Tuesday, December 31, 2013

On Structure In Writing

When I teach Scholarly Writing, I discuss structure heavily -- much like David Brooks. Brooks says, "I tell college students that by the time they sit down at the keyboard to write their essays, they should be at least 80 percent done. That’s because 'writing' is mostly gathering and structuring ideas."

There are many ways to structure an essay or an article, and no one way is correct, which can be overwhelming for some. However, as an instructor, if you give students a few ideas for structure, they will generally find their way.

For example, here is Brooks's approach:
"For what it’s worth, I structure geographically. I organize my notes into different piles on the rug in my living room. Each pile represents a different paragraph in my column. The piles can stretch on for 10 feet to 16 feet, even for a mere 806-word newspaper piece. When 'writing,' I just pick up a pile, synthesize the notes into a paragraph, set them aside and move on to the next pile. If the piece isn’t working, I don’t try to repair; I start from scratch with the same topic but an entirely new structure."

As part of Brooks's Sidney Awards this year, he praises an article called "Structure" from the longtime New Yorker writer John McPhee. "For one long article, McPhee organized his notecards on a 32-square-foot piece of plywood. [McPhee] also describes the common tension between chronology and theme (Brooks's advice: go with chronology). [McPhee's] structures are brilliant, but they far too complex for most of us. The key thing is he lets you see how a really fine writer thinks about the core problem of writing, which takes place before the actual writing."

For instructors, the takeaway is that you should emphasize to your students that they should take the time to think and organize their papers before beginning to write. This means that procrastination cannot be king. A student cannot fully develop her ideas and write a substantial article in a matter of a few days (like many students wish they could). This may mean that an instructor needs to evaluate progress early and often.

Monday, December 30, 2013

Law Libraries Are Here To Stay

Thanks to Law Librarians for posting about this recent paper uploaded to SSRN: Legal Education in Crisis, and Why Law Libraries are Doomed.

From the abstract: 
The dual crises facing legal education—the economic crisis affecting both the job market and the pool of law school applicants, and the crisis of confidence in the ability of law schools and the ABA accreditation process to meet the needs of lawyers or society at large—have undermined the case for not only the autonomy, but the very existence, of law school libraries as we have known them. Legal education in the United States is about to undergo a long-term contraction, and law libraries will be among the first to go. A few law schools may abandon the traditional law library completely. Some law schools will see their libraries whittled away bit by bit as they attempt to answer “the Yirka Question” in the face of shrinking resources, reexamined priorities, and university centralization. What choices individual schools make will largely be driven by how they play the status game.

I don't doubt that some law schools value their law libraries more than others, with some libraries comprised of little more the minimum required to meet current ABA accreditation standards. If we get rid of the law library and water our available material down to just the nuts and bolts required to practice, we are, in essence, creating an educational environment that makes law school merely a vocational school.  

Law schools shouldn't abandon their law libraries in the name of austerity. Lawyers, judges, and legal scholars, alike, need access to the broad material currently found in most law libraries. It's not enough to just rely on the legal databases. As stated previously, of the 2 million unique volumes in law libraries, only 15% of those materials have been digitized for electronic use. This leaves 85% only available in print. That is a lot of valuable content to abandon.

With the entire legal system made up of legal precedent, we cannot abandon the very material that gives us the foresight and creativity needed to tackle some of our toughest issues.

Friday, December 20, 2013

An Online/Face-to-Face Law School Hybrid

InsideHigherEd reported on a new hybrid program at William Mitchell College of Law. The Law School "has received approval from the American Bar Association to launch a part-time J.D. program that blends face-to-face instruction with online courses. Although the hybrid program marks the first of its kind, experts are split on whether it marks an experiment or a turning point for how legal education is delivered in the U.S."

"The [new] four-year part-time program, meant for students whose location or work commitments prevent them for pursuing a legal education full-time, will mix recorded lectures and quizzes with video conferences and online discussion forums when it launches in January 2015. Students will also be required to complete externships and attend weeklong on-campus simulations at the end of each semester to practice their legal skills."

"Institutions that seek [ABA] accreditation need to tailor their programs to a set of standards that have been in effect since 2002. The program itself needs to consist of at least 83 credits -- Mitchell’s hybrid program clears that hurdle exactly -- but no more than 12 can be granted from pure distance education. Of the remaining credits, one-third of the coursework can also be completed remotely. As an added twist, programs can offer only four credits of distance learning per semester."

"To receive approval for its hybrid program, Mitchell submitted a variance request that exempts the program from the requirements -- under certain conditions. The college must enroll no more than 96 students per year, assess the program on an annual basis and report its findings to the ABA. The college also had to waive its right to confidentiality to help other law schools learn from its experiences."

