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Full-Text Articles in Legal Profession

Goodbye To Concurring Opinions, Meg Penrose Jan 2020

Goodbye To Concurring Opinions, Meg Penrose

Faculty Scholarship

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors.The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far ...


Trauma-Informed Advocacy: Learning To Empathize With Unspeakable Horrors, Susan Ayres Jan 2020

Trauma-Informed Advocacy: Learning To Empathize With Unspeakable Horrors, Susan Ayres

Faculty Scholarship

No abstract provided.


A New Associate’S Field Guide To Partner Compensation, Joseph A. Schremmer Oct 2019

A New Associate’S Field Guide To Partner Compensation, Joseph A. Schremmer

Faculty Scholarship

This article surveys three broad models of income and expense allocation regarding law firm compensation for partners: the true partnership model; the modified partnership model; and the eat-what-you-kill model. The goal is for young lawyers to understand the fundamental differences among these compensation models even as there are myriad ways to allocate income and expenses.


Minding The Gaps In Lawyers' Rules Of Professional Conduct, Anita Bernstein Aug 2019

Minding The Gaps In Lawyers' Rules Of Professional Conduct, Anita Bernstein

Faculty Scholarship

No abstract provided.


Fear And Lawyering, Heidi K. Brown May 2019

Fear And Lawyering, Heidi K. Brown

Faculty Scholarship

No abstract provided.


Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale Jan 2019

Professional Judgment In An Era Of Artificial Intelligence And Machine Learning, Frank A. Pasquale

Faculty Scholarship

Though artificial intelligence (AI) in healthcare and education now accomplishes diverse tasks, there are two features that tend to unite the information processing behind efforts to substitute it for professionals in these fields: reductionism and functionalism. True believers in substitutive automation tend to model work in human services by reducing the professional role to a set of behaviors initiated by some stimulus, which are intended to accomplish some predetermined goal, or maximize some measure of well-being. However, true professional judgment hinges on a way of knowing the world that is at odds with the epistemology of substitutive automation. Instead of ...


Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan Saab Fortney Jan 2019

Mandatory Legal Malpractice Insurance: Exposing Lawyers' Blind Spots, Susan Saab Fortney

Faculty Scholarship

The legal landscape for lawyers’ professional liability in the United States is changing. In 2018, Idaho implemented a new rule requiring that lawyers carry legal malpractice insurance. The adoption of the Idaho rule was the first move in forty years by a state to require legal malpractice insurance since Oregon mandated lawyer participation in a malpractice insurance regime. Over the last two years, a few states have considered whether their jurisdictions should join Oregon and Idaho in requiring malpractice insurance for lawyers in private practice. To help inform the discussion, the article examines different positions taken in the debate on ...


Law's Enterprise: Argumentation Schemes & Legal Analogy, Brian N. Larson Jan 2019

Law's Enterprise: Argumentation Schemes & Legal Analogy, Brian N. Larson

Faculty Scholarship

Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the ...


Online Legal Document Providers And The Public Interest: Using A Certification Approach To Balance Access To Justice And Public Protection, Susan Saab Fortney Jan 2019

Online Legal Document Providers And The Public Interest: Using A Certification Approach To Balance Access To Justice And Public Protection, Susan Saab Fortney

Faculty Scholarship

The Internet and electronic communications have revolutionized how consumers obtain legal information and assistance. The availability of legal forms and services has developed at lightning speed and countless consumers are using these forms, rather than consulting attorneys. At the same time, many regulators of the legal profession appear to be frozen in time. Some take the position that the provision of interactive forms amounts to the unauthorized practice of law and others question arrangements that appear to involve the sharing of legal fees with non-lawyers. Even for those interested in regulating the provision of on-line services, one complication to doing ...


Love's Labors Found, Nicholas Allard Jan 2019

Love's Labors Found, Nicholas Allard

Faculty Scholarship

No abstract provided.


Attorney As Accompagnateur: Resilient Lawyering When Victory Is Uncertain Or Nearly Impossible,, Danielle Pelfrey Duryea, Margaret Reuter, Stephen A. Rosenbaum Jan 2019

Attorney As Accompagnateur: Resilient Lawyering When Victory Is Uncertain Or Nearly Impossible,, Danielle Pelfrey Duryea, Margaret Reuter, Stephen A. Rosenbaum

Faculty Scholarship

Social justice lawyers come to the profession intending to make a difference through the instruments of law. And gloriously, they often make a difference in people’s lives for the better. They make our world a more just, compassionate, and tolerant place. But there is no denying that, in poverty law practice, legal success can be elusive, ephemeral, or perhaps a mirage. How does that lawyer feel when the legal remedies at her disposal, even if “successful,” fail to mitigate the injustices suffered by her clients? Are there definitions of professional satisfaction and success that are enduring, even if legal ...


Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm Jan 2019

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of ...


