Thursday, August 19, 2010

Spindle Law and the Evidence Module in Legal Education

Spindle Law, which carries the evidence module that I edit, got favorable comment in Prism Legal (August 15, 2010). Ron Friedmann wrote (in part):
Spindle Law is “is a new kind of legal research and writing system”. It presents a taxonomy of law through which a user can drill down to find authority for points of law. It is a ’social media’ or ‘crowd sourcing’ approach. Ambrogi writes
“Spindle Law resembles a treatise, in that it assembles rules of law together with the authorities to back up those rules. Structurally, it organizes the law into a tree, with each branch leading to ever-narrowing branches. Thus, the broad branch “courts” leads to narrower branches for “evidence” and “civil procedure,” and each of those branches leads to increasingly narrower branches.”
I can see how Spindle Law’s graphic approach, coupled with community contributions, could lead to a valuable legal research tool. While not an immediate threat to law firms, a system like this could evolve to be an important resource for in-house counsel. Why pay even associate rates if a quick consultation of Spindle Law were to yield a reasonably reliable answer?
Although I doubt that Spindle Law will make lawyers or junior lawyers superfluous -- for one thing, authority and cases run often run in different directions; for another thing, the law changes; and for yet another thing, the stated rules are often or always fuzzy to some degree -- I do think Spindle Law can become an efficient tool for legal research -- and for legal education. This is why I have incorporated the evidence module into my Evidence course: Spindle Law is a lovely way to describe (and find) relatively settled corners of legal doctrines such as subsequent remedial measures. (The comments sections of Spindle Law allow and encourage discussion of legal doctrines and practices: Spindle Law is not just about black-letter rules -- though it does operate on the premise that some legal rules and principles are relatively settled and are therefore relatively black-letter.)


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Wednesday, August 18, 2010

Do Jurors Need Tools?

Monica Davey & Susan Salney, "Jurors Fault Complexity of the Blagojevich Trial," NYTimes (August 18, 2010):
As the jurors in the corruption case against Rod R. Blagojevich, the former Illinois governor, entered a 25th-floor conference room here, one problem was instantly clear: They were overwhelmed. The judge had handed them instructions that ran to more than a hundred pages. The verdict sheet was as elaborate as some income tax forms. And many of the 24 counts they were being asked to consider came in multiple parts and were highly technical and interconnected.

"It was like, 'Here’s a manual, go fly the space shuttle,'" Steve Wlodek, one of the jurors, said Wednesday. Jurors said it took them several days just to figure out how to begin to break down their assignment into manageable tasks — not to mention how to understand the legal terminology (what exactly is conspiracy to commit extortion?). These were early hints of the multiple stumbling blocks they would find as they struggled, but failed, over 14 days of deliberations, to reach a verdict on any of the counts but one.
Was the problem mainly complexity? Or was the problem mainly that the jurors were not given tools for managing the complex task they were asked to perform?
The article reports that the jurors used Post-it notes. Could they have been given something more flexible and comprehensive?
Did the jurors have a simple computer with, say, Word at their disposal? Would that have helped them manage their assignment?
The article reports, unsurprisingly I think, that the jurors developed their own tools:
After initial frustration and confusion upon arriving in the deliberation room with little sense of what to do next, the jurors laid out a plan. 
On large sheets of paper, they wrote down crimes Mr. Blagojevich was accused of committing, and taped each one on the walls around the room. On the sheets: a claim that he had sought political contributions in exchange for legislation to help a local pediatric hospital; another that he had sought a political fund-raising event in exchange for state financing for a school; another that he had sought payments for a law that would benefit the horse racing industry; and so on.
The jurors did pretty much what any rational person would do when faced with the many questions they had to resolve.


The dynamic evidence page
It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, August 15, 2010

Be Nice on Your Way Up but Kick Them When You're on Top?

Jonah Lehrer of the Wall Street Journal reports that research shows that nice people are more likely than are nasty people to reach the top of an organization but that when nice people reach the top, they stop being nice.

If the hypothesis is true (whether or not the cited research supports it), does the same principle apply to law school deans?

I did research for James H. Chadbourn for a number of years while he taught at Harvard Law School. He later asked me to work on the revision of Wigmore's treatise. I got to know Chadbourn very well. (His wife privately called him "bunny.") Chadbourn hated deans -- without exception. I still recall one day when a person, an administrator, dropped by his office at Harvard. (I was sitting behind a small desk doing research -- the old-fashioned way, by reading cases in "hard copy" form.) Chadbourn had been friendly with this administrator. She told him she had been named an assistant dean. From then on, Chadbourn was hostile to her.

I don't know what lay at the root of Chadbourn's contempt for deans. Part of the reason may have been philosophical and temperamental: he was a curmudgeon -- a gentle curmudgeon -- and a skeptic, and he was generally distrustful of authority. Another part of the reason may have been his experiences with authority while he taught at UCLA: the story has it that he fought bitterly against a McCarthyite attempt to purge two junior faculty members who were accused of being Communist sympathizers. (I do not know the details of this story. Does someone in Cyberland have them?)

