'Shaping the Bar' author says bar exam protects legal profession, not public

If you’re dreading your family’s lack of communication this Thanksgiving, here’s a conversation about another group that’s saying less and less with real consequences. In this rebroadcast, University of Texas law professor Stephen Vladeck joins The Modern Law Library to discuss The Shadow Docket and how the Supreme Court’s growing use of secretive, unsigned emergency orders is reshaping transparency, civic discourse, and public trust in the rule of law. ----- In The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, University of Texas law professor Stephen Vladeck argues the U.S. Supreme Court is expanding its powers at the expense of the rule of law and public transparency. A case ordinarily comes before the U.S. Supreme Court after a long appellate process; receives a public hearing where the case is argued before the justices; then a signed opinion or series of opinions and a majority ruling are issued, which generally comes months after oral arguments—and years after a matter first entered the court system. Given the limited length of each Supreme Court term, there has always been the need for an alternative form of response when the court is not in session or a swift response was absolutely necessary. The vast bulk of those occasions have been in capital cases, where a last-minute appeal might be the difference between life and death. But since 2017, the U.S. Supreme Court has issued many more emergency orders than at any time previously, and on matters ranging from election law to immigration bans, from abortion access to COVID-19 restrictions on public gatherings. By issuing unsigned majority emergency orders rather than signed majority opinions, Vladeck says the court is establishing precedents without supplying the legal reasonings behind its rulings. During a time when the U.S. Supreme Court and individual justices are being criticized for not abiding by a clear judicial code of ethics, Vladeck argues the secretive nature of the shadow docket will only further undermine public trust in the rule of law. In this episode of the Modern Law Library, Vladeck discusses with the ABA Journal’s Lee Rawles the origin of the term “shadow docket,” the dangers he sees for the court and the country, and what remedies may be available to the republic.

It’s election week in the U.S., and while many eyes are on the polls, we’re revisiting a conversation that reminds us why voting matters in the first place. In this rebroadcast, Yale Law professor Owen Fiss reflects on his work enforcing the Civil Rights and Voting Rights Acts, the courts’ role in protecting democracy, and why casting a ballot remains both a privilege and a duty. ----- After 50 years as a professor at Yale Law School, Owen Fiss says his students are still idealistic and passionate about the rights won in the Civil Rights Act of 1964 and Voting Rights Act of 1965. As a young lawyer in the late 1960s, Fiss worked with the Department of Justice to implement those laws. A classroom discussion in the spring of 2020 prompted him to draw upon his legal expertise and decades of experience to produce his new book, Why We Vote.  In this episode of The Modern Law Library podcast, Fiss speaks with the ABA Journal’s Lee Rawles about the paradox of the court system–the least democratic branch of government–having the responsibility of safeguarding the right to vote. He looks back on his work with the DOJ in southern states, and his time as a clerk for Justice Thurgood Marshall (then on the 2nd U.S. Circuit Court of Appeals in New York) and Justice William Brennan.  Rawles and Fiss also discuss recent threats to the electoral system and right to vote, including the insurrection on Jan. 6, 2021. Fiss shares his thoughts about Section 3 of the 14th Amendment, and whether former President Donald Trump should be removed from the ballot on that basis.  While every book he writes is for his students, Fiss says, he hopes Why We Vote can impress upon a broader audience the privilege and duty of voting and participating in a democracy.

As Halloween swiftly approaches, we’ve conjured up a classic from the Modern Law Library crypt. What do zombies and pirates have to do with the law? Grab your candy and find out as host Lee Rawles is joined by Paul Golden, author of Litigating Adverse Possession Cases: Pirates v. Zombies.  —---- “Trespassing plus time equals adverse possession,” Paul Golden writes in his new book, Litigating Adverse Possession Cases: Pirates v. Zombies. When someone has occupied or used a piece of property as though they own it for long enough, a court could determine that they are the rightful owner—regardless of what the paperwork says. It’s a concept more popularly discussed as squatter’s rights. In this episode of The Modern Law Library, Golden speaks with the ABA Journal’s Lee Rawles about the ancient concepts underlying modern adverse possession law; some quirky state laws; and why societies would allow land to be transferred in this way. They also discuss how the plain meaning of terms like “hostile” are changed when used in adverse possession cases, and Rawles raises a hypothetical—taken from real life—of a neighbor’s crooked fence. During Golden’s first appearance on The Modern Law Library, he explained how the lack of a written contract could be navigated by a savvy lawyer. In his new book, Golden guides attorneys and their clients through the finer points of arguing for and against adverse possession claims. He shares some of the errors he’s seen pop up in adverse possession cases, and offers advice for how to avoid common pitfalls.

As the Supreme Court returns to the bench, we’re raising a glass to a favorite from our archives. In this episode, Nancy Maveety shares stories from Glass and Gavel, where cocktails meet constitutional law. ----- From the earliest days of the U.S. Supreme Court, alcohol has been part of the work lives and social lives of the justices. In the book “Glass and Gavel: The U.S. Supreme Court and Alcohol,” Nancy Maveety takes readers on a tour through the ways that SCOTUS and spirits have overlapped. In this episode of the Modern Law Library, she speaks with the ABA Journal’s Lee Rawles about how she came to write this in-depth history. While the Prohibition Era would immediately spring to mind, the court faced a number of cases involving alcohol that impacted commerce, advertising, criminal justice and even gender discrimination laws. Maveety, who in addition to being a scholar of constitutional law also studies mixology, shares how she selected a signature cocktail for each chief justice’s tenure. She also has a drink suggestion for readers which incorporates an ingredient that’s known to be one of Justice Ginsburg’s favorites–and a cautionary tale about a normally teetotaling chief justice who dropped dead after sipping a sherry.

As Native American Day approaches on September 25, we’re revisiting a story that still resonates today. Author David Grann takes us inside the Osage murders—a chilling chapter in U.S. history where oil wealth brought tragedy, corruption, and the rise of the FBI. ----- Although the Osage tribe had been forced from their ancestral lands by the U.S. government, through shrewd and careful bargaining they retained the mineral rights to one of the richest oil fields in the world: Osage County, Oklahoma. But instead of insuring the prosperity and safety of the tribe, the wealth of the Osage made them targets for what was later known as the Reign of Terror. The task of solving dozens of murders fell in the 1920s to the newly formed FBI and its young director, J. Edgar Hoover. In this episode of the Modern Law Library, author David Grann tells the ABA Journal’s Lee Rawles how he first learned of this series of murders and decided to write Killers of the Flower Moon: The Osage Murders and the Birth of the FBI. He also discusses the brave Osage woman at the heart of his story, Mollie Burkhart, who defied the local white-dominated power structure to discover who was responsible for the deaths of her family members. Mentioned in This Episode: Killers of the Flower Moon: The Osage Murders and the Birth of the FBI by David Grann

As summer winds down and school beckons, we’re looking back in our archives and assigning some back-to-school reading—grown-up style. In this episode, Professor Kathryne M. Young shares advice from her book How to Be Sort of Happy in Law School—from tackling imposter syndrome to finding your own path through law school’s pressures. —-- Law school can be a lonely, stressful time, and it’s easy to feel like you’re failing to fit the model of the perfect law student. But there’s no one right way to go to law school, says Professor Kathryne M. Young, author of How to Be Sort of Happy in Law School; you can craft your own experience. In this episode of the Modern Law Library, Young talks with the ABA Journal’s Lee Rawles about tackling imposter syndrome; advice that alumni wish they could give their younger selves; and techniques for getting along with your fellow students. Young uses lessons from her own law school experience and a sociological study she conducted to give practical tips for keeping a mental balance; choosing which courses and activities to pursue; managing the practical aspects of your household and budget; forming relationships with mentors and peers–and even deciding when if it’s time to leave law school altogether. Young’s book offers a holistic approach to surviving–and thriving–under the social, academic and economic pressures of law school.

As summer winds down and school beckons, we’re looking back in our archives and assigning some back-to-school reading—grown-up style. In this episode, Judge Robert Bacharach shares insights from his book on the science of persuasive legal writing and why judges love to talk about language. —-- There’s plenty of conventional wisdom about what makes a good legal brief or court opinion. Judge Robert E. Bacharach of the Denver-based 10th Circuit Court of Appeals says that when judges socialize, their conversations often devolve into discussions about language and pieces of writing they enjoy or revile. But Bacharach decided he wanted to dive deeper, to see what the science of psycholinguistics could teach lawyers and judges about how written words persuade an audience. The result was his new book, Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word, published by the ABA. Legal Writing is a slim volume, but it’s packed with tips. It considers details as microscopic as a serif on a letter and as macroscopic as how to create an outline for an argument. In this episode of the Modern Law Library podcast, Bacharach chats about his own writing process; shares his top takeaways from the psycholinguists he consulted; and offers his advice for young litigators looking to hone their skills.

