Beaneball

The hot news in the legal blogosphere is that Washington and Lee is overhauling its third year: instead of academic courses, the entire thing will be experiential learning. This will, according to the WSJ Law Blog, include practicing keeping track of billing hours.

Let me first say congratulations to W&L for taking a big experimental step with their educational program -- it takes guts to implement something like this, and hopefully they display the same guts over the years to keep with it and really try to make it work.

That said, while the heart is in the right place on this, I'm not sure that it is going to work out for them. It strikes me that experiential learning should be incorporate all the way through. Two years of classroom instruction and then a year of, what, basically apprenticeship? All this really does is push what used to be the first year in private practice back into the law schools. That's fine, I guess, if you're trying to make the law firms happy, but in the end, you're still just throwing the students into the "actual practice" portion of things with no real preparation beforehand.

The approach I'd want to take would be more integrated. In the first year, you take Legal Research and Writing, where you're really learning the nuts and bolts of, well, legal research and writing. But that first year is also filled with the usual doctrinal classes, partially to learn doctrine, but more importantly, to learn the way lawyers talk and think about things, so that you can actually fill those lovely briefs you're learning about in LR&W with substantive, correct-sounding material. None of this is radical. In fact, none of this is a change at all from what's already done.

The key, I think, is in the later years, when there ought to be requirements that some not insubstantial portion of your credits should be of the clinical/internship/externship/etc., i.e. experiential, variety. Furthermore, upper-level classes should include semi-experiential components. That is, don't just teach for 40 hours and then make the students write an exam; instead have them file short memos on various topics throughout the semester. Don't just do your silly, unexamined version of Socratic teaching. Set up sessions where students make meaningful contributions, like through oral arguments or perhaps presentations of material.

This kind of system requires a couple of things: a willingness on the part of the professor to really engage in teaching (but see Jeff Harrison's blog on the unlikeliness that this will happen); and small classes. There were 121 people in my Evidence class. That doesn't excuse the multiple-choice exam at the end of the semester, but it does excuse not having 3-5 writing assignments throughout the semester. Regardless of your dedication to teaching, grading 600 assignments, even if you limit those to one page apiece, is a ton of work.

The fact that this model law school will require smaller classes will balance, from the law teacher's perspective, the fact that fewer doctrinal classes will be taught (because of the clinics/internships requirement). Thus the faculty size will likely need to remain about the same. What will not remain the same, however, is cost. Building clinical programs, i.e. offering free legal services, isn't cheap. It's a lot cheaper to lecture 120 students about Evidence than it is to pay court costs and things like that for indigent clients in all these new clinics that will be starting. Another issue is the big gap between (relatively) rural and urban law schools. Carbondale just doesn't have the number of people who need legal service as New York City. Of course, given the number of schools in New York, that doesn't address the right question -- the question is whether there are enough people in Carbondale who need Southern Illinois' legal services to justify opening three or four new clinics and expanding the already existing ones to accommodate the fact that now, every student will have to do n credits of that kind of work.

To reiterate, however: all of these difficulties will always exist for any law school that wants to update its curriculum to be more useful, to give students the kind of experiential learning opportunities that forward-thinking educators realize are necessary. Thus it is a real credit to W&L's faculty and administration that they are willing to step up and try to make something new work.

UPDATE: Here's the post about the topic at PrawfsBlawg.

UPDATE 2: Here's Law School Innovation's post.

Posted by Jason Wojciechowski in Education, Law, Law School at 12:36 | Comments (0) | Trackbacks (0)

On the SCOTUSblog this morning came the news that the Supreme Court isn't 100% evil after all (as John McEnroe might say). Instead, they've decided that judges are permitted to give below-Guidelines sentences to those sentenced for crack-related crimes, and are permitted to take into account the large disparity between crack sentences and powder cocaine sentences when deciding the sentence. The Fourth Circuit had held that "a sentence 'outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.'" At the same time that I'm glad, substantively, about this decision, I can't help but agree with Justice Thomas that this whole sentencing thing, post-Booker, is turning into a quagmire to rival some of the Brennan-Court criminal procedure issues a generation ago.

Posted by Jason Wojciechowski in Law at 14:16 | Comments (0) | Trackbacks (0)

I have to say that the Eleventh Amendment was not the first thing that sprang to mind after the disaster at Virginia Tech. But apparently Virginia's thinking about just that - the state's (oops: commonwealth's) solicitor general, William E. Thro, mentioned that the state would invoke its sovereign immunity to prevent suits in federal court. He also mentioned that people could sue in state court, but could get no more than $100,000. Link. Thro (who, I'll note for the hell of it, went to U. Virginia for law school, has an M.A. from the University of Melbourne, and is an Eagle Scout) is presumably referring to a state statute waiving its immunity from suit in its own courts for negligence, but only to the extent of the $100,000 that he mentions. A quick spin through Westlaw turns up no statute, but I didn't look very hard.

