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If You Think Law Schools Teach Students To "Think Like A Lawyer"...Think Again!, Douglas Rush

Douglas Rush

Law school faculty and deans purport to teach law students to “think like a lawyer.” Indeed, this phrase has been repeated so often that it has become legal pedagogical dogma. Professor Wegner, co-author of the Carnegie Report Educating Lawyers: Preparation for the Profession of Law, has stated that “thinking like a lawyer” has been embraced as a ”trope of the core identity” of the legal academy. Unfortunately, whether law schools truly teach their students to “think like a lawyer” has not been previously subjected to empirical analysis.

This article is an empirical examination using logistic regression analysis of two different …

If You Think Law Schools Teach Students To "Think Like A Lawyer"...Think Again!, Douglas Rush

Douglas Rush

Law school faculty and deans purport to teach law students to “think like a lawyer.” Indeed, this phrase has been repeated so often that it has become legal pedagogical dogma. Professor Wegner, co-author of the Carnegie Report Educating Lawyers: Preparation for the Profession of Law, has stated that “thinking like a lawyer” has been embraced as a ”trope of the core identity” of the legal academy. Unfortunately, whether law schools truly teach their students to “think like a lawyer” has not been previously subjected to empirical analysis.

This article is an empirical examination using logistic regression analysis of two different …

The Skepticism Of Critical Legal Studies And The Function Of Moral Discourse, Paul J. Gudel

Paul J. Gudel

Paul J. Gudel

California Western School of Law

ABSTRACT

“The Skepticism of Critical Legal Studies and the Function of Moral Discourse”

This article on the philosophy of law aims to expound and evaluate the jurisprudential movement known as Critical Legal Studies – now that the passage of some time allows us to take a less polemical look at what was regarded as a very radical movement. My exposition of CLS organizes its now somewhat familiar concepts (legal indeterminacy, fundamental contradiction, hierarchy, the attack on the public/private distinction) as all directed to one goal: allowing us to see our responsibility for …

These Rules Are Made To Be Broken Down: Teaching Students The Art Of Deconstructing Rules Of Law, Jeremiah A. Ho

Jeremiah A Ho

ABSTRACT

THESE RULES ARE MADE TO BE BROKEN DOWN: TEACHING STUDENTS THE ART OF DECONSTRUCTING RULES OF LAW

JEREMIAH A. HO

Despite its often contended (and oft-contentious) meanings, legal academics and educators still resort to the now-entrenched phrase,“think like a lawyer,” to describe the goal of law schools in educating their students. But even a brief deconstruction of the phrase brings its varied interpretations to light: What does it mean to “think like a lawyer”? It might easily imply an existing difference from thinking like a doctor, a banker, or a representative from another profession. But within the law, does …

Perfect Compromise Or Perfectly Compromised Tests: Law School Examinations That Mimic A Bar Examination’S Format?, Charles J. Senger

Charles J. Senger

Increased coverage, facial validity based on similarity to many bar examinations, and reduced scoring time all support combining bar examination type essay questions and Multistate Bar Examination multiple choice questions to form a typical three or four hour law school examination. Unfortunately, great care must be exercised or the resulting examination will be seriously flawed. In particular, six challenges must be met to produce a quality examination. Those six are: 1. Mismatches between the examination’s questions and scoring methods when compared to teaching, curriculum, or institutional goals; 2. Insufficient sample size; 3. Insufficient resources for drafting, pre-testing, and processing; 4. …

Outfoxed: Pierson V. Post And The Natural Law, Josh Blackman

Josh Blackman

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt. The holding in Pierson v. Post has been …

Big But Brittle: Economic Perspectives On The Future Of The Law Firm In The New Economy, Bernard A. Burk, David Mcgowan

Bernard A Burk

This Article addresses the deceptively simple questions why, up to the onset of the recent recession, law firms continued to grow at the rapid rate and in the unusual configuration that they have exhibited for over 40 years; and whether lawyers, clients, law students and law schools should expect familiar trends to reassert themselves as the economy improves. We show that the copious academic theorizing addressing these questions (focusing on such notions as diversification, asset specificity, “tournament” theory, and reputational and agency-cost concerns at the level of the firm as a whole) has proved ineffective at explaining or predicting actual …