I have known one person whose perspectives I am fairly certain did not dramatically change when he became a law school dean. Perhaps some of the others were also not corrupted; I'm not sure. However, some of deans I have known in my life were apparently transformed after their ascent to power.

Postscript No. 1: Toward the end of his life, Chadbourn's enmity toward deans abated a little. Initially Chadbourn did not like Dean Albert Sacks of Harvard Law School, particularly because Sacks (possibly on behalf of a law school committee) once chastised Chadbourn after Chadbourn ordered a rude grade-grubbing law student to leave his office. Chadbourn eventually got cancer. Sacks apparently visited Chadbourn often while Chabourn was ill. For this Chadbourn was grateful. To his great credit, Sacks wrote a touching tribute to Chadbourn, 96 Harvard Law Review 91 (1982). He wrote:

I came to know Jim well during the past decade -- the period when I was Dean. Clearly, he had established a very special relationship with his students. Year after year, one heard from excited, happy students of his colorful way of teaching, which combined meticulous care for content and pedagogy with a vivid style laced with humor and wit. ... Obviously, he had achieved a genuine mastery of his subjects and his craft.

These accomplishments, impressive as they are, disclosed only one part of the man. Aside from what he revealed of himself in the classroom (and visitors were discouraged), Jim Chadbourn was essentially a private person. Instinctively modest, he preferred to speak little of achievements and undertakings. Sentimental or other emotive feelings were masked, if not buried, by the use of irony, recourse to wit, or a not very convincing display of grumbling. But he and I dealt with each other at a time when he confronted limitations of age and serious illness. I too had recently confronted a difficult illness, and so we were able to achieve a perhaps unusual openness. Jim Chadbourn revealed a clear-eyed sense of his vulnerability, a reluctantly exercised capacity to accept whatever limitations he had to face, accompanied by an unshakeable determination to achieve the goals dictated by his work. Notwithstanding his success as a teacher and the satisfaction it gave him, he chose to retire early in order to devote his time to Wigmore's treatise. His cancer required treatments that were temporarily debilitating. After each treatment, he would bide his time and then go back to work.

What emerged for me was a picture of something more than the great professor and the master craftsman. Here was an indomitable spirit, quietly expressing itself in a cause that could have only one final outcome. Of course he was now limited and vulnerable -- aren't we all, ultimately? Still, he not only completed the work he had set for himself, but he also continued to appreciate the people and experiences around him for which he could still find time. Indeed, I sensed at times that in this period of trial and hardship he felt a special satisfaction, which he characteristically masked.

His friends offered support and encouragement, but we were of little help. What help he received came from within and from one other person -- his remarkable wife, Erika, for whom this time was also one of great trial and, in the deepest sense, of triumph as well.

I was not at all surprised that Jim's students left his classes with the sense that they had learned the subject and, beyond that, had been touched by a man of memorable character. And it was natural for him to tell his first-year classes, during their last hour together, that the students should become not only good lawyers -- that would not be hard for them -- but also good people. His contribution to us all -- his students, colleagues, family, and friends -- was the example he set of quiet professional excellence, of courage and determination in confronting adversity, and of an understanding and appreciation of life that were genuine and deep though not seen on the sleeve. This is the measure of our loss. This is also the measure of our gain.

Postscript 2: Judge Jack B. Weinstein also wrote a touching reflection about Chadbourn after Chadbourn's death. See Jack B. Weinstein, "In Memoriam: James H. Chadbourn," 96 Harv. L. Rev. 364 (1982). Weinstein said in part (footnotes omitted):

In the broad range of James H. Chadbourn's work, there is in each article and book a sense of almost total control of the entire field under discussion in its historical, conceptual, and practical aspects. Chadbourn's work demonstrates a meticulous precision in using supporting data; each sentence is polished, each footnote finely tuned. In a tribute written upon Chadbourn's retirement from teaching in 1974, Professor John A. Dawson referred to Chadbourn's "utterly mad pursuit of the differences between the forms of action." This historical grasp gave his work a sense of context sometimes lacking in contemporary scholarship. His great interest in music, biography, and English literature, his fondness for fishing, as well as his friendships with colleagues and students, helped him "pass on through instruction in law the heritage of humane culture." Dawson's conclusion -- that Chadbourn "is an extraordinary[] teacher, indeed unique, and this in large part because he is a formidable scholar" -- seems unassailable.

...Although his contributions in each of these areas merit analysis, his antilynching works and his contributions to the law of evidence warrant particular attention.

It took a great deal of courage and legal skill to do the necessary field work and then to write Lynching and the Law in the early 1930's in the South. At that time, as Chadbourn pointed out, "[a] new wave of lynchings [had] again made the nation acutely aware of the perennial problem of mob killing." It is a sign of how far we have come -- in large part because of the bravery of Southerners like Chadbourn -- that it is almost impossible today, fifty years after he wrote, to feel the horror evoked by the pattern of lynchings that terrorized and degraded blacks -- and many whites -- in this country.

See also the blog post of December 31, 2008 James H. Chadbourn, Lynching and the Law (1933)


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.