New Boss Similar to Old One

I just read the preface to the Twentieth Edition of the Bluebook, in which the editors explain how the new edition differs from the previous one. Some highlights:

  • “Rule 16.6(a) requires that opinion pieces in newspapers be cited as ‘Opinion’ rather than ‘Op-Ed.’” [Talk about a game-changer!]
  • “Rule 10.2.2 clarifies that words in a case name that would be abbreviated according to Table T6 should not be abbreviated if the words are part of a state, country, or other geographical unit that is the entire name of a party.” [Thanks for "clarifying" that!]
  • “Rule 13.5 clarifies what year should be cited when a debate occurs in a different year from publication in the Congressional Record.” [I hate when that happens, but at least now we have a rule for it.]

And on it goes.

The Write Stuff Feels The Joementum

Saturday’s NYT article on Joe Biden “taking a new look” at a presidential campaign contains a curious opening sentence:

Vice President Joseph R. Biden Jr. and his associates have begun to actively explore a possible presidential campaign, which would upend the Democratic field and deliver a direct threat to Hillary Rodham Clinton, several people who have spoken to Mr. Biden or his closest advisers say.

The problem here is that the sentence contains two separate but related ideas, only one of which is likely coming from people close to Vice President Biden. The point of the sentence, I think, is that, according to people close to Biden, he and his associates have started to actively explore a presidential campaign. Fair enough. But the author, Amy Chozick, also wants us to know that a Biden campaign “would upend the Democratic field and deliver a direct threat to Hillary Rodham Clinton.” This may or may not be correct: according to’s poll of polls, Clinton currently leads Biden, 56 percent to 14 percent. But by putting the phrase “which would upend the Democratic field and deliver a direct threat to Clinton” right next to “several people who have spoken to Biden or his advisers say,” Chozick at least suggests that the People Who Have Spoken To Biden said his candidacy would upend the field and threaten Clinton. I doubt that they did. A clearer (and more honest) way of phrasing this would be:

Vice President Joseph R. Biden Jr. and his associates have begun to actively explore a possible presidential campaign, several people who have spoken to Mr. Biden or his closest advisers say. If it materializes, a Biden campaign would upend the Democratic field and deliver a direct threat to Hillary Rodham Clinton.

In other 2016 campaign news, is having a contest to see if anyone can diagram the following gem of a sentence from Donald Trump (I cannot, nor do I think it’s even possible):

Look, having nuclear—my uncle was a great professor and scientist and engineer, Dr. John Trump at MIT; good genes, very good genes, okay, very smart, the Wharton School of Finance, very good, very smart—you know, if you’re a conservative Republican, if I were a liberal, if, like, okay, if I ran as a liberal Democrat, they would say I’m one of the smartest people anywhere in the world—it’s true!—but when you’re a conservative Republican they try—oh, do they do a number—that’s why I always start off: Went to Wharton, was a good student, went there, went there, did this, built a fortune—you know I have to give my like credentials all the time, because we’re a little disadvantaged—but you look at the nuclear deal, the thing that really bothers me—it would have been so easy, and it’s not as important as these lives are (nuclear is powerful; my uncle explained that to me many, many years ago, the power and that was 35 years ago; he would explain the power of what’s going to happen and he was right—who would have thought?), but when you look at what’s going on with the four prisoners—now it used to be three, now it’s four—but when it was three and even now, I would have said it’s all in the messenger; fellas, and it is fellas because, you know, they don’t, they haven’t figured that the women are smarter right now than the men, so, you know, it’s gonna take them about another 150 years—but the Persians are great negotiators, the Iranians are great negotiators, so, and they, they just killed, they just killed us.

