Law Commons^™

Rule 3.8: The Not So Special Responsibilities Of Prosecutors, Ahmed M.T. Riaz

Ahmed M.T. Riaz

Prosecutors are obligated to fulfill responsibilities that stretch beyond the usual scope of duties retained by non-prosecuting attorneys. A broad generalization as to why such differences exist may be reasoned from the fact that a prosecutor is a government official, a position which necessarily carries a duty to “seek justice.” However, the differences may more specifically be categorized in four ways. First, because prosecutors are government officials, they are provided great access to government resources; second, prosecutors are subject to different legal obligations than any other type of attorney, such as being burdened by a reasonable doubt standard; third, the …

'Aux Armes, Citoyens!:' Time For Law Schools To Lead The Movement For Free And Open Access To The Law, Ian Gallacher

Ian Gallacher

This article is a manifesto that outlines the principles of the open access to legal information movement and sounds a call to action for law schools to become leaders in that movement. The article surveys the present legal information environment, reviews the development of computer-assisted legal information and the long-term future of book-based legal research, and discusses the problems inherent in a system where two large “information resource” corporations control access to legal information. After considering the need for open access to the law for pro se litigants, scholars from outside the legal academy, and practicing lawyers, after considering and …

The Debate Over An Economic Interpretation Of The Constitution: Where Has Beard Taken Us And Where Are We After Mcguire’S “New” Interpretation?, Joseph Silvia

Joseph Silvia

The Debate over an Economic Interpretation of the Constitution: Where has Beard taken us and where are we after McGuire’s “New” Interpretation? Since 1913, developing a complete analysis on the creation of the American Constitution necessarily requires a thorough consideration of economics. Until Charles A. Beard published his An Economic Interpretation of the Constitution of the United States (1913), the standard account of the Founding Era was that the Framers acted out of idealism – a disinterested, public-regarding impulse to promote democratic ideals for which the Revolution was fought and the American Republic was founded. Beard challenged this idealistic view …

I'M A Lawyer Too--Memoirs Of The Ambitious Legal Writing Professor, Prentice L. White

Prentice L White

I’M A LAWYER TOO—MEMOIRS OF THE AMBITIOUS LEGAL WRITING PROFESSOR ABSTRACT Legal Writing professors are faced with so many challenges and hurdles in the world of academia. Our salaries are lower, our offices are smaller, and our work schedules with students are much more tedious than that of tenure and tenure-track faculty members. However, there is another hurdle that is not as obvious as the other challenges, but it is the most serious hurdle we have ever faced—proving that we too are lawyers and not simply writing teachers. There are so many stereotypes in our profession that we sometimes have …

Successful Stories And Stories Of Success: Reflections On The History Of The Law And Economics Movement, Nimrod H. Aviad

Nimrod Haim Aviad

This paper joins a handful of attempts to understand the Law & Economics movement’s success in American legal academia. Adopting an historical perspective, the paper analyzes for the first time the movement’s own stories of success, developed and maintained by the movement’s own members, and considers them as a possible blue-print for success in contemporary legal academia. By following these stories of success, one comes to understand the keen ability of the movement’s economists and lawyer-economists to identify those patterns of academic practice which would eventually grant them the paramount academic capital that they have enjoyed over the last thirty …

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 between 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 support these insights. Heschel was one of the preeminent Jewish theologians of the twentieth century, and this book was recently translated into English under the title Heavenly Torah. Both rabbis lived …

The Plot Thickens: The Appellate Brief As Story, Kenneth D. Chestek

Kenneth D. Chestek

Why are appellate briefs boring? Does overreliance on structural paradigms like IRAC lead to formulaic, and overly legalistic, writing? The author suggests that, by conceiving of briefs as stories and consciously using the elements of narrative (character, conflict, setting, theme, and plot, among others), the brief writer can make the client's story come to life for the reader, hopefully producing a more interesting, and therefore compelling, brief. The author has written a brief in a mock case (Rubin v. Old York County Department of Social Services), and then deconstructs the brief in the article to show how the author of …

Cite Unseen: How Neutral Citation And America's Law Schools Can Cure Our Strange Devotion To Bibliographical Orthodoxy And The Constriction Of Open And Equal Access To The Law, Ian Gallacher