"If the experiments prove successful, however, they could guide the ABA to revise its own standards."

For some, this might be seen as a step in the right direction for legal education. There are schools that currently operate online without ABA accreditation and others are starting to dabble in online LL.M. programs. The ABA seems to be open to this type of innovations, and the real test will be when the students from William Mitchell graduate. In the meantime, it's great that this experiment is not confidential so all other law schools can learn from it.

Librarians may also want to start learning the online legal research instruction ropes to offer instruction to these folks because it appears that online instruction will become more prevalent as the years go by.

Wednesday, December 18, 2013

Lawyers Get Better With Age

In my early 20's, my friends and I would ruminate over the things that we had to accomplish by age 26. Why 26? 

At age 20: Bill Gates dropped out of Harvard and cofounded Microsoft, and Sir Isaac Newton began developing a new branch of mathematics.

At age 21: Thomas Alva Edison created his first invention, an electric vote recorder, Steve Jobs co-founded Apple Inc., and Alfred Tennyson published his first poetry.

At age 22: Inventor Samuel Colt patented the Colt six-shooter revolver, and Cyrus Hall McCormick invented the McCormick reaper, which allowed one man to do the work of five

At age 23: T. S. Eliot wrote “The Love Song of J. Alfred Prufrock,” John Keats penned “Ode on a Grecian Urn,” and Truman Capote published his first novel, Other Voices, Other Rooms.

At age 24: Johannes Kepler defended the Copernican theory and described the structure of the solar system.

At age 25: Orson Welles conscripted, directed, and starred in Citizen Kane, Charles Lindbergh became the first person to fly alone across the Atlantic, New York farmhand Joseph Smith founded the Church of Jesus Christ of Latter-Day Saints, John Wesley began planting the seeds for Methodism at Oxford, and Alexander the Great became the King of Persia.

At age 26: Albert Einstein published five major research papers in a German physics journal, fundamentally changing man’s view of the universe and leading to such inventions as television and the atomic bomb, Benjamin Franklin published the first edition of Poor Richard’s Almanac, Eli Whitney invented the cotton gin, and Napoleon Bonaparte conquered Italy.

With lists like this, my friends and I were certain that if we didn't accomplish something equally as large by age 26, we were forever doomed to mediocrity. (Oh the problems of 20-somethings).

But when I ran across this article in the ABA Journal, I somehow felt better about the whole thing. 

"In the fields of math, science and lyric poetry, large creative breakthroughs are more likely to occur in younger individuals, according to Harvard cognition and education professor Howard Gardner. But in fields like like law and psychoanalysis, “you need a much longer lead time, and so your best work is likely to occur in the latter years,” Gardner tells the Washington Post in a story reprinted by the Minneapolis Star Tribune."

This coupled with the finding that the longer you practice, the happier you are means that I don't have to be in such a rush!

Tuesday, December 17, 2013

NLJ's Notable Supreme Court Books Of 2013

The National Law Journal released a list of notable Supreme Court books of 2013.

A sampling of the books:
Two justices published books in 2013 - Sotomayor’s intimate and inspiring memoir, My Beloved World, and retired justice Sandra Day O’Connor’s wide-ranging collection of court anecdotes, Out of Order: Stories from the History of the Supreme Court.

For informed studies of the Roberts Court, try Marcia Coyle’s The Roberts Court: The Struggle for the Constitution and Mark Tushnet’s In the Balance: Law and Politics on the Roberts Court.

Two books issued in 2013 take authoritative looks at recent Supreme Court cases. Adam Liptak’s instant e-book To Have and Uphold: The Supreme Court and the Battle for Same-Sex Marriage is excellent, as is Josh Blackman’s Unprecedented: The Constitutional Challenge to Obamacare. Other books about the Affordable Care Act litigation are forthcoming or out, including one by Sen. Mike Lee (R-Utah) titled Why John Roberts Was Wrong About Healthcare: A Conservative Critique of The Supreme Court’s Obamacare Ruling.

Garrett Epps’ American Epic: Reading the U.S. Constitution makes a close reading of the U.S. Constitution fun. Clark Neily III’s Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government reframes the debate over judicial activism. For the junior members of the family, a new edition of The U.S. Supreme Court Coloring and Activity Book, updated to include Justice Kagan, is just out.

There was a lot of fodder from the Court for 2013. I can't wait to see what 2014 brings!

Monday, December 16, 2013

The Problem With Link Rot

More people are recognizing the issues with link rot that law librarians have known for at least 10 years. The ABA Journal reported on the link rot phenomena and how it is degrading legal research.