Above the Law Publishes Horrible Advice to Law Students

Yesterday Above the Law published a piece by Jake Heller entitled “Law Students: How To Make The Most Of Your Law Degree If You’re Not Going To Practice.” The article contains so much terrible advice and general nonsense that I must attack it paragraph-by-paragraph. (The article is tagged “Sponsored Content,” but it’s also tagged “Law Schools” and “Technology” and it’s currently the top story on ATL, so there is some danger of law students actually reading it.) Away we go:

In law school, some people you meet were born lawyers — their first words were “summary judgment,” their family tree is all lawyers for like five generations, and they feel more comfortable in a suit than jeans. They probably even dressed like this at their first Halloween.

OK, so far, so good, except that I have never met anyone like this in my entire life, the last sixteen years of which I’ve spent at law schools and law firms.

And then there are the rest of us. Those that wonder, do I actually want to be a lawyer? What if $180,000 of debt and the three hardest years of my life were a huge mistake? The thought crossed my mind more than a few times in law school.

The time to ask yourself whether you actually want to be a lawyer is before enrolling in law school, not during law school.

But now that there are a few years between me and law school, I am happy to report: going to law school is the best decision you’ve ever made, even if — and especially if — you don’t want to be a lawyer.

Good Lord. Where do I even start? I can only hope that by “you’ve” you mean “I’ve.” If not, who are you writing this to? Are you aware that there are over 200 law schools in the country, and that at least a quarter of them are so bad that merely enrolling in one of them is, by any objective measure, a terrible decision? And the “especially if” part? So going to law school is a better decision for people who don’t want to be lawyers than for those who do? I can’t imagine that anyone in the world actually believes this, but if they do, they should really read Don’t Go to Law School (Unless) by Paul Campos. Professor Campos devotes an entire chapter to shooting down the argument that you should go to law school because there are lots of great things you can do with a law degree besides practicing law.

Why? Because in law school you are learning deeply about a profession that comprises only 0.3% of the U.S. population but serves tens of millions of people. That is, it’s an enormously important profession where only a select few have the knowledge to fix it — and soon you’ll be one of those people. The opportunity to make an impact is enormous. And your skepticism about the status quo will only help you.

You know what other professions comprise a tiny fraction of the U.S. population but serve tens of millions of people? Most of them! Grocers serve hundreds of millions of people. So do gas station proprietors. And doctors. And so on. I’m pretty sure those professions are important, too.

The key is taking control over your path in the law now, today. By seeking out the right experiences in school and after graduation — which aren’t always the same things your classmates are doing — you’ll build your credibility, develop real insights about the industry, and better identify what you can uniquely bring to the table to make a difference.

OK, great. Now we’re getting somewhere. So in the next paragraph, you’re going to tell us what experiences law students should be seeking out.

This is precisely what I did. I founded Casetext in response to a problem I saw as a litigator: merely accessing the law is insanely expensive, creating an unequal playing field that advantages the well-heeled. With knowledge of the law and a commitment to social justice, we’ve built a free legal research website that draws on the collective knowledge of the legal community. And we’re disrupting a billion-dollar industry in the process.

This reminds me of an Onion headline from the 2008 Presidential Campaign: “McCain Unveils Economic Plan: Everyone Marry a Beverage Distribution Heiress.” I mean, it’s great that you founded Casetext (which actually sounds like a cool thing, by the way) and that it’s working out well for you, but what about the rest of us? We can’t really found Casetext because you already did.

We needed to be lawyers to make this happen. Half of our team attended law school, got a J.D., passed the bar, and spent years practicing law. (Even some of our amazing engineers are lawyers!) We worked at big and small firms, for state and federal government, and in roles as diverse as defending inmates on death row to litigating patents. But now we’re completely rethinking legal research and publishing, and supporting a movement within the legal community that’s changing how lawyers and the public access the law. We wouldn’t know that the problem existed, let alone have any idea of how to fix it, if we didn’t have a background in law.

OK, so you needed to be lawyers to make this happen, but . . . only half of your team attended law school? So I’m guessing the other half of your team did not? I suppose you’re right that whoever came up with the idea of Casetext had to go to law school to know about the problem, but I’m not sure anyone else did.