Ian Gallacher

This article looks at the phenomenon of legal citation and its unintended consequences. After considering the reasons for the American legal system's devotion to precisely accurate and detailed citations and the history of American legal citation, the article looks at the effect the bibliographical orthodoxy promoted by the two leading citation manuals – The Bluebook and the ALWD Manual – has on open access to the law. In particular, the article looks at how the required common law citation format prescribed by both of these manuals helps to consolidate the market position of West and LexisNexis, the duopoly of legal …

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning, Andrew J. Morris

Andrew J Morris

Some Challenges For Legal Pragmatism: A Closer Look At Pragmatic Legal Reasoning

Although scholars have discussed legal pragmatism for several decades, the literature does not contain a systematic analysis of the characteristic elements of pragmatic decisionmaking. This article tries to add that analytical perspective. It attempts to make sense of the extensive literature by identifying specific characteristics of pragmatic reasoning, then conducting a methodical comparison of distinctively pragmatic reasoning to more principled reasoning. I identify principled reasoning with legal form: as reasoning that gives some normative force to formal legal reasons. The criteria on which I compare the two modes …

Teaching In Reverse: A Positive Approach To Analytical Errors In 1l Writing, Lesley S. Kagan, Susan E. Provenzano

Lesley S Kagan

In this manuscript, we explore student-centered teaching methods that embrace student error as part of the learning process. Specifically, we advocate an error-as-growth philosophy, urging legal writing professors to address 1L analytical errors early in the semester, give the students a clear understanding of where they are likely to go astray and teach the students strategies for avoiding error during, rather than after, the writing process. We document the common analytical errors in our students’ writing assignments, review cognitive psychology and composition theories that might explain these errors, and design a curriculum that “teaches in reverse” – that is, moves …

Teaching In Reverse: A Positive Approach To Analytical Errors In1l Writing, Lesley S. Kagan, Susan E. Provenzano

Lesley S Kagan

In this manuscript, "Teaching in Reverse: A Positive Approach to Analytical Errors in 1L Writing," we explore student-centered teaching methods that embrace student error as part of the learning process. Specifically, we advocate an error-as-growth philosophy, urging legal writing professors to address 1L analytical errors early in the semester, give the students a clear understanding of where they are likely to go astray and teach the students strategies for avoiding error during, rather than after, the writing process. We document the common analytical errors in our students’ writing assignments, review cognitive psychology and composition theories that might explain these errors, …

"Who Are Those Guys?:" The Results Of A Survey Studying The Information Literacy Of Incoming Law Students, Ian Gallacher

Ian Gallacher

This article presents the results of a summer 2006 survey of students about to begin their first year of law school. In total, 740 students from seven different law schools responded to the survey. The survey gathered general information from the students, as well as self-evaluative data on student reading, writing, and research habits in an attempt to understand how the students perceive their skills in these crucial areas. The survey data suggest that while there is some positive news to report, incoming law students overestimate their writing and research skills and come to law school inadequately trained in information …

Harry Potter, Ruby Slippers And Merlin: Telling The Client's Story Using The Characters And Paradigm Of The Archetypal Hero's Journey, Ruth Anne Robbins

Ruth Anne Robbins

This article hypothesizes that lawyers should consider heroic archetype when strategizing the client's story. The article speaks more to storytelling for a judge as factfinder rather than a jury.

“Forty-Two:” A Hitchhikers Guide To Teaching Legal Research To The Google Generation, Ian Gallacher

Ian Gallacher

This article seeks to answer the questions of what students should learn about legal research and who should teach them. It identifies the cultural tension between those who endorse traditional book-based research and those who embrace computer-assisted legal research, looks at the virtues and pitfalls of both approaches, and reflects on some pedagogical strategies the legal research teaching community might adopt in order to help improve law students' ability to conduct effective and efficient legal research.

Painting With Print: Incorporating Concepts Of Typographic And Layout Design Into The Text Of Legal Writing Documents, Ruth Anne Robbins

Ruth Anne Robbins

This article looks at the science behind what makes words readable and legible. It suggests that lawyers should be strategizing the look of the document itself as a persuasive technique. The article also contains suggetsed optimal layouts and looks at court rules around the country to determine whether lawyers can actually accomplish the visual persuasion in a particular jurisdiction (New Jersey lawyers are out of luck beyond the trial level courts). The Seventh Circuit Court of Appeals has the article linked from its homepage. www.ca7.uscourts.gov

Fiction 101: A Primer For Lawyers On How To Use Fiction Writing, Brian J. Foley, Ruth Anne Robbins

Ruth Anne Robbins

This article talks about how to build a story in legal writing using fiction-writing concepts of character, conflict type and resolution.