As noted, "[t]he World Wide Web is filled with dead ends: hyperlinks that point to webpages that have become permanently unavailable. It’s a phenomenon known as 'link rot.' With the continued growth of the Internet, the amount of such rot has been accelerating, studies have shown, imperiling citation references in academic research and case law. For practicing lawyers, link rot is making it harder to find examples of legal precedent." One judge has gone so far as to say that it is undermining stare decisis.

And this is a continuing problem because "[a]ccording to the Chesapeake Digital Preservation Group, a collaborative archiving program, the average life span of a webpage is between 44 and 75 days. The CDPG [also] notes that important legal materials are increasingly being 'digitally born' and distributed online rather than published on paper, resulting in a 'troubling trend' of transient legal information."

It's becoming much more commonplace for lawyers and judges to cite directly to Internet sites. "When links were first introduced into opinions, they were superfluous—icing on the cake. Over time, that’s really changed. More and more what’s being cited, as an example or as a source of something, may live only online and not as a part of a formal knowledge system.”

So how do we fix the problem? "If lawyers are citing Web information, attach an appendix with the version of the website they’re referring to. If a judge is writing an opinion and citing to a source online, they should capture that at the time and not just assume the link and what it points to will be the same two years later when someone goes to look at it.”

Not only should lawyers and judges attach appendices, "[t]he growing prevalence of Web references prompted the Judicial Conference of the United States to provide guidelines for judges on citing and maintaining Internet sources and hyperlinks in opinions. Suggestions include downloading cited Internet resources, and including them with opinions and in the court’s electronic case file system. The Supreme Court retains a print copy of Internet citations in the clerk of court’s case file, but that offers limited accessibility."

Printing web pages and attaching them to case information is one step (that shows that print is still very stable). Going further, the Harvard Library Innovation Lab members "are trying to combat link and reference rot by building a permanent home for legal citations to online sources. They have created a coalition of more than 30 law libraries to preserve Web links through a database called Perma.cc."

As this issue becomes common knowledge, there will no doubt be steps to reverse the trend.

Image Info: http://zutheskunk.deviantart.com/art/404-File-Not-Found-sign-331186867

Thursday, December 12, 2013

Decline In Female Associates For Fourth Straight Year

The National Law Journal is reporting on the continued decline of female associates since the recession. "The percentage of women associates at law firms fell for the fourth straight year, even as the percentage of minority associates continued to rise. This year, women accounted for 44.79 percent of associates, down from 45.66 percent at their peak in 2009. By contrast, the percentage of minority associates rose from 8.36 percent in 2009 to 20.93 percent in 2013."

Although the decline may seem slight, the author notes that it is a red flag because the associates will feed the partner pool one day. "While the percentage of women partners, small as it is, has continued to grow each year, sustained incremental growth in the future is at risk if the percentage of women associates continues to inch downwards."

The legal profession needs to figure out why more women are foregoing the associate track. "It could be because some women are deciding not to pursue law firm careers, given increased attention to how demanding those jobs are and because the path to partnership has narrowed." Other have commented that the decline in law school attendees is to blame.

In 2010, I decided to forego the associate track in favor of an academic career. I realized that law firm life might not be for me, and the inherent adversarial nature and cutthroat competition that often accompanies this life was something that I did not want to deal with for an extended period of time.

Law firms need to consider more work-life-balance measures to bring women in. It's important to have diversity in the legal profession to truly represent the needs of a more diversified nation.

Wednesday, December 11, 2013

Boolean Still Better Than Natural Language Searching

I love this post by Joshua Auriemma about legal research on the databases (in particular WestlawNext). I first saw the post mentioned on Law Librarians, and it's about a topic that I am rather passionate about, so I thought I would re-post here.

Auriemma discusses the difference in legal research when using boolean searching (terms and connectors) versus natural language in WestlawNext.

"I often wonder whether the Googleification of legal research isn’t a terrible thing for the profession (at least in this stage of the technology’s development). In law school, I was a master of Boolean searching. I thought about my research question, figured out which words probably appeared closest to other words, and crafted a narrow and specific search. Somehow, when I became an appellate attorney and had access to WestlawNext through my firm, all of that training went out the window. I got into the habit of assuming the algorithm was better than I was at crafting a search, but the truth is that right now, they’re not. Consider this: if a natural language search was as effective as a keyword search, it would be superfluous to pay an attorney for legal research."

This is true of most law students today. We (the law librarians) take the time to teach the research process using boolean searching because it is still the most precise way to search -- thus saving time and money. With boolean searching, the researcher has control over what the database retrieves instead of leaving it up to the database's algorithm to determine what is useful. But this generation of law students is used to natural language searching on Google, so it is hard to get them to understand the benefits of boolean searching on the databases.

