Legal Uncertainties: COVID-19, Distance Learning, Bar Exams, and the Future of U.S. Legal Education

The COVID-19 pandemic forced the U.S. legal academy and legal profession to make changes to legal education and training very rapidly in order to accommodate the needs of students, graduates, practitioners, clients, and the public. Like most of the public, members of the profession assumed that most, if not all, of the changes would be temporary, and life would return to a pre-pandemic normal. These assumed temporary changes included a rapid and massive shift to online teaching for legal education, to online administration of the bar exam in some jurisdictions, or the option to offer the diploma privilege in others. Many employers made efforts to accommodate new law graduates and employees who needed to work from home. As legal educators and the legal profession shift back to ‘normal’, we are now discovering that some of these changes might be rather desirable. Thus, we can begin to look at the last two years as an opportunity to re-evaluate how we teach and learn law and how we might evaluate the competence of those entering the profession in different ways. As we move forward, instead of automatically readopting to the status quo, we can instead examine approaches that would allow us to make headway on solving problems that have been with us for decades

Power of Attorney

No doubt exists that the drama/farce Ally McBeal, which ran on the Fox Television Network from 1997 to 2002, was a phenomenal success, at least during its middle years (1998-1999). It sparked numerous fan websites in several countries including one devoted to fan fiction (a genre in which devotees of a television series or film try their hands at writing scripts), various product spinoffs, a series spinoff (Ally, a thirty minute version that featured only vignettes, no legal drama) and even a Time magazine article that seriously considered whether Ally represents the end of feminism. Years after the show went off the air, its influence continues. The popular prime time medical show Grey\u27s Anatomy has spawned a spin-off which is already drawing fire for its emphasis on protagonists who are lovelorn, sex-starved and prone to public displays of disaffection. The reason, says writer Alessandra Stanley, is traceable directly to Ally McBeal, a show which emphasized a heroine who marked a turning point in the devolution of women\u27s roles in television comedy - the moment when competent-but flaky hardened into basket case. What made this thin, goofy, self-absorbed character so popular, at least before rumors and scandal about anorexia and drug use made the show more famous for off-screen shenanigans than on-screen accomplishment? Why was she so powerful a figure that a major U.S. news magazine devoted an important story to discussing her impact? I suggest that one of the major factors in Ally\u27s rise was the fact that writer/producer David E. Kelley cast her as an attorney, the professional that everyone loves to hate, but also a woman who is, to be honest, fairly bad at her job, at least in the first three years, and arguably during her entire (fictional) career. As a woman attorney, Ally fits within the tradition of female lawyers who are either good at their jobs, or good at their relationships, but not both, and in Ally\u27s case, neither. Further, Ally\u27s impact is such that commentators both in the popular media and in legal academia continue to refer to her. She, and her series, have become memes - a character whose mention immediately sparks all sorts of associations. Kelley\u27s willingness to test the boundaries of the law through storylines also ensures that the episodes of all the shows with which he is involved (not just Ally McBeal) retain their freshness

A Man for All Reasons: The Uses of Alexis de Tocqueville\u27s Writings in U.S. Judicial Opinions

The United States has never been given to particular adoration of foreign observers of its mores, who quite often turn out to be critics rather than admirers. Nevertheless, one of its favorite visitors since his one and only appearance on the scene in 1831-1832 is the 25-year-old magistrate Alexis de Tocqueville, sent by his government to study penal reform in the new republic. Tocqueville and his good friend Gustave de Beaumont, like young adventurers before and since, took the opportunity to extend their stay, and turned their tour of prisons into a journey through the young nation that furnished the raw material for what readers ever since have considered to be the single most insightful study of the United States ever written. Since the publication of Tocqueville\u27s study, titled De la democratie en Amerique, which appeared in English in 1835, the second volume following in 1840, all manner of students of U. S. society have pored over it, studying it, quoting and misquoting it, and claiming it as support for their varied ideas. Both conservatives and liberals have claimed Tocqueville as a founding father of their thought. But as John Lukacs points out, Tocqueville cannot be so simply categorized. Through all of these evaluations, assessments and hagiographies, commentators sometimes lose sight of the fact that Tocqueville was, by training and choice, an attorney, and what is more, a civil law trained attorney, a magistrate, a member of the Legislative Assembly, a drafter of the Constitution of France\u27s Second Republic and a member of Louis-Napoleon Bonaparte\u27s Cabinet. Ultimately, as one student of his thought points out, it may not matter.As a civilian, Tocqueville was trained in a newly formed legal regime. As an attorney practicing within a code enacted only a year before his birth, he had a vital interest in determining how such new codes could be integrated into existing social, political, and legal environments. His interest in the new republic across the ocean, which was engaged in a similar experiment, was at once philosophical and practical. Thus, what use U. S. judges have made of his words in their own opinions is certainly of interest