Community Law Practice, Luz E. Herrera Jan 2019

Community Law Practice, Luz E. Herrera

Faculty Scholarship

Community-embedded law practices are small businesses that are crucial in addressing the legal needs that arise in neighborhoods. Lawyers in these practices attend to recurring legal needs, contribute to building a diverse profession, and spur community development of modest-income communities through legal education and services. Solo practitioners and small firm lawyers represent the largest segment of the lawyer population in the United States, yet their contributions to addressing the legal needs of modest-income clients are rarely recognized or studied. This essay sheds light on the characteristics, motivations, and challenges these law practices face in providing access to justice to modest-means ...


Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce Jan 2019

Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce

Faculty Scholarship

What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends ...


Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge Jan 2019

Access To Law Or Access To Lawyers? Master's Programs In The Public Educational Mission Of Law Schools, Mark Burge

Faculty Scholarship

The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as a master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that ...


Rise Of The Robot Lawyers?, Milan Markovic Jan 2019

Rise Of The Robot Lawyers?, Milan Markovic

Faculty Scholarship

The advent of artificial intelligence has provoked considerable speculation about the future of the American workforce, including highly educated professionals such as lawyers and doctors. Although most commentators are alarmed by the prospect of intelligent machines displacing millions of workers, this is not so with respect to the legal sector. Media accounts and some legal scholars envision a future where intelligent machines perform the bulk of legal work, and legal services are less expensive and more accessible. This future is purportedly at hand as lawyers struggle to compete with technologically savvy alternative legal service providers.

This Article challenges the notion ...


Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter Jan 2019

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the ...


Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter Jan 2019

Simplified Courts Can't Solve Inequality, Colleen F. Shanahan, Anna E. Carpenter

Faculty Scholarship

State civil courts struggle to handle the volume of cases before them. Litigants in these courts, most of whom are unrepresented, struggle to navigate the courts to solve their problems. This access-to-justice crisis has led to a range of reform efforts and solutions. One type of reform, court simplification, strives to reduce the complexity of procedures and information used by courts to help unrepresented litigants navigate the judicial system. These reforms mitigate but do not solve the symptoms of the larger underlying problem: state civil courts are struggling because they have been stuck with legal cases that arise from the ...


Could The Benefits Of The Public Service Loan Forgiveness Program Be Retroactively Curtailed?, Gregory S. Crespi Jan 2019

Could The Benefits Of The Public Service Loan Forgiveness Program Be Retroactively Curtailed?, Gregory S. Crespi

Faculty Scholarship

There is a sharp tension between the expectations that hundreds of thousands to millions of persons have or will have regarding their right to have their federal student loan debts forgiven under the Public Service Loan Forgiveness (“PSLF”) program and the legitimate public concerns regarding the large costs and regressive incidence of the PSLF program’s benefits. In 2017, the Trump Administration proposed abolishing the PSLF program for future federal Direct Loans, but this proposal was not adopted. A similar proposal was made in 2019 as part of the Administration’s fiscal 2020 budget proposal, with little chance of adoption ...


Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah Jan 2018

Teaching Bioethics: The Role Of Empathy & Humility In The Teaching And Practice Of Law, Barbara A. Noah

Faculty Scholarship

This essay considers the role of empathy and humility in the professional practices of physicians and lawyers and in those who prepare students for these professions. Beginning with an overview of the goals and methods of legal education, it compares similar goals in medical education and the value of practicing law (and medicine) with empathy and humility. The essay then describes exercises used in the law school classroom designed both to teach law students about end-of-life law and also to allow them to practice counseling clients. Through these exercises, law students can experience firsthand the challenges of advising a client ...


A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale Jan 2018

A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale

Faculty Scholarship

No abstract provided.


Developing Workplace Law Programming: A Labor Of Love, Michael Z. Green Jan 2018

Developing Workplace Law Programming: A Labor Of Love, Michael Z. Green

Faculty Scholarship

Professor Green reflects and comments on his work in developing workplace law programming as a key component of the annual SEALS program.


Preparing Law Students In The Wake Of #Metoo, Paula A. Monopoli Jan 2018

Preparing Law Students In The Wake Of #Metoo, Paula A. Monopoli

Faculty Scholarship

No abstract provided.


Southeast Of What? Reflections On Seals' Success, Thomas B. Metzloff Jan 2018

Southeast Of What? Reflections On Seals' Success, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.


Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark Jan 2018

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices ...


Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark Jan 2018

Studying The "New" Civil Judges, Anna E. Carpenter, Jessica K. Steinberg, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices ...


The Politics Of Professionalism: Reappraising Occupational Licensure And Competition Policy, Sandeep Vaheesan, Frank A. Pasquale Jan 2017

The Politics Of Professionalism: Reappraising Occupational Licensure And Competition Policy, Sandeep Vaheesan, Frank A. Pasquale

Faculty Scholarship

No abstract provided.


Nonsense You Say, Nicholas W. Allard Jan 2017

Nonsense You Say, Nicholas W. Allard

Faculty Scholarship

No abstract provided.


Assessing Law Students As Reflective Practitioners, Jodi Balsam, Susan L. Brooks, Margaret Reuter Jan 2017

Assessing Law Students As Reflective Practitioners, Jodi Balsam, Susan L. Brooks, Margaret Reuter

Faculty Scholarship

No abstract provided.


A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney Jan 2017

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal ...