Writing tip from the Legal Watchdog (or, don’t write like a law professor)

This is my second law professor-bashing post today.  This one will be especially valuable to soon-to-be One-Ls, but hopefully will be useful to lawyers as well. 

For those of you starting law school this fall, you’ll soon learn that, if you play the game correctly and educate yourselves before walking into class, the law profs don’t really add anything to your education.  Many of them will have no experience practicing that particular area of law (or any area of law), some won’t be admitted to a bar, and some won’t even have a law degree.  In other words, after properly preparing for class, you will know nearly as much about the law as they do. 

The good news, though, is that while profs don’t add much, they are also largely harmless – some might even be funny, thus making the class time pass more quickly.  But there is one area where professors can cause you true harm, and that area is legal writing. 

Law profs just virtue-signaled their way toward irrelevance

This is the first of two law prof-bashing posts today.

I have previously explained how several law schools copied Yale and “boycotted” the US News law school rankings.  I use quotes around that word because the schools weren’t really boycotting – or even withdrawing from – the rankings.  Rather, they were just succumbing to the irresistible urge to copy Yale and signal their virtue in the process, often to the point of sheer absurdity.  They just can’t help themselves.  And US News responded to all of this professorial griping by changing its ranking methodology.  The new rankings are available here.

Copying Yale and virtue signaling are two things that the wormy legal academy loves doing, so it was pretty easy to spot these events as they unfolded.  However, what I didn’t see happening was that the legal academy was, rather hilariously, screwing itself in the process.

Pseudo-Events

In Daniel Boorstin’s book The Image: A Guide to Pseudo-Events in America, he argues that, given the wealth of news outlets in America, there are an awful lot of pages that reporters have to fill.  Therefore, “[t]he successful reporter is one who can find a story . . . If he cannot find a story, then he must make one . . .”

If the reporter’s digging and imagination both come up dry, then the news that gets reported may be nothing more than a “think piece” or “speculation about startling things to come”—or, worse yet, a rankings puff piece.  In sum, “news” is now “anything that makes a reader say, ‘Gee whiz!’”

In light of his words, I couldn’t help but notice two pieces of pseudo-news recently—Boorstin would call them stories about “pseudo-events.”  These two current examples fall under the heading of “career news”—a category that is now a big business in itself—and involve my former career (accounting) and my current career (law).

Law school sheep and the US News rankings

Countless news stories now litter the web proclaiming that Yale and Harvard, followed by a slew of copycat schools, “withdrew from,” “pulled out of,” or “abandoned” the US News law school rankings.  But as I explained in a previous post, these schools are not withdrawing from, pulling out of, or abandoning the US News rankings at all.  They are just not submitting data.  They are still going to be ranked.  In fact, the new top 14—which consists almost entirely of “protester” schools—has already been released and, putting aside the narcissism of small differences, appears virtually unchanged from last year!  (As explained below, we’re still waiting on rankings for schools #15 on down.)

Withholding data is nothing new or newsworthy; my alma mater Marquette Law did it back in the 90s (see p. 310) long before Yale and Harvard decided the rankings were, for nonsensical reasons, bad.  This entire thing is just a redo, a non-event.  It’s no more newsworthy than Kim Kardashian having a bad morning because she got too much foam on her designer coffee.  It just doesn’t matter.

Instead, law schools are doing this for virtue-signaling purposes—although it’s hard to see how that ploy could be successful with any thinking person, a category of persons that hopefully includes a decent percentage of law school applicants.  For example:

Text messages and phone banking – what’s next?

A couple of months ago, I said to someone that banking on your phone just isn’t right.  The ease and convenience did not fit the seriousness of the activity.  Paying a bill, transferring money between accounts, and other banking transactions are just too important and shouldn’t be done so casually or quickly.  Among other risks, the risk of error on that tiny “keyboard” is way too high.

Instead, banking should be done in person or on your computer, using a man-sized keyboard.  Banking by phone, I said, was just another symptom of the underlying problems that plague us today, such as laziness and a lack of seriousness.  It’s just like sending an important message by “text” instead of letter or email—and then having that "text" filled with errors and a lack of punctuation, to boot. 

Ready to pass the bar, not to practice law

The above headline could apply to most new law school grads.  (Not all new grads, of course; not all new grads can pass the bar.)  But I’m using the headline to describe an A.I. named Chat GPT.

A few years ago, I was convinced that A.I. had taken over legal tasks (if not entire legal jobs).  Not all tasks; you can’t send A.I. into the courtroom to try a case, for example.  But certainly it had taken over things like legal research and writing legal briefs, I thought.

And then I got an email from my state bar touting its seminar on how attorneys can put A.I., in the form of Chat GPT, to work for them.  I then researched it and learned that Chat GPT recently passed a bar exam.  Based on that, I signed up for Chat GPT and gave it a spin. 

