Law Commons^™

Feedback Loops: Keep/Cut, Patrick Barry

Articles

In the first of installment of this new column on feedback in the September Illinois Bar Journal, we began to address the pernicious problem of vague feedback—that unhelpful, empty-calories form of (non) guidance that deprives people of learning what they’re currently doing well and what they need to ix. Without concrete, explicit guidance, it can be really tough to grow and improve.

Investigative Advocacy: The Mechanics Of Muckraking, Patrick Barry

Articles

This essay argues that drafting a complaint is a form of investigative advocacy and that the best of them uphold the tradition of muckraking journalism.

Shakespeare In The Courts, Douglas E. Abrams

Faculty Publications

This article continues the theme of recent “Writing It Right” articles in the Journal of the Missouri Bar. These articles describe how federal and state judges today frequently accent their opinions’ substantive or procedural rulings with references to cultural markers that can resonate with the advocates, parties, and judges who comprise the opinions’ readership. The courts’ broad array of cultural references demonstrates versatility. Some of my early articles in the Journal profiled judicial opinions that referenced terminologies, rules, and traditions of baseball, football, and other sports. Together these sports’ mass audiences help define American culture.

Later my Journal articles profiled …

The Unified Legal Skills Program: How One Law School Adapted To Meet The Needs Of Students Online, And How Those Adaptations May Inform Post-Pandemic Teaching, David Austin, Allison D. Cato, Amy E. Day, Liam Vavasour

Faculty Scholarship

When CWSL was forced to switch to online learning for the COVID-19 pandemic, we worked hard to follow best practices for online learning by attending online conferences and voraciously reading everything we could find to make the learning experience the best we could for our students. CWSL's Legal Skills program earned high praise in student evaluations for adapting so quickly given the difficult circumstances.

During the summer of 2020, we met as a Legal Skills team to discuss how to approach the regular school term. Specifically, we faced a larger-than-anticipated first-year class and contemplated how to remedy the sense of …

Eight Strategies That Enhance Legal Writing, Douglas E. Abrams

Faculty Publications

A few years ago, I spoke about legal writing at an annual forum of Missouri’s appellate judges, held at the University of Missouri School of Law in Columbia. The hour-long presentation advanced eight strategies that enable judges and practicing lawyers to sharpen their writing. These eight strategies appear below in this article.

Preface, Margaret C. Hannon, Joanne Sweeny

Other Publications

Volume 18 of Legal Communication & Rhetoric: JALWD introduces the theme of author as travel guide who can transport their reader to new places. Lisa Eichhorn’s article, “Tonal Variation,” introduces the concept of tone, which is defined as the author’s attitude toward the audience. Using this frame, Professor Eichhorn explains how the author can use tone to shape the relationship with the reader. The article examines and contrasts two recent judicial opinions authored by Supreme Court Justices Kagan and Gorsuch. Through these tonal analyses, Professor Eichhorn shows how, even within an opinion, the tone may shift as the opinion moves …

References To Aesop's Fables In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

In several “Writing It Right” articles over the past few years, I have described how federal and state judges frequently accent their opinions' substantive or procedural points with careful references to cultural markers familiar to many Americans. This article continues traveling the literary lane by turning to Aesop’s Fables. By invoking a Fable, the Friends of Animals district court continued a tradition that began in 1823, when the Pennsylvania Supreme Court cited Aesop in a will contest.

