University of Alberta Faculty of Law Blog

Legal Education versus Scamblogging

I thought I'd share with everyone some links to a very interesting debate/controversy surrounding the latest so-called "law school scamblog." The blog, titled "Inside the Law School Scam," is authored by an anonymous "tenured mid-career faculty member at a Tier One school" in the US. and makes a number of startling claims about legal education in the US. Since it launched on August 7, it has generated intense debate (including ad hominem attacks), traditional and new media coverage, and attempts to expose the identity of the blogger. Here are some quotes from the blog:

"For another, the transformation of law schools from quasi-academic professional schools to serious academic institutions has been, to put it mildly, incomplete. To a significant extent, that transformation has been quite partial and even illusory."

"Despite..all the changes in legal academic life over the past few decades, the law school world  has done next to nothing to create a system of peer review publication.  99.37% of legal academic work is still published in student-run law journals, of which, because of the increased emphasis on publishing, there are now several hundred.  The system, in other words, is hardly designed to reward and encourage genuine academic rigor."

"So no, law school is not a scam in the literal sense. What it is, for a huge number of law students all across the law school hierarchy, is a practical, intellectual, and economic waste of time and money."

"The typical law review article is read by perhaps five people: the author, one or two of the author's more diligent colleagues, and a couple of law review editors."

Hat-tip: Stuart H

Binnie and Charron retiring

Read the CJ's announcement here.

A cause, B cause, C cause, D (mark)

Most law reviews and journals have peer review of some kind, aimed at some independent review of the accuracy of the content of the proposed article. In most cases,  trade-specific tabloids such as The Lawyers Weekly will rely on the submitters to get it right.  The Lawyers Weekly recently published, in a "Focus" section, an article about aspects of proof of causation in tort. The article contains statements which are significantly wrong. I suggested that TLW should publish a correction. It said it would but limited to a letter of no more than about 450 words. I declined. I'm not Mozart but TLW isn't even Emperor Franz Joseph, let alone Salieri. Anyway, the link, here, is to a PDF file that contains my correspondence with TLW, a link to the article in issue, and my explanation for why the article is wrong on the points I discuss. The least of the errors is that the article makes asserts propositions  contrary to existing SCC case law. (In fairness to the author of the article, both the ONCA and the SCC did that, too, but the SCC has the last word ... in this life.)

[updated June 21 -  added "both the ONCA and"]

Greed is Good (Not)

This post, after the break, is long. It deals with the just posted (on the ONCA website) result in Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 . If you click on the case, it will open up in a new window in html form. The pdf and html links are below.

http://www.ontariocourts.on.ca/decisions/2010/january/2010ONCA0047.htm
http://www.ontariocourts.on.ca/decisions/2010/january/2010ONCA0047.pdf

In summary, the MFN claimed that they are entitled to 35% of the net revenues from Casino Rama - the casino and night club located on their reserve in Ontario - in perpetuity or until they agree otherwise. The MFN lost at trial. The MFN lost again on appeal. The decision was unanimous. I suspect that, given the amounts involved, this one is headed for the SCC.

I've excerpted paragraphs that might explain, for some, the title I've chosen. I suggest the excerpts "speak for themselves".

Just Deserts and Oh, Henry!

A loaned $200,000 to B under demand promissory notes. A and B agreed that B would pay the interest in ways that enabled A to avoid declaring the interest as income. A didn't declare it. A's heirs continued that practice after A died. B repaid part of the principal - about $67,000-  but eventually stopped paying the interest and didn't repay the principal. A's heir sued. Their action for repayment of the principal and payment of the unpaid interest was dismissed on the basis the loan was part of an illegal arrangement and entirely unenforceable.

Blame Peter?

or be careful what you wish for, just in case you get it.

Once upon a time Ontario had legislation which, as statutes are wont to do, contained some provisions; that is, sections (clauses) declaring something that was supposed to be law.

One of the sections declared (provided) something that was probably required for the better working of the area of law to which it applied. It also seemed to declare (provide) something else - lets call that Principle C - that was not necessary, in the sense that Principle C already and necessarily existed as a matter of the common law of that area of law. However, not surprisingly, the Ontario courts acted is if (indeed some even said) that Principle C was a creation of that section of the statute. None of the decisions bothered to consider whether the section did nothing more than declare existing law because it didn't matter to the end result. The result was what mattered.

TO JD OR NOT JD (2010)

A number of Canadian law schools have changed the name of the first degree they grant from LLB to JD and have offered graduates from the BJD days the chance to trade-in their old model for the new (for a price, of course.) Here's a list of an answers that might help some of you decide which way to go, now, and that you Alberta types might consider whenever the tide reaches you. 

The list is done in "standard" Letterman form - but 20, not 10 - call it a double-Letterman. The meaning of some may not be as obvious as the others. In some cases, the numbering is a hint.

Apple 1, Lawyers 0

Birdsong et al. v. Apple Inc., U.S. Court of Appeals for the Ninth Circuit, No. 08-18841.

On Dec 30, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of the class action which claimed that Apple iPods were defective in the manner alleged in the action: that the  ”iPod is defective because it poses an unreasonable risk of noise induced hearing loss to its users.”

Does this mean that Mr/Ms Birdsong's song is now a sad song?

Listen (if you can hear) to Pete Townsend.

As Nigel would have said: News at 11.

But not elvenses. Well, Nigel might have said that, too, but for another reason.

Addendum

One tangentially related view from south of the border. 

A Purifying Ordeal or Just An Ordeal?

