Marquette University Law School Faculty Blog

One of the things I noticed during my semester as an exchange student at the University of Copenhagen is how much legal education in Europe differs from the approach taken by law schools in the United States. The most drastic difference is, without a doubt, the way in which classes are conducted. In U.S. law schools, most professors use the Socratic method and the call system that law students have come to fear. In contrast, in many continental European law schools, courses are taught simply through lectures. On rare occasions a student will interject with a comment or a question, and on other rare occasions a professor will ask for voluntary input from the class, but for the most part, the professor is the only one who speaks. I have sometimes wondered whether a non-Socratic method of teaching adequately prepares students to be effective lawyers. American law students are forced to take a position on the law, make arguments for it, and apply it to the facts. By being subjected to the Socratic method, we are forced to think on our feet and be prepared for any questions that may be thrown at us by a judge, a client, or a fellow attorney. Arguing a position is one of the most important lawyering skills in both litigation and transactional practices. Therefore, teaching these skills would seem to be a valuable part of legal education anywhere in the world.

Given this apparent superiority of Socratic legal education, I have often wondered whether European law students feel they are at somewhat of a disadvantage. After all, they are not being challenged in class on a daily basis to make arguments and defend positions. I was surprised to learn that many European law students do not believe they are left behind in this respect. Many European students I have met say that classes are meant simply to teach about the law. If students wish to develop their litigation skills, they take a litigation class or join a moot court team, but there is generally no cross-over between developing one’s ability to argue and learning about the law. That is, up until the final exam. Interestingly, many law courses here in Copenhagen administer an oral final, where the professor challenges each student’s ability to argue about the law. Effectively, such an exam tests the students’ skills in taking a position on an issue and defending it. The way European law students view it is that they spend the semester learning about the law, and they then argue the law in the exams. Generally, they seem to feel this provides enough practice of argumentative skills. Read more »

“I consider you and [Jefferson] as the North and South Poles of the American Revolution. Some talked, some rewrote, and some fought to promote and establish it, but you and Mr. Jefferson thought for us all.”

—Benjamin Rush to John Adams, February 17, 1812

Every law student has a responsibly to enhance the American Conversation—the eternal dialogue that is the American experiment. While it would be conceited and with reproach that I suggest we think like Messrs. Adams and Jefferson, we should, however, seek to become more thoughtful and attempt to engage in lively, educated discourse. Our national dialogue has increasingly been filled with a self-destructive, dysfunctional, do-nothing mentality that lacks reasoned thought. This trend is at best unproductive—at worst, destructive—to the American Conversation. As law students, we have the skills and responsibility to change this trend.

It is quite gratifying to obtain a deep understanding of a topic and then learn that you lacked a full appreciation for some of the more nuanced issues within that particular topic. Part of the legal learning process encapsulates this type of learning, where you learn a new approach or different perspective and it can—and should—be learned outside the classroom. It should go without saying that one the best places to learn is outside the classroom. But as law students, in the ultra-competitive school environment, we tend to focus on grades (and the job hunt) and lose focus of the big picture—developing the skills necessary to fulfill our duty to serve the public. As such, we would do well to be reminded of the importance of using the skills we have learned outside the classroom. While Dean Kearney reminds us to continue learning outside the classroom (e.g., in the many guest lectures, at On The Issues, and during social and award events at the Law School), the one place for learning that should continually reside in a predominant place in our minds is the Zilber Forum, a social area for discussion and contemplation. The Zilber Forum, or the idea of the Forum, does not and should not stay within the confines of the four walls (although the shape of the building may suggest three). This idea is already bursting at the seams of Eckstein Hall and with a little help from students will reach the community around us. Read more »

I have had the pleasure of attending law school abroad at Koç University in Istanbul, Turkey, and I am currently studying at the University of Copenhagen for one semester.  Other American law students have occasionally asked me about the benefits of studying law abroad.  Some may wonder whether I will be adequately prepared to practice in the United States, given my focus on foreign law.

