Wednesday, February 28, 2007

Is It Truly That Bad?

The London Guardian opines,
An elite team of officers advising the US commander, General David Petraeus, in Baghdad has concluded that they have six months to win the war in Iraq - or face a Vietnam-style collapse in political and public support that could force the military into a hasty retreat.

* * *

Possibly the biggest longer term concern of Gen Petraeus's team is that political will in Washington may collapse just as the military is on the point of making a counter-insurgency breakthrough. According to a senior administration official, speaking this week, this is precisely what happened in the final year of the Vietnam war. Steven Simon, the national security council's senior director for transnational threats during the Clinton administration, said a final meltdown in political and public backing was likely if the new strategy was not seen to be working quickly.

A Grammar Lesson Best Left To A Later Date

After a trip to the home of indoor playgrounds, games, and something that they claim is pizza....
Emma: My Chucky Cheese.
Mommy: No, my Chucky Cheese.
Emma: My Chucky Cheese.
Mommy: Okay, your Chucky Cheese.
Emma: No, I'm Emma.
(I know your/you're is a grammar pet peeve for many people, but for a two-year-old I think we can forgive the confusion.)

Tuesday, February 20, 2007

Teaching People To "Think Like Lawyers

Behind the firewall, today's New York Times prints "A Skull Full of Mush" from Ann Althouse. (Er... I mean it prints an editorial called "A Skull Full Of Mush"....)

Professor Althouse reminds us of the fictional Professor Kingsfield of The Paper Chase who defends his law school teaching methods by declaring "You come in here with a skull full of mush, and you leave thinking like a lawyer." She relates this in the context of a conference in which the author of that book rejected the Kingsfield approach to legal education in favor of one which allows students to develop their own narrative. (I'm not sure what that means and Althouse doesn't explain; I suspect she chose to use that particular phrase without providing any context because, standing alone, it sounds so wishy-washy. If that's the case, though, what can I say? She's "thinking like a lawyer.")
We law professors tend to worry about seeming like Professor Kingsfield. But we ought to worry less about that prospect and more about preserving and respecting our own tradition of teaching from the cases.

The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.
One of the best student experiences I had in law school was being taught by J.J. White, who was probably the most like Professor Kingsfield of any professor at UM. He knew his material cold, and I had the impression that he spent more time reviewing cases and preparing for each class than did most of his students. He did instill some fear, because you knew that if he called on you and you were not prepared (or were wildly off the mark) you were likely to experience some embarrassment. Some students hated him, but I doubt that there was one who wasn't inspired to work hard and think hard. His politics were obvious, but they didn't factor into his grading.

Had every professor at UM been like him, I would have had to work a lot harder and I would have learned a lot more. Instead, I found that he represented a certain class of older professor who had high expectations for students, had a tremendous amount of knowledge and self-discipline, and wished to impart knowledge of the law. Perhaps some of the more socratically-inclined younger professors eventually develop a similar set of teaching skills, but I was left with the impression that for many of the younger set the term "socratic method" was shorthand for "I don't have to have a lesson plan or prepare for class because I can fill an hour by lobbing questions at students". Some were all about ideology, caring a lot less about whether students came to learn the material than if the students ended up sharing their perspective on the material. Which isn't to say that they're necessarily dishonest - I suspect that they believed their positions to be correct, even if the nation's legislatures and courts hadn't (and still haven't, and aren't ever likely to) come to their senses.

Is there is a sense in which learning to write for such a professor is learning to "think like a lawyer"? You either develop skill in fashioning an argument you don't agree with or you get a lower grade - and is it not true that at times lawyers have to raise potentially meritorious arguments that they don't personally agree with in order to protect the interests of a client? (See? Skip over the "potentially meritorious" part, and it's an important lesson in "thinking like a lawyer.") Well, you might be able to make that argument if the professor is intentionally grading down correct answers on the basis of ideology which, Supreme Court advocacy aside, isn't an approach particularly compatible with "thinking like a lawyer". Maybe it's a lesson in "writing for your audience" - also an important legal skill? Er, maybe I shouldn't have to work this hard to make excuses for bad, lazy teaching. In these cases it wasn't the student who had the "skull full of mush".