With a new legal thriller on the horizon, we're revisiting James Patterson’s 2024 interview about #1 Lawyer. The bestselling author shares how he builds courtroom suspense and what makes a legal story truly gripping. —-- James Patterson has written bestsellers in many genres. But as he tells the ABA Journal’s Lee Rawles in this episode of The Modern Law Library, he has always been fascinated by legal thrillers, courtroom dramas and crime novels. He even considered becoming a lawyer, before his literary career took off. In his newest release, The #1 Lawyer, James Patterson partnered with co-author Nancy Allen to tell the story of Stafford Lee Penney, a criminal defense attorney in Biloxi, Mississippi, who’s never lost a case. But after handing a high-profile murder trial involving the son of a mobster, Penney finds himself on the other side of the bench as a defendant himself, charged with murdering his own wife. Patterson has written and co-written more than 300 books, including bestselling series like Alex Cross, Women’s Murder Club and Maximum Ride. He had some writing tips for attorneys, particularly on how to work collaboratively. As Patterson tells listeners in the podcast, he is open about working with other writers on many of his books, and he finds tools like outlining absolutely essential. He also shares with Rawles how he thinks co-writers should handle interpersonal communication while working together. Patterson says one of the major benefits of working with co-authors is pulling from their experiences to make his books more accurate and true to life. When he wrote The President is Missing with Bill Clinton, the former president could tell Patterson the inside details of how a Secret Service detail worked. When he wrote Run, Rose, Run with Dolly Parton, she walked him through the production cycle for a song. Allen, who conducted more than 30 jury trials as a prosecutor in Missouri and taught law for 15 years at Missouri State University, contributed her firsthand courtroom experience to The #1 Lawyer. Patterson says they worked to make everything as accurate as possible—while still allowing for a good story. It’s the pair’s second book together, following a previous standalone novel, Juror #3. In this episode of The Modern Law Library, Patterson shares some of his favorite law-related pop culture picks; news about new and ongoing projects; and describes a very special birthday event with Dolly Parton. He also discusses how his children’s series Maximum Ride got caught up in Florida book bans in 2023. For fans of Patterson’s breakout success, the Alex Cross series launched in 1993 with Along Came a Spider, the author shares updates about what’s next for the intrepid detective—including details about the upcoming Amazon Prime TV series Cross, starring Aldis Hodge.

This month, we're revisiting some standout conversations from our archives. In this episode, three seasoned trial court judges reflect on the cases that have stayed with them throughout their years on the bench. ----- All judges have cases that stick with them and linger in their memories. Sometimes it was because of the high profile of the case, and sometimes an obscure case had personal resonance because of the people or issues involved. In this episode of the Modern Law Library, the ABA Journal’s Lee Rawles speaks with Judges Russell F. Canan, Gregory E. Mize and Frederick H. Weisberg, who all sit on the Superior Court of the District of Columbia. The three judges were contributors to and the editors of “Tough Cases: Judges Tell the Stories of Some of the Hardest Decisions They’ve Ever Made.” Canan, Mize and Weisberg share their own stories, including why Canan’s well-meant gesture to avert an injustice in a gun case still troubles him. Mize explains why a child-custody case haunted him for decades, and what happened when he tracked down the now-grown child as he was deciding whether to write about it for “Tough Cases.” Weisberg talks about dealing with the emotional fallout from overseeing a case where a mother had murdered her four children.

Laura Cowan started her career in finance, earning a CPA and working at Ernst & Young and Goldman Sachs. When she decided to go to law school at 35, she knew that she wanted to launch a boutique firm with a practice area that complemented that financial background. Estate law seemed a good fit—but fate threw her a curve ball just as she launched her firm.“I had to turn my entire practice virtual overnight in 2020 in New York City because of COVID,” Cowan tells the ABA Journal’s Lee Rawles in this episode of the Modern Law Library. “I moved to Rhode Island to shelter in place with my dad. During that couple of months that I was sheltering in place, I still had to get my law firm running. I had a business to run and bills to pay. So I made everything virtual, and I really streamlined everything. And what I found was that I could make pretty easily $10,000 a month, working just a couple of hours a day.” She has now leveraged the experience of launching an all-virtual estate-planning practice into a coaching program, 2-Hour Lifestyle Lawyer, to help other lawyers launch similar practices. Her new book, Lifestyle Lawyer Revolution: Live a Life You Love (Without Leaving the Law), is full of tips and advice for building a personalized practice to provide work-life balance for attorneys. “Now, what we found is that there’s a lot of lawyers who are happy working a lot more than that and are happy earning a lot more, but the name of the business really comes from just this idea that you can still be a really great attorney without working 10 hours a day, and you can make a nice living without working 10 hours a day,” says Cowan. A key part of not working too many hours is to hire appropriate assistance, even as a solo just starting out, says Cowan. “What I see a lot of is lawyers that spend too much time in the weeds of executing and doing all these different things that an admin could be doing, and not spending enough time doing what the lawyer should be focusing on,” says Cowan. “So they’re both working too much and not making enough money, which is the worst possible combination.” Cowan encourages estate attorneys to hold community workshops to help people understand the importance of wills and trusts. She says it’s an excellent way to establish connections that can lead to further business. “The real reason that people hire us is because of the connection,” Cowan tells Rawles. “And I firmly believe this. People don’t hire you because you’re the best drafter in the world. They hire you because of the way that you make them feel. So use AI and technology behind the scenes to help you get your work done and deliver a really great client experience, but never forget that it’s going to be that that makes them hire you.” In this episode, Cowan also discusses the benefits of value-based pricing versus the billable hour; attracting the client base you want to target; and how to deal with your biggest frenemy: technology.