The Legal Skills Prof Blog posts part of a Ph.D. dissertation from Kim Novak Morse at St. Louis School of Law. She provides some data about the use of laptops by students:

The results from the study reveal that indeed students are off task in class; however, it is not as extensive as we thought, nor is it the population of students we thought it was (of course, this depends on whether you are an optimist or pessimist). Second-year students were off task the most time, at 42% of the entire semester. First-years were off task approximately 35% of the time for the semester while third-years spent approximately 28% of their class time off task. Regarding how many individual students were ON-task at a given instant, roughly 82% of third-years, 69% of first years, and 50% of second-years were NOT misusing their laptops (chart 1).

While the numbers indicate that students are off-task, my second research question sought to answer whether more off-task behavior might correlate to lower final course grade. Through statistical analysis, the results indicate that there is no correlation between high off-task behavior and lower final course grade (chart 4). Nor is there a correlation between low off-task behavior and higher final course grade. Such results support the idea that students learn outside of class as well as in class and, though they may miss ideas in class due to off-task behavior, they often learn or supplement it through readings, study groups, clinics, etc.

The study is further instructive to legal educators since it also identifies some of the conditions that promote off-task behavior:

1)    Student laptop users tend to go off-task when X-(anything) occurs for 4 minutes or more…

2)    When professor is engaged in Socratic method with one student, there is a an increase in off-task behavior by other students.

3)    When a classmate engages with professor, there is an increase in off-task behavior by other students.

4)    When professor is monotone, or, overly uses one linguistic intonation style, students tend to increase off-task behavior.

5)    Approximately 40 minutes into class, off-task behavior increases.

6)    When professor calls on students in expected order, off-task behavior increases.

I am willing to wager that none of the Professors taught through technology where the laptop was an integral component of the classroom environment.

Update: This headline on ATL sums it up:

Why do students surf the web in class instead of taking notes? Probably because their professors are boring.

Fascinating research by scanning the emails sent within the Enron hierarchy.

Hierarchy fundamentally shapes how we act at work. In this paper, we explore the relationship between the words people write in workplace email and the rank of the email’s recipient. Using the Enron corpus as a dataset, we perform a close study of the words and phrases people send to those above them in the corporate hierarchy versus those at the same level or lower. We find that certain words and phrases are strong predictors. For example, “thought you would” strongly suggests that the recipient outranks the sender, while “let’s discuss” implies the opposite. We also find that the phrases people write to their bosses do not demonstrate cognitive processes as often as the ones they write to others. We conclude this paper by interpreting our results and announcing the release of the predictive phrases as a public dataset, perhaps enabling a new class of status-aware applications.

Here are examples of emails:

Email 1:

Please take a look at these spreadsheets and calc the gas usage by plant and by pipe in CA. Mike is telling us that most of these palnts [sic] will be shutting down in the next few weeks due to credit exposure. Let’s discuss the impact on sendouts. Thanks.

Email 2:

Thank you! The itemization was absolutely no problem, and please let me know when I can do things like that to make your job go more smoothly. I know the market got chaotic late yesterday . . . So I thought I’d ask in the future, is it you I should come to, or real-time? Thanks again for your help.

Who is the boss? And who is the subordinate?

You know,  I frequently use phrases like “though you would”–like this, be interested, etc. when I email someone above me. Fascinating. I will now make a conscious effort not to use those phrases that tip off my inferior station.

Freakonomics has the top 5 upward/downward predictors:

The usage of “weekend” in a work email, for example, is likely to be sent to a superior. This is also true for the words “attach,” “that night,” “tiger” and “shit.”  Here are the top five in each group – upward means the recipients of the email outrank the sender, and downward the opposite:

Top 5 Upward Predictors

• the ability to
• I took
• are available
• kitchen
• thought you would

Top 5 Downward Predictors

• have you been
• you gave
• we are in
• title
• need in

From oral argument in 11-88. Mohamad v. Palestinian Authority:

JUSTICE SCALIA: Wait. Congress got it from Judge Edwards. Gee, my goodness.
MR. FISHER: I think, Justice Scalia, I think –

JUSTICE SCALIA: I will bet you none of them — none of them even read that opinion.

MR. FISHER: Well, I think Judge Edwards’ opinion was quite prominently read by the Congress then. It is cited throughout the legislative history in the Senate Report, in the House Report, again and again in the hearings.

And this Court I think in Skilling, a couple terms ago, this Court said we have a statute before us dealing with honest services. And what did Congress mean when it used particular language. Well, it probably meant what lower court judges had used that language to mean.
JUSTICE SCALIA: That is a strange phrase, honest services, as, you know, as a crime, deprivation — deprivation of honest services. But the word “individual” is not a strange word at all. It’s used all the time.
MR. FISHER: Well, no, Justice Scalia -JUSTICE
SCALIA: It means an individual.

And when Breyer starts talking about legislative history, you know Nino will pipe in:

JUSTICE BREYER: Well, then I looked at — I have looked at — I know I have to go through legislative history. I’ve said it is meaningful and so I do it. And so far — so far, I think I have to say that you are on a weak wicket.

A weak wicket. Sounds like something from Harry Potter.

JUSTICE SCALIA: Suppose I am a member of the House or of the Senate. And I am not a member of the committee that engages in all of this legislative history. And I — I see the word individual in this statute. And that’s the basis on which I vote for or against the statute. Why should I be saddled with whatever sayings by members of the committee or by experts testifying before the committee occurred? It was out of my hearing. I voted for individual. And individual — well — if Congress wanted individual to mean what you say it doesn’t mean, what word would they have used instead? I mean, if individual is a code word for person, what’s the code person for individual?
(Laughter.)

A very nice piece:

George Mason University law student Matthew Long still has three months of schoolwork before graduation, but this week he and two classmates had a case before the Supreme Court.

The group of students is part of a new class dedicated to Supreme Court work at the Fairfax, Va., school. Nationwide, more than a half dozen law schools offer similar courses.

The students don’t get to argue the cases. They aren’t even lawyers yet. But students participating in the so-called Supreme Court clinics get to do everything else: research issues, draft briefs and consult with the lawyer actually presenting the case to the high court.

…

Each clinic is supervised, usually by a professor or a lawyer at a firm with extensive Supreme Court experience. Students, for their part, may work to identify lower court cases that they believe the Supreme Court will be interested in reviewing. When a clinic takes a case, students may then draft petitions asking the court to hear the case and, if the case is accepted, research and help craft legal briefs for the court.

“One thing we’ve told students from the very start is, ‘You should approach this like a job,’” said Thomas McCarthy, a partner at a Washington law firm who graduated from George Mason and now oversees its clinic with a colleague, William Consovoy.

And a quotation from my smurf!

Corey Carpenter, 25, one of the students involved in George Mason’s clinic, said he does see one potential downside in participating in the clinic: going back to ordinary cases after getting a taste of the Supreme Court.

The transcript is up:

Petitioner

Right off the bat, AMK cut to the heart of the matter:

JUSTICE KENNEDY: But, counsel, for me, the case turns in large part on this: page 17 of the red brief. It says, “International law does not recognize corporate responsibility for the alleged offenses here.”
And the — one of the — the amicus brief for Chevron says, “No other nation in the world permits its court to exercise universal civil jurisdiction over  alleged extraterritorial human rights abuses to which the nation has no connection.”

And in reading through the briefs, I was trying to find the best authority you have to refute that proposition, or are you going to say that that proposition is irrelevant?

And—in a line sure to piss off Citizen-United-rabid liberals—AMK acknowledges for purposes of international law (but not the 1st Amendment?) that there is a difference between corporations and individuals:

JUSTICE KENNEDY: But in — in the area of international criminal law, which is just analogous, I recognize, there is a distinction made between individuals and corporations.

Alito, and the Chief asked whether this case could be brought in any other court:

CHIEF JUSTICE ROBERTS: If — if there is no other country where this suit could have been brought, regardless of what American domestic law provides, isn’t it a legitimate concern that allowing the suit itself contravenes international law?

…

JUSTICE ALITO: The first sentence in your brief and the statement of the case is really striking: “This case was filed by 12 Nigerian Plaintiffs who alleged that Respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship in Nigeria between 1992 and 1995.” What does a case like that — what business does a case like that have in the courts of the United States?

MR. HOFFMAN: Well –

JUSTICE ALITO: There’s no connection to the  United States whatsoever. The Alien Tort Statute was enacted, it seems to be — there seems to be a consensus, to prevent the United States — to prevent international tension, to -and — does this — and this kind of a lawsuit only creates international tension.

And a shout-out to Judge Kavanaugh! Holla!

JUSTICE ALITO: Well, what did — how did Judge Kavanaugh interpret that on the D.C. Circuit?

And Alito goes all originalist!

JUSTICE ALITO: Do you really that think the first Congress wanted victims of the French Revolution to be able to sue in — in the court — to sue French defendants in the courts of the United States?

United States in Support of Petitioner

Likewise, the Chief seized on the difference between who undertakes the misconduct:

CHIEF JUSTICE ROBERTS: But under international law, it is critically pertinent who’s -who’s undertaking the conduct that is alleged to violate international norms. If an individual private group seizes a ship, it’s piracy. If the navy does it, it’s not. Governmental torture violates international norms. Private conduct does not.
So, why doesn’t the — why isn’t the same pertinence — your argument seems to be that all you need to do is find an event, torture, piracy, whatever, and then it’s up to the domestic law whether or not particular entities can be sued.

SGB goes off on his own and talks about a United State Supreme Court of the World and Pirates Incorporated (Disney may make that movie by merging Pirates of the Caribbean and Monsters Inc!).

JUSTICE BREYER: So — so, why — why then — you want to answer in your brief — and this question, I find impossibly difficult, maybe highly fact-dependent. There is no United States Supreme Court of the World. There is no way of getting unified law on the points of whether when we interpret a common law Federal — a system of Federal common law to decide whether a corporation can be defendant — a defendant in a certain kind of case. Every other country could do the same. And there’s no way of resolving it. All right?