The Folly Of The Embedded Full Citation: How The Bluebook And Alwd Manuals Encourage Weak Legal Writing, Ben Bratman

Articles

Unfortunately, the two most prominent citation guides for legal writing, the Bluebook and the ALWD Guide to Legal Citation, include provisions allowing legal writers to embed a full citation to legal authority as a grammatical element of a textual sentences. As a result, both beginning and experienced legal writers do not hesitate to burden their sentences with the clutter of full citations. Most dubiously, legal writers far too often begin the topic sentence of a paragraph with the phrase “In [case name],” followed by an embedded citation, thereby wrongly emphasizing the case name instead of the legal principle that the …

The Cognitive Power Of Analogies In The Legal Writing Classroom, Patricia G. Montana

Faculty Publications

(Excerpt)

New law students traditionally learn better when they can connect what they are learning to a familiar non-legal experience. Therefore, the use of an analogy, which can be defined as a comparison showing the similarities of two otherwise unlike things to help explain an idea or concept, is an obvious way to facilitate a student’s connection between the new and what is already known. An analogy is a logical step in introducing the complex processes of legal research and analysis by attempting to simplify the alien structure of summarizing that legal research and analysis into a coherent piece of …

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

Scholarly Works

No abstract provided.

Amicus Curiae Briefs: A Message From The 7th Circuit, Douglas E. Abrams

Faculty Publications

Like other brief writers, the amicus brief’s writer must heed the court’s rules of practice and procedure, including rules that prescribe a brief’s maximum page length. But a brief writer can meet the court’s circumstances and expectations without going to the max. A few months before he ascended to the Supreme Court bench in 1943, D.C. Circuit Judge Wiley B. Rutledge advised advocates to strike a balance by being “as brief as one can be consistent with adequate and clear presentation of his case."

An amicus’ prudent approach to concise brief writing is to adapt the advice delivered by opera …

References To Children's Stories And Fairy Tales In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

Jones v. State is typical of recent state and federal court decisions that have spiced substantive or procedural points with references to classic children’s stories or classic fairy tales. These literary resources have won places in American popular culture and are likely generally familiar to readers, especially when (as in Jones) the court provides any necessary context explaining the resource’s relevance to the decision.

In previous Journal of The Missouri Bar articles, I have written about judges’ invocation of an array of influential cultural markers that are generally familiar to Americans. These articles explored written opinions that accompanied substantive or …

No Matter How Loud I Shout: Legal Writing As Gender Sidelining, Leslie Culver

Utah Law Faculty Scholarship

In this essay, I argue that viewing legal writing as a mode of gender sidelining uncovers the urgency for law schools to provide unitary tenure for legal writing programs across all law schools. I recognize that many legal writing faculty are employed under ABA Standard 405(c), a seemingly second-best option to traditional tenure tracks. As Professor Kathy Stanchi (UNLV) comments, however, while Standard 405(c) offers some respite from “job insecurity, intellectual disparagement, and pay inequity,” it ultimately serves as an “institutionalized bar to professional advancement divorced from any reasonable measure of merit.” This essay takes Stanchi’s framing of 405(c) as …

Mincing No Words: When The Court's Opinion Criticizes An Advocate's Writing, Douglas E. Abrams

Faculty Publications

In recent years, court opinions have chastised counsel’s briefs or other written submissions for such structural deficiencies as improper citations; missing exhibit labels; incomplete tables of citations; mis-numbered counts; failure to cite to the record; and skirting of court rules that regulate font size, maximum page limits, mandated margins, and the like. Beyond structure, opinions have also chastised counsel for written submissions that are “riddled with misspellings, typographical errors, punctuation errors, and grammar and usage errors” and for those marked by careless cutting-and-pasting from forms or other prior work product, or by careless reliance on spell-check.

Some opinions identify the …

Nothing Says "I Love You" Like A Correct Bluebook Citation & Formatting The 1l Brief, Jason Tubinis, Heather Simmons

Presentations

Law Librarians Heather Simmons and Jason Tubinis walked students through the necessary formatting for 1L brief success, as well as shared their top tips for Bluebook citations. Formatting topics included Table of Authorities, Table of Contents, page numbering, and styles. Students were encouraged to bring their laptops for hands on help with both Mac and PC versions of Microsoft Word.

