On Feb. 8, 2016, the ABA House of Delegates adopted a resolution that “urges the bar admission authorities in each state and territory to adopt expeditiously the Uniform Bar Examination.”
This is relevant when teaching Chapter 2 (and also for our students’ futures.) For more information, see the NCBE’s UBE webpage.
Source: China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy
The first gay marriage case has been registered by a Chinese court. But the lawyer who filed it has been sharply criticized in an op-ed by a prominent lawyer who was once liaison of the central government to the semi-autonomous Hong Kong Government.
In the past courts rejected cases summarily or just ignored them if they were “sensitive”. But in early 2015, the Supreme People’s Court (“SPC”) made reform of the Case Filing Division a major focus of its agenda. On May 1, 2015, new regulations on case filing took effect.
Under the new regulations, the Case Filing Division no longer “reviews” any of the merits of the case. Rather it’s role is just to “register” the complaint after the Division ensures that the complaint is compliant with the technical aspects of the law. Decisions whether to register the complaint are encouraged to be made “on the spot” (SPC Case Filing Regs, Art. 2 & 8). If more time is needed, then the Division must follow the statutory deadlines of responding to the request. If any review demonstrates that the complaint does not meet the technical requirements, the Case Filing Division shall issue a written statement explaining all the deficiencies (so no more piece meal requests for more information from the party that was usually used to needless delay the decision on whether to accept the case), and affording the party the opportunity to amend the complaint so as to meet the case filing standards (SPC Case Filing Regs, Art. 7).
We will soon see if China’s courts – which have no history of innovation without legislative authorization – will apply the broad principles of equal protection which its constitution declares and many laws embrace. – gwc
China’s First Gay Marriage Case: Pyrrhic Victory for its Lawyer? | China Law & Policy
by Elizabeth M. Lynch
For China’s LGBT community, Tuesday, January 5, 2016 proved to be a historic day: the first case challenging the ban on gay marriage was accepted by a Chinese court. While it might not sound like a triumph, in a legal system ultimately run by the Chinese Communist Party, getting a case officially “accepted’ is usually considered a major step forward on the road to victory.
Or is it? Does this “case acceptance” signal a regime that is ready to accept gay marriage? Or is there something more? Given the recent criticism of the attorney who is handling the case, likely not….
Welcome to 2016 and a new year of PR. For those of you teaching this semester, remember the materials available (syllabii, ppt templates, etc) under the Teaching Resources tab of our website.
We can also provide you with the questions and answers/explanations for the textbook multiple choice questions. These can be delivered directly to your TWEN site or in other formats for incorporation in your school’s Learning Management System.
Finally, if you want to make electronic copy only purchases available to your students, you may do so using this link.
We welcome your feedback! murphyme@wfu.edu
Source: 100 Women Lawyers Tell Their Abortion Experiences in Supreme Court Brief
As lawyers we represent the interests of others, subordinating our own to the needs of our clients, and others. So we rarely cite our own experience. 113 women lawyers have breached that wall in a friend of the court brief. The right to terminate a pregnancy has been affirmed so often that opponents of abortion have turned to indirect methods – to burden the right so much that it cannot be exercised. One such method is before the Supreme Court now. In Whole Woman’s Health v. Texas the questions before the court center on a Texas law that so burdens clinics who perform abortions that the ability to make that choice will be significantly reduced without any gain in women’s health.
The prospects of overturning that law in the Supreme Court are slim. The “police power” of the states is subject only to “rational basis” review …and formally increasing the qualifications to perform abortions is designed to meet that very low bar.
Nor is the argument of the 113 women likely to persuade them – because their rational choices will not count for much against the high moral ground claimed by opponents of abortion rights. It is not necessary to log in to Mirror of Justice or First Things, the voices of conservative Catholic lawyers to know what they will say about disrespect for life. But these 113 women – lawyers, law professors, and judges, stepping out of the shadows, illustrate a basic fact: one of three women in America will choose to terminate a pregnancy. One can lament it as a plague but there is no denying it. Opponents of abortion rights must confront the fact that millions of women not only believe they have that right – but exercise it.