So, I find that a difficult question. I don’t know why that’s in this case. I would have thought the question in this case is, can a private actor be sued for certain violations of — of substantive criminal law? The answer’s “yes.” Okay? Genocide, for example.
And then the question is — a corporation is a private actor. And is there any reason why, just like any other private actor, a corporation couldn’t be sued for genocide? And there the answer is I don’t know, but I’ll find out when the other side argues. You see?
(Laughter.)
JUSTICE BREYER: So, I — I think this is unnecessarily complicated. They made a — a categorical rule. They said never sue a corporation. I seem to think possibly of counterexamples. Pirates, Incorporated.

MR. KNEEDLER: Right. [Pronounced, Riiiighhhhht]

And here, like, Breyer, totally, i mean, like sounds like, totally, like a Valley girl. Right?

JUSTICE BREYER: You know? I mean — so -so, why isn’t that — why are we going into — I mean, you have good reason for doing it, and I want to hear why.

Totally.

 Respondent

Pirates, Inc. strikes back. I can definitely see Disney making this movie. Johnny Depp can play steven breyer, as a swashbuckling litigator, who leaps from ship to ship, bringing suit in any court that lets him in

JUSTICE BREYER: Yes, but that’s a different matter because you can have a principle that applies even though there isn’t a case. And the principle that here would apply is what I said, Pirates, Incorporated. Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have
then said:
Oh, I see, it’s a corporation.
Good-bye.
Go home.
(Laughter.)
MS. SULLIVAN: Justice Breyer, yes, the corporation would not be liable.

And, a knock-out-drag-down fight between two former law school deans–who both were on the SCOTUS short list–Kagan and Sullivan. Ding! Ding! Ding! Fight!

 JUSTICE KAGAN: But, Ms. Sullivan, I think that that’s mostly because all of these are written to prohibit certain acts, and they don’t talk about the actors. So, if I could, you know, draw an analogy, it’s as if somebody came and said, you know, this — this norm of international law does not apply to Norwegians. And you — well, there’s no case about Norwegians. And it doesn’t specifically say “Norwegians.” But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act.

MS. SULLIVAN: But, Justice Kagan, international law does speak to who may be liable, which you correctly identified as a substantive question, not a question of enforcement. And international law holds corporations liable for some international law violations. Look to the convention on the suppression of the financing of terrorism, which speaks about legal entities, or the convention on bribery of public officials, which speaks about legal persons.

Round 2:

JUSTICE KAGAN: Miss Sullivan, take an example that has all the extraterritoriality aspects of this case taken away from it. Let’s assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a corporate agent. Would we say that the corporation there cannot be sued under the Alien Tort Statute?
MS. SULLIVAN: Yes, Your Honor. You would say that because there is no assaulting ambassador norm that applies to corporations.
I just want to go back and -JUSTICE
KAGAN: Could you explain to me -we would have to sue the person individually?
MS. SULLIVAN: Exactly. Exactly.
JUSTICE KAGAN: What — so this goes back to Justice Breyer’s question. Where do you find that in international law? Where — where does it say, when the French ambassador is sued in the United States by a corporate agent, we can’t sue the corporation?
MS. SULLIVAN: The burden rests on the Petitioners to show that the norm is established by international law; not on us to show that corporate liability is any

Round 3 (and an audio clip that will likely find its way onto MSNBC):

JUSTICE KAGAN: Miss Sullivan that would be true against an individual as well. The ATS is just a unique statute. It’s unique against individuals, and it’s unique against corporations. That doesn’t answer the question that you’re here to address which is whether corporations are meaningfully different from individuals.
MS. SULLIVAN: They are meaningfully different from individuals under international law which is the crucial choice of law question that you need to answer here. The crucial question that is at the threshold is which law determines whether corporations are liable.

Round 4 is a draw:

JUSTICE KAGAN: The question of who has an obligation is a substantive question.
MS. SULLIVAN: Respectfully, Justice Kagan, we disagree. The question of who may be sued is fundamentally part of the question of whether there has been a tort committed in violation of the law of nations. It would read the verb “committed” out of the statute.
If you just said find a violation of the law of nations anywhere and then apply it to whoever you want.
JUSTICE KAGAN: To give you an example, the tort in violation of the law nations has been committed. It has been committed by the corporate agent. And the question then is, can one hold the corporation responsible for that tort. And that seems to be a question of enforcement, of remedy; not of substantive international law.
MS. SULLIVAN: Justice Kagan, we respectfully disagree. That is a question of substantive law. Think about a domestic analogy. Look to the restatement of conflicts. You would ask whether — you would not look to foreign law to determine a question of respondeat superior or contribution or indemnity. You would not look to foreign law to determine whether, in the words of the restatement, one person is liable for the tort of the other.

You would look to the law of the place of misconduct or the place of where the corporation is headquartered. Foreign law determines in this case whether you had could have civil remedies rather than criminal. We concede that the ATS allows a civil remedy where the world would impose only criminal liability.
That’s because civil liability versus criminal liability, that’s a matter of remedy. So would be the amount of damages. So would be the choice of compensatory or punitive damages. Those are matters of remedy for domestic law to decide.