My fellow law students and I will enter a legal world that is more globalized than ever before.  American clients are increasingly becoming subject to jurisdictions beyond United States borders, as corporations are diversifying their business throughout the world in response to the world-wide economic turmoil in recent years.  Now, it would not be uncommon for a business to be incorporated in Delaware, and have affiliated companies in Brazil and France.  This same company may well hold bank accounts in Switzerland, have assets in South Africa, invest in Saudi Arabia, and conduct business transactions in Japan.  As a result, lawyers may be asked to provide advice on how a French subsidiary of an American parent company would be taxed and whether any international tax conventions apply; what happens if an American financial institution enters into a contract with a Saudi lender and the contract fails to meet the strict requirements of Islamic finance law; or what if an American car dealer enters into a sales contract with a German car manufacturer and the contract fails to meet EU sales directives?  Questions such as these are becoming more and more relevant and American attorneys need to be able to provide answers to clients who wish to do business abroad.  Read more »

Property law – who could forget the Rule Against Perpetuities, fee simple, remainders or Blackacre from your second semester at Marquette Law? For me, it made me seriously question my abilities to reason through complex issues. For my sister, who practices Trusts and Estates law, it is her way of life.

But that second semester, the opportunity to apply the principles of property law became my reality. It seemed every semester I slogged through law school, I had a personal or business crisis that overlapped with my studies. We used arbitration to resolve a breach of contract during a commercial building project. We used an LLC formed by our neighbors to contend with an eminent domain issue, when the utility company condemned and forever marred our property with a gas line. And most interesting of all, we used property law and many other legal principles to deal with a business purchase.

As a foundation for this, let me explain the rest of my professional life. I graduated from Iowa State’s Veterinary School in 1981 and have run my own small animal veterinary practice in rural Wisconsin, one hour north of Milwaukee, since then. After 25 years out of the classroom, I had the itch to go back to school, for the opportunity to have a second career, and because I missed the energy of being in an academic setting.

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In 1980, I had the opportunity to interview Louis Auchincloss. Known for his novels about New York’s traditional elite, Auchincloss also maintained a successful and sophisticated trusts and estates practice. In fact, I interviewed him in his corner office on Wall Street. His thoughtfulness, dignified manners, Brooks Brothers clothing, and elegant office stuck in my mind over the years as an illustration of top-drawer T & E.

It came as a surprise to me over thirty years further down the road to learn that the white-shoe Manhattan firm of Debevoise & Plimpton was eliminating its T & E practice. It turns out that Debevoise & Plimpton is only the latest big firm to take this step. Weil, Gotshal & Manges and also Gibson, Dunn & Crutcher, among other big firms, have also in recent years done the same.

Why are the big firms ending their involvement with T & E? According to the analysts, T & E is an uncomfortable fit in the emerging big-firm business model. Genteel and personalized, the T & E practice of somebody like Louis Auchincloss cannot assign large numbers of junior associates and run up the tab in the process. Drafting wills and trusts generates fewer billable hours and profit than big-time litigation, corporate bankruptcies, and mergers and acquisitions.

The contemporary legal profession has its share of problems, but the elimination of big-firm T & E practice underscores the problem that is perhaps the most troubling. Namely, the market economy is swallowing up the legal profession. Every day, we see the practice of law becoming just a business. If legal educators share my perception and are troubled by it, we might reduce skills training and hold off teaching law students “to hit the ground running,” that is, graduate ready to make a buck. Legal educators might instead redouble efforts to teach ethics, honor professional norms, and endorse genuine humanistic values. These are the features of professionalism that distinguish it from unbridled profit-seeking.

The following essay is based on remarks delivered at the April 2011 Marquette Law Review banquet that marked the 95th anniversary of the journal.

In December of 1916, Volume 1, Issue # 1 of the Marquette Law Review rolled off the presses. The new publication announced itself as “A Journal Published Quarterly during the School Year by the Marquette Law Students.” The cover price was 35-cents per number, but an entire year’s subscription could be had for one dollar.

(By way of comparison, tuition and fees for students in 1916 were $60 for day students and $40 for those enrolled in the evening division. Relative to today’s tuition rates, that would be equivalent of $200 for an individual issue and about $600 for a year’s subscription. As current students have probably noticed, the cost of law school has gone up a good bit since 1916.)

Why Did the Marquette Law Review Appear in 1916? Read more »

There is convergence of ideas about teaching and technology around the Law School lately. The Law School is holding idea sessions as part of our strategic planning process.  A significant part of the discussion involves teaching: effectiveness, learners, full and part-time education.  Earlier this week Douglas Fisher published an article in the Chronicle of Higher Education on “flipping” his database course at Vanderbilt. Flipping a course refers to taking the in-class lecture component and moving it to an online component, usually accomplished by recording the lecture. Earlier this summer I attended a presentation by Professor Norman Garland (Southwestern School of Law) who flipped his Evidence course and reported on the process and results. These threads all come together this week for me.