So the question to ask yourself is: If not practicing law, then what? What is going to be my path? How am I going to help make the legal industry more egalitarian, more efficient, more sustainable, more profitable, or more tech-forward?

OK, I’ll be sure to think about those things, but in the meantime, I need a job. On the off-chance that I don’t come up with the solution to our not-egalitarian legal industry, I’m still going to need to feed my family.

That’s what this time in law school is for: seeking out experiences that will make you not only practice-ready, but innovation-ready. It’s why we’re offering select law students the opportunity to gain real entrepreneurial experience while in school and build a movement of legal innovation and open access to law at their schools as part of our law student ambassador program. It’s one thing to talk about changing things, but there’s no replacement for seeing firsthand what it takes to do something truly new in an old industry.

Legal entrepreneurship isn’t always the easiest path — there are no big bonuses or public interest fellowships, and you’ll face naysayers and days where you wonder if it can even be done. But if your interest in the law is more “big thinking” than brief-writing, it may be the more gratifying, impactful route for your career. By giving support and direction to some of the most ambitious, innovative law students in the country, we hope to foster the next generation of lawyers that can rethink what it means to practice law. We’ve seen firsthand the countless challenges in the law that demand innovation, and we’re looking for law students who, like us, want to think outside of the box and make a difference.

I get it now. This isn’t really an article or blog post after all. It’s a help wanted ad.

So you’re in law school, but you may not grow up to be a lawyer — don’t panic. Embrace it. 

On second thought, panic. And when you’re done panicking, figure out whether or not you want to be a lawyer. If you don’t, you should probably drop out of law school. If you do, you should look at your law school’s employment statistics and determine whether your chances at getting the kind of legal job you want justify the financial and other costs of continuing your legal education.

Happy British Open!

It’s that time of year again, the time when I get super annoyed by ESPN’s refusal to call the British Open the British Open. When I was a young golf fan in the 80s and 90s, golf had four major tournaments: the Masters, the U.S. Open, the British Open, and the PGA. The British Open was then known as the British Open because, unlike the U.S. Open, it was played in Great Britain. Calling the British Open the British Open made a lot of sense and seemed to work quite well for a lot of years. Here is what the television coverage looked like in 1995:

british open

Somewhere along the line, somebody decided that we have to stop calling the British Open the British Open and instead call it the Open Championship, because that’s what the Brits call it. So now when you watch the television coverage, you hear the phrase “Open Championship” approximately every twelve seconds.

Why does this bother me so much? Probably because it shows how damn insecure we are as a nation. Yeah, we have our johnny-come-lately U.S. Open–which has been contested for 120 years–but it’s not the real Open.

As Bill Maher recently pointed out, we’re also insecure about the way we talk. We think everything sounds better if it’s said in a British accent. And so the baby on Family Guy, born and living in Rhode Island, has a British accent, as does one of the leading conservative talk radio hosts (even though he’s Canadian!). We lavish praise and Oscar nominations on utterly unremarkable movies just because they’re British. And on it goes.

Maher thinks it’s because on some level, we recognize that we are a fundamentally unserious country. Maybe he’s right. We do live in a country where millions of people believe, or at least claim to believe, that Donald Trump should be President of the United States. Maybe our country really isn’t as good as their country, and our Open isn’t as good as their Open. But I kind of miss the days when we at least pretended that we were capable of producing stuff as good as the stuff over there.

Anyway, enjoy the British Open Open Championship, everyone!

“They” as a singular pronoun

In preparing for a class last week, I stumbled on this Wall Street Journal article about the increasing acceptance of “they” as a singular pronoun. The point of the article is that it’s probably OK to use “they” and “their” in place of “he or she” and “his or her” in sentences like this:

A lawyer must never violate their oath of admission.

Somebody left their laptop in Room F302.

If your child is thinking about law school, they should read Professor Tamanaha’s book.

