The Judicial Process, Defined

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Last week I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own. My aim in this post is to talk a little bit more about what I’ve got in mind when I talk about the judicial process as a field of learning. Probably the best way to do so is to describe the seminar I’m teaching this semester, “Judging and the Judicial Process,” which provides a pretty good first cut.

Our focus, as I put it in the course description, is “on courts as institutions and on judges as the primary actors within those institutions.” We started with what one might call the “standard” model of judging, which calls for judge-umpires to apply determinate law via formalist analysis. Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on. Continue reading “The Judicial Process, Defined”

“Elderspeak”: Guarding Against Condescension Towards Our Clients

Posted on Categories Legal Education2 Comments on “Elderspeak”: Guarding Against Condescension Towards Our Clients

Yesterday’s New York Times had an article discussing the phenomenon of “Elderspeak,” defined as the belittling, condescending, and falsely nice and cheerful way many people talk when they are addressing older adults.  The pattern is easily recognizable to anyone who has every accompanied a gray-haired relative on any errand or to an appointment: quick use of the elderly person’s first name, unnaturally loud voice, talking slowly, or unwanted endearments like “dearie,” “gramps,” or “good girl.”  According to researchers quoted in the article, these methods of address are not only resented by the elderly people who are faced with them, but elderspeak may actually produce more negative images of aging.  “And those who have more negative images of aging have worse functional health over time, including lower rates of survival” (Dr. Becca Levy, quoted in the article).

While the article is particularly critical of health care professionals for falling into the elderspeak trap, it also cites examples from other settings, including stores and restaurants.  Lawyers are not singled out, but there are lessons for us here as well. Continue reading ““Elderspeak”: Guarding Against Condescension Towards Our Clients”

On Zeigler: How He Teaches

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Thirty years of law teaching entitles an individual to pause, reflect, and pass along some insights about the craft.  Or so it seems to me.  Professor Donald Zeigler of New York Law School has availed himself of the opportunity by giving American legal education a slim yet rich volume with the three-word title How I Teach (Tribeca Square Press 2008). 

In much smaller print on this paperback’s cover appear the words “Successful techniques for the law school classroom.”  These seven additional words, coupled with the big three, pose something of a paradox.  Together they can be construed to suggest that all or virtually all of law teaching (or perhaps all or virtually all of what Professor Zeigler considers his law teaching) unfolds within the walls of the law school classroom.  In Professor Zeigler’s defense, the seven words do lend themselves to an alternative construction, a construction that conveys the limits and boundaries of his scholarly project.  Quite simply, Zeigler is eager to share with professional colleagues lessons that, presumably, have enabled him to develop into an effective classroom instructor and, also presumably, have enabled his students to extract considerable value from his classroom teaching.  And share he does.  It thus seems fair to cut Zeigler some slack in connection with the ten words he has selected to characterize his project.  Enough said about the volume’s cover, title, and subtitle. Continue reading “On Zeigler: How He Teaches”

“Nucular” and “Nuclear” and So-Called Standard English

Posted on Categories Legal Education, Legal Writing, Political Processes & Rhetoric4 Comments on “Nucular” and “Nuclear” and So-Called Standard English

As a legal writing professor, one part of my job is to help students who didn’t grow up speaking or writing “Standard English” continue adapting their writing to meet the expectations of employers and clients.  Of course, to get through college, many students have already made changes in the way they use English.  But some students come to law school with additional work to be done.  In fact, at least for me, the effort to consciously conform my English speaking and writing patterns to expectations different from those I grew up with never really ends.  

