Legal Writing and Research Commons^™

Spring 2021 Newsletter: The Docket, Emma Wood

Law Library Newsletter

Copy of the Spring 2021 issue of the UMass Law Library Newsletter, The Docket.

Healthy Hives: Can Replacing Hierarchies With Intergroup Teams Transform Our Profession?, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Improve Recitals And Consideration Clauses With Plain Language, David Spratt

Articles in Law Reviews & Other Academic Journals

As used in a "WHEREAS" clause, the term "whereas" simply means "considering that" or "that being the case." There is no legal effect to the word "whereas." It, like many other words used in standard contract boilerplate, is left over from some long-forgotten era of legal writing when lawyers used big words and legalese to impress clients with their intelligence and to justify their bills. These times have (or at least should have) passed. Today, documents must be accessible to those who use them: in most cases the clients for whom such documents are drafted.

The Supreme Court's Worst Decision In Recent Years--Garcetti V. Ceballos, The Dred Scott Decision For Public Employees, David L. Hudson Jr.

Law Faculty Scholarship

The United States Supreme Court decision of Garcetti v. Ceballos deserves its rightful place in the Court’s hall of shame. In Garcetti, the Court issued a decision that serves as a Dred Scott-type ruling for public employees, diminishing their free speech rights to an unacceptable level. The Court created a categorical rule that public employees have no free speech rights when engaged in official, job-related speech.

Under Garcetti, it does not matter how valuable an employee’s speech is, how much corruption that speech exposes, or whether the speech informs the public regarding an important issue. Instead, the five-justice majority focused …

Ai And Legal Scholarship : Reflections On Evolution And Influences, Jonathon W. Penney

Articles & Book Chapters

Leading Legal Disruption: Artificial Intelligence and a Toolkit for Lawyers and the Law is designed to challenge lawyers with the practical implications that emerging technologies will have on delivering legal services and thinking about legal issues to navigate their digital transformation. By inviting thought leaders across the world and in different disciplines, ranging from privacy, contract law, and torts to governance and policy, this book goes beyond abstract and general philosophical observations on matters that concern practitioners. This practical approach has generated a wide range of global perspectives, which are refreshingly novel and timely for what are increasingly global issues. …

Panel: Telehealth Legal Considerations, Travis Lloyd, Nathan Kottkamp, Nesrin Tift

Belmont Health Law Journal

No abstract provided.

Keynote: The Digital Future Of Healthcare: Emerging Trends In Telehealth Technology, Professor Stacy Tovino, Dr. Davis Charles

Belmont Health Law Journal

No abstract provided.

Student Note: The Nfl And Opioid Abuse: Choosing The Best Route To Tackle A Difficult Problem, Jacob Freeland

Belmont Health Law Journal

Based on current precedent, legal relief is not a viable solution to remedy the NFL’s ongoing substance abuse issues. However, the long-term safety of current and future football players, as well as the integrity of the sport, can be saved if instead of resorting to the courts, the players take this battle to state and federal legislatures while simultaneously promoting cultural awareness of the dangers that these prescription practices pose to past, current, and future football players. Part II of this note will examine the relevant legal and procedural history of opioid-related lawsuits that have been filed against the NFL …

Student Note: To Err Is Human, Unless You Are A Healthcare Provider, Jorie Zajicek

Belmont Health Law Journal

This note will explore the rise of criminal prosecutions of health care providers for medical errors, absent any intent to harm.46 This note will demonstrate that in the interest of patient safety and error prevention, there are alternative forms of punishment, other than criminal prosecution, that are better suited to address medical errors when there is no intent to do harm. Part II of this note lays out mechanisms currently in place to address medical errors. Part III attempts to address why some cases are criminally prosecuted by analyzing specific cases. Next, Part IV explores arguments for and against criminal …

