Law Commons^™

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

The Open Access Advantage For American Law Reviews, James M. Donovan, Carol A. Watson, Caroline Osborne

James M. Donovan

Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and law reviews can expect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a …

The Open Access Advantage For American Law Reviews, James M. Donovan, Carol A. Watson, Caroline Osborne

Law Faculty Scholarly Articles

Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and law reviews can expect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a …

Keynote Address: Remarks At The Workshop On Tapping Into The World Of Electronic Legal Knowledge , Muna Ndulo

Muna B Ndulo

Professor Muna Ndulo of Cornell Law School presented the keynote address at the 2007 Starr Workshop, “Tapping into the World of Electronic Legal Knowledge.” The workshop took place at Cornell Law School October 7-10, 2007 and was co-sponsored by the Starr Foundation, New York University Law Library, and Cornell Law Library. Professor Ndulo addresses the topic of new information technologies and their importance to legal research and teaching.

Lights! Camera! Law School?: Using Video Interviews To Enhance First Semester Writing Assignments, Ian Gallacher

Ian Gallacher

This short article discusses why the Legal Communication and Research program at Syracuse University College of Law has used video interviews between hypothetical clients and attorneys as an alternative to the traditional assignment memo. The article also discusses some of the technical issues related to this approach and suggests some techniques budding producers might use to develop effective and engaging videos to enhance traditional legal writing assignments.

One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood

Jonathan R. K. Stroud

Tasked in 2011 with creating three powerful new patent review trial regimes, the U.S. Patent and Trademark Office—through the efforts of their freshly empowered quasi-judicial body, the Patent Trial and Appeals Board—set to creating a fast-paced trial with minimal discovery and maximum efficiency. In the first two years of existence, the proceedings have proved potent, holding unpatentable many of the claims that reach decisions on the merits. Yet a small subsection of petitions never make it past the starting gate, resulting in wasted time and effort on the parts of petitioners—and likely sighs of relief from the rights-holders. Parties on …

"Ph.D. Lite": A New Approach To Teaching Scholarly Legal Writing, Jacqueline D. Lipton

Akron Law Faculty Publications

Most American law schools require the satisfaction of an upper level writing requirement, usually in the form of a seminar paper, or “Note”, for graduation. The problem for many students is that the J.D. is not generally geared towards learning scholarly writing. In recent years, the author has experimented with reformulating a seminar class as a “writing workshop” in order to focus on the scholarly writing process. In so doing, she has drawn from experiences supervising legal research degrees in other countries where research-based LL.M. degrees and Ph.D. degrees in law are the norm. This essay details her approach – …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Metacognitive Imperative, Paul D. Callister

Paul D. Callister

This book chapter elucidates why metacognition is a seminal pedagogical principle of legal research instruction and information literacy. This begins with a holistic definition of metacognition as the ability to assess, not only the result of a research activity, but the schemata, including the processes leading to the result; and then relating this to other concepts and principles applicable to legal education. It then explains why students’ development of metacognitive abilities is an imperative to legal information literacy and other signature pedagogies currently under development. The relationship of metacognition to the pedagogical underpinnings and objectives of the Carnegie Report is …

Erasing Boundaries: Inter-School Collaboration And Its Pedagogical Opportunities, Ian Gallacher, Amy Stein, Robin A. Boyle, David Thomson

Ian Gallacher

This short article is the product of a presentation the four authors gave at the 2014 AALS Conference in New York City. In it, we briefly examine some of the problems facing legal education and propose that legal writing programs across the country could enhance the quality and complexity of the assignments they set if they worked together. Even though each faculty would teach the problem in their own way, and grade their own students' work, the possibilities offered by this approach would allow each school to simulate more closely the reality of law practice. The article includes some suggestions …

Continuing Legal Education A Year In Review: Analysis And Recommendations, Shaun Jamison

Shaun Jamison

Continuing legal education (CLE or MCLE) is one way to help lawyers stay current with substantive law, skills, and prepare for potentially dramatic and fast moving changes to the practice of law. This paper examines one year of continuing legal education approved for credit in Minnesota. While Minnesota attorneys enjoy access to over 10,000 CLE courses in a variety of timely topics, there are opportunities to improve. In order to best address the rapid and dramatic change in the legal field, a more favorable regulation of law office management CLEs is required. More flexible regulation and partnerships between CLE providers, …