Posted by Jason Wojciechowski in Law at 23:29 | Comments (0) | Trackbacks (0)

Here's a fanastic entry by David Luban at Balkinization applying a Marxist analysis to the structure of the big law firms. It's not a very hopeful picture, as the final analysis seems to be that the problems in the firms that lead to the horror stories and burnout and high turnover are systemic, inherently part of the way law firms work (and survive in the marketplace). As someone who's looking at the big law firm world as one possible career outcome (at least in the short term), it's certainly not a happy thought, that no matter how hard I look, how much I scour the cities, I'm not going to be able to find a big firm (with all the perks that come with working in a big firm) that's a pleasant place to work.

Posted by Jason Wojciechowski in Law at 10:11 | Comments (0) | Trackbacks (0)

I have no documentation of this, but I had both the Colts and Seahawks in yesterday's games (the Colts because they're a vastly better team than the Chiefs and the Seahawks because they were playing at home). I figured the Seahawks game would be close, but obviously you can't anticipate the craziness that ensued. I'll try to go 4-0 today as I pick Philadelphia and New England to win. Those aren't exactly controversial picks, although some people will get seduced by the Giants' offensive talent. The Patriots-Jets game is tough because while I'm not a Patriot-hater, they're not my favorite team to root for, and I really like Chad Pennington and Eric Mangini, so I'd like to root for the Jets, but I just don't think they're ready to beat Bill Belichick in the playoffs.

Posted by Jason Wojciechowski in Books, Football, Law, Magazines, Movies, Non-Fiction, Reading at 12:39 | Comments (0) | Trackbacks (0)

For Civil Procedure tomorrow, we had to read excerpts from an appellate opinion in the "A Civil Action" case, Anderson v. Cryovac. The opinion is at 862 F.2d 910, and can I just say that it's remarkable? The judge (Selya) must have known that Jonathan Harr was following this story around for his book, because he threw in his best writerly touches and his best showoff vocabulary. Some samples:

• "We eschew an exigetic presentation of the litigation's history ..." p. 913
• "This parcel is a cynosure of the case." p. 913
• "Soon thereafter, a new cloud darkened the horizon ..." p. 915
• "The adoption of the Civil Rules put an end to this desuetude." p. 915
• "To explain, we turn first to the propriety of the paralipomena." p. 917
• "In light of this unmistakable potential for amphiboly ..." p. 917
• "To drive the final nail, we note that when the judge, following the charge, asked for objections at sidebar, plaintiffs' counsel registered no opposition to the interrogatory." p. 918
• "Especially where, as here, plaintiffs bear a lion's share of the responsibility for the infelicitous phrasing ..." p. 918 (A lion, a bear, and "infelicitous?" Wow.)
• "We do not believe that preservation of the claimed error referable to pre-1968 contamination saved the plaintiffs' bacon." p. 918
• "Inasmuch as plaintiffs accepted and endorsed the interrogatory as submitted, they cannot now complain that they were caught in its toils." p. 918
• "Not easily daunted, appellants asseverate that ..." p. 919
• "By answering the four-part interrogatory with an unbroken skein of 'noes,' ..." p. 919
• "We limn the pertinent testimony." p. 920
• "We need ride this horse no further." p. 921
• " ... elsewise it would be pleonastic ..." p. 923
• "Once we leave the starting gate, the borders of the course blur." p. 923
• "Our sister circuits have set some guideposts along the track ..." p. 923
• " ... spoliators would almost certainly benefit from having destroyed the documents ..." p. 925
• " ... need only carry that devoir of persuasion ..." p. 926
• " ... overwhelming evidence, to call a spade a spade ... " p. 927
• "There is no need for us to determine how many angels danced on the head of that particular pin ... " p. 927
• " ... Beatrice played possum ... " p. 928
• " ... possibility that further undisclosed information lurked in the shadows." p. 929
• "Sensitive to the unseemliness of grilling fellow attorneys ... " p. 930
• "Nor was this some fribbling matter of marginal relevance." p. 930
• "The second string to appellants' bow is markedly more resilient." p. 931
• "This exhortation strikes us as idle persiflage." p. 931

Posted by Jason Wojciechowski in Law at 18:19 | Comments (0) | Trackbacks (0)