Engaging Law Students In Leadership, Faith Rivers James

Faith R Rivers James

The new challenge of legal education is preparing civic-minded lawyers to assume leadership roles in their communities, law firms, the legal profession, and in the public square. Defined as the process of influencing and persuading others to achieve a common purpose, leadership describes the lawyers’ task with individual and organizational clients; considered as a characteristic of people in positions of power, lawyers often assume the mantle of leading organizations. Whether defined as process or position, lawyering involves leadership in the private sector or in the public realm. This article considers the progressive structure of a comprehensive law & leadership program, …

Alternative Justifications For Law School Academic Support Programs: Self-Determination Theory, Autonomy Support, And Humanizing The Law School., Louis N. Schulze Jr.

Louis N. Schulze Jr.

This Article examines alternative justifications for law school academic support programs (hereinafter “ASPs”). By “alternative,” I mean justifications not having anything to do with bar passage rates or even demonstrable increases in academic performance, per se. My thesis is two-fold. First, I argue that ASPs help humanize the law school environment. By providing a source of encouragement and assistance in an environment too often devoid of significant positive support, ASPs can leave students feeling that their law school actually cares whether they succeed. For those in academia who believe that providing a more humane law school environment is an admirable …

The Good, The Law, And The Municipal Ideal - An Integrative Developmental View Of The Case Of The Speluncean Explorers And The Crisis Of Meaning In Western Jurisprudence, Sean S. Yang

Sean S Yang

For centuries, law had been understood as something sacred, transcendent, a set of righteous directives emanating from a divine authority. Less than three hundred years ago, something strange happened. A handful of humans began to think a new type of thought: they conceived the law as a self-contained system understandable on its own terms, its merit determined only by its consistency with "reason," the correctness and supremacy of which was self-evident. Less than one hundred years ago, something even stranger occurred: another handful of humans directed their attention to thought itself and began creating knowledge about knowledge, writing language about …

Teaching Negotiation To A Globally Diverse Audience: Ethics, Morality And Cultural Differences, David Allen Larson, Vanessa Seyman

David Allen Larson

"Teaching Negotiation to a Globally Diverse Audience: Ethics, Morality, and Cultural Differences" (by David Allen Larson and Vanessa Seyman) This is a short article discussing the challenges of teaching negotiation, and also the challenge of actually negotiating, in a globally diverse environment. Issues of ethics, morality and culture can surface quite quickly when teaching and negotiating in a multicultural environment. The article builds upon our recent experiences as participants in the Second Generation Global Negotiation conference held Istanbul, Turkey. The article provides examples of how cultural and language differences can impact both actual negotiations and negotiation teaching and provides suggestions …

In The Name Of Watergate -- Returning Ferpa To Its Original Design, Meg Penrose

Meg Penrose

The attached article, entitled "In the Name of Watergate: Returning FERPA to its Original Design" details the Watergate effect on federal privacy legislation, particularly the Family Educational Rights and Privacy Act (FERPA). Senator James L. Buckley, a one-term Senator from New York, served as the architect for what remains the most important education privacy law in existence. However, Senator Buckley recently discussed the reasons that this law should be "clarified" and returned to its original design. I wholeheartedly agree. In the digital era, we must zealously protect privacy with effective legislation that guards both the collection and release of personal …

How The Global Crime Syndicates Fuel Planet Destruction, Global Alliance

Global Alliance

since 1945 more environmental planet destruction has been fuelled and financed with ever more leveraged debt than in the previous 60 million years - it's applied terrorism against the global life support system under the protection racket of a corrupt law profession

Shaping Professional Knowledge: The Intended And Unintended Consequences Of Fellowship Funding In Law Schools, Cynthia Fuchs Epstein

Cynthia Epstein

The development of knowledge in any profession is determined by many factors including the cultural receptivity to new ideas within the field and in the larger society, the interests and visions of the professions’ leaders, and the availability of resources for recruitment of talent, resource development and dissemination of knowledge. This paper examines the impact of resources within the legal profession, and particularly regarding the role of resources in determining public interest career options. It draws from a larger study of the factors that facilitate and deter the choice of legal careers in the public interest. I find that fellowships …

Deepening The Discourse Using The Legal Mind’S Eye: Lessons From Neuroscience And Psychology That Optimize Law School Learning, Hillary Burgess

Hillary Burgess

Research demonstrates that incorporating visual aids and exercises into learning environments improves learning with higher-order cognitive skills such as “thinking like a lawyer.” This article argues that because law school learning focuses on the highest order cognitive skills, professors optimize the learning environment by including visual aids and visual exercises.