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …

Note: Guiding The Modern Lawyer Through A Global Economy: An Analysis On Outsourcing And The Aba's 2012 Proposed Changes To The Model Rules, Patrick Poole

Patrick Poole

Over the last few decades, the dramatic changes that have occurred in the global economy have similarly altered the landscape for outsourced work both domestically and internationally. One study estimates that as many as 3.3 million white-collar jobs could be shipped abroad by 2015. This growing trend has also substantially affected the unique nature of the legal field. For the past year and a half, the American Bar Association (ABA) Ethics 20/20 Commission has been considering changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. The revision process has included soliciting input from …

Open Access: Good For Readers, Authors, And Journals, James M. Donovan, Carol A. Watson

James M. Donovan

Readers, authors, and even law journal publishers will all achieve their different but related interests by adopting open access principles. Readers of every kind will have more efficient access to the materials they need to pursue their intellectual and informational goals; authors will see their works read and cited by a broader audience; and law reviews and journals can raise their own profiles without injuring their revenue streams from fee-based sources. Open access works for everyone, and is the future of information creation and distribution.

Open Access: Good For Readers, Authors, And Journals, James M. Donovan, Carol A. Watson

Law Faculty Scholarly Articles

Readers, authors, and even law journal publishers will all achieve their different but related interests by adopting open access principles. Readers of every kind will have more efficient access to the materials they need to pursue their intellectual and informational goals; authors will see their works read and cited by a broader audience; and law reviews and journals can raise their own profiles without injuring their revenue streams from fee-based sources. Open access works for everyone, and is the future of information creation and distribution.

Citation Advantage Of Open Access Legal Scholarship, James M. Donovan, Carol A. Watson

Law Faculty Scholarly Articles

In this study focusing on the impact of open access on legal scholarship, the authors examine open access articles from three journals at the University of Georgia School of Law and confirm that legal scholarship freely available via open access improves an article’s research impact. Open access legal scholarship—which today appears to account for almost half of the output of law faculties—can expect to receive fifty-eight percent more citations than non–open access writings of similar age from the same venue.

Citation Advantage Of Open Access Legal Scholarship, James M. Donovan, Carol A. Watson

James M. Donovan

In this study focusing on the impact of open access on legal scholarship, the authors examine open access articles from three journals at the University of Georgia School of Law and confirm that legal scholarship freely available via open access improves an article’s research impact. Open access legal scholarship—which today appears to account for almost half of the output of law faculties—can expect to receive fifty-eight percent more citations than non–open access writings of similar age from the same venue.

Case-Finding Techniques: Instructor's Notes, Lee A. Ryan

Lee A. Ryan

How To Drink From A Firehose Without Drowning, Or Online Current Awareness Made Less Difficult, Edward M. Mcclure

Edward M McClure

Once upon a time, the law changed gently; actively keeping ahead of your students was unnecessary. Now you can have up to the minute information on your desktop. In fact, now you must have up to the minute information on your desktop, because your students are following “blawgs” and subscribing to “feeds” and reading “tweets”. While you are asking that elegant Socratic question, they are reading an appellate opinion that had not been published when class began. Some of your peers – and rivals – are doing the same. No matter how unnatural they seem, we must force ourselves to …

Jesus Follows The Socratic Method, Kristopher Eugene Nichols

Kristopher Eugene Nichols

This article, Jesus Follow the Socratic Method, is a detailed analysis and comparison of the trials of Socrates and Jesus of Nazareth. An investigation of these men and trials, two of the most famous in Western history, uncovers truths about human nature, the justice systems of these two ancient societies, and the power and danger of the spoken word to a vocal critical thinker in his own society. This article is twenty-two pages long, contains footnotes and follows the Bluebook format.

Time To Blossom: An Inquiry Into Bloom’S Taxonomy As A Means To Ordered Legal Research Skills, Paul D. Callister

Paul D. Callister

Within law librarianship and legal education, there has been far too little scholarly engagement on the underlying pedagogy at the heart of legal research instruction. To correct this deficiency, law librarianship needs to open a dialogue and should consider adapting Bloom’s Taxonomy as a common schema for a collaborative effort. This paper was initially presented at the "Conference on Legal Information: Scholarship and Teaching," held at the University of Colorado Law School on June 21-22, 2009, as part of its Boulder Summer Conference Series. It follows the author's own recently published challenge to law librarianship and legal research instructors to …