So, like the blogger in this post at frogs and ravens (which I reached via feministlawprof), whatever criticisms I might make of Sarah Palin, jabs at her speech patterns rub me the wrong way.  As frogs and ravens points out, “How you pronounce a word says nothing about your character, your intelligence, your values, or your education.  All it says is whether you are (a) one of the lucky people who grew up speaking ‘the right way’ as your native accent, (b) one of the people who did not, or (c) one of the people who did not and makes a conscious effort to abandon the speech patterns of their childhood to fit in with the expectations of others.”  And it seems somewhat ironic, and, well, dumb, that the prejudice against “regional and working-class accents” enables a candidate “to distance herself from her upper-middle-class lifestyle, her position of power, and her lofty ambitions” just by the way she pronounces words.

What Types of Documents Should Law Students Write in Legal Writing Classes?

Posted on Categories Legal Education, Legal Practice, Legal Scholarship, Legal Writing, Marquette Law School6 Comments on What Types of Documents Should Law Students Write in Legal Writing Classes?

I am enjoying reading the current issue of the Journal of Legal Education.  In particular, the second article, From Snail Mail to E-mail:  the Traditional Legal Memorandum in the Twenty-First Century, authored by Kristin K. Robbins-Tiscione, has gotten me thinking about the documents we use to teach students in the first-year writing courses.   Continue reading “What Types of Documents Should Law Students Write in Legal Writing Classes?”

Is the Election Affecting Students’ Preparation for Class?

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That’s the question that came to my mind after reading this article in the Boston Herald about the effects of a bitterly contested presidential election on employee productivity. My colleague Paul Secunda is quoted in the article, noting that emotions are at an especially high level in this election year. And if the workplace is being affected, I’m guessing the classroom is, too.

Marquette Law School in the Early Twentieth Century

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The second installment of the symposia celebrating the 100th anniversary of the founding of Marquette Law School was convened earlier today. The same panel of scholars from the first session returned to discuss the period from 1908 to 1940.  Joseph Ranney began by explaining how this time period saw the bureaucratization and professionalization of both legal education and the bar, and how these trends shaped the development of the Marquette Law School. In particular, Mr. Ranney noted the importance of the creation of the American Association of Law Schools, which sought to establish an accreditation process for law schools, and the transformation of law school faculties from exclusively part-time/adjunct professors to a combination of full-time and part-time/adjunct professors. Continue reading “Marquette Law School in the Early Twentieth Century”

Representing the Vengeful Client

Posted on Categories Legal Education, Legal Practice, Legal Scholarship, Speakers at Marquette1 Comment on Representing the Vengeful Client

At today’s faculty workshop, Robin Slocum, the Boden Visiting Professor Law, gave a fascinating presentation of her latest paper, entitled “The Dilemma of the Vengeful Client: A Prescriptive Framework for Cooling the Flames of Anger” (forthcoming in the Marquette Law Review). Noting that lawyers and the legal system can sometimes become weapons for vengeance in the hands of an angry client, Robin suggested that client counseling can help both the client and the lawyer achieve better outcomes in litigation and avoid the psychological and physiological costs of such vengeance-seeking activity. Effective client counseling, she argued, should focus on uncovering the thoughts and beliefs that underlie anger in order to identify the more rational aims of litigation. In addition, Robin suggested that law schools may consider adopting courses that build lawyers’ emotional competency to engage in this type of counseling.

Podcasting Legal Writing Lessons

Posted on Categories Legal Education, Legal Writing, Marquette Law School1 Comment on Podcasting Legal Writing Lessons

Over the course of the six years I have taught here, the Law School’s technological resources have gotten better and better. For instance, every classroom in which I teach now has equipment that allows me to project documents onto a screen at the front of the classroom, working on edits as we discuss them in the classroom. I can project from the web as I discuss legal research tools, such as the law library’s helpful start page. I can play audio or video files for the class, such as tapes of oral arguments from oyez.org or from the Wisconsin Supreme Court site for my appellate writing and advocacy class.

Most recently, with the help of our IT department I have been using digital recording technology (a headset microphone and audacity software) to record some of my instruction and make it available for students to work through at their convenience. The podcasts are especially effective for material that some students need more help with than others, such as citation, grammar and punctuation, or editing for conciseness. Last semester, my students’ responses to the podcasts was overwhelmingly positive.