Teaching Written Advocacy In A Law Clinic Setting, Tamar Ezer

Articles

Written advocacy is a critical lawyering skill and vital component of student work in many clinics. This is certainly true in appellate advocacy and policy-based clinics, such as my own focused on human rights advocacy. Teaching written advocacy requires a deliberate and thoughtful pedagogy, just as with other aspects of clinical teaching. There is a rich literature on teaching legal writing, but only sparse discussion of its applicability in the fast-paced law clinic setting, where written products have real world consequences and need to be of high quality. This article delves into this literature and argues that written advocacy consists …

Student Note: Finding A Cure To Gun Violence: How Improving America's Mental Health System Could Prevent Future Gun Violence, Paige Goodwin

Belmont Health Law Journal

This Note will demonstrate how gun control legislation aimed at individuals with mental illnesses has been politically untenable and ineffective at preventing incidents of gun violence. Section II of this Note will introduce the history of both federal and state laws regulating gun control, highlighting those targeting individuals with mental health issues and examining major flaws in the legislation that undermines the federal background check system.

Next, Section III will explain why existing gun legislation is unworkable and ineffective, specifically addressing the discrepancies between various state and federal laws and the barriers to mental health treatment that further hinder gun …

Young, Black, And Wrongfully Charged: A Cumulative Disadvantage Framework, Emily Haney-Caron, Erika Fountain

Dickinson Law Review (2017-Present)

The term wrongful conviction typically refers to the conviction or adjudication of individuals who are factually innocent. Decades of research has rightfully focused on uncovering contributing factors of convictions of factually innocent people to inform policy and practice. However, in this paper we expand our conceptualization of wrongful conviction. Specifically, we propose a redefinition that includes other miscarriages of justice: A wrongful conviction is a conviction or adjudication for someone who never should have been involved in the juvenile or criminal legal system in the first place. Although there are various miscarriages of justice that might appropriately be categorized under …

The “Innocence Penalty”: Is It More Pronounced For Juveniles?, Nilam A. Sanghvi, Elizabeth A. Delosa

Dickinson Law Review (2017-Present)

Despite the presumption of innocence, we know that individuals accused of crimes are punished for maintaining their innocence in ways both tangible and intangible as they make their way through our criminal justice system. For example, even if instructed not to, jurors may infer guilt from a defendant’s failure to testify; defendants who exercise their right to go to trial receive lengthier sentences if convicted than those who plead guilty; and, once convicted, defendants who maintain their innocence are often denied opportunities for parole or clemency. This article explores whether these “innocence penalties” are even greater for children who are …

Feres: The “Double-Edged Sword”, Kaitlan Price

Dickinson Law Review (2017-Present)

In Feres v. United States, the Supreme Court barred service members from suing the Government under the Federal Tort Claims Act if the injuries occurred “incident to military service.” In establishing this doctrine, the Court discussed the necessity of protecting the military from lawsuits to ensure effective decision-making by military leaders.

Scholars have harshly criticized Feres in the modern era, arguing Feres must be overturned to provide service members with a greater opportunity for recovery. Specifically, many scholars admonish Feres because the Supreme Court failed to provide a clear definition of “incident to military service.” Lacking a clear definition …

The Unified Legal Skills Program: How One Law School Adapted To Meet The Needs Of Students Online, And How Those Adaptations May Inform Post-Pandemic Teaching, David Austin, Allison D. Cato, Amy E. Day, Liam Vavasour

Faculty Scholarship

When CWSL was forced to switch to online learning for the COVID-19 pandemic, we worked hard to follow best practices for online learning by attending online conferences and voraciously reading everything we could find to make the learning experience the best we could for our students. CWSL's Legal Skills program earned high praise in student evaluations for adapting so quickly given the difficult circumstances.

During the summer of 2020, we met as a Legal Skills team to discuss how to approach the regular school term. Specifically, we faced a larger-than-anticipated first-year class and contemplated how to remedy the sense of …

An Analysis Of Applications Of The Restatement (Second) Of Contracts In Connecticut And The Restatement (Second) And (Third) Of Torts In Washington: Realizing The Restatements' Objectives In Practice, Brendan W. Clark

Senior Theses and Projects

No abstract provided.

The Absence Or Misuse Of Statistics In Forensic Science As A Contributor To Wrongful