Law Commons^™

40 More Writing Hacks For Appellate Attorneys, Brian C. Potts

Faculty Articles

Script for Trailer: “40 More Writing Hacks for Appellate Attorneys”

Fade in on aerial view of Washington, D.C.

Zoom in on Supreme Court Building. Chopper sounds. Enter helicopter fleet flying by.

Cut to Chief Justice John G. Roberts, Jr., sitting at his desk, reading. He rubs his forehead. Tired. Anxious. Distraught.

Chief: “What a mess! This brief could have been 10 pages shorter!”

Phone rings. Chief answers on speaker.

Law clerk’s voice through phone: “Chief, turn to Appellee’s brief. You’ve got to see this!”

Chief picks up different brief. Flips it open. Zoom in on face. Eyes widen. Jaw drops. …

Ethical Lawyering: The Role Of Honor, Conscience, And Codes (Reviewing Michael S. Ariens, The Lawyer’S Conscience: A History Of American Lawyer Ethics), Vincent R. Johnson

Faculty Articles

Michael Ariens’ new book, The Lawyer’s Conscience: A History of American Lawyer Ethics, is a monumental work, rooted in his decades of excellent scholarship in the fields of attorney professional responsibility and legal history. The Lawyer’s Conscience captures the great sweep and key features of the roughly 250-year period in American legal ethics running from colonial times to the present day. Richly detailed and vividly presented, the story takes the reader on a grand tour of the landmark events and changing ideas that have defined the aspirations, responsibilities, and accountability of members of the American legal profession.

The Mystery Of The Leavenworth Oaths, M H. Hoeflich, Stephen M. Sheppard

Faculty Articles

Lawyers have sworn an oath to be admitted to the Bar since the beginnings of the Anglo-American legal profession. The oath serves several extremely important purposes. First, it is the formal act that admits an individual into the Bar and confers upon the oath taker the right to perform the duties of an attorney in the jurisdiction in which the oath is given. Second, the oath admits the new attorney to the broader world of the legal profession and signifies that the new attorney has been judged by the oath giver as worthy of the right to practice law. Third, …

Inviting The People Into People's Court: Embracing Non-Attorney Representation In Eviction Proceedings, Gregory Zlotnick

Faculty Articles

Evictions often hide in plain sight-and so does one of the most effective responses. Studies uniformly confirm that represented tenants avoid evictions, and with it associated downstream effects, at appreciably higher rates than unrepresented tenants. Tenant representation is one of the most cost-effective anti-poverty interventions available in our housing system. Lawyers should support its expansion, even if and when it a non-lawyer serves as that intervenor in eviction court.

This paper argues that the legal profession should embrace and expand existing pathways for training eligible and interested individuals, regardless of whether they are licensed attorneys, to assist tenants facing eviction. …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

Lawyers, Mistakes, And Moral Growth (Reviewing Mike H. Bassett, The Man In The Ditch: A Redemption Story For Today), Vincent R. Johnson

Faculty Articles

In the literature of legal ethics, relatively little is said about the psychic turmoil that lawyers face while anticipating or defending a grievance, malpractice claim, or criminal charge. Even less is said about how lawyers who are found guilty of violating professional standards should go about rebuilding their reputations and personal lives after such proceedings have run their course, often with embarrassing results having been made public. Against this bleak backdrop, a dazzlingly introspective and hopeful book about lawyers and their mistakes-and about their suffering and possible moral growth-has been published.

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

Glass Half Full: The Decline And Rebirth Of The Legal Profession (Book Review), Michael S. Ariens

Faculty Articles

No abstract provided.

Foreword – Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud

Faculty Articles

This article marks the twentieth anniversary of Latina and Latino Critical Legal Theory or the LatCrit organization, an association of diverse scholars committed to the production of knowledge from the perspective of Outsider or OutCrit jurisprudence. The article first reflects on the historical development of LatCrit’s substantive, methodological, and institutional commitments and practices. It argues that these traditions were shaped not only by its members’ goals and commitments but also by the politics of backlash present at its birth in the form of the “cultural wars,” and which have since morphed into perpetual “crises” grounded in neoliberal policies. With this …

The American Legal Profession In The Twenty-First Century, Stephen M. Sheppard

Faculty Articles

Lawyers in the United States work in public service, private counseling, and dispute resolution, but many also work outside of traditional legal practice. The million-member American bar, second largest in the world, grows more diverse by gender, and ethnicity and older on average. All members of this learned profession must qualify by education or examination and by proof of good character and fitness before taking an oath to serve as an attorney. Thence, there are few limitations on the form of legal practice, though many law firms require an associateship before an attorney becomes an owner of the firm. Economic …

Lost And Found: David Hoffman And The History Of American Legal Ethics, Michael S. Ariens

Faculty Articles

David Hoffman was a successful Baltimore lawyer who wrote the first study of American

law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A …

Legal Malpractice In A Changing Profession: The Role Of Contract Principles, Vincent R. Johnson

Faculty Articles

American legal ethics are based upon a set of legal principles that ensure clients are protected from unnecessary harm and that the provision of legal services is consistent with the public interest. However, the fabric of American legal ethics is threatened by a looming transformation of the legal profession. Such changes, if they come to pass, will undercut the foundations upon which the principles and law of modern legal ethics is founded.