We haven’t flipped any classes here but we have blended (a term Garland prefers to flipping) a few. Some MULS faculty have been long time adopters of technology both in the classroom and outside. Many have electronic course pages, electronic supplements, electronic casebooks, and even video webcasts of course supplements. Several faculty here have blended some of their traditional in-class instruction with required out-of-class viewing of lectures. The MULS faculty who have blended their classes use the out-of-class lecture to establish the basics of the topic, which means in-class instruction can focus less on establishing the topic and more about exploring its nuances and its applications. Read more »

Many law firm shingles still read “Attorneys and Counselors at Law.”  Each term carries with it a distinct meaning and independent importance in the legal profession.  Do we risk marginalizing the counselor role as we strive to achieve efficiencies in the delivery of legal services through specialization?  And if so, why does it matter?

Lawyers are trained to analyze the law and to prepare legal documents; however, in order to provide effective legal advice, and in order to exercise their highest and best use in our justice system, lawyers must possess much more than technical knowledge and skills.  Lawyers must also be able to fulfill their roles as counselors.  This requires that they be able to craft creative solutions, sustain client morale during difficult times, and to offer wisdom and sound judgment, not just knowledge.  (See, e.g., Anthony L. Cochran, They Don’t Call Us “Counselor” For Nothing.) Read more »

In 2010 the Arizona legislature created a law designed to deter the teaching of a Mexican American Studies course in Tucson schools by cutting State funding to districts with courses that, among other things, “promote resentment toward a race or class of people.”  After a finding by the state court in 2011 and under the threat of a $15 million fine, the Tucson district was forced to stop utilizing a course that was available to all students, was effectively closing the achievement gap, and was successful in helping Latino students attend college.  One aspect of enforcement that the district decided on was banning the use of many books that were a part of the Mexican American Studies program from schools.

I was introduced to the Tucson curriculum issue in Professor Mazzie’s first semester Legal Analysis, Research, and Writing 1 class last fall.  Our assignment was to write a brief memo on whether the Tucson course was in violation of A.R.S. § 15-112.  The constitutionality of the Arizona law itself has since been called into question under the purview of a federally appointed special master who is overseeing the Tucson School District’s mandated desegregation.  It was satisfying to see, earlier this month, the U.S. Court of Appeals for the Ninth Circuit agree with my position in Professor Mazzie’s class that the curriculum was not necessarily a per se violation of A.R.S. § 15-112 anyway. Read more »

We all know its a tight job market out their.  So you got to make sure you set yourself a part from other applicants.  One way to do this is to spend alot of time working threw ur resume and cover letter making sure they say what you want them to say and so that they convey the rite image of you.

And if your cover letter or email to an employer looks or sounds anything like the above paragraph, you can be assured you won’t get an interview, much less get hired, especially at Kyle Wiens’ business.  Why?  Wiens won’t hire anyone who doesn’t care about grammar. Read more »

During early August, I lectured at several Ugandan universities, and in the midst of my lecture tour I had the opportunity to learn about the Ugandan approach to legal education. Its form and goals contrast strikingly with what we take for granted in the U.S.

Someone who wishes to become a practicing lawyer in Uganda begins by completing a four-year major in law at a Ugandan college or university, much as one would complete a major in history or chemistry. Then, one takes the entrance test for Kampala’s Legal Development Center (LDC), the nation’s only “law school.” If successful on the test, one joins a 400-student cohort at the LDC for a one-year, intensive study of areas of law. It culminates with the Ugandan bar exam, and between one-third and two-thirds of those sitting for the bar exam pass.

When I compared this approach with American legal education one morning over coffee in the faculty lounge at the LDC, a Ugandan professor expressed surprise that most American law students earned a liberal arts degree before attending law school.   Read more »

The Baby Boom generation (those born between 1946 and 1964) transformed the practice of law in the United States. Through the sheer numbers alone, the legal profession was dramatically altered by the influx of members of this generation.

In 1968, the year when the first Baby Boomers enrolled in law school, total law school enrollment in ABA-accredited law schools was 62,779 students; by 1987, when the first post-Baby Boomer students entered law school, the number had increased to 123,198. In the spring of 1968, there were 14,738 law school graduates; in the spring of 1987, the number was 36,121.

The impact of the surge of Baby Boomer law students on the size of the American Bar was extraordinary. In 1970, there were approximately 250,000 lawyers in the United States; by 1990, the number had more than tripled, to over 800,000.

The way in which law was practiced also changed during the era in which members of the generation flooded into law schools.   Read more »