I am on board with this trend for several reasons. First, I agree with the author of the article that the alternatives–”he or she” and “his or her”–are clunky and awkward. Second, I strongly believe that written English should not be different from spoken English, and nobody would use “he or she” or “his or her” in the sentences above if conversing with a friend. Third, I’m also a believer in the evolving nature of grammar. A well-written judicial opinion from the 1950s looks very different from a well-written judicial opinion from this decade. Those of us who teach writing should keep up with the times instead of clinging to rules we were taught in junior high. Finally, it’s always nice to have one less thing to correct when I’m reading a student’s paper.

I still do not accept “they” and “their” when the antecedent is not human. For example, I consider this incorrect: American Express recently revised their privacy policy. The pronoun in that sentence should be “its.” This is a big issue in legal writing when the antecedent is “court”; the correct pronouns are “it” and “its.” Having said that, I do sometimes catch myself using “they” or “their” with singular, nonhuman antecedents when speaking in class, and there may come a day when I give up on enforcing this rule.

When the antecedent is a specific person, you should of course use “he” or “she” depending on the sex of the person. This includes transgender people: Caitlyn Jenner gave her first post-transition interview to Vanity Fair.

The only exception is when the person does not identify as male or female. For example, earlier this year The New York Times Magazine published an article about a California high school student who identifies as “agender.” The article included the following parenthetical:

Telling Sasha’s story also poses a linguistic challenge, because English doesn’t offer a ready-made way to talk about people who identify as neither male nor female. Sasha prefers “they,” “it” or the invented gender-neutral pronoun “xe.” The New York Times does not use these terms to refer to individuals.

A few weeks later, the Times profiled Rocko Gieselman, a University of Vermont student who identifies as neither male nor female and prefers the pronoun “they.” The Times apparently just avoids pronouns altogether when writing about such people.

Deflategate (no, not that one)

Kudos to Shannon Achimalbe and Above the Law for shining a light on the dubious practice of grade deflation at lower-ranked law schools.  Achimalbe found some good data to support what those of us in the legal academy have known for years:  lower-ranked law schools give lower grades than higher-ranked ones.

Achimalbe identifies two reasons for this practice, neither of which reflects well on the law schools that engage in it:

One is to make it difficult for students to transfer elsewhere. Keeping the average GPA low automatically disqualifies students from schools that have a minimum GPA requirement for transfers. Others will be so demoralized by their low GPAs that they will not even bother to apply. The second reason schools do this is to ensure that students lose any scholarships if they do not meet the minimum GPA requirement.

At Miami Law, I’m required to give at least 5% of my first-year students grades of C- or lower.  (This is public information.  See page 18 of our Student Handbook.)  I’m not required to give any grades of C or C+, but I kind of have to unless I want one or two outlier grades of C- and all the rest B- and above, which makes for a weird distribution.  So the result is that in my classes–and, I suspect, most other first-year courses–around 10-20% of the students end up with some kind of C (or a D or F, although those are quite rare).  While 10-20% doesn’t sound like a lot, students take something like nine graded first-year classes, meaning each student has nine chances to get one of those low grades.  Add it all up and a lot of our students get at least one C or lower in the first year.  I would imagine it’s difficult to transfer to a higher-ranked law school with that on your transcript.

I’ve never asked, and nobody has ever told me, why we have that requirement.  But the fact that the requirement applies only in the first year suggests that transfer prevention may be behind it.

My only quarrel with Achimalbe’s piece is that she may be underestimating how pervasive this practice is.  Miami is not, to my mind, a “lower-ranked” law school.  We’re currently ranked 63rd out of roughly 200 ABA-accredited law schools.  Pretty much every law school in the country except Harvard, Yale, and Stanford has to worry about students transferring to higher-ranked schools, so that incentive to deflate grades exists not only at the “lower-ranked” schools Achimalbe writes about.  I’m less knowledgeable about the scholarship rationale, but I don’t see why that wouldn’t apply everywhere.

