Law Commons^™

Are We There Yet? Discovery For The New Litigator, Erin Rhinehart, Leonard M. Niehoff

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If the road is life, then discovery is litigation. It is how we reach our destination. Unfortunately, discovery is like getting there with someone in the backseat.

Anyone who has ever traveled with passengers, especially children, knows how it plays out. In the beginning, everybody is excited. Everyone gleefully piles into the car, eager to launch. No one has any trouble amusing themselves. A couple hours in, a bathroom break and gas station snack later, it hits. The adrenaline wears off and the tedium kicks in. And then you hear the dreaded cry coming from the rear: Are we there …

Thoughts On The Retirement Of Jim Stewart, Leonard M. Niehoff

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At the end of April 2021, Jim Stewart - my friend and colleague of almost 40 years - retired from the practice of law. He will now be spending his time trying to win rounds of golf instead of cases and trying to win arguments with his three daughters instead of opposing counsel. I know Jim will enjoy retirement, but I'm skeptical that his win-loss record is about to improve.

An Innovative Approach To Movement Lawyering: An Immigrant Rights Case Study, Christine N. Cimini, Doug Smith

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The role of lawyers in social change movements is more important than ever as communities mobilize around systemic racism, police killings, xenophobia, rising unemployment, and widening economic inequality. The immigrant rights movement is a critical part of these efforts to foment change. This Article leverages an in-depth case study – the rise and fall of the controversial immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The dismantling of Secure Communities was widely credited to a relentless campaign to thwart the government’s then-expanding deportation strategy. …

Antiracism, Reflection, And Professional Identity, Monte Mills, Eduardo R.C. Capulong, Andrew King-Ries

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Intent on more systematically developing the emerging professional identities of law students, the professional identity formation movement is recasting how we think about legal education. Notably, however, the movement overlooks the structural racism imbedded in American law and legal education. While current models of professional development value diversity and cross-cultural competence, they do not adequately prepare the next generation of legal professionals to engage in the sustained work of interrupting and overthrowing race and racism in the legal profession and system. This article argues that antiracism is essential to the profession’s responsibility to serve justice and therefore key to legal …

Teasing The Arc Of Electric Spark: Fostering And Teaching Creativity In The Law School Curriculum, Jason G. Dykstra

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No abstract provided.

On Sexual Harassment In The Judiciary, Leah Litman, Deeva Shah

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This Essay examines the legal profession’s role in sexual harassment, particularly in the federal courts. It argues that individuals in the profession have both an individual and collective responsibility for the professional norms that have allowed harassment to happen with little recourse for the people subject to the harassment. It suggests that the legal profession should engage in a sustained, public reflection about how our words, actions, attitudes, and institutional arrangements allow harassment to happen, and about the many different ways that we can prevent and address harassment.

Nicholas C. Howson's Tribute To Professor William P. Alford, Nicholas C. Howson

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No abstract provided.

Lawyers Democratic Dysfunction, Leah Litman

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As part of the symposium on Jack Balkin and Sandy Levinson’s Democracy and Dysfunction, this Article documents another source of the dysfunction that the authors observe—elite lawyers’ unwillingness to break ranks with other elite lawyers who participate in the destruction of various norms that are integral to a well-functioning democracy. These network effects eliminate the possibility of “soft” sanctions on norm violators such as withholding future professional advancement. Thus, rather than enforcing norms and deterring norm violations, the networks serve to insulate norm violators from any meaningful accountability.

Scandalizing The Judiciary: An Analysis Of The Uneven Response Of The Supreme Court Of India To Sexual Harassment Allegations Against Judges, Sanjay Jain, Saranya Mishra

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The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts …

To Outgrow A Mockingbird: Confronting Our History—As Well As Our Fictions—About Indigent Defense In The Deep South, Sarah Gerwig-Moore

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To Kill a Mockingbird occupies a beloved space in law school classrooms and curricula, especially in its portrayal of Atticus Finch. Frequently held up as the model or “hero-lawyer,” Atticus’s character is powerful in fiction, but problematic in practice. His work is lauded, rather than scrutinized, despite his questionable ability to represent his client in life-or-death circumstances—specifically, a racially charged sexual assault case in the Deep South. Through considering examples of historical lawyers and texts which explore similar themes without the lens of fiction, those engaged in legal education and legal practice can and should look to others to study …

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

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A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation …

Examining The Case For Socialized Law, Myriam E. Gilles, Gary Friedman

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Most people would agree with Frederick Wilmot-Smith that the rich have no greater claim to justice than the poor. And yet, as Wilmot-Smith points out in his provocative book, Equal Justice: Fair Legal Systems in an Unfair World, our laissez-faire legal-services markets ensure sharply unequal justice for rich and poor. The prescription at the heart of Equal Justice is the deprivatization of markets for legal services. To realize the ideal of equal justice, Wilmot-Smith would equalize the legal talent available to all and replace the market system with a centralized regime loosely analogous to socialized medicine.

Wilmot-Smith’s bold ideas …

Corporate Law And The Myth Of Efficient Market Control, William Wilson Bratton, Simone M. Sepe

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In recent times, there has been an unprecedented shift in power from managers to shareholders, a shift that realizes the long-held theoretical aspiration of market control of the corporation. This Article subjects the market control paradigm to comprehensive economic examination and finds it wanting.

The market control paradigm relies on a narrow economic model that focuses on one problem only: management agency costs. With the rise of shareholder power, we need a wider lens that also takes in market prices, investor incentives, and information asymmetries. General equilibrium (GE) theory provides that lens. Several lessons follow from reference to this higher-order …

Using Transactional Practice Competitions To Introduce Students To Key Deal-Making Skills, Ted Becker, Eric Zacks

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Law school moot court competitions are everywhere. That is a bit of an exaggeration, to be sure, but not by much. At last count, students with an interest in litigation had more than 60 interschool appellate advocacy competitions to choose from, ranging in topics from admiralty to space law to veterans law. Toss in trial advocacy competitions, and the number of opportunities to hone litigation skills increases significantly. And seemingly every law school has its own intraschool litigation competitions, ranging from part of a 1L legal writing program to school-wide appellate advocacy competitions whose final rounds attract prominent judges or …

Foreword: The Dispossessed Majority: Resisting The Second Redemption In América Posfascista (Postfascist America) With Latcrit Scholarship, Community, And Praxis Amidst The Global Pandemic, Sheila I. Velez Martinez

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As LatCrit reaches its twenty-fifth anniversary, we aspire for this symposium Foreword to remind its readers of LatCrit’s foundational propositions and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. Working for lasting social change from an antisubordination perspective enables us to see the myriad laws, regulations, policies, and practices that, by intent or effect, enforce the inferior social status of historically- and contemporarily-oppressed groups. In turn, working with a perspective and principle of antisubordination can inspire us to …

In Times Of Chaos: Creating Blueprints For Law School Responses To Natural Disasters, Jeffrey Baker, Christine Cerniglia, Davida Finger, Luz Herrera, Jonel Newman

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No abstract provided.

Conduct Yourself Accordingly: Amending Bar Character & Fitness Questions To Promote Lawyer Well-Being, Janet Stearns, David Jaffe

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No abstract provided.

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

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No abstract provided.

The Future Of Law Schools: Covid-19, Technology, And Social Justice, Christian Sundquist

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The COVID-19 pandemic has laid bare not only the social and racial inequities in society, but also the pedagogical and access to justice inequities embedded in the traditional legal curriculum. The need to re-envision the future of legal education existed well before the current pandemic, spurred by the shifting nature of legal practice as well as demographic and technological change. This article examines the impact of the COVID-19 pandemic on legal education, and posits that the combined forces of the pandemic, social justice awareness and technological disruption will forever transform the future of both legal education and practice.

(Systems) Thinking Like A Lawyer, Tomar Pierson-Brown

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This Article discusses systems thinking as an innovative approach to contextualizing legal advocacy. Systems thinking, a paradigm that emphasizes universal interconnectivity, provides a theoretical basis for parsing the structural environment in which law-related problems emerge and are addressed. From the array of conceptions about what it means to engage in systems thinking, this Article identifies four key tenets to this perspective: (1) every outcome is the product of some structure; (2) these structures are embedded within and connected to one another; (3) the structure producing an outcome can be discerned; and (4) these structures are resilient, but not fixed. This …

Distance Legal Education: Lessons From The *Virtual* Classroom, Jacqueline D. Lipton

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Abstract

In the 2018-2019 revision of the American Bar Association (ABA) Standards and Rules of Procedure for Approval of Law Schools, the ABA further relaxed the requirements relating to distance education in J.D. programs. However, outside of a handful of schools that have received permission to teach J.D. courses almost entirely online, most experiments in distance legal education have occurred in post-graduate (i.e. post-J.D.) programs: LL.M. degrees, and various graduate certificates and Master’s degrees in law-related subjects. These programs can be taught completely online without requiring special ABA permission.

