Law Commons^™

Wandering Into Psychology And Law, Phoebe C. Ellsworth

Book Chapters

Some people have a passion for a single topic that motivates and engages them for life. I’m not one of them. I can get interested in almost anything, and my career looks more like a random walk through a candy store than a single-minded pursuit of a goal. I am both a theorist and researcher in the field of emotion and a contributor to the application of psychology to legal issues. In this piece I will focus on my work in psychology and law. A review of my research on emotion can be found in Ellsworth and Scherer (2003).

Happily Ever After, Phoebe C. Ellsworth

Book Chapters

I have been lucky in my upbringing and education, and especially in having advisors who let me do what I wanted to even when they didn’t think it was a good idea. This allowed me to have a deeply rewarding career devoted to two entirely different topics – basic theory and research on emotion, and applied theory and research in psychology and law. My career spanned the period from when women were considered unsuitable for scientific or academic work through the rise of feminism, so although I faced obstacles, the culture was changing quickly enough that my unusual choices soon …

Clerking For Roger J. Traynor, Roland E. Brandel, James E. Krier

Book Chapters

Justice Roger J. Traynor was born in Utah in 19001 the son of a miner and drayman. He left after high school to undertake undergraduate and graduate studies at the University of California, Berkeley, eventually earning (simultaneously) a Ph.D. in political science and a law degree from Boalt Hall, the university's law school. He practiced law for just a few months, then returned to the university to teach in its political science department. A year later, in 19301 he joined the law faculty, where he worked until his appointment to the California Supreme Court in 1940. He became chief justice …

Civil Rights, Access To Counsel, And Injunctive Class Actions In The United States, Maureen Carroll

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According to a familiar story about class actions in the United States, aggregation promotes access to counsel by increasing the amount of money from which counsel fees can be taken. Courts usually award class counsel a percentage of the monetary recovery obtained on behalf of the class, and class treatment can turn a $30 case into a $3 million case. But what about class actions that do not involve monetary relief at all? Some civil rights plaintiffs seek to stop a violation, rather than to obtain compensation for past harm, and therefore choose to pursue only an injunction or declaratory …

Child Welfare Appellate Advocacy, Vivek Sankaran

Book Chapters

The appellate system serves important functions in child welfare cases. It ensures that the relationship between a child and his or her parent is not unjustly terminated. It forces juvenile courts and child welfare agencies to strictly follow statutes, court rules, and agency policies. And it preserves public faith in the system by serving as an independent check to correct mistakes that occur.

But the appellate system is only as good as the advocates who appear before it. This chapter is intended to be a resource for those advocates, both those who have practiced child welfare law for many years …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution. The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children. If the state seeks to interfere with the parent-child relationship, the Constitution mandates: (I) that the state prove parental unfitness, a standard defined by state laws, and (2) that the state follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised upon the belief …

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is an emerging consensus, however, that children in dependency cases should have lawyers and those lawyers should be as active and as involved in their cases as are lawyers for any other party in any other litigation. Although state law and policy makers differ as to what voice the child should have in determining the direction and goals of the litigation, that is, whether the child's lawyer should represent the best interests of the child as determined by the …

Teaching Legal History Through Legal Skills., Howard Bromberg

Book Chapters

I revolve my legal history courses around one methodology: teaching legal history by means of legal skills. I draw on my experience teaching legal practice and clinical skills courses to assign briefs and oral arguments as a means for law students to immerse themselves in historical topics. Without distracting from other approaches, I framed this innovation as teaching legal history not to budding historians but to budding lawyers.

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution and the courts.2 The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children.3 If the state seeks to interfere with the parent-child relationship, the Constitution mandates that the state: (1) prove parental unfitness, a standard defined by state laws; and (2) follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised on the belief …

Representing Children And Youth, Donald N. Duquette, Ann M. Haralambie

Book Chapters

The role of the child's attorney is unique in American jurisprudence and not yet clearly defined by law or tradition. There is a growing consensus, however, that children in dependency cases should have lawyers who are as active and as involved in their cases as are lawyers for any other party in any other litigation. Yet there continues to be confusion and debate over the role and duties of the lawyer, particularly as to what voice the child should have in determining the direction and goals of the litigation. Policy makers have differed as to whether the child's lawyer should …

The Resilience Of Law, Joseph Vining

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One of the striking developments in academic law in the past half century is the reconception of law as one of the social sciences. The idea at work in this movement, as Joseph Vining says in this essay, is not that the law should use the findings of other disciplines for its own purposes and in its own way, but that in some deep way law itself - legal thinking, legal life - can and ought to proceed on the premises of social science, indeed of science itself. This is in one sense obviously impossible: a scientific rule is a …