Law schools are like Rasputin

As I’ve noted before, it’s really hard to kill a law school.  Just a couple weeks ago, it looked like the end was near for Charleston School of Law in South Carolina.  First the school announced that it might not enroll any students in the Fall.  Then, in a video leaked to Above the Law, a member of the school’s board told the faculty that “the only viable option for the survival of the school”–a sale to the for-profit consortium InfiLaw–was off the table because InfiLaw was no longer interested in buying the school.  Obituaries were written.  But it turns out that CSOL will not go quietly into the night.  Now comes word of “some very skilled local attorneys” working on a plan to save the school by placing it into receivership.  And the school now says it will enroll new students in the Fall after all.

CSOL is not out of the woods yet.  Not even close.  As one of the articles linked above points out, ABA rules prohibit the school from closing abruptly; rather, a school must submit a “teach-out” plan detailing how current students can finish their legal educations.  So there is some chance that all of the recent maneuvering is just setting the stage for an eventual closure.  But more likely, CSOL is simply doing what troubled law schools do: limping along and doing whatever it takes to stay open.  As long as at least a few people are willing to attend the school and pay its tuition, then closing it means turning down money.

That’s one way to say it

Here’s a doozy of a sentence from a nytimes article on “finding a candidate you’d like to have a beer with”:

And last year as her poll numbers were fading, Senator Mary L. Landrieu of Louisiana attended a keg stand outside of a sporting event in Baton Rouge.

I have never in my life heard someone use any variation of the verb “attend” in connection with a keg stand.  A keg stand is something you do; it’s not something you attend.  And why write “sporting event”?  Ten seconds of googling reveals that it was an LSU football game.  Just say that.

BREAKING: Law Grads Still Struggling

Today’s New York Times features an article about heavily indebted law graduates unable to find work as practicing attorneys.  It’s virtually identical to another article published in the Times in 2011.  Here’s the first sentence from the 2011 piece:

If there is ever a class in how to remain calm while trapped beneath $250,000 in loans, Michael Wallerstein ought to teach it.

And the first sentence from today’s article:

Jonathan Wang has not practiced law since he graduated from Columbia Law School in 2010, but he did not plan it that way.

You can pretty much figure out the rest without reading either article.  Wallerstein and Wang both entered law school with dreams of landing high-paying BIGLAW jobs after graduation.  Instead, they’re struggling to make ends meet while burdened with six-figure student loans.

Today’s article has virtually nothing new or interesting to say about this issue.  (The headline alone–”Burdened With Debt, Law School Graduates Struggle in Job Market”–clearly signals that we’re not breaking any new ground here.)  The Times did manage to find some rather unusual–and, I would argue, atypical–subjects this time.  Mr. Wang, we learn, “makes over $100 an hour,” which the Times declares is “far below what he would make at a law firm.”  $100 an hour comes out to an annual salary of $200,000, assuming a forty-hour work week.  I suspect most law-firm associates would love to be paid $200,000 and work just forty hours a week.  Maybe things aren’t so bad for Mr. Wang.

We’re also introduced to one Hyatt Shirkey, a 2010 graduate of Ohio State’s law school, who the article claims accumulated $328,000 in student debt during undergrad and law school.  Given that out-of-state tuition at OSU is currently $43,508, one can’t help but wonder where Mr. Shirkey went to undergrad (and how much it costs to go there).

And finally there is G. Troy Pickett, who attended something called South Texas College of Law “with the intent of becoming a big-firm mergers and acquisitions lawyer.”  According to that school’s employment outcomes data (available here) “STCL” graduates around 310 people annually, of whom about a dozen secure jobs at large firms, which I’m very broadly defining as having more than 100 attorneys.  What we learn from Mr. Pickett’s plight, then, is that people who make bad financial decisions sometimes end up in bad financial situations.