The Myth of Fundamental Decisions, 112 Kentucky L.J. __ (forthcoming 2024)

Certain decisions during the course of a criminal case are so important, so personal, that only the defendant is allowed to make them.  Not even defense counsel may tread on this hallowed ground.  These decisions include whether to waive the jury in favor of a bench trial, whether to testify or remain silent, and whether to plead guilty and accept a plea deal.  

But while the law jealously guards the defendant's decision-making authority against intrusion by his or her own lawyer -- the trained professional who is advocating for the defendant -- the law allows government agents, i.e., prosecutors and judges, to run roughshod over those decisions.  Sometimes the governmental intrusion is blatant and obvious, as in the case of trumping the defendant's attempted jury waiver, other times the prosecutors and judges have to be really sneaky -- for example, when silencing the defendant "by instruction."

Read all about it in my newest law review article, scheduled for publication next year in the 112th volume our nation's tenth oldest, continuously-published law review, the Kentucky Law Journal.  You can find a pre-publication draft of the article here, or read the abstract after the jump.  (You can find all of my law review articles, organized by topic, here, and you can find my books here.)  Enjoy!

Follow the Science?

In recent years we’ve heard cries of “follow the science” in support of all kinds of agendas and political movements.  But science is a methodology and, in many cases, has exposed those agendas as unsupported by, and sometimes even contradicted by, the science.

Claiming a word as your own and attaching that word to your agenda is a neat trick, if you can pull it off.  (Prosecutors do it all the time with the word truth.)  But despite the recent flurry of creativity surrounding the word science, this tactic is as old as the hills.  A brief look at the history of science-misuse is instructive.

In Mathew Stewart’s book The Management Myth, he explains that various groups have historically used the word science to promote their own agendas, regardless of whether there was any actual science involved:

Accounting: How to Wreck (and Rescue) a Profession

In my earlier life, becoming a CPA was, in a sense, easy.  To be sure, the two-day exam itself was very tough.  Unlike state bar exams which sometimes have an 80% first-time pass rate, the November 1996 CPA exam, for example, had a 17% pass rate for first-time test takers.  But the process of becoming a CPA was very simple.  Just get a B.S. or B.B.A. in accounting, sign up for and pass the CPA exam, and then wait for your certificate to arrive in the U.S. mail.  Granted, it wasn’t that way in every state, but that’s the way it was in my neighboring state of Illinois where I got my CPA certificate.  The certification allowed you to use “CPA” after your name, and, as the accompanying letter from the Illinois Board of Examiners informed me: “The certificate is good for life and does not need to be renewed.”  Congratulations and welcome to the profession!

Today, there are many articles about the declining number of CPAs and, especially, of accounting majors in the CPA pipeline.  The latest such article is here, in today’s WSJ (subscription required).  That article’s title indicates its proposed solution to the problem: How can we make accounting cool?  And there are many articles like this one, angsting about how to replenish the numbers within the profession.  But I doubt people are now avoiding accounting because it’s un-cool.  It has always been un-cool (which, in some circles, can be cool). 

Idaho and Wisconsin: A Tale of Two Preliminary Hearings

In the Idaho quadruple homicide case, defendant Bryan Kohberger is accused of murdering University of Idaho students Ethan Chapin, Xana Kernodle, Kaylee Goncalves, and Madison Mogen.  The defense waived the right to a timely preliminary hearing (14 days in Idaho) and set the hearing in June so it has enough time to go through all of the evidence.  The judge cleared five days on the calendar for the hearing itself.  This indicates that the defense gets the discovery materials (e.g., police reports, witness statements, etc.) before the prelim and the state has to call actual witnesses at the evidentiary hearing in order to establish probable cause.

By comparison, in Wisconsin, the courts at all levels of the system have managed to super-legislate from the bench; they have somehow turned an evidentiary hearing, which was designed to prevent improvident prosecutions, into a prosecutorial weapon for charging anything and everything without probable cause and, certainly, without the presentation of any evidence.

What do I mean?  Well, if pre-hearing discovery and actual witnesses are the hallmark of Idaho’s preliminary hearing, then these are the hallmarks of Wisconsin’s preliminary hearing:

Yellow pages advertising: a blast from the past

2010 was a simpler time, as there was only ONE place worth advertising: the phone book! This might have been my last year advertising in "the yellow pages." And I no longer advertise anywhere -- I've always found it distasteful, hence the simple, straightforward approach to my yellow pages ad. But I liked this old ad; it always reminded me of Van Halen's Diver Down album cover.

Enjoy "Secrets" from Diver Down, and re-live the 80s:

"You know how sometimes, you got to run?

You're runnin' blind, but you jumped the gun."

No tests, no papers -- you get an A!