On Thursday night, some friends and I went to a panel at Cardozo on Trademark in Fashion. Knowing that I'm one of those free culture types, it should have been predicted that the panelists would piss me off. All four were industry insiders, lawyers either for firms that do IP work for the big fashion houses, or for the big houses themselves. Predictably, then, the panelists were proponents of strong IP protection and vigorously going after infringers of their "rights." You'll never hear an argument out of me that counterfeiting is good or right. I don't disagree that companies like Chanel should take steps to shut down people who are producing copies of their bags and selling them on Canal Street. That said, the blind adherence to a strong IP-protection regime and the justifications for that regime were a little ridiculous. The panel made mention of the reports that terrorist organizations are being linked to profits from counterfeiting of all types, clothing included. I'll let the jury still be out on that, because the links sound a little sketchy, and I thought we'd learned our lesson about taking action against terrorism based on sparse evidence. I was also amused by the revelation that counterfeiting clothes has really taken off ever since the companies moved their manufacturing to Asia. So now the companies are pressuring countries like China to create more stringent IP protection. My reaction is that these companies are just being whiny bitches. They made the choice to take their manufacturing to Asia, and they have to face the consequences of that. Quit making it a moral trip, quit pressuring other sovereigns to change their laws, and just deal with it. If you're losing that much money, then it'll make economic sense to bring the manufacturing back to the U.S. If counterfeiting is so awful, then make your Murakami bags in Cleveland. Even better, perhaps, was the panel struggling to come up with other ways in which we harm ourselves when we buy counterfeit goods. The best they could come up with were, "A lot of the counterfeit sunglasses don't actually have real UV protection," and, "If you buy fake perfume, you could get an allergic reaction." Yeah? Well, I get a reaction to my very-much not-fake deoderant (which is why I use Tom's of Maine now), and I'm sure I could easily get a reaction from a real bottle of Chanel No. 5 just as much as I could from a fake one. The real problem I had with the panel, though, was not on the counterfeiting front. As I said, there's no justification for counterfeiting. Really, it was just a general unwillingness to address the other side of the debate. Scratch that. Call it a general unwillingness to even acknowledge that there is a debate. I suppose that's not why they were there, but I don't know if they recognized the inherent contradiction in some of what they were saying about trademark. For instance, some of their talk was aimed at giving advice to up-and-coming designers and businesspeople (there were a number of New School and FIT students in the audience for whom this was more appropriate than the future-lawyers) that they aggressively pursue trademark, patent, and copyright for their work. At the same time, they explain how they, in their capacities representing the established companies, go very aggressively after anyone who might be infringing on their copyright or diluting their trademark. There doesn't seem to be a recognition of the need for innovators (of all types) to innovate without fear that some multinational behemoth is going to come along and shut them down with a multi-million dollar lawsuit because of some minor, accidental infringement. This is what drives my reluctance to even bother with IP in law school.

Posted by Jason Wojciechowski in Law at 16:20 | Comments (0) | Trackbacks (0)

I attended a little event at Cardozo today that I thought I'd share. Peter Lattman and Ashby Jones from the Wall Street Journal Online came to talk about blogging, online journalism, and the law. The attendance was pretty good for an evening session on a relatively niche topic, and some of the questions from the audience were pretty good. Both men are former lawyers (Jones: Michigan; Lattman: Fordham) who moved into journalism after really disliking the law-firm life. A lot of what they cover at the Journal's Law blog (Lattman) and generally on the law page of the Journal's online presence (Ashby, who edits that section) is the law firm life and, in some sense, legal culture. They do, of course (because it is the Journal), a lot of business stuff, from two perspectives: the legal aspects of business as well as the business aspects of the law. They both seemed like they really enjoyed their jobs and enjoyed working at what's in a lot of ways the front of a wave in journalism. It made me not feel so despairing of what might happen to me if I don't like the lawyer's life after law school. Some of the issues that were interesting to me (What does being on the web mean for journalists in terms of pressure to get stories up before they can really verify them? What about the possibility of a completely opaque editing process, where we don't even have to know that you've made corrections?) were discussed, as well as the nature of blogs (which I think is overblown - a blog is not a blog because it's independent, or because of it's style of mixing opinion with reportage), the question of whether blogs are "just a diversion" (question coming from an old dude in the back, which clearly made Lattman and Jones really uncomfortable), and the more mundane points like, "Do you link to pay sites?" One question I wanted to ask of Jones personally, but decided against eventually, was what effect he thought the move to online journalism might have on magazines and long-form journalism. People hate clicking "next page" online, after all - can you imagine if Gay Talese or Truman Capote had tried to write for an online audience? I shudder to think. Perhaps most of all, I enjoyed considering how many people were probably blogging this when they got home.

Posted by Jason Wojciechowski in Law School at 22:36 | Comments (0) | Trackbacks (0)

I saw this post over at BlackProf about a rather brilliant law professor who posted an outline from his property class online while he was a student. Problem: the outline contained racially offensive shorthand. As you can see at the bottom of the post, I left the following comment, which still, a little time later, sums up my feelings on the matter:

That's disgusting. How does someone like this end up being allowed to teach at places like Harvard and Stanford? It doesn't matter how smart he is: if someone is going to be so blase about using such slurs (he didn't even apologize!), then they aren't smart enough to realize what kind of effect that language can have on actual people, and they don't deserve the chance to have any kind of effect on the "next generation" (i.e. the students at whatever law school is so callous and hungry for researchers as to hire him).

Posted by Jason Wojciechowski in Law at 18:44 | Comments (0) | Trackbacks (0)