Law Commons^™

Demonstrating Law Library Value Through Mission-Centered Assessment, Amanda Watson, Amanda Karel, Amanda Runyon, Leslie Street

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This paper presents a history of evaluation in U.S. academic law libraries, shares survey results about our collective professional mindset, and offer practical steps for law libraries that are ready to abandon a pervasive culture of evaluation.

The New Penal Bureaucrats, Shaun Ossei-Owusu

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he protests of 2020 have jump-started conversations about criminal justice reform in the public and professoriate. Although there have been longstanding demands for reformation and re-imagining of the criminal justice system, recent calls have taken on a new urgency. Greater public awareness of racial bias, increasing visual evidence of state-sanctioned killings, and the televised policing of peaceful dissent have forced the public to reckon with a penal state whose brutality was comfortably tolerated. Scholars are publishing op-eds, policy proposals, and articles with rapidity, pointing to different factors and actors that produce the need for reform. However, one input has gone …

Debating Disability Disclosure In Legal Education, Jasmine E. Harris

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No abstract provided.

Nowhere To Run To, Nowhere To Hide, Praveen Kosuri, Lynnise Pantin

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As the COVID-19 global pandemic ravaged the United States, exacerbating the country’s existing racial disparities, Black and brown small business owners navigated unprecedented obstacles to stay afloat. Adding even more hardship and challenges, the United States also engaged in a nationwide racial reckoning in the wake of the murder of George Floyd resulting in wide-scale protests in the same neighborhoods that initially saw a disproportionate impact of COVID-19 and harming many of the same Black and brown business owners. These business owners had to operate in an environment in which they experienced recurring trauma, mental anguish and uncertainty, along with …

Disabled Perspectives On Legal Education: Reckoning And Reform, Lilith A. Siegel, Karen Tani

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This is an Introduction to a Journal of Legal Education symposium on "Disabled Law Students and the Future of Legal Education." The symposium's focal point is a set of first-person essays by disabled lawyers. Writing thirty years after the inclusive promise of the Americans with Disabilities Act, but also amidst powerful evidence (via the pandemic) of the devaluation of people with disabilities, contributors reflect on their experiences in law school and the legal profession. The symposium pairs these essays with commentary from some of the nation’s leading scholars of disability law. The overarching goals of the symposium are to help …

Sustaining Lawyers, Seema Saifee

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Many lawyers are drawn to a career in social justice, in part, to help others and, in part, to fulfill their own path to wellness. Advocacy that sustains personal well-being, however, also poses considerable obstacles to well-being. Some of these obstacles are inherent to social justice work but some are embedded within organizational culture. These cultural norms impair the health of advocates, harm the communities with whom they work, and portend far-reaching consequences for the future of progressive struggles for freedom. Drawing on the author's personal experience, this Essay identifies three cultural norms, described as pathologies, that are rarely discussed …

Criminal Legal Education, Shaun Ossei-Owusu

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The protests of 2020 have jumpstarted conversations about criminal justice reform in the public and professoriate. Although there have been longstanding demands for reformation and reimagining of the criminal justice system, recent calls have taken on a new urgency. Greater public awareness of racial bias, increasing visual evidence of state-sanctioned killings, and the televised policing of peaceful dissent have forced the public to reckon with a penal state whose brutality was comfortably tolerated. Scholars are publishing op-eds, policy proposals, and articles with rapidity, pointing to different factors and actors that produce the need for reform. However, one input has gone …

The Search For Clarity In An Attorney's Duty To Google, Michael Thomas Murphy

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Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much …

Addressing Allyship In A Time Of A “Thousand Papercuts”, Rangita De Silva De Alwis

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In 2020, a team of students in the class on Women, Law and Leadership students interviewed 100 male law students on their philosophy on leadership and conducted several surveys on allyship and subtle bias. Complementing the allyship interviews, the class developed several survey instruments to examine emerging bias protocols and stereotype threats among a new generation of leaders at Penn Law from a diverse demographic. This exploration looked at individual patterns of conduct, institutional policies and organizational behavior that could combat a new generation of structural and systemic biases. Thirty years after the landmark study by Lani Guinier, we look …

Relentless Pursuits: Reflections Of An Immigration And Human Rights Clinician On The Past Four Years, Sarah Paoletti

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No abstract provided.

When Standards Collide With Intellectual Property: Teaching About Standard Setting Organizations, Technology, And Microsoft V. Motorola, Cynthia L. Dahl

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Technology lawyers, intellectual property (IP) lawyers, or even any corporate lawyer with technology clients must understand standard essential patents (SEPs) and how their licensing works to effectively counsel their clients. Whether the client’s technology is adopted into a voluntary standard or not may be the most important factor in determining whether the company succeeds or is left behind in the market. Yet even though understanding SEPs is critical to a technology or IP practice, voluntary standards and specifically SEPs are generally not taught in law school.