As Auriemma put it, they're putting a lot of stock into an algorithm they can't see -- meaning we do not know why certain results show up with natural language because the algorithms are not made public.

He goes on to say "that as it stands right now natural language searching is not a replacement for a well-crafted Boolean search. And that’s a disconcerting revelation because out of my previous three law clerks, not a single one was well-versed in Boolean searching."

As a legal research expert, I still only use natural language if my boolean searching does not retrieve the results that I am looking for, which doesn't happen very often. When law students come and ask complex reference questions, they often think it is magic that I am able to retrieve relevant results so quickly with boolean searching when they have spent hours trying to sift through natural language results. It's not magic, it just takes practice.

For more information on boolean searching, Auriemma will teach an introduction to Boolean searching webinar for Fastcase about once a month (to start again in January). If you’re interested in picking up the basics, like Fastcase's Facebook page so that you are the first to know the dates for the 2014 year.

Tuesday, December 10, 2013

ABA To Mandate More Practical Skills Training?

The National Law Journal is reporting that the ABA is reconsidering its plan to require six credits of real-world training in law school. "Now the council is agreeing to seek public comment on an alternative proposal to bump the requirement to 15 credits of clinics, simulation courses or externships."

"The ABA has been updating its accreditation standards since 2008. The existing standards mandate that students take just one credit of experiential learning. The standards committee initially proposed increasing that to three credits, which CLEA called a 'shockingly insignificant amount of skills training.'"

"The Clinical Legal Education Association (CLEA) has been pushing the 15-credit plan since July. The organization argues that the law lags behind medicine, dentistry and other professions when it come to real-world training.Under CLEA’s proposed 15-hour mandate, students would take at least one class involving a live client. The council’s tentative proposal would not require students to take a clinic or live-client course."

“Fifteen credits is the equivalent of a semester of classes. Spending one semester out of three years is completely consistent with what other professions do.”

The more practical training, the better. I am still surprised that the ABA is just now getting around to upping the number of practical-training hours in light of the MacCrate Report from the early 1990's. I am proud of my school for being a very early adopter of practical legal education. And it appears that, now, all of the other schools are trying to catch up.

Monday, December 9, 2013

NLRB v. Noel Canning Gets Help From ConSource's Digital Library

There is a digital library that is making the life of the lawyers in the SCOTUS case, NLRB v. Noel Canning, much easier. "As they prepare briefs in the landmark case, The Constitutional Sources Project (ConSource), along with its pro bono SCOTUSource project at Harvard Law School, is researching and digitizing a range of documents specifically related to Noel Canning.

"The upcoming U.S. Supreme Court argument over the president's power to make recess appointments has sent lawyers and researchers hunting through centuries-old documents for historical evidence to prove just how broad or narrow the power is. As the case nears the argument date of Jan. 13, a main focus of the briefing is the early meaning of the Constitution's recess-appointment clause, which gives the president 'power to fill up all Vacancies that may happen during the Recess of the Senate.'"

"We had to do a significant amount of historical research," said Jones Day partner Noel Francisco, who represents Noel Canning. "Particularly for cases like this one, where founding-era history is important, online resources are of enormous value to lawyers and judges alike." He cited a ConSource document in his main brief. By assisting the parties on both sides in cases like Noel Canning, the project aims to help the court get 'the full narrative of the history behind a constitutional issue.' We want to get at the parts of the story that may not be told because they are in documents sitting in the basement of some archive."

"ConSource's next project sounds like an originalist's dream: working with the Library Company of Philadelphia to digitize materials from the library that the framers used during the constitutional convention. 'We might find some annotations from the founders in the margins.' Imagine what the justices would do with those."

This is both an originalist's dream and an archivist's dream. To digitize and make accessible these founding-era documents is extraordinary. I can't wait to play with the ConSource database to see the other documents that are available.

Thursday, December 5, 2013

The Death Of The Casebook

The Law Dean's blog recently asked if the casebook is still a necessary tool for law school. With the costs skyrocketing, and each new edition containing only marginal differences, is it really in the students' best interests to continue to require a casebook for class?

From the blog:
"It is 2013, and I (I. Richard Gershon) decided not to use a casebook when I taught Wills and Estates this semester. The casebook I had used for over two decades had come out in yet another new edition, which had a price tag of around $200. The difference between the newest edition and the older editions was pretty marginal.  The authors added some new cases and moved some old materials to different parts of the book. I could have used an older edition, and supplemented my own materials to reduce student costs, but I decided to create and post my own materials on TWEN, instead.

