body language and other social signals.”

“In texting and e-mails or even videoconferencing, you can’t always gauge the reaction and sometimes things can have a tendency to be misunderstood, or they can ratchet up to a level of seriousness that you didn’t anticipate,” he added. “In person, you see that somebody reacting in a way that you didn’t expect. Then you can stop and figure out what’s going on, and adapt.”

The problem, says Lents, is a generation gap such that younger lawyers are so used to communicating electronically, they may not understand the importance of face-to-face meetings in terms of client relations.  You can read the rest  of Mr. Lents' thoughts hereregarding the pros and cons of email/texting versus in-person communication.

Hat tip to the online ABA Journal.

I am the scholarship dude.

(jbl)

Wexis announce major changes to their commercial search engines

Facing competitive pressure from Google Scholar and other open source search engines, as well as consumer pressure for a more "Google-like" search experience, both Westlaw and Lexis have announced they will be rolling out radically new search engines in the weeks and months ahead.

According to the online ABA Journal:

There’s a battle about to break out on your computer screen. On the third floor of West’s sprawling corporate headquarters outside Minneapolis, a veritable army of professionals has been working for nearly five years to create a revamped Westlaw. They are changing everything from the interface users see on their PC screens to all the technology that makes it work behind the scenes.

Known as WestlawNext, the new platform will debut February 1.

On its own suburban campus near Dayton, Ohio, LexisNexis—the other half of the duopoly that has ruled online legal research for almost 40 years (some call it “Wexis”)—is planning its own revamped platform. Referred to internally as New Lexis, it is slated to roll out publicly later this year on a date yet to be determined.

Both companies claim to be creating a legal research experience that will mimic the ease of use their customers have come to expect from the leading Internet search engine, Google.

The updated services come not a moment too soon, since the Mountain View, Calif.-based search engine has just gotten into the legal research business. In November, the company announced that its Scholar search engine now contains more than 80 years of U.S. case law from federal and state courts, as well as U.S. Supreme Court decisions dating back to 1791—all of it free.

You can read the rest of the story here.  In the meantime, strap-in and buckle-up - I'm sure it'll be an interesting ride as we watch the commercial search engine companies figure out how to maintain their client base and revenue stream in the face of open source competition.

I am the scholarship dude.

(jbl)

No more photos of the constitution

This story reminds me of the following snippet of dialog from Spinal Tap between mockumentary-maker Marty DiBergi and Nigel Tufnel regarding one of Nigel's guitars:

Nigel Tufnel: Look... still has the old tag on, never even played it.
Marty DiBergi: [points his finger] You've never played...?
Nigel Tufnel:  Don't touch it!
Marty DiBergi:  We'll I wasn't going to touch it, I was just pointing at it.
Nigel Tufnel:  Well... don't point! It can't be played.
Marty DiBergi:  Don't point, okay. Can I look at it?
Nigel Tufnel:  No. no. That's it, you've seen enough of that one.

The National Archives and Records Administration has successfully lobbied for a federal reg that prohibits tourists from taking photographs of several historical legal documents including the Constitution, the Declaration of Independence and the Bill of Rights (researchers and professional photographers can still snap away under the new law).  The purpose of the rule is to prevent damage to the documents due to flash photography.  Surprisingly, according to the Law Librarian Blog, the proposed reg only brought three comments, all of them objecting to the rule.  

The real question is enforcement:

Visitors with photographic devices will be allowed to enter the building with their cameras, cell phones, and other photographic equipment. However, they will be met by appropriate signage and security personnel throughout the NAE to explain the ``no photography'' rule. In the event that a visitor makes the mistake of displaying or attempting to use a photographic device, they would first be warned that such behavior is not allowed. If, after they have received a warning, they continue to ignore the ``no photography'' rule they will be politely escorted from the building. 

The new reg appears at 36 CFR 1280.46(c).

Big hat tip to the Law Librarian Blog.

I am the scholarship dude.

(jbl)

Legal research on the go? There's an app for that.