This essay reflects on the author’s experiences over a number of …

What Litigators Can Learn From B Movies, Leonard M. Niehoff

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We litigators take our guidance when and where we can find it. Sometimes we stumble across it very late at night, on television. Weary, intellectually spent, and pining for entertainment that makes no demands on us, in "the wee small hours of the morning" we find ourselves watching a so-called B movie - a film that had a low production budget or that manages to be bad despite an ample one. And, lo, enlightenment ensues through this unlikeliest of messengers. Submitted for your consideration are some gems from half a dozen movies that most sensible people won't admit watching but …

The Lawyer As Accomplice: Cannabis, Uber, Airbnb, And The Ethics Of Advising “Disruptive” Businesses, Charles M. Yablon

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This Article examines the legal and ethical problems of corporate lawyers who advise businesses that operate just beyond the edge of legality. These include manufacturers and sellers of cannabis products (a felony under federal law, even if ostensibly permitted by state statutes) as well as a substantial number of startup companies, like Uber and Airbnb, whose “disruptive” business models involve deliberately violating local laws and ordinances, many of which carry criminal penalties. Under the current Model Rules of Professional Conduct, a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is …

Advocating For Children With Disabilities In Child Protection Cases, Joshua B. Kay

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Children with disabilities are maltreated at a higher rate than other children and overrepresented in child protection matters, yet most social service caseworkers, judges, child advocates, and other professionals involved in these cases receive little to no training about evaluating and addressing their needs. Child protection case outcomes for children with disabilities tend to differ from those of nondisabled children, with more disabled children experiencing a termination of their parents' rights and fewer being reunified with their parents or placed with kin. They also tend to experience longer waits for adoption. Furthermore, the poor outcomes that plague youth who age …

Should I Stay Or Should I Go? The Gender Gap For Securities And Exchange Commission Attorneys, Stephen J. Choi Ii, Mitu Gulati, Adam C. Pritchard

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Most research on the gender gap in the legal profession focuses on the private sector. We look at the gender gap in a setting where one might expect the gaps to be smaller: the Division of Enforcement of the Securities and Exchange Commission (SEC), which has a reputation for providing employees with good childcare and work flexibility. We find a substantial gender gap in assignments but only a modest one in pay. Men are also more likely to move laterally and more likely to move to lucrative private-sector jobs. What causes these gaps? The primary explanation for the gender gap …

An Empirical Investigation Of Third Party Consumer Litigant Funding, Ronen Avraham, Anthony J. Sebok

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This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation funder in the United States.

Our results are striking and important. We find that the funder plays an important role in the American legal system by screening cases. Our …

Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton

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2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …

What American Legal Education Can Learn From The 'Harry Potter' Series, Sarah Gerwig-Moore

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Both legal education and a Hogwarts magical education involve a new way of seeing the world—an immersive and intense process requiring, in many ways, a transformation. Students need a new wardrobe for both law school and wizarding school—and an awful lot of puzzling and expensive textbooks. Both Hogwarts and law school have been accused of operating entirely apart from reality. One of these criticisms may be valid. ...

This lighthearted comparison to the Harry Potter stories can perhaps join other voices to help make a serious and important case for practical legal education. There are few principled reasons for not …

Transferability: Helping Students And Attorneys Apply What They Already Know To New Situations (Part 1), Edward R. Becker

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Every fall, I work with my first year law students to begin developing their legal writing skills. They work hard learning how to analyze cases objectively, predict how a court might resolve a dispute, and convey their assessments to an experienced attorney. Their improvement from September to December is noticeable. They have only one semester of law school behind them and still have much to learn, but they’re on their way…In the second semester, we begin focusing on advocacy. The first assignment asks students to draft a pretrial brief. When I review the drafts, I’m struck by how many problems …

Harry Flechtner--A True Teacher/Scholar, With Rhythm, Ronald A. Brand

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This is a tribute to Professor Emeritus Harry Flechtner upon his retirement from the University of Pittsburgh School of Law. Professor Flechtner was a leading scholar on the United Nations Convention on Contracts for the International Sale of Goods (CISG), a stellar teacher, a musician who used that skill in the classroom as well as the Vienna Konzerthaus, and a genuinely nice person.