This article begins by defining what higher order cognitive skills are by mapping common law school learning tasks onto a leading taxonomy of learning objectives. This article argues that the legal curriculum engages all six levels of learning by traditionally teaching the lowest four levels of learning and by traditionally …

Creating The Optimisitc Classroom: What Law Schools Can Learn From Explanatory Style Effects, Corie Rosen

Corie Rosen

If it is true that we are what we think, then in the law school environment, where depression is rampant, positive psychology may plan an especially important role. This article is primarily concerned with the implications that the attribution style studies and decision-making studies may have for student motivation in the law learning environment. Specifically, this paper will address optimism, the attribution style language associated with the presence of optimism in the brain, the methods for importing that language into the law school classroom, and the possible effects of such teaching.

Toward A Pedagogy For Teaching Legal Writing In Law School Clinics, Tonya Kowalski

Tonya Kowalski

One of the major legal skills students use in almost every law school clinic is advanced legal writing. Clinicians spend many hours every week triaging student writing and coaching their students to produce practice-worthy documents. Yet advanced legal writing is not routinely addressed in clinic seminars and there is no clear methodology for teaching advanced legal writing through clinical supervision. This Article is the first to propose a comprehensive pedagogy for teaching and supervising legal writing in clinic.

Moreover, clinicians commonly experience the frustration that students seem to come to the clinic deficient in many legal writing skills. This Article …

True North: Navigating For The Transfer Of Learning In Legal Education, Tonya Kowalski

Tonya Kowalski

As lifelong learners, we all know the feelings of discomfort and bewilderment that can come from being asked to apply existing skills in a completely new situation. As legal educators, we have also experienced the frustration that comes from watching our students struggle to identify and transfer skills from one learning environment to another. For example, a first-semester law student who learns to analogize case law to a fact pattern in a legal writing problem typically will not see the deeper applications for those skills in a law school essay exam several weeks later. Similarly, when law students learn how …

Presidential Ambitions Of U.S. Supreme Court Justices:, William G. Ross

William G. Ross

A remarkably large number of U.S. Supreme Court justices have had presidential aspirations while serving on the Court. Several have conducted covert presidential campaigns, and a few nineteenth century justices even campaigned openly from the bench. In at least three quarters of the elections between 1832 and 1956, one or more justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as possible candidates. During the past half century, no Supreme Court justice appears to have entertained serious presidential ambitions, probably because no justice who has been appointed during the past fifty years has held any …

Averting The Captain Vere “Veer”: Billy Budd As Melville’S Republican Response To Plato, Robert E. Atkinson

Robert E. Atkinson Jr.

This article shows how Melville’s Billy Budd, rightly one of law and literature’s most widely studied canonical texts, answers Plato’s challenge in Book X of the Republic: Show how “poets” create better citizens, especially better rulers, or banish them from the commonwealth of reasoned law. Captain Vere is a flawed but instructive version of the Republic’s philosopher-king, even as his story is precisely the sort of “poetry” that Plato should willing allow, by his own republican principles, into the ideal polity. Not surprisingly, the novella shows how law’s agents must be wise, even as their law must be philosophical, if …

Seeking The St. Thomas Effect: Law School Mission And The Formation Of Professional Identity, Jennifer Wright

Jennifer Wright

Law schools have long prided themselves on their ability to train law students to “think like lawyers”. Many law schools and faculty deny that they do or should play any role in the formation of students’ professional and moral identities. Recent events point to the high social costs imposed by lawyers and judges who demonstrate no professional allegiance beyond pleasing the client or employer and maximizing the bottom line. Our legal system and our society as a whole depend upon ethical and professional behavior on the part of our lawyers and judges. Recent studies have challenged law schools’ rejection of …

"A Great Dread Of Vulgarity": A Novel Perspective On Christopher Columbus Langdell And The Origins Of The Case Method In American Legal Education, Andrew Yaphe

Andrew Yaphe

When he introduced the case method of teaching to Harvard Law School in the 1870s, Christopher Columbus Langdell permanently changed the shape of American legal education. Despite the enormity of Langdell’s influence on legal pedagogy, we understand surprisingly little about what he intended to accomplish with his innovations. This Article offers an original interpretation of Langdell’s contributions to the way we think about the law and legal education. Reading Langdell in tandem with Gilbert Osmond, the central male character in Henry James’s 1881 novel The Portrait of a Lady, shows Langdell to be an example of a particular type of …

Embedded Librarians: Teaching Legal Research As A Lawyering Skill, Vicenç Feliú, Helen Frazer

Vicenç Feliú

This article addresses a proposed pedagogy for teaching the lawyering skill of advanced legal research in practice environment, such as a clinic, consonant with the recommendations of the 2007 Carnegie Report, Educating Lawyers, and the 1992 ABA Taskforce on Law Schools and the Profession, Legal Education and Professional Development (the MacCrate Report). It examines how the relatively new trend of embedding librarians in practice settings, offering assistance at the point of need, could be effective in law schools. It proposes a model for teaching advanced legal research by embedding law librarians in law school clinics based on the experiment conducted …

Studying And Teaching "Law As Rhetoric": A Place To Stand, Linda L. Berger

Linda L. Berger

This article proposes that law students may find a better fit within the legal culture of argument if they are introduced to rhetorical alternatives to counter narrowly formalist and realist perspectives on how the law works and how judges decide cases. The article makes a two-part argument: first, introducing law students to rhetorical alternatives allows them to envision their role as lawyers as constructive, effective, and imaginative while grounded in law, language, and reason. Second, offering rhetorical alternatives allows law professors to enrich their own study and teaching and to develop a more nuanced understanding of the law school classroom …

Legal Fictions And Juristic Truth, Nancy J. Knauer

Nancy J. Knauer

This Essay cautions against the revisionist trend in legal scholarship to dismiss discredited legal regimes and burdensome statutory schemes as mere "legal fictions." In the first instance, the expansive view of legal fictions employed in this new scholarship dilutes the analytic force of the classic definition proposed by Lon L. Fuller. More importantly, it misapprehends the constitutive power of law and the nature of juristic truth. The classic legal fiction is a curious artifice of legal reasoning. In a discipline primarily concerned with issues of fact and responsibility, the notion of a legal fiction should seem an anathema or, at …

Levinas, Law Schools And The Poor: They Stand Over Us, Marie A. Failinger

Marie A. Failinger

The philosopher Emmanuel Levinas has written about the ethics of the Face and our responsibility to the Other who is standing over us, demanding that we respond to his need and his welcome. This essay, which is written in Levinasan style, challenges the complacency of most American law schools in response to the plight of the poor. It proposes ways in which the law school curriculum, space and programs can be re-configured to bring the poor into community with legal educators and students.

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John Lande, Jean R. Sternlight

John Lande

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes. Recognizing these substantial barriers, it proposes a modest and feasible menu of reforms that interested faculty and law schools can achieve without investing substantial additional resources. The proposals are not intended as a comprehensive package to be implemented on an all-or-nothing basis but as a set of options to be selected by individual faculty …

The Rhetoric Of Catharsis And Change: Law School Autobiography As A Nonfiction Law And Literature Subgenre, Carlo A. Pedrioli

Carlo A. Pedrioli

To date, little scholarship, if any, has addressed the autobiographies of law students, which have appeared in law review articles and books since at least the late 1970s. This shortcoming of law and literature scholarship in the nonfiction genre of autobiography is problematic. In the interest of understanding diverse perspectives in the legal community, legal scholars with autobiographical interests ought to give attention to the autobiographies of different individuals in this community, including the law students who will be the future members of the profession. Also, this shortcoming leaves a gap in the narrative discourse of the law since lawyers …

The Reasonable Certainty Requirement In Lost Profits Litigation: What It Really Means, Robert M. Lloyd

Robert M Lloyd

This article explains the factors courts consider when determining whether to award damages for lost profits. It contains an extensive review of the case law.