The current model of American legal ethics is animated by three important assumptions, each of which is now under attack. The first is that legal services are ordinarily …

The Lawyer Bubble: A Profession In Crisis, By Stephen J. Harper (Book Review), Michael S. Ariens

Faculty Articles

Stephen J. Harper’s The Lawyer Bubble: A Profession in Crisis, is the latest iteration of the “institutional failure” or “business disaster” story. A number of such books were published around 1990, and have been quite popular since then, for businesses (such as Enron and Tyco) keep failing in such spectacular fashion. The Great Recession that began in December 2007 led to another round of business disaster books, and like their forebears these books make a hard sell for the claim that the disaster was of a titanic nature. And where the business disaster book is found, the legal disaster book …

Urban Law School Graduates In Large Law Firms, David Wilkins, Ronit Dinovitzer, Rishi Batra

Faculty Articles

Two major trends have dominated the American legal profession in recent years. First, "the legal profession has seen a striking growth in the largest firms during the latter part of the last century." In 1960, Shearman Sterling & Wright (now called Shearman & Sterling) was the largest firm in the country - and therefore the world. It had 125 lawyers. By the close of the century, there were more than 250 firms larger than Shearman & Sterling had been forty years before, with the largest ten topping the scales at 1000 lawyers or more. Today, in order to make the …

Life In The Early Days Of Lawyer Advertising: Personal Recollections Of A Bates Baby, Gerald S. Reamey

Faculty Articles

The Supreme Court decision in Bates v. State Bar of Arizona ruled that lawyer advertising is commercial speech subject to First Amendment protection. However, a Texas disciplinary statute provided that “a lawyer shall not publicize himself, his partner, or associate…through newspaper or magazine advertisements, radio or television announcements…or other means of commercial publicity.” Despite being clearly unconstitutional, the Texas statute remained law for five years. Finally, responding to Bates in September 1977, the Texas State Bar Board of Directors adopted an official statement which allowed for limited advertising in newspapers, and only to the extent which was provided for by …

Upon Leaving A Firm: Tell The Truth Or Hide The Ball, Charles E. Cantú, Jared Woodfull V

Faculty Articles

Over the last fifteen years, two divergent common law views have emerged regarding the enforceability of noncompetition clauses between attorneys. The first is exemplified by two Oregon appellate cases and the landmark New York Court of Appeals’ decision, Cohen v. Lord, Day & Lord, whereby noncompetition clauses between attorneys were found void as against public policy. The second adopts a contrary opinion, questioning the conventional wisdom that those who seek legal advice must be afforded the broadest possible choice of counsel.

At present, a balancing test is used to reject the per se impermissibility of noncompetition clauses between lawyers. However, …

Modern Legal Times: Making A Professional Legal Culture, Michael S. Ariens

Faculty Articles

Lawyers’ belief in their professionalism was fostered by the creation and development of modern legal institutions. Law schools, bar associations, organizations like the American Law Institute, as well as the system of legal directories, the regional case reporter system, and continuing legal education groups all contributed greatly to the making of a distinctly professional culture of law in America. These institutions prospered in part because of their ideological fit with the professionalizing ethos embodied in Christopher Columbus Langdell’s statement that “law is a science.”

Legal institutions, then, must be evaluated through the ideological lens which encouraged and fostered the notion …

On The Transformation Of The Legal Profession: The Advent Of Temporary Lawyering, Vincent R. Johnson, Virginia Coyle

Faculty Articles

The structure of the legal profession and the nature of law practice have changed dramatically during the past quarter of a century. Indeed, the transformation has been so thorough that it is difficult to say with confidence which of the many developments has had the greatest impact on the culture of law practice. The growth in the number of attorneys and law firms has been exponential; women and minorities comprise increasingly larger percentages of law school graduates, practitioners, and the academic bar; law firms are taking on greater and greater numbers of associates; starting salaries in major firms now approach …

Unequal Justice: Lawyers And Social Change In Modern America, By Jerold S. Auerbach (Book Review), David A. Dittfurth

Faculty Articles

In Unequal Justice, Jerold S. Auerbach attempts to prove that the legal profession has failed to adequately pursue equality of justice. He finds little evidence that the legal profession or its dominant factions have made an adequate effort to assure the provision of legal services according to need. On the contrary, most of the historical evidence presented in this book leads one to believe that the legal profession has accepted profit as its real goal.

The author contends that, because the legal profession is responsible for formulating and applying law in a very legalistic society, it serves a very important …