Back Away From The Survey Monkey!, James M. Donovan

James M. Donovan

In an environment of too many—and too many ill-designed—surveys, our twin aims should be to reduce the number of surveys overall and to improve the quality of those that do circulate. This burden falls on both those who distribute questionnaires—to make them as efficient as possible—and those answering—to decline to participate in any project that shows signs of unthoughtful design, thereby forcing surveyors to “up their game.” Good surveying, a difficult task in the best of circumstances, becomes even more complicated when pushed through the favored medium of the online discussion list (commonly called a listserv), a choice that can …

The Bahd Of New England: Citing Shakespeare In The First Circuit, Eugene L. Morgulis

Eugene L. Morgulis

This paper explores the ways in which judges in federal and state courts within the geographical region of the First Circuit have used the works and words of William Shakespeare to enhance their opinions. It not only exhaustively catalogs the plays and quotations that judges have cited since the 19th century, but it also analyzes the ways in they are used, discusses how they add or detract from opinions, and compares the use of Shakespeare to other authors commonly cited.

On-Line Legal Research Workshops, Frederick B. Jonassen

Frederick B. Jonassen

Like riding a bicycle, playing tennis, or driving a car, legal research is a skill, and like any other skill it is learned by doing and not by listening to a lecture, though lectures are indispensable for introducing the skill. The mental processes applied in electronic legal research may differ from those applied to book legal research, but because both electronic and book research are skills, a guided workshop in electronic legal research may be based on similar principles to that underlying a workshop in book legal research with appropriate modifications.

The aspects of the electronic legal workshop proposed here …

Citing Outside The Law Reports: Citations Of Secondary Authorities On The Australian State Supreme Courts Over The Twentieth Century, Russell Smyth

Russell Smyth

The purpose of this study is to examine trends in citations of secondary authorities in the six Australian State Supreme Courts based on decisions reported in the official state reports at decade intervals between 1905 and 2005. The main conclusions from the study are that citations of secondary authorities have increased over time; the State Supreme Courts cite fewer secondary authorities than the High Court; most citations of secondary authorities are to legal sources; and of the legal secondary authorities cited, the State Supreme Courts cites far fewer journal articles than legal texts. The study considers the implications of these …

"Ph.D. Lite": A New Approach To Teaching Scholarly Legal Writing, Jacqueline Lipton

Jacqueline D Lipton

Most American law schools require the satisfaction of an upper level writing requirement, usually in the form of a seminar paper, or “Note”, for graduation. The problem for many students is that the J.D. is not generally geared towards learning scholarly writing. In recent years, the author has experimented with reformulating a seminar class as a “writing workshop” in order to focus on the scholarly writing process. In so doing, she has drawn from experiences supervising legal research degrees in other countries where research-based LL.M. degrees and Ph.D. degrees in law are the norm. This essay details her approach – …

Not Just Key Numbers And Keywords Anymore: How User Interface Design Affects Legal Research, Julie M. Jones

Cornell Law Faculty Publications

Legal research is one of the foundational skills for the practice of law. Yet law school graduates are frequently admitted to the bar without adequate competence in this area. Applying both information-foraging theory and current standards for optimal web design, Ms. Jones considers, through a heuristic analysis, whether the user interfaces of Westlaw and LexisNexis help or hinder the process of legal research and the development of effective research skills.

Integrating Wholesale Restorative Justice Within Irish Society; Issues And Considerations Facing Policymakers, Martin G. Haverty

Martin G Haverty

Restorative Justice has grown from a few scattered experimental projects, into a social movement and an identifiable field of practice and study. While restorative justice is provided for within the Irish criminal justice system, its application is confined under statute to juvenile offenders. The National Commission on Restorative Justice are now in the process of evaluating how a national roll out of restorative justice might be achieved within the jurisdiction. In this article the main challenges facing the National Commission on Restorative Justice (Ireland) will be outlined, particularly having regard to their terms of reference. The article will also explore …

Thinking Like A Research Expert: Schemata For Teaching Complex Problem-Solving Skills, Paul D. Callister

Paul D. Callister

The difference between expert and novice problem-solvers is that experts have organized their thinking into schemata or mental constructs to both see and solve problems. This article demonstrates why schemata are important, arguing that schemata need to be made explicit in the classroom. It illustrates the use of schemata to understand and categorize complex research problems, map the terrain of legal research resources, match appropriate resources to types of problems, and work through the legal research process. The article concludes by calling upon librarians and research instructors to produce additional schemata and develop a common hierarchical taxonomy of skills, a …