Dumb Sausages

Today's theme, such as it is, is the stupidity arising from advocating for only part of a solution... especially when it's no solution at all.

• Yet another set of law school deans wrings its collective hands over law schools' failure to teach writing skills sufficient for lawyers to survive in practice. The problem is that it really is the deans' fault...
  • The one course most likely to be ungraded — and thereby blown off — is first-year legal writing. If the deans want to make legal writing count (not to mention make it harder for potential employers to improperly pigeon-hole law students based on the culture shock of the first semester and first year), they'll invert the present policy: Legal Writing and Research gets a letter grade, while the rest of the required curriculum is pass/fail. After all, that's exactly what the bar exam is.
  • Speaking of the bar exam, the deans should support eliminating it. The bar exam (and, for that matter, the end-of-course-100%-of-grade final exam) discourages good writing, and that's the paranoia rite-of-passage event at the end of those three years of law school (two years, optionally, at Northwestern, but that's illusory given the quarter system and the required summer classes).
  • Perhaps most important of all, the deans need to trash virtually every casebook currently in use. The biggest problem with legal writing is that law students see mostly examples of bad (or worse) legal writing in the bulk of their classwork, particularly in the common law courses. In Contracts, students study Sherwood v. Walker exhaustively, and still can't figure out what the holding is because the judge couldn't bloody write (even by nineteenth century standards in Michigan); in Property, even the casebooks try (ineptly, with one exception) to make head or tail of the actual ruling in Shelley's Case; in Torts, the string of double negatives (which can be helpful rhetorical devices when used sparingly, but not in a string) in the leading cases on product/strict liability causes more confusion than anything in the discussion over comparative/contributory negligence; and in Criminal Law, just try reading M'Naghten's Case. More casebooks need to follow the path that Professor LaFave did in Criminal Procedure: Clear, concise summaries, supplemented by extended quotations where helpful... and that California's Justice Mosk did in establishing the concept of comparative negligence by writing more simply and more clearly than did the advocates of the contributory negligence system.

  Instead, though, the deans appear to be looking at legal writing as somehow being taught separately from legal substance; the best example of this is the dean at DePaul, himself a former judge... on an appellate court not famed for the clarity of its writing, particularly on the arcana of Illinois civil procedure. All of the additional "training" in the world isn't going to matter if the students get exposed only to bad writing on the substance, and the concept of the Erie doctrine is difficult enough without trying to learn its limitations from the bad writing in Hanson and York.

  If you value, and want to teach, good writing, use good writing as your source material. While there's a lot to be said for being able to work with bad source material when that's what there is, trying to teach students to do that at the same time as they're learning the underlying substance is a recipe for disaster: The students will end up learning both the writing/communication standards and the substance far less well than they would have otherwise.

• From the strange world of e-books, I have two counterpredictions in response to B&N's latest. First, the Riggio family will not be able to treat B&N as a private fiefdom by this time next year, even if it somehow manages to beat back Ron Burkle's even-more-disastrous-than-the-status-quo attack on their board control. Second, the company's prediction of 2013 e-book sales will be off by more than 15% — either high or low, but it's hard to tell. Sadly, that would be unusually accurate for three-years-out revenue forecasts in print publishing... especially since the inaccurately named "agency model" is expanding and Amazon is daring someone to sue for predatory pricing.
• It's worth repeating a snarky comment here that I made elsewhere. Illinois is second only to California in its dysfunctional finances. The primary cause of this problem is that the state's income tax is non-graduated — a flat three percent rate. (Yes, that is a hint to flat-tax advocates of the most likely result of their preferences.) Professor Pollack notes one of the many problems with that policy: lack of services — whether or not provided by the state — for the intellectually disabled. I have a slightly different take on it, though:

  Professor Pollack:

  As an Illinois resident, I must take issue with one assertion you’ve made. Illinois cannot possibly be ranked as low as 51st in the nation in providing “community-based housing and services to intellectually disabled people.” We have one of the largest legislatures in the nation, so surely Springfield must be among the nation’s leaders in housing the intellectually disabled. Exhibit A: The leadership in the state House. For the last two decades.

  Oh, I’m sorry, you meant a different kind of “housing,” didn’t you?

  Don't get the idea that this is a partisan disagreement, either; the Heffalumps are at least as bad as the Jackasses, particularly downstate — as anyone watching the occasional political ad on Sunday Night Football last night could have inferred. Hell, those bloody idiots celebrate their intellectual disabilities as a qualification for office!