Law Commons^™

Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta

Jeffrey A. Van Detta

What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? These are important questions, especially with the growth of our state and federal trial court systems in the United States and Canada. Yet, they’ve not been directly posed, nor adequately answered, even by law professors who use judicial opinions daily as the grist for milling the laity into lawyers. The typical emphasis on appellate opinions as the exemplars of "good judicial writing” is misplaced. Appellate opinions …

Mind The Gaps: Teaching Students To Address Flaws In Their Analysis, Christopher R. Trudeau

Christopher R Trudeau

A main problem for law students is that they make too many logical assumptions – or logical leaps, as I call them – in their analysis. Generally, students tend to do two things. First, students leave gaps in their law; that is, students fail to fully develop the law, define key terms, and use analogy to past cases to help bolster their arguments. Second, some students leave gaps in their application – they assume the reader knows the facts, so they don’t explain things to the reader.This presentation explores various techniques used to teach students to find and fill gaps …

Clearly, Using Intensifiers Is Very Bad--Or Is It?, Lance N. Long, William F. Chistensen

Lance N. Long

Although scholars have generally found that overusing intensifiers (words such as “clearly,” “obviously,” and “very”) negatively affects the persuasiveness or credibility of a legal argument, no one has studied actual appellate briefs to determine whether there is a relationship between intensifier use and the outcome of an appeal. This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an “offending” party. But--and this was an unexpected result--if an appellate opinion uses a high rate …

The Place Of Storytelling In Legal Reasoning: Abraham Joshua Heschel’S Torah Min Hashamayim, Stefan H. Krieger

Stefan H Krieger

This article reads the teachings of two rabbis from the Second Century through the lenses of cognitive science on legal thinking and shows the relationship of their narratives and legal opinions. Cognitive scientists posit that both logical and narrative thinking are essential modes of cognitive functioning. The stories and legal decisions of Rabbi Akiva and Rabbi Ishmael, as described by Abraham Joshua Heschel in his masterpiece, Torah Min Hashamayim (Heavenly Torah) support these insights. Both rabbis lived in a critical period in Jewish history. The Temple, the central focus of the people’s connection with God, had been destroyed; large numbers …

Stepping Up To The Podium With Confidence: A Primer For Law Students On Preparing And Delivering An Appellate Oral Argument, James D. Dimitri

James D. Dimitri

Virtually all law students are required to learn oral advocacy skills at some point during their legal education. Typically, these skills are cultivated through at least one oral argument assignment, which often consists of an appellate oral argument that is given as part of the students' first-year legal research and writing course or as part of a moot court competition.

While appellate courts do not grant oral argument as often as they used to, oral advocacy remains a critical skill for law students to learn and cultivate, no matter which facet of law practice they enter upon graduation. Unfortunately, the …

Stepping Up To The Podium With Confidence: A Primer For Law Students On Preparing And Delivering An Appellate Oral Argument, James D. Dimitri

James D. Dimitri

Virtually all law students are required to learn oral advocacy skills at some point during their legal education. Typically, these skills are cultivated through at least one oral argument assignment, which often consists of an appellate oral argument that is given as part of the students' first-year legal research and writing course or as part of a moot court competition.

While appellate courts do not grant oral argument as often as they used to, oral advocacy remains a critical skill for law students to learn and cultivate, no matter which facet of law practice they enter upon graduation. Unfortunately, the …

Stepping Up To The Podium With Confidence: A Primer For Law Students On Preparing And Delivering An Appellate Oral Argument, James D. Dimitri

James D. Dimitri

Virtually all law students are required to learn oral advocacy skills at some point during their legal education. Typically, these skills are cultivated through at least one oral argument assignment, which often consists of an appellate oral argument that is given as part of the students' first-year legal research and writing course or as part of a moot court competition.

While appellate courts do not grant oral argument as often as they used to, oral advocacy remains a critical skill for law students to learn and cultivate, no matter which facet of law practice they enter upon graduation. Unfortunately, the …

When Theory Met Practice: Teaching Tort Law From A Practical Perspective, Prentice L. White

Prentice L White

WHEN THEORY MET PRACTICE: TEACHING TORT LAW FROM A PRACTICAL PERSPECTIVE ABSTRACT When I initially entered the world of academia, I did so with the intention of not only teaching my students the black letter law, but I also envision an opportunity to share with them my experiences in the practice. My philosophy has always been “How can you teach what you have not learned.” Learning is an on-going process and it is not limited to the classroom—especially in professional school. That’s why it was so important for me to share a practical experience with my students as much as …

An Aesthetic Defense Of The Non-Precedential Opinion: The Easy Cases Debate In The Wake Of The 2007 Amendments To The Federal Rules Of Appellate Procedure, Caleb E. Mason

Caleb E. Mason

Abstract: In this article I extol the virtues of the short, nonprecedential opinions (NPOs) that make up more than 80% of the output of the courts of appeals. The recent amendment to Fed. R. App. Proc. 32.1(a), requiring that all circuits allow citation to nonprecedential opinions, has provoked considerable debate about how, and whether, to issue opinions in the class of cases currently resolved by NPOs. I defend the issuance of NPOs not as a necessary concession to overwork, but rather as a valuable decisional form that plays a useful if not vital role in inculcating in practitioners the perceptual …

Learned Hand’S District Court Opinions, 1916-1917: A Macrostructural Analysis Employing Cognitive Psychology Principles, Jeffrey A. Van Detta

Jeffrey A. Van Detta

What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? Examining trial court opinions that Judge Learned Hand wrote 1916-1917 on the U.S. District Court, this article answers those questions by applying principles of cognitive psychology in a detailed critical evaluation of each opinion and its legal and society context. This article makes a very substantial contribution to the study of legal linguistics, cognitive psychology as applied in critical reading of judicial opinions, and of Learned …

Mapping The Social Life Of The Law: An Alternative Approach To Legal Research, Ian Gallacher

Ian Gallacher

As the law moves inexorably to a digital publication model in which books no longer play a role, the problem of how to continue to make the law available to all becomes more acute. Open access initiatives already exist, and more are on the way, but all are limited by their inability to provide more than self-indexed search options for their users. Self-indexing, although a powerful alternative to the traditional pre-indexed searching made possible by systems like West’s “Key Number” digests, has inherent limitations which make it a poor choice as the sole means of researching the law. But developing …