Fastcase is about to release an iPhone application that lets users do legal research on the go and according to one blogger who's tried it, it not only works well, but it's free (both the app. and the research!).  Several sources have reported the story including the the online ABA Journal and the Legal Blog Watch which took it for a test drive.    Here's one screen-shot of it:

 More screen shots are available here.  According to Robert Ambrogi of LBW who had the chance to try an advance copy:

The app provides access to the largest free law library available on the iPhone. When you arrive at the main menu, you can select to perform one of three tasks: search caselaw, search statutes or browse statutes. Select caselaw and you come to a search screen. By default, the app searches all jurisdictions and date ranges. You can choose to narrow any of these. For example, you can select all or any combination of federal circuit courts, all or any federal district courts, all or any bankruptcy courts, and all or any state courts. (Like Fastcase on the Web, it includes all 50 states and the federal courts.) Likewise, you can search all dates or set the start and end dates to limit the range.

You can read more of his review here.

Will it be long before students are required to purchase iPhones for law school in addition to, or instead of, laptops?

I am the scholarship dude.

(jbl)

what's in your horoscope?

The daily student newspaper where I teach prints the daily horoscope.  Usually I read these for entertainment.  But once in awhile they contain pearls of wisdom.  Yesterday mine read:

"Enhance your power by adopting enusiasm for the written word.  Plan what you say.  Edit for tone later."

(spl)

where in the world is ... ?

  Mark Wojcik, one of the co-editors of this blog, and his colleague Steve Schwinn who also teaches legal writing at The John Marshall Law School in Chicago, are in Amman, Jordan this week.  They are leading an ABA Workshop on Teaching Essential Legal Skills -- Legal Writing and Analysis for the ABA Rule of Law Initiative. Their audience is law professors from ten countries:  Algeria, Bahrain, Egypt, Jordan, Kuwait, Lebanon, Morocco, Oman, Qatar, and the United Arab Emirates.  Mark has been selected as the Chair of the Association of American Law Schools Section on International Law.  His passport certainly proves his credentials!

hat tip:  Mary Nagel

(spl)

Rebakah Hanley promoted!

 Congratulations to Rebekah Hanley, recently promoted to Senior Instructor by unanimous vote of the University of Oregon law school faculty.  This promotion recognizes Rebekah's excellence in teaching, service, and scholarship (including her leadership of the Northwest writing conference last summer). With the promotion comes a longer contract, a raise, and a sabbatical.  Congratulations, Rebekah!

hat tip:  Suzanne Rowe

(spl)

McElroy on Millionnaire!

  If you missed legal writing professor Lisa McElroy's exciting TV debut, you can link to it here.  Even The Donald gets in the act!

(spl) 

Do we need to re-think how legal research is taught?

Courtesy of the Law Librarian Blog:

It's common knowledge that that most law schools provide 'legal research instruction that is not only ineffective in teaching basic research skills but is potentially hazardous to students attempting to learn legal analysis' according to Sarah Valentine, Legal Research Coordinator and Associate Law Library Professor and CUNY School of Law.   In Legal Research as a Fundamental Skill: A Lifeboat for Students and Law Schools, Valentine argues that current legal research education needs to be reconceptualized "to become a synergistic first year course that supports the learning of doctrine and legal analysis, as well as necessary research skills in accordance with recent suggestions by the ABA, the authors of the Carnegie Report, and other legal commentators."

To say that law firm librarians hope the legal academy will spit out law school grads with some modicum of legal research skills some day would be quite an understatement. Recommended reading for academic law librarians and legal research and writing profs.

Remember to add the Law Librarian Blog to your daily blog feed to keep up with the latest news and developments concerning legal research.

I am the scholarship dude.

(jbl)

what's really on their laptops

 Ever wonder what students are really looking at when their laptops are open during class?  Some NYU law students posted a video last spring that provides some insight.

hat tip:  Paula Lustbader

(spl)

Legal Writing Prof Blog wins most improved player award redux

Although we posted this story back in October, blogmaster Paul Caron has published the official rankings on the TaxProf Blog so we think that gives us another excuse to toot our own horn (again):

Here are the largest percentage increases (page views and visitors) among the Top 35 blogs from 2008:

	Blog	Page Views	Blog	Visitors
1	Legal Writing Prof Blog	+139.8%	Legal Writing Prof Blog	+158.2%
2	Antitrust & Competition	+48.2%	InstaPundit	+38.4%
3	Legal History Blog	+38.3%	Antitrust & Competition	+37.3%
4	InstaPundit	+36.2%	Legal History Blog	+35.4%
5	Leiter Reports: Philosophy	+29.2%	Leiter Reports: Philosophy	+29.4%
6	Althouse	+27.6%	Mirror of Justice	+21.2%
7	Mirror of Justice	+24.2%	Althouse	+19.4%
8	Religion Clause	+16.2%	Opinio Juris	+18.5%
9	Opinio Juris	+15.4%	Religion Clause	+17.5%
10	Legal Profession Blog	+10.2%	Jack Bog's Blog	+13.6%

In absolute terms, the Top 32 blogs with 2-year track records increased their traffic by 18.7% (page views) and 22.0% (visitors).  The mean changes were +4.3% (page views) and +4.4% (visitors); the median changes were +3.9% (page views) and +4.4% (visitors).

• These Law Prof Blog Rankings are drawn from Dan Solove's Law Professor Blogger Census, as updated by Colin Miller' Legal Educator Blog Census.  They include all blogs edited by law professors -- both law-related and non law-related.
• Please email me the names of any Law Prof Blogs with traffic over the past twelve months that would qualify for inclusion on the lists (195,112 page views and/or 124,998 visitors).  If necessary, I will re-publish the list to include all qualifying blogs.
• Several popular Law Prof Blogs do not have publicly available SiteMeters and thus are not included on the list:  e.g., BlackProf, California Appellate Report, Credit Slips, The Deal Professor, Dorf on Law, Feminist Law Professors, Legal Theory, Point of Law, ProfessorBainbridge.com. 
• These rankings cover only those blogs edited by law professors.  Other law-related blogs edited by practitioners, librarians, non-law school academics, and journalists are not included on this list:  e.g., Above the Law, How Appealing, Law Librarian Blog, Wall Street Journal Law Blog.
• Members of our Law Professor Blogs Network comprise, by page views, two of the Top 10, four of the Top 20, and ten of the Top 35 blogs; and by visitors, one of the Top 10, four of the Top 20, and ten of the Top 35 blogs.
• Members of our Law Professor Blogs Network comprise three of the ten fastest growing Law Prof Blog by page views, and two of the of the ten fastest growing Law Prof Blog by visitors (including Legal Writing Prof Blog, the fasted growing blog by both page views and visitors).

You can read the rankings based on total visits and page views here (the Legal Writing Prof Blog is among the top 30 for each).  A special thanks to our loyal readers who have helped make us a success.

I am the scholarship dude.

(jbl)

Scholarship alert: "Confronting cliches in online instruction: using a hybrid model to teach lawyering skills."

This article comes to us from Professor Joseph Rosenberg of CUNY Law School and can be found at 12 SMU Sci. & Tech. L. Rev. 19 (2008).  From the introduction:

There is no longer a debate about the value of teaching lawyering skills in law school. The mainstream now includes teaching the value of integrating theory, doctrine, and practice in order to prepare students to be excellent lawyers. What continues is the debate over the value of online teaching and learning. Even as online learning and distance education proliferate, legal academies have banned laptops and disabled Internet access out of fear that the cyberspace universe will permanently distract students. The debates over online learning can be reduced to clichés that revolve around two opposing groups. The first group, the “naysayers,” are skeptical of any technology that interferes with face-to-face human interaction, and they worry about the danger of online learning. The second group, the “enthusiasts,” are true believers in technology, and they are certain the future has arrived with online classes, programs, and universities that promise, and deliver, a cure for much of what ails the modern education enterprise.  The naysayers point to a variety of problems associated with online learning, including the impersonal nature of computer-mediated communication, the excessive cost in human and financial resources relative to the questionable benefits, and the possible demise of the traditional paradigm of the classroom and the academy. The enthusiasts, on the other hand, see online learning as a means to overcome the constraints of space, time, and distance, broaden access to higher education, create opportunities for innovative teaching, and engage students in active learning. Some enthusiasts also see online learning as a means to generate profits. As is typical with opposing sides in a debate, these conflicting points present a false dichotomy. For example, most people involved in the educational process are dependent on computer technology, but even “techno-geeks” still seek meaningful human connection. In sum, most of us are hybrids, meaning that we exhibit certain characteristics from both schools of thought. It is not surprising, therefore, that a hybrid course, one that combines online and face-to- face classes, would seem so promising.

I am the scholarship dude.

(jbl)