When you consider that a student will take approximately 20 [closer to 30 at my law school!] classes in law school, and that casebooks cost around $200 each, doesn’t it make sense to move away from using casebooks for our classes?

Alternatively, doesn’t it make sense to use freely available materials from a source like CALI?  CALI has been a leader in this effort with their eLangdell initiative."

Dean Gershon has some very good points -- especially considering that most of the cases used in casebooks are in the public domain and freely available. While it does take time to upload the material and create commentary, a professor can tailor the material specifically to his or her class, and the students will appreciate the substantial savings (to the tune of $5,000).

This looks like a win-win situation for all involved.

Wednesday, December 4, 2013

The Print Book Is Still Popular

Contrary to popular belief, the print book is still alive and well and popular with the younger generation. According to the NYTimes Bits Blog, "a study released this week by Voxburner, a United Kingdom-based research firm that tracks how youth consume media, suggests that most British teenagers and young adults aged 16 to 24-years-old prefer physical books over e-books."

Not only is print still popular among the young, "some recent reports have found that the tactile feeling of paper can also create a much more immersive learning experience for readers. Why? Several scientists believe it is neurological."

And "a research report published earlier this year in the International Journal of Education Research found that students in school who read text on printed paper scored significantly higher in reading comprehension tests than students who read the same text in digital forms."

While many have commented on the end of the print book in favor of digital "according to an October report by the Book Industry Study Group, which monitors the publishing industry, the sales of e-books have slowed over the past year and currently comprise about 30 percent of all books sold."

It appears that the general population is starting to realize what librarians have known all along -- that the print book is here to stay for the foreseeable future.

Tuesday, December 3, 2013

Law Schools Face 'White Flight'

Am Law Daily (sub req'd) recently ran an article about white flight at the nation's law schools.

"Most of the 8,651-student net decline in law school enrollments between 2010 and 2012 is attributable to white male law students going unreplaced. White women account for another big chunk of the decline. In fact, of the 7,776 fewer 1Ls entering law school over that two-year period, 6,528 (84 percent) fit into the 'White/Caucasian' ethnic category. For a profession sensitive about a dearth of women and minorities, the idea that white men—and, to a lesser degree. white women—are losing interest in law school might be welcomed as a sign that the legal profession is poised to become more ethnically diverse."

But the author points out that it's not necessarily good news because there is a"decline in graduates from elite, 'feeder' universities applying to law school. At the same time, recent law school applicants tend to have lower LSAT scores than their predecessors. Both of these observations fit into a developing narrative that highly intelligent and affluent college graduates are forgoing law school."

I take issue with the author stating that highly intelligent people are forgoing law school. The author even admits that LSAT scores are tied to socioeconomic factors, and that, among other things, makes the LSAT a poor judge of intelligence. In fact, the author states, "a law degree has long been considered a positional good that privileged people purchase to get ahead of everyone else. Indeed, it was created to exclude minority groups."

We need broader representation of minorities in the legal profession, especially as our citizenry becomes more diverse. And, newsflash, there are some people who go to law school for more than prestige and money. I think it shows real character to continue with a dream to practice law in the face of all of the criticism.

"And just where are white college graduates fleeing to? Maybe the record number of applications to medical schools this year has something to do with it."

Monday, December 2, 2013

Who Wrote The Bluebook?

NYTimes had an interesting letter to the editor regarding The Bluebook:

To the Editor:

“The Bluebook” is the iconic citation manual that dominates legal writing. Kenji Yoshino reviews Richard A. Posner’s book “Reflections on Judging” (Nov. 10), which notes that the Bluebook was created by the future judge Henry Friendly or the future Harvard dean Erwin Griswold when they were students at Harvard Law School in 1926.

The Yale Law Library, however, has in its rare-book collection a pamphlet titled “Abbreviations and Form of Citation,” issued by The Yale Law Journal in 1921; our copy appears to be the only one in existence. A comparison of the 1921 Yale pamphlet with the 1926 first edition of the Bluebook shows that the Bluebook took most of its content, often word for word, from Yale’s product. Some may say that originating the ­hypercomplicated Bluebook should not be a source of pride, but The Yale Law Journal ur-Bluebook consisted of only 15 tiny pages. The version that has developed under the leadership of the Harvard Law Review currently consists of over 500 large pages, and users may need software such as the pioneering CorrectCite to help them navigate its mysteries.


The writer is an associate librarian and a lecturer in legal research at Yale Law School.

And now we know.

Image info: http://en.wikipedia.org/wiki/File:The_Bluebook_18th_ed_Cover.gif