In retrospect, when I look at what taught me to write like a lawyer, it wasn't the wretched student-led writing program that UM then inflicted upon its 1L's. It was a clinical class in criminal appellate advocacy, taught by a practitioner. The instructor opened the first session by telling us that whatever we had been led to think constituted "good legal writing" by virtue of law school instruction was largely incorrect, and over the course of a semester demonstrated that he knew what he was talking about. It's much harder to pinpoint how I learned to "think like a lawyer", although I can assure you that not every law professor I had contributed to that process (save, perhaps, as sardonically noted above).

I'm not going to argue that "thinking like a lawyer" means you have to shut up if you don't know what you're talking about. But knowing when to sit down and shut up is a part of good advocacy - whether because you've won the point and continuing would be beating a dead horse, because you risk exposing the weaknesses of your argument if you continue speaking, or because you're starting to sound like you're being arrogant or bullying. (At the same time, sometimes being provocative is a good way to induce your opponent into overplaying his hand.) When I post here, I rarely get a good back-and-forth in the comments, but I enjoy that as an opportunity to improve my knowledge and the way I think about the issues under discussion. (Yes, folks, all rumors to the contrary aside, lawyers tend to be more argumentative than the average person, and to approach debate as something to enjoy, not something to dread. That's not something you learn in law school, but it is something that helps take you there.)

I am not sure that J.J. White ever told my class that he was going to make us "think like lawyers". (He did tell us that law firms regarded us as fungible, and he also correctly forecast that most of my classmates on the political left would prove to be "limousine liberals", casting aside plans for careers in public service for a six figure law firm salary. He was right on both counts.) Had he done so, I would have believed him. But the professors I recall hearing that from, usually as a defense of their dubious teaching methods, didn't have a clue how lawyers think. They knew how to think like a law professor, and perhaps even to think like a Supreme Court Justice they once clerked for, but that was about it. For somebody who admitted hating practice, being unsuccessful in practice, and having a whopping two years of law firm experience in which he admitted the closest he got to courtroom advocacy was literally carrying bags for a partner, to tell me he can teach me to "think like a lawyer"? That's a joke. (And, of course, it happened.)

For the most part the claim, "You're learning how to think like a lawyer," is a cop-out. It's a cover for bad teaching that can't be defended in concrete terms. My challenge for Professor Althouse: Please provide a clear definition of what it means to "think like a lawyer," and which law school teaching methods have been legitimately established to establish those skills.

Sunday, February 18, 2007

Noteworthy Observations from Eunomia

Daniel Larison has made a couple of observations recently that, in my current state of blogging lethargy, I'll pass off as a blog post.

On conservatives who advocated for war in Iraq under the apparent or professed belief that reinventing that country as a liberal democracy would be easy:
People are mostly skeptical of social engineering efforts and jaundiced about revolutionaries who promise to herald a new dawn. Iraq has revealed what human beings do without a strong order-imposing state. ~David Brooks
Well, if by “people” Brooks means “people who didn’t buy into the crazy revolutionary rhetoric of the Second Inaugural,” this is true. If by “people” he means “everybody, especially including me, David Brooks,” I will have to disagree, and not for the first time. As we were reminded just the other day, those who were jaundiced about a promise of a new dawn in Iraq (or was that the ”birth pangs of a new Middle East”?) were accused more or less openly of various horrible moral and political evils, including racism, treason and support for despotism. How could we doubt that Iraqis could pick up in a matter of a few years political institutions and habits that took us centuries to develop? We were accused of a lack of confidence in the universality of “freedom and democracy” and were mocked for doubting the equality of man. Why? Well, we were under the funny impression that abiding cultural and religious identities would trump vague appeals to “freedom and democracy” every time and that a people’s particular history was far more relevant to its political constitution than vacuous bromides about how freedom is God’s gift to mankind. Brooks and company took the other view. Now they would like to rush back and claim the mantle of traditional conservative wisdom that they threw into the gutter and spat upon. I, for one, am sick of this.
On conservatives who try to depict Democrats as "the real racists":
When you grow up reading a lot of conservative commentary as I did during the ’90s, you find that the ever-so-cute and amusing attempts to show that Democrats and liberals are the “real” racists got old about ten years ago. It served the purpose of trying to hoist the race-hustlers and exploiters by their own petard, but it was, had to be, purely tactical and a way to puncture liberal claims to moral authority on these things. As of five years ago, they became really tiresome, because you began to sense that some of these people were deadly serious. “No, really, we’re the true anti-racists! I’m so not racist, you can hardly believe it!” Now I consider them an embarrassment of sorts, a kind of irrepressible tick that conservative writers feel the need to express every once in a while to get it out of their system.

Monday, February 12, 2007

Obama on Bipartisanship

Yes, he calls for bipartisanship, and that pitch still sells, but does he mean it?

The last guy who ran on a platform of bipartisan cooperation and ended up in the White House... what was his name again? All I really remember now is that he was a "uniter", not a "divider".

Another Reason To Be Careful With Your Law Firm URL

I have previously mentioned my belief that law firms should take care about who owns the URL for the firm's website (or sites), and what happens to the URL in the event that the firm name changes or a partner leaves the firm. But here's another wrinkle.

Let's say you have been using a URL for a number of years, or even just a few months, and have advertised it, incuded it on your letterhead and business cards, or otherwise publicized the URL. The firm decides to change the URL for the website, a partner who owns the URL's registration leaves the firm, or the hosting company never transfers the URL to your firm and either goes out of business or won't release the URL to you when you switch hosts.

Within a short amount of time, you may find that all of that promotional material which continues to associate your firm's name with the defunct URL now points to a site owned by a competitor or, much more likely in the event that you had any appreciable traffic, a company which will "park" the domain and serve up ads to anybody who comes to it. If you're really unlucky it may end up owned by somebody who hates your firm and puts up a website describing how awful you are.

Go to a site such as and see... who does own your URL, and is it time for you to renew your registration?

Wednesday, February 07, 2007

But As A Business Model, It's Scary....

Steve Jobs has replied to European regulators, investigating whether Apple should be ordered to license its digital rights management software to its competitors, by suggesting that record companies "should consider dropping the anti-piracy restrictions they impose on music downloads."
"If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music.
I suspect that he's correct, and that sales of DRM-free music would significantly exceed current music sales levels. While some would abuse the system, I would expect music industry profits to nonetheless increase due to the higher levels of sales.

Accuracy and Police Lineups

Many years ago a drunken houseguest of a homeowner down the block from my father's house went down the streets trying doorknobs, and stole items from houses which he discovered to be unlocked. He entered my father's house and came face-to-face with my brother. He fled, but was quickly picked up by the police with a significant number of stolen items.

On the date of his preliminary examination, my brother was asked to show up early and speak to the detective in charge of the case. I was asked to come in as well, as some of my belongings had been stolen. My brother was told that he might be asked to identify the defendant from a line-up. The detective asked my brother a series of questions about the defendant's appearance, and seemed to grow slightly more exasperated with each answer. He left for a few minutes then came back and informed my brother that the defendant had agreed to enter into a plea deal, and that no line-up would occur.

As we were leaving the detective's office we saw a man being taken to court in a jail jumpsuit. My brother said, "That's him." I looked at him and said, "He doesn't look anything like you said he looked." My brother replied, "I know. But it's him."

I remembered that story when reading TalkLeft's post about the Innocence Project's proposals to make line-ups more accurate. One aspect of the proposal:
Selecting lineup fillers according to the witness’s description of the perpetrator as opposed to based on their similarity to the police suspect, thereby lessening the chances that the suspect will stand out.
Had that been done in my brother's situation, the defendant would have stuck out like a sore thumb.

I think this highlights something that the proponents of this idea have overlooked, or perhaps have chosen to overlook. People are pretty good at recognizing faces that they have seen before. But that doesn't mean that they are particularly good at describing what somebody looked like. While a defense lawyer may have had fun with a description from my brother, and might have even been able to use it to impeach the line-up, that would not have made the defendant any less guilty. Realistically, it would probably have caused the police to cancel the line-up... which happened anyway. But, given that my brother was in fact able to accurately identify the defendant when he saw him, would that in fact benefit an innocent defendant?