Generalist Judges And Advocates' Jargon, Douglas E. Abrams

Faculty Publications

Clerking is a privilege. Fresh out of law school and eager to begin their careers, law clerks at any level of the federal or state judiciary covet the opportunity to learn from a judge’s reservoir of knowledge. But law clerks who anticipate careers writing as advocates are also well-positioned to learn about something that a judge may not know when briefs or other adversary submissions land on the desk.

That “something” concerns jargon, this article’s focus because its use by advocates can impede the court’s understanding of a case’s facts and law. “Jargon” refers to “special words or expressions that …

Fixed Stars: Famous First Amendment Phrases And Their Indelible Impact, David L. Hudson Jr., Jacob David Glenn

Law Faculty Scholarship

Some passages in First Amendment law have taken on a life and legend of their own, entering our cultural lexicon for their particular power, precision or passion. Some phrases are just so beautifully written that they cannot escape notice. Others aptly capture the essence of a key concept in a memorable way. Still others seemingly have grown in importance simply by the frequency for which they are cited in later court decisions. This article analyzes ten phrases from U.S. Supreme Court First Amendment decisions that qualify as some of the most enduring passages in First Amendment jurisprudence.

Getting It Right By Writing It Wrong: Embracing Faulty Reasoning As A Teaching Tool, Patricia G. Montana, Elyse Pepper

Faculty Publications

(Excerpt)

In the early days of legal writing, we use exercises that have clear "right" answers. The rules are very simple and their meaning, even without looking at the cases, is usually clear. So, the "right" answer is often obvious. Indeed, it is intuitive. Though these exercises give students a sense of accomplishment and allow them to track achievement and understand success and failure, in some ways, they reinforce a common problem in first-year law students: their inability to see beyond the surface of a legal rule.

To ensure the "right" answer, students must distill not only a general rule, …

Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge

Faculty Scholarship

The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that non-lawyer master’s …

References To Movies In Judicial Opinions And Written Advocacy, Part 1, Douglas E. Abrams

Faculty Publications

In opinions in cases with no claims or defenses concerning movies or the movie industry, trial and appellate judges often help explain substantive or procedural points, or help embellish the discussion, with references to themes, scenes, or characters from well-known films that have held Americans’ attention. Sometimes the reference appears in an opinion of the court, and sometimes it appears in a concurring or dissenting opinion.

Ok, Google, Will Artificial Intelligence Replace Human Lawyering?, Amy Vorenberg, Julie A. Oseid, Melissa Love Koenig

Law Faculty Scholarship

Will Artificial Intelligence (AI) replace human lawyering? The answer is no. Despite worries that AI is getting so sophisticated that it could take over the profession, there is little cause for concern. Indeed, the surge of AI in the legal field has crystalized the real essence of effective lawyering. The lawyer’s craft goes beyond what AI can do because we listen with empathy to clients’ stories, strategize to find that story that might not be obvious, thoughtfully use our imagination and judgment to decide which story will appeal to an audience, and creatively tell those winning stories.

This article reviews …

America's Founding Editors: Writing The Declaration Of Independence, Douglas E. Abrams

Faculty Publications

On Congress’ behalf, one of its members, 33-year-old Virginia lawyer Thomas Jefferson, drafted the Declaration of Independence. For the next half century, Jefferson’s fierce pride of authorship, unrestrained by humility, kept him from crediting Congress for skilled editing that helped make him a national icon by sharpening his powerful, but less than polished, draft. The irony of lawyer Jefferson’s enduring bitterness and ingratitude can stimulate today’s lawyers to sharpen their own drafts by respecting cooperative editors as valuable allies, not as troublesome adversaries.

References To Television Shows In Judicial Opinions And Written Advocacy (Part Ii), Douglas E. Abrams

Faculty Publications

In the Journal’s January-February issue, Part I of this article began by surveying television’s profound influence on American culture since the early 1950s, a sturdy foundation for federal and state judges who cite or discuss well known television shows in their opinions. Part I presented television drama shows.

This Part II picks up where Part I left of. The discussion below presents television situation comedies (“sitcoms”) and reality TV shows that appear in judicial opinions. The discussion concludes by explaining why advocates should feel comfortable following the judges’ lead by carefully using television references to help make written substantive or …

The Deconstructed Issue-Spotting Exam, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article proposes a teaching technique for use in large, Socratic-style law school classes to embed exam preparation, formative assessment, and lawyering simulations in the course without overburdening the professor or students. This technique is sustainable, yet highly efficacious for students.

Law schools nationwide are implementing new reforms pushing law schools toward stronger assessment techniques and client-based simulations better preparing students for the practice of law. Many law schools have implemented these reforms around the margins or outside of the traditional doctrinal course. Law schools have generally added new classes with experiential learning components or with simulations integrated into the …

The Architecture Of Drama: How Lawyers Can Use Screenwriting Techniques To Tell More Compelling Stories, Teresa M. Bruce

Publications

Hollywood writers have a secret. They know how to tell a compelling story—so compelling that the top-grossing motion pictures rake in millions, and sometimes billions, of dollars. How do they do it? They use a simple formula involving three acts that propel the story forward, three "plot points" that focus on the protagonist, and two "pinch points" that focus on the adversary. The attached Article argues that lawyers should build their stories in the same way Hollywood writers do. It deconstructs the storytelling formula used in movies and translates it into an IRAC-like acronym, SCOR. Attorneys who use SCOR will …

References To Television Shows In Judicial Opinions And Written Advocacy (Part I), Douglas E. Abrams

Faculty Publications

No abstract provided.

Finding Balance: Using Employment Law Problems To Achieve Multiple Learning Goals In Persuasive Legal Writing, Rosa Castello

Faculty Publications

(Excerpt)

Legal Writing professors, like myself, face the same challenge each new semester: how can I effectively and efficiently help students learn one of the most important skills for a practicing lawyer? And one large hurdle in this quest to make our students good legal writers is creating a trial motion or appellate brief problem that helps them develop the particular skills required for persuasive legal writing. The act of creating the problem is sometimes like tightrope walking̶ finding just the right balance of facts and law to challenge students and help develop and enhance vital research, analytical, organizational, writing, …

Live And Learn: Live Critiquing And Student Learning, Patricia G. Montana

Faculty Publications

(Excerpt)

After nearly fifteen years of teaching first-year and upper-level legal writing courses and commenting on thousands of student papers, I decided to experiment with a new way of giving feedback. In a break from the traditional written feedback I had become accustomed to in the form of margin comments and a combination of line edits and end notes, I opted to live a little and learn a new practice: live critiquing. Live critiquing is essentially the process of giving students feedback on their work “live” or in-person, rather than in writing. In the most liberal approach to live critiquing, …

On The Values Of Words, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

Mary Norris' Between You and Me: Confessions of a Comma Queen and Kory Stamper's Word by Word: The Secret Life of Dictionaries use observations about language as a touchstone for a nuanced examination of deeper truths about language, culture, and law in a changing world. In so doing, they point to deeper truths about the use of language and its consequences. Law students, lawyers, and law professors will benefit from journeying with Norris and Stamper towards the goal of crafting prose that is clear, accurate, and inclusive. In particular, the legal community will benefit from the books' efforts to define …

Justice Kennedy's Prose – Style And Substance, Eric Segall, Eric Berger, Michael C. Dorf, Jamal Greene

Faculty Scholarship

Supreme Court Justice Anthony Kennedy's retirement in June 2018 sent shockwaves throughout America. After Justice Sandra Day O'Connor left the Court in 2005, Justice Kennedy became the Court's all-important swing vote in virtually every important area of constitutional law. His views on affirmative action, abortion, campaign finance reform, free speech, and the separation of church and state (among many other constitutional issues) were the ones that mattered the most among the Justices. Lawyers prepared arguments and filed briefs in the Supreme Court for the main purpose of persuading Justice Kennedy to rule for their clients. He was, quite simply, the …