The pioneer podcaster among the legal writing faculty was Alison Julien, who, I understand, has moved on to “webcasting,” i.e., digital videorecordings of her instruction.

The Paper Chase: What Does the Film Tell Us About Contemporary Legal Education?

Posted on Categories Legal Education, Popular Culture & Law9 Comments on The Paper Chase: What Does the Film Tell Us About Contemporary Legal Education?

I recently screened The Paper Chase (1973) in one of my law school classes.  While the majority of current law students are more familiar with recent pop cultural portrayals of legal education such as Legally Blonde (2001), The Paper Chase seems to me to set the stage for those portrayals, especially through the character of Professor Kingsfield and the images from his menacing Socratic classes.  I interpret The Paper Chase as the fictional story of a law student encountering and then overcoming the dehumanizing forces of legal education. Continue reading “The Paper Chase: What Does the Film Tell Us About Contemporary Legal Education?”

Did You Learn About IRAC in Law School? How Did IRAC Become Such an Important Part of Legal Writing Teaching? And Should it Be?

Posted on Categories Legal Education, Legal Writing3 Comments on Did You Learn About IRAC in Law School? How Did IRAC Become Such an Important Part of Legal Writing Teaching? And Should it Be?

When I became a legal writing professor, one of the first and most surprising things I learned was how important the “IRAC” (Issue, Rule, Analysis, and Conclusion) formula has become in most legal writing teaching nowadays.  Almost every legal writing textbook relies on some version of the formula.  In fact, so many legal writing professors have developed their own personalized version of the formula that the variations of the acronym form a dizzying alphabet soup:  CREAC, CRuPAC,  RAFADAC, IRLAFARC, etc., etc., etc.  

The rise of IRAC seems to have gone hand in hand with the increasing professionalization of legal writing teaching.  At the same time, legal writing teachers have long debated the uses and misuses of IRAC in legal writing and in legal writing teaching. For example, almost the entire November 1995 issue of The Second Draft (bulletin of the Legal Writing Institute) was devoted to the question of “The Value of IRAC.” Continue reading “Did You Learn About IRAC in Law School? How Did IRAC Become Such an Important Part of Legal Writing Teaching? And Should it Be?”

Bar Exam Scores as a Law School Ranking Metric

Posted on Categories Legal Education, Legal Practice8 Comments on Bar Exam Scores as a Law School Ranking Metric

Law deans, faculty, and of course students obsess a great deal over the rankings put out annually by the US News and World Report. Some like the rankings, and some hate them. Some find them important, while others dismiss them. Some propose improvements, while others suggest alternatives. Some join anti-US News letter-writing campaigns or even try to organize anti-US News boycotts (nothwithstanding that a concerted boycott of US News would seem to be an antitrust violation, given that horizontal group boycotts are per se violations of section 1 of the Sherman Act under the Supreme Court’s decisions in NYNEX and Klor’s).

But whatever one might think about the US News’s rankings, there can be no doubt that they evoke strong feelings, as attested to most recently by the many reactions in the legal blogosphere to this story on the rankings in last week’s Wall Street Journal. Because of the high level of interest in them, the rankings are a favorite (and possibly the overall most frequently written on) theme of law faculty blogging. Indeed, it almost seems as though a blogger who has yet to opine on the rankings subject cannot be taken seriously. So, lest I be thought an unserious blogger, here is a suggestion for how the US News’s law school rankings might be improved or replaced that has largely, though not entirely, been overlooked. (After drafting this blog entry I did a Google “preemption check” and noticed that a recent comment on the Moneylaw blog makes a suggestion that is similar to mine, and a somewhat more extended treatment is offered by Andrew Morris and Bill Henderson in a recent paper.)

The basic idea is this: why not use bar exam scores as a way to rank law schools? Continue reading “Bar Exam Scores as a Law School Ranking Metric”