Law, Economics, And Torture, James Boyd White

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This paper addresses three sets of questions, among which it wishes to draw connections: (1) Why has there been so little resistance to the recent massive transfer of national wealth to the rich and super-rich? It is the majority who are injured, and they presumably hold the power in a democracy: why have they not exercised it? (2) Why are law schools so dominated by questions of policy, with rather little interest in the intellectual and linguistic activities of the practicing lawyer and judge? Why indeed do judicial opinions themselves seem so often to be written in a dead and …

Legal Reasoning, Phoebe C. Ellsworth

Book Chapters

For more than a century, lawyers have written about legal reasoning, and the flow of books and articles describing, analyzing, and reformulating the topic continues unabated. The volume and persistence of this "unrelenting discussion" (Simon, 1998, p. 4) suggests that there is no solid consensus about what legal reasoning is. Legal scholars have a tenacious intuition - or at least a strong hope - that legal reasoning is distinctive, that it is not the same as logic, or scientific reasoning, or ordinary decision making, and there have been dozens of attempts to describe what it is that sets it apart …

Non-Adversarial Case Resolution, Donald N. Duquette

Book Chapters

Professionals who work with children and parents have become increasingly dissatisfied with the customary reliance on the traditional adversarial system in resolving family-related disputes, including cases involving children's protection, placement, and permanent care. The power struggle in contested cases and hearings relating to child welfare may foster hostility among the parties and dissipate money, energy, and attention that could otherwise be used to solve problems cooperatively. Parties may become polarized, open communication may be discouraged, and there may be little investment in information sharing and joint problem solving. Children may suffer when adversarial tensions escalate and ameliorative services are delayed.

Representing Children And Youth, Donald N. Duquette, Marvin Ventrell

Book Chapters

Quality legal representation of all parties is essential to a high-functioning dependency court process. Quality legal representation of children in particular is essential in obtaining good outcomes for children. An adversarial court process that depends on competing independent advocacy to provide information will not produce good outcomes for litigants who lack competent advocates. Dependency court decisions are as good as the information on which the decisions are based. In order to promote the welfare of children in dependency court, therefore, children must be provided with competent independent legal representation.

Charles Evans Hughes As International Lawyer, Richard D. Friedman

Book Chapters

In 1884, Charles Evans Hughes qualified as a member of the New York bar at age 22. After seven years of practice in New York City, in precarious health, he took a respite and became a law professor at Cornell. Two years later, his health restored, he returned to his metropolitan practice. He remained there in relative obscurity until he was 43, in 1905, when he was appointed counsel to a legislative committee investigating local utilities. A far more renowned investigative assignment for the Armstrong Insurance Commission soon followed that catapulted Hughes to national fame. In 1906 he received, unsought, …

Imagining The Law, James Boyd White

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My aim in this paper is to trace out a certain line of thought about what it might mean to think of law rhetorically. In doing this I shall be resisting the impulse, quite common in our culture, to see the law from the outside, as a kind of intellectual and social bureaucracy; rather I am interested in seeing it from the inside, as it appears to one who is practicing or teaching it. Throughout I shall conceive of the law as a system of discourse that the lawyer and judge must learn and use, and of which we can …

Discretion And Rules: A Lawyer's View, Carl E. Scheider

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In modern society the law regulates the complex behavior of millions of people. To do this efficiently-to do this at all-broadly applicable rules must be used. Yet such rules are bound to be incomplete, to be ambiguous, to fail in some cases, to be unfair in others. Some of the drawbacks of rules can be minimized by giving discretion to the administrators and judges who apply them. Yet doing so dilutes the advantages of rules and creates the risk that discretion may be abused. Working out the proper balance of these considerations is both necessary and perplexing in every area …

Making Sense Of Criminal Law, James Boyd White

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When a student comes to law school, he leaves behind a world he knows and understands and turns to another world, that of the law, which at the beginning he cannot comprehend. He is immersed in a body of literature that is at once assertive and confusing; he attends a series of classes in which his teacher seems to make the unsettling assumption that he already knows what he came to learn. One question he will naturally ask himself of all this - his experience of the law - is whether it makes any sense to him. And for a …

The University And The Aims Of Professional Education, Terrance Sandalow

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The graduate schools of elite American universities, Daniel Bell wrote not many years ago (though before "elite" had become a term of opprobrium), stand at the center of their parent institutions, a position from which they dominate not only American higher education but, increasingly, the intellectual life of the nation. Michigan was, of course, high on Bell's list of elite universities, and it is, therefore, fitting that we mark the fiftieth anniversary of the establishment of its graduate school as an occasion worthy of celebration.