Consider:

Cordell v. Second Clanfield Properties Ltd., [1969] 2 Ch. 9 (Ch. D.), at page 16 per Megarry J.:

"The process of authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broader and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to preconceptions, and he lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case." 

Maybe so. One might well challenge Megarry J.'s thesis. (Some one will, in due course,)

In the meantime, though, there's the other hand (but not yet the third): sometimes there's apparently no aid whatsoever.

"Since neither counsel cited the binding decisions of the Court of Appeal (or indeed, any authority at all), neither party is entitled to costs of this motion."

Wilson v. Bobbie, 2006 ABQB 22 at para. 42 per Slatter J (now Slatter JA)

Hello From A Guest Blogger

Hello, Hockey Fans and others:

My name is David Cheifetz. Professor Yahya has invited me to be a guest blogger, here, for a time. I have accepted. .

What are my qualifications? To write on a law blog, I mean.

Well, once upon a time, I graduated from a law school - the hockey team no longer needed me - then located in a city whose identifying initials were, then, N.Y. However, the next set weren't N.Y. Such is life.

After that until today? 

Recession got you down?

Law students: Are you worried about your career prospects? Are you wondering whether to take another tax course instead of humanistic rights law, or whether to take judgment enforcement instead of another jurisprudence class? Fear not - it seems you can take any of those courses, as long as you take a course in belly-dancing.

Zealous Advocacy?

The New York Daily News is reporting that a lawyer for a notorious Guyanese gangster has been charged with conspiring to tamper with a witness. New York City lawyer Robert Simels (famous for representing, among others, Goodfellas' Henry Hill and the NY Jets' Mark Gastineau) was allegedly caught on a wiretap discussing the possibility of eliminating a witness through bribes or violence. As Simels' own lawyer put it, this was "nothing more than a lawful effort to vigorously defend his client."

Are "Billable Hours" on the Way to Extinction?

The tough economic times might be creating a shift in law firms' billing culture, says the New York Times. Perhaps this is also a time to start a debate about the impact of BH on measuring associates' productivity and worth.

 

Michael Krauss named to ALI

Longtime resident of Canada, now professor of law at George Mason University School of Law, and renowned torts scholars has been appointed to the American Law Institute. Congratulations Professor Krauss. Our own Lewis Klar is also a member.

Fees slashed for typos

When students (and I don't mean law students specifically but in general) complain about losing points on their papers for bad grammar/spelling etc., I can now point to this story and say that bad grammar/spelling can cost you money!

Let's Get Rid of the Q.C.

The Lawyers Weekly, August 22nd edition, has an interesting piece on the QC designation:  "Queens Counsel appointment: Tribute or Tarnished?"  Unfortunately, there is no electronic link to this story.

While I am not familiar with the designation process or the usual criteria used, I am aware of the accusation that the QC is handed out to favorites, political or otherwise.  This outcome would hardly be surprising given the criteria mentioned in the article ("exceptional merit and contribution...professional integrity and good character" says the BC Attorney General').  As for the latter, surely we shouldnt reward lawyers for acting with integrity and good character, which they are bound to by their professional ethics.  As to merit and contribution, could it be more vague?  How do measure one person's merit and contribution with anothers?

I welcome opposing views, but my own is that this designation should be dispensed with.  It is a misnomer in any event.  No disrespect intended to current recipients. 

Scalia's 10 Rules of Persuasion

If you ever wanted to know what works for a judge, who better than Justice Scalia to tell you what work.  Business Week has summarized his top ten list is as follows (Via Bashman), which I reproduce:

1. Know your audience.

2. Lead with your strongest argument.

3. Communicate clearly and concisely.

4. Close powerfully and say explicitly what you want your audience to do.

5. Banish jargon.

6. Hone your public speaking skills.

7. Dress appropriately.

8. When you're not on your feet, you're on stage.

9. Look judges in the eye.

10. Don't chew your fingernails.

No Lewd Gestures please

A lawyer who made a lewd gesture in court got 90 days in jail! Did I mention, it was in Texas (and the case is under appeal).

Mothers and Fathers different?

Do childless female lawyers bill more than childless male lawyers?  According to two University of Calgary Sociologists, Jean Wallace and Marisa Young (no link found), who studied Alberta lawyeres, the answer is YES! Here is the abstract of their paper (I have bolded the key findings):

We examine how the presence of children is related to women’s and men’s productivity. We hypothesize family demands, family resources, and family-friendly workplaces are also related to productivity. Productivity for 670 Alberta law firm lawyers is analyzed using a standardized measure of productivity referred to as billable hours. The results suggest that mothers with school-aged children are less productive than non-mothers, whereas fathers with preschool-aged children are more productive than non-fathers. While time spent on household and childcare tasks significantly reduces women’s productivity, we find little support for the benefits of family resources or working in a family-friendly firm for women. Rather, fathers seem to benefit more: family resources are positively related to their productivity and family-friendly benefits allow them more time for leisure. These results support the assumption that having children is negatively related to women’s productivity but challenges the belief that family-friendly policies are primarily beneficial only to mothers trying to balancing work and family.

Judicial Intrigue in Florida

What happens when you mix a judge having an affair with a court employee; with the same judge thinking of bringing a gun to court; with other judges deciding to arm themseleves; with another judge criticizing the first judge in an opinion affirming the conviction of a friend of the first judge? Why - this is just another day at Florida's 1st District Court of Appeal! (Via Bashman)

And here we thought our judges were exciting with their nude cruises! Nope - the real excitement is in the land of citrus and latin beats!