Jeff Winger, a nontraditional student at the fictional Greendale Community College, was always in search of the easy A.  He just needed to replace his fake bachelor’s degree so he could get readmitted to the Colorado Bar and return to the practice of law.  (He had, apparently, legitimately completed law school and passed the bar – just without going to college first.  This is theoretically possible in real-life, as law school is, in reality, nothing more than an associate’s degree: it can be completed in two years and, although you need a bachelor’s degree, it can be in anything – including majors like “puppetry.”)

In one of the show’s best exchanges, a professor at Greendale, whom Winger once successfully defended in a drunk-driving case, said to Winger: “I thought you had a bachelor’s from Columbia.”  Winger replied: “And now I have to get one from America; and it can’t be an email attachment.”

As has happened often in the years since Community first debuted, the absurdity of “higher education” has proven Community to be prescient.  Read this College Fix article about a UC San Diego professor who gave everyone As just for showing up!  No kidding.  There was no homework, and everyone got an A.  If you haven’t heard, there are movements called “equity” and, in this case, “decolonization.”  These things supposedly justify giving everyone a trophy or, in this case, an A.  Things like effort and merit are not recognized. 

But if you don’t want to read the article, just watch Community’s Professor Whitman.  He liked to handout As, too—and long before the real-life UCSD professor did.  Unreal.  Absolutely unreal.  You want an A?  “No tests, no papers.  Just live in the moment.”

Once again, fiction becomes reality.

In a rush to virtue signal, law schools say the darndest things!

Law schools are falling all over themselves to copy Yale by withdrawing from the US News law school rankings.  As I explained earlier, they are not actually “withdrawing”; rather, they are just not going to submit data anymore.  And of course, they will still get ranked.  (If refusing to submit data meant being removed from the premier list of law schools, they would all keep submitting data.)  This move of not submitting data has been done before—most notably, by my alma mater, Marquette Law, in the 1990s. (See MU L. Rev. p. 310.)  So this is a well-beaten path that leads nowhere new.

In any case, law schools are just following their strong urge to copy Yale.  (Yale and Harvard grads run, and teach at, virtually every law school in the country.)  But rather than admitting this, the law schools are instead virtue signaling.  They are rushing to get their statements out, proclaiming to the world how morally awesome they are!  But in some cases, these schools might be rushing just a little too fast.

Take UC-Irvine’s Austen Parish, who recently issued this statement, claiming the moral high ground over the dastardly US News: “Collectively we have determined that continuing to participate in the U.S. News rankings is not consistent with our founding ideals.”

Law School Nonsense and the U.S. News [Updated below]

The WSJ recently reported that Yale, and then Harvard, withdrew from the US News law school rankings.  My initial reaction was, of course Harvard is going to copy Yale.  They’ve been chasing Yale ever since those rankings came out.  They didn’t have the guts to withdraw first, but they quickly jumped on Yale’s bandwagon.  A Harvard spokesperson said that his school had been “deliberating the move for several months.”  At best, that’s typical academic navel-gazing; more likely, Harvard was waiting for its law-school superior, Yale, to pull the trigger first.

My second reaction was that these schools aren’t actually withdrawing; they’re just not cooperating with the US News.  Marquette Law did this many years ago, i.e., it stopped cooperating and submitting data, and the school still got ranked.  And the WSJ later confirmed in a follow-up article that, of course, Harvard and Yale will still get ranked.  So these two institutions aren’t even doing anything novel; they certainly are not ground-breakers or trend-setters.  In reality, they’re walking a path beaten long ago by Marquette Law.  (Note: post-rebellion, under new "leadership," MU has since rejoined the US News fold.)  And that already-beaten path leads absolutely nowhere new.  

Anyway, why did Y. and H. decide to stop cooperating?  Here’s the part of the original WSJ article that caught my eye:

Court-approved drinking mugs?

David Lee Roth, et al.

The judge in Racine County who allegedly threatened a lawyer with contempt for not having his shirt's top button buttoned (see here) has also issued special court-approved drinking mugs, according to this short story in the ABA Journal.  

What kind of soft, liberal nonsense is that?  Any hard-liner worth his salt would prohibit in-court hydration entirely!  I remember a "professor" at MU Law many years ago when I brought out my plastic water bottle in class.  He asked, "What are you going to do if you get thirsty in court? Pull out a water bottle?"  I replied, "Um, yes?"

He didn't find it humorous.  But neither did I.  Nor did he offer a better alternative to the time-tested H2O in a bottle.  He was indeed a hard-liner.  (He was also lazy.  Who gives a commercially available, multiple choice final in law school?  If you don't want to grade issue-spotter questions, at least make up your own multiple choice.)

In any case, I don't practice in Racine so I don't have one of those special, court-approved mugs.  And for you out-of-county lawyers who also lack the court-approved drinkware, but may be venturing into Judge Gene Gasiorkiewicz's court room in the future, The Legal Watchdog has obtained "inside information" that he will also permit you to drink out of a Van Halen mug.  

Don't research that.  Just trust me on this one.