Abortion opponents rarely say what measures they would support if they had their way. Criminalizing the medical procedure is the obvious one. But no one dares to say they would criminalize women who choose to obtain abortions. The women lawyers brief confronts the Supreme Court with the fact that the women whose lives they are judging are their peers and colleagues in the bar, on law school faculties, and on the bench. – gwc
IN THE SUPREME COURT OF THE UNITED STATES
WHOLE WOMAN’S HEALTH, et al., Petitioners, v. KIRK COLE, M.D., COMMISSIONER OF THE TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al., Respondents.
Amici obtained their abortions at different ages and life stages, under a variety of circumstances, and for a range of reasons both medical and personal, but they are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions. They are 113 individual women but they represent many more of the past, present, and future members of the profession who have, like one in three American women, terminated a pregnancy in their lifetimes. Guttmacher Institute, Fact Sheet: Induced Abortion in the United States (July 2014),
SUMMARY OF ARGUMENT
“To the world, I am an attorney who had an abortion, and, to myself, I am an attorney because I had an abortion.”
Email received from an Amicus, an appellate court attorney, December 18, 2015.
In reaffirming a woman’s right to safe and legal abortion access in Casey, this Court observed that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” 505 U.S. at 856. The statutory provisions at issue in this case would dramatically restrict women’s ability to exercise their right to safe and legal abortions—and thus their ability to participate equally in the life of the nation—not only in Texas, but in any other state that has or will adopt similar laws. The right to terminate a pregnancy, to autonomy in decision-making and bodily integrity, should be a right in fact and not just in theory.
Last month, the North Carolina Business Court entered a Consent Judgment in litigation between the North Carolina State Bar and LegalZoom.com. (LegalZoom filed that lawsuit seeking a declaratory judgment that it is not engaged in the unauthorized practice of law (in violation of the NC General Statutes); the State Bar filed a counterclaim alleging that LegalZoom’s activities constituted the unauthorized practice of law.) You may find the State’s Bar summary here and the consent judgment here.
Source: OTHERWISE: James B. Donovan, Before the “Bridge of Spies” | John Q. Barrett Jackson List:
by John Q. Barrett (St. John’s University School of Law)
The new film “Bridge of Spies” reports, in on-screen text, that it is “[i]nspired by true events.” Tom Hanks plays a character named James Donovan. He is a 1950s New York City lawyer. He represents insurance companies in policy coverage controversies—in one, the issue is whether his client, the insurer, is liable for the damages that an automobile driver caused by hitting five motorcyclists.
Then Donovan is recruited by the bar and bench in Brooklyn to represent Rudolf Abel, whom the United States has arrested and charged with being a Soviet spy.
What qualifies “insurance lawyer” Donovan to take on this high profile criminal defense job at the depths of the U.S.-U.S.S.R. Cold War? Well, as a colleague mentions to Donovan, “You distinguished yourself at Nuremberg.”
Donovan’s response is both an acknowledgement and, implicitly, a disclaimer that he is the right attorney to handle Abel’s defense: “I was on the prosecution team.”
* * *
Seventy years ago, the real James Britt Donovan indeed was a young but senior and very significant member of Justice Robert H. Jackson’s U.S. prosecution team before the International Military Tribunal (IMT) at Nuremberg. This post sets forth—including as background for your viewing of “Bridge of Spies,” which I recommend highly—some of Donovan’s life story, including his Nuremberg work.
Here’s a basic infographic I use when teaching the Rules re: screening for conflicts.
You can use without an account with this link: https://magic.piktochart.com/output/7124791-lawyer-screening-who-when-how
Just click “Present” in the top right corner.
Questions? Ellen @ murphyme@wfu.edu
Quid pro quo…or no?
Doctor at Sheldon Silver Trial Tells of Elaborate Arrangement, Years in Making
by Benjamin Weiser and Susanne Craig
New York’s ornate Capitol building in Albany, a plan two years in the making was taking root. Everyone would benefit: Victims of mesothelioma, a rare but deadly form of cancer caused by exposure to asbestos, would be sent to a reputable law firm; the firm would pick up new clients; and a well-regarded cancer research clinic would receive funds.
And at the center of all this was Sheldon Silver, then the State Assembly speaker, prosecutors say.
Source: Rhetoric: Aristotle, RBG, and the art of persuasion
Rhetoric was long a required course at Fordham College as at other colleges that followed the classical education model. The class centered – back in the day – on Aristotle’s classic Rhetoric. It is a highly accessible treatise well worth reading. The Philosopher, as Aquinas called him, emphasizes the discipline of facts and the need to look at both sides of a question:
[W]e must be able to employ persuasion, just as strict reasoning can be employed, on opposite sides of a question, not in order that we may in practice employ it in both ways (for we must not make people believe what is wrong), but in order that we may see clearly what the facts are, and that, if another man argues unfairly, we on our part may be able to confute him. No other of the arts draws opposite conclusions: dialectic and rhetoric alone do this. Both these arts draw opposite conclusions impartially. Nevertheless, the underlying facts do not lend themselves equally well to the contrary views. No; things that are true and things that are better are, by their nature, practically always easier to prove and easier to believe in.
We recently revised our MPRE and MPRE-like questions to add explanations for each answer choice; these will published later this fall in a revised Teachers Manual. In the meantime, we can share these directly with your TWEN account, allowing you to merge them with your TWEN course. If you’re interested in receiving these quizzes virtually, via TWEN, please contact Ellen Murphy @ murphyme@wfu.edu.
If you do not use TWEN and would like a copy to use with your school’s LMS (eg, Blackboard, Moodle, Sakai, etc), we can share copies for uploading there as well. Email Ellen.
An exemplary lawyer. The first Black woman to be editor of the Columbia Law Review, clerk to Judge Constance Baker Motley, member of the legal team in Furman v.Georgia. – gwc
by David Stout
The cover story in this week’s Bloomberg Businessweek, titled “Are Lawyers Getting Dumber?” covers last year’s dispute between the National Conference of Bar Examiners and law school Deans on whether the 2014 bar exam was too hard, or the students too unprepared. Always interesting when legal ed hits mainstream media.
West Academic has made available an eBook only version of our textbook for purchase. Your students can purchase here.
My PR students frequently struggle with when screening a disqualified lawyer may work, as well as which screening Rule applies. I put together this infographic for my current summer class. Feel free to us the link, or email me if you’d like a pdf version.
murphyme@wfu.edu
One of the best ways to connect with students in the virtual classroom is to use informal videos for periodic updates and check-ins. These videos are different from what I call instructional videos. I use instructional videos to cover doctrinal fundamentals, with follow-up assessments and activities to deepen and assess learning. For example, in my PR course, I may have a pre-recorded video on Rule 1.6 confidentiality vs. the attorney-client privilege. While there are techniques for connecting with students in these instructional videos, because I create the videos well before the semester start and because they may be used for more than one semester, these videos often lack personalization.
To increase personalization and to better connect with an individual class, I use informal videos to start each unit. These are short, typically 4-5 minutes, and include a quick review of the previous week and a few comments about the upcoming material. I try to always reference one or more student’s work and to include anything else that lets the students know they are heard; I may also discuss a current event or recent issue. While my more-formal instructional videos display my screen images (power points and other visuals) covering the doctrinal material, these informal videos are just me, speaking directly to the students.
This is how it works in my current, asynchronous summer class. I email the week’s assignments before noon on Monday, with all work due by 5 pm Sunday**, giving me time to review on Sunday evening what the students understand and where they need more help. On Monday morning, as I prepare to send out the weekly assignments, I create my short video and send it with the materials. Here’s an example; I made this video using the free version of Screencast-O-Matic, my computer’s built-in web camera, and a $24 headset. You will note it is not scripted, not professionally staged or lighted, and not edited; the goal is conversational.
These quick, easy, informal videos allow me to personalize what is often erroneously assumed to be a canned course. As always, I’m happy to answer any questions: murphyme@wfu.edu.
One of the most frequent questions I get about teaching online – whether synchronously or asynchronously – is how to connect with students in the virtual environment. While there may be a difference in the tools that you need online, the ways to engage students are the same as the traditional, physical classroom: motivation, personalization, and solicitation of their ideas.
Today is the first day of my fully asynchronous Professional Responsibility summer school class at Wake Forest Law School. It’s our first such PR offering at Wake. Interestingly, over 65% of the students enrolled have taken a fully asynchronous course prior to law school.
While we will not have any real-time meetings with all class members present simultaneously, this does not mean we will not have robust collaborations and connections via TWEN, WebEx, Google Hangout and other eLearning resources. In addition to readings and original instructional videos, students will collaborate through weekly discussion forums, wikis, and a class blog. I plan to chronicle our summer class in this blog, posting each week on what we’re planning to do and how we’re planning to do it in the virtual space. Also, I will report on how the previous week’s assignments and activities worked.
We begin the course with introductory exercises, an overview of the rules governing lawyers and the basics of the regulatory framework, and perhaps most importantly, thinking about why we study PR. One of the things I enjoy most is considering how to translate what I do in a physical classroom to the virtual space. In my traditional class, I show the 60 Minutes Alton Logan clip at the very start of our first in-person meeting, which fosters great Day 1 discussion. For our asynchronous session, student must view the clip and write a responsive blog post – you can follow the blog and see the assignment here.
You can find the syllabus here. I welcome your questions – murphyme@wfu.edu!
My PR class @ Wake Forest this semester was front-loaded, ending before the MPRE. For our final class review, I tried a new group activity that worked very well. (We do lots of group work and projects in my flipped class.)
First, I prepared four sets of high-level review questions, with a focus not on the ticky-tacky details of the Rules, but on reviewing/connecting broader topics and issues. Each set had six questions. During our in-person, face-to-face class, I divided our class of about 50 students into 8 groups, with 6-7 people per group. I named the groups Team A-1, A-2, B-1, B-2, C-1, C-2, D-1, and D-2.
Teams A-1 and A-2 received the same set of questions, as did B-1 and B-2, C-1 and C-2, and D-1 and D-2. I then asked the Teams to select the one question that the Team could agree was the hardest. Team A-1 then gave Team A-2 their question to answer, and vice versa.
As always, I circulated the class while the Teams were working and answered questions, engaged the students, and raised issues. We then reviewed as a class those questions that were selected. I was very interested to discover that no teams selected the same question as the “hardest.”
The students’ feedback after class indicated that this was a very helpful exercise for several reasons: (1) giving them a sense of “bigger picture” ideas before the exam (and MPRE); (2) making connections they had not previously recognized; (3) building confidence in the areas in which they felt proficient at the time; and (4) providing a set of questions for review and thought before the exam. I plan to use this exercise again.
I’m happy to share the question sets to any who are interested; feel free to email me: murphyme@wfu.edu.
Several recent articles have called attention to the challenges that lawyers face in the midst of this stressful profession.
The Florida Bar News recently highlighted the problem of lawyer suicide in a provocative article by Scott Weinstein, Clinical Director for the Florida Lawyers Assistance Program.
The March 2015 ABA Journal also features an article by Stephanie Francis Ward on lawyers who self-medicate to address the stresses of the profession. This article includes an excellent directory of national referral services.
I discussed both of these articles in the context of the Chapter 6 duty to report misconduct materials, and the class quickly evolved into a lively discussion of the challenges confronting law students, and the role that drugs, alcohol and mental health play.
Please note the upcoming ABA Mental Health Day activities scheduled for March 27, 2105.
http://www.americanbar.org/groups/law_students/initiatives_awards/lshealth.html
The time is now to have your law school participate in this important national initiative. This is an opportunity to highlight professionalism and the relationship to wellness, and distribute information information including your local lawyers assistance program.
These days, law students seem less and less likely to check email on a regular basis. I try to take this into account in my teaching and limit communications to those which are necessary, but in flipped and asynchronous courses, and even in my traditional and blended courses, communication – and motivation – is key.
A year ago, I discovered Remind. Remind is a free service that allows me to communicate with my entire class via text, without the students knowing my phone number or me knowing theirs. And, it allows me to schedule texts in advance, as far out as I want. Students can choose whether to receive the text via phone or email; I give them the option, but tell them they are accountable for the information.
Remind is terrific; students love it, as do I. I assure them that I will not abuse the privilege of using Remind, and I keep that promise. Once the course is over, my last text is: “Grades are turned in!” I highly recommend Remind (and I am not a paid spokesperson).
Here are three tips from a quick piece I did on using Remind in law schools, and higher ed generally, which may help you get started. I am happy to answer any questions: murphyme@wfu.edu.
Professional Responsibility: A Contemporary Approach 