This article aims to address this deficiency and create more practice-ready law school graduates. …

Procedure In Context, Catherine T. Struve

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No abstract provided.

Teaching Voluntary Codes And Standards To Law Students, Cary Coglianese, Caroline Raschbaum

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Voluntary codes and standards issued by nongovernmental institutions affect many aspects of legal work and daily life. Although these codes and standards are voluntary—that is, they are not directly enforceable through civil or criminal penalties—they can and do often shape behavior. Codes and standards inform business practices and product designs. They affect the provisions of contracts and the licensing of patents. And, among still other uses, they affect the handling of evidence in criminal law matters.

More broadly, voluntary codes and standards can play a role similar to, or even take the place of, government regulations. Regulators regularly defer to …

Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler

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Private standards play a central role in the governance of economic activity. They also figure significantly in many public regulations, with more than 17,000 references to private standards contained in the federal regulatory code. Nevertheless, private standards remain largely overlooked in law school curricula. One clear example is Industrial Union Department, AFL-CIO v. American Petroleum Institute (often referred to as the “Benzene Case”), a 1980 Supreme Court decision that is widely excerpted and discussed in major casebooks on administrative law, regulation, environmental law, and statutory interpretation. The Benzene Case raises several important legal issues, including the nondelegation doctrine, the use …

Mcculloch V. Marbury, Kermit Roosevelt Iii, Heath Khan

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This article builds on recent scholarship about the origins and creation of “our Marbury”—the contemporary understanding of the case and its significance—to argue that Marbury is in fact wholly unsuited for the role it plays in Supreme Court rhetoric and academic instruction. While Marbury is generally understood to support aggressive judicial review, or actual invalidation of a government act, it offers no guidance at all for how judicial review should be employed in particular cases—in particular, whether review should be aggressive or deferential. The actual opinion in Marbury makes no effort to justify its lack of deference to the …

The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll

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2018 marks the 60th anniversary of the publication of Franco Modigliani and Merton Miller’s The Cost of Capital, Corporation Finance, and the Theory of Investment. Widely hailed as the foundation of modern finance, their article, which purports to demonstrate that a firm’s value is independent of its capital structure, is little known by lawyers, including legal academics. That is unfortunate because the Modigliani-Miller capital structure irrelevancy proposition (when inverted) provides a framework that can be extremely useful to legal academics, practicing attorneys and judges.

A Dose Of Color, A Dose Of Reality: Contextualizing Intentional Tort Actions With Black Documentaries, Regina Austin

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This article describes the way documentary films can provide important cultural context in the assessment of tort claims. This kind of contextual analysis exposes the social conditions that drive legal disputes. For example, in the case of Klayman v. Obama, Larry Klayman claimed that Black Lives Matter, among other defendants, was liable for various intentional torts (including intentional infliction of emotional distress) by fomenting hostility toward the police in black communities. The court dismissed the case but declined to hold Klayman liable for sanctions. One documentary film, I Am Not Your Negro, locates Klayman’s claims in a historical …

Innovation And Tradition: A Survey Of Intellectual Property And Technology Legal Clinics, Cynthia L. Dahl, Victoria F. Phillips

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For artists, nonprofits, community organizations and small-business clients of limited means, securing intellectual property rights and getting counseling involving patent, copyright and trademark law are critical to their success and growth. These clients need expert IP and technology legal assistance, but very often cannot afford services in the legal marketplace. In addition, legal services and state bar pro bono programs have generally been ill-equipped to assist in these more specialized areas. An expanding community of IP and Technology clinics has emerged across the country to meet these needs. But while law review articles have described and examined other sectors of …

From The Technical To The Personal: Teaching And Learning Health Insurance Regulation And Reform, Allison K. Hoffman, Whitney A. Brown, Lindsay Cutler

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In the Fall of 2016, I taught Health Law and Policy for the fourth consecutive semester. Over time, one thing has become increasingly clear: the aspect of this course that I work with most closely as a scholar—the regulation of health care financing and insurance, including the Patient Protection and Affordable Care Act (ACA)—is also the material that I find the most challenging to teach. Every time I reflect on teaching this material, and hear from students about how they learn this material, the thing that stands out is how critical it is that my students understand the profound impact …

Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl

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Intellectual property (IP) and technology legal clinics are experiencing an unprecedented surge in popularity. Before 2000 there were only five such clinics, but by 2016 there were seventy-four, with fifty added since 2010 alone. As law schools are approving new IP clinics and as practitioners are developing syllabi, there is an increasing need to share knowledge about models that work and how to avoid pitfalls.

One potentially fertile – but traditionally underutilized -- source of client work for an IP and technology clinic is the university technology transfer office (“TTO”), the department that protects, markets, and licenses all university intellectual …

How To Think (Like A Lawyer) About Rape, Kimberly Kessler Ferzan, Peter K. Westen

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From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when we use “consent” to mean two different things and the question of whether …

Law, Society, And Setsuo: Miyazawa’S Influence On Socio-Legal Studies, Eric A. Feldman

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What Setsuo has accomplished over these past 30 years is nothing short of remarkable. I can think of no other scholar within or outside of Japan who has had a greater impact on both the legal academic community and society more generally. Indeed, when Setsuo was still quite young he had already written a number of influential articles. But they turn out to represent only a fraction of his extraordinary output over the next years. In reflecting on Setsuo’s many achievements, I am particularly drawn to comment on three of them. First, his empirical and comparative law and society scholarship, …

Improving Lawyers’ Judgment: Is Mediation Training De-Biasing?, Douglas N. Frenkel, James H. Stark

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When people are placed in a partisan role or otherwise have an objective they seek to accomplish, they are prone to pervasive cognitive and motivational biases. These judgmental distortions can affect what people believe and wish to find out, the predictions they make, the strategic decisions they employ, and what they think is fair. A classic example is confirmation bias, which can cause its victims to seek and interpret information in ways that are consistent with their pre-existing views or the goals they aim to achieve. Studies consistently show that experts as well as laypeople are prone to such biases, …

Teaching Would-Be Ip Lawyers To "Speak Engineer": An Interdisciplinary Module To Teach New Intellectual Property Attorneys To Work Across Disciplines, Cynthia Laury Dahl

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More than ever before, law school graduates interested in business law enter a workforce where they must effectively interface with professionals from other disciplines. Yet there are precious few opportunities in law school for students to practice the skills required to perform on an interdisciplinary team. This is especially true regarding mixed teams of law and technical students.

This essay explores a model for integrating an interdisciplinary practicum module into a free-standing class. The module challenges teams of law and engineering students to work together to perform a prior art search, interview an inventor, and draft patent claims over a …

Corporate Law Doctrine And The Legacy Of American Legal Realism, Edward B. Rock

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In this contribution to a symposium on "Legal Realism and Legal Doctrine," I examine the role that jurisprudence plays in corporate law doctrine. Through an examination of paired cases from the United States and United Kingdom, I offer a case study of the contrasting influence on corporate law judging of American Legal Realism versus traditional U.K. Doctrinalism.

Specialist judges in both systems, aided by specialist lawyers, clearly identify and understand the core policy issues involved in a dispute and arrive at sensible results. Adjusting for differences in background law and institutions, it seems likely that the disputes would ultimately be …

Beyond Gilson: The Art Of Business Lawyering, Praveen Kosuri

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Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients.

Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other …

Interest Groups In The Teaching Of Legal History, Herbert J. Hovenkamp

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One reason legal history is more interesting than it was several decades ago is the increased role of interest groups in our accounts of legal change. Diverse movements including law and society, critical legal theory, comparative law, and public choice theory have promoted this development, even among writers who are not predominantly historians. Nonetheless, in my own survey course in American legal history I often push back. Taken too far, interest group theorizing becomes an easy shortcut for assessing legal movements and developments without fully understanding the ideas behind them.

Intellectual history in the United States went into decline because …

Finding The Pearls When The World Is Your Oyster: Case And Project Selection In Clinic Design, Sarah Paoletti

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Clinical legal education is distinguishable from the rest of the law school curriculum and the extracurricular activities available to law students because it places students directly into the role of a lawyer engaged in real-world practice. Clinical programs are often defined by the cases and projects—the pearls at the heart of the experiential learning experience—that comprise their dockets. Finding the right cases and projects that meet a range of goals remains a perennial challenge in clinic design. In the context of international human rights clinics, the world is your oyster, and that challenge is magni-fied. This Article identifies a set …

Toward A Closer Integration Of Law And Computer Science, Christopher S. Yoo

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Legal issues increasingly arise in increasingly complex technological contexts. Prominent recent examples include the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA), network neutrality, the increasing availability of location information, and the NSA’s surveillance program. Other emerging issues include data privacy, online video distribution, patent policy, and spectrum policy. In short, the rapid rate of technological change has increasingly shown that law and engineering can no longer remain compartmentalized into separate spheres. The logical response would be to embed the interaction between law and policy deeper into the fabric of both fields. An essential step would …

They Were Meant For Each Other: Proffessor Edward Cooper And The Rules Enabling Act, Anthony J. Scirica, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal

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No abstract provided.