Styles Of Law And The Attainment Of Social Justice, Richard O. Lempert, Joseph Sanders

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In the last chapter we focused on the meaning of legal autonomy and on the constituent elements of the ideal type. We noted two requisites for the autonomous application of law: judicial formalism and equal competence. But we also argued that the autonomous application of law does not guarantee that the law as applied will not perpetuate or advance socioeconomic differences. For applied law to be autonomous in this further sense, legal norms, in addition, must be status neutral, and the distribution of welfare in society must be such that the neutral norms do not disproportionately benefit some people. These …

Computer-Aided Normalizing And Unpacking: Some Interesting Machine-Processable Transformations Of Legal Rules, Layman E. Allen, Charles S. Saxon

Book Chapters

One way of dealing with an important aspect of the natural language barrier that researchers m artificial intelligence have been wrestling with for more than two decades is to normalize the expression of the logical structure of legal rules.

The computer program, NORMALIZER, will enable a legal analyst to automatically generate Normalized Versions of legal rules and Outlines of them from Parenthesized Logical Expressions of their structure and Marked Versions of the Original Text of the rules. In brief:

Parenthesized Logical Expression & Marked Version = = > Outline & Normalized Version.

The Parenthesized Logical Expression of a normalized rule is …

Liberty And Lawyers In Child Protection, Donald N. Duquette

Book Chapters

The distinguishing feature of the juvenile or family court which sets it apart from, all other elements of the child protection system is that the court acts as arbiter of personal liberty. When society at large, through child protective services, attempts to intervene in the private life of a family on behalf of a child, the court must assure that the rights of the parents, the rights of the child, and the rights of. the society are protected and are abridged only after full and fair and objective court process. Only the court can abridge these personal rights in other …

Mobilizing Private Law, Richard O. Lempert

Book Chapters

The mobilization of law may be thought of as the process by which legal norms are invoked to regulate behavior. In the area of private law, mobilization has two distinct aspects. The first is the process by which existing disputes become engaged in the legal system. In theory this means that disputes are transferred from an arena where their resolution and the enforcement of resolutions depends on the relative power of the parties as enhanced or constrained by non-governmental normative systems to an arena where disputes are resolved by reference to governmental (legal) norms and resolutions enforced by the power …

The Problem Of Communications In Meeting The Information Requirements Of The Courts, Layman Allen

Book Chapters

My remarks are addressed to one aspect of the general problem of communication involved in meeting the information requirements of the courts. It transcends merely the court; however, it is a problem throughout the legal decision-making system. The efficiency of t:ourts in processing information is just one part of a larger picture of effective communication within the legal system. Phrased broadly, the question involves discerning the optimum man-machine mix in the processing of information. Nobody can reasonably quarrel with the goal of taking the fullest possible advantage of the benefits of emerging technology, as long as objectives of greater importance …

The Trial Brief, Edson R. Sunderland, Clifford W. Crandall

Book Chapters

From the chapter Introduction: "The object of the preceding chapters is to show the brief maker where to find the material for his brief, how to find it, and how to select out of the mass of material found that which will be suitable for his use.... The present purpose is to outline a course of investigation suitable to the preparation of a case for trial and to suggest methods of making the material collected during the search for authorities readily available." [p.417-418]

The Trial Brief, Edson R. Sunderland

Book Chapters

From the chapter Introduction: "The object of the preceding chapters is to show the brief maker where to find the material for his brief, how to find it, and how to select out of the mass of material found that which will be suitable for his use.... The purpose of this lesson is to outline a course of investigation suitable to the preparation of a case for trial, and to suggest methods of making the material collected during the search for authorities readily available." [p.353]

The Trial Brief, Edson R. Sunderland

Book Chapters

Professor Sunderland writes in introduction to his chapter: "As this is not a book of practice, an extended discussion of the general subject of 'Preparation for Trial' would manifestly be out of place.... The purpose of this part is to outline a course of investigation suitable in preparing a case for trial and to suggest methods for making the materials so obtained readily available." [p.207]

Prosecuting And District Attorneys, Henry M. Bates

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Professor Bates defines his subject matter "Prosecuting and district attorneys are judicial officers of the state, within their respective districts, although not officers of the state at large. Under some statutes they are county officers, while under others they are not, but are circuit or district officers.... Like other attorneys, prosecuting and district attorneys are officers of the court; but they are not a part of the court because of their office." A two-page outline precedes the entry.

Process, Edson R. Sunderland

Book Chapters

Professor Sunderland's chapter on Process: "Process, in the sense in which it is employed in the present title, means the writ, notice, or other formal writing, issued by authority of law, for the purpose of bringing defendant into a court of law to answer plaintiff's demands in civil action, although in a more technical and limited sense the term is frequently applied only to those writs or writings which issue out of a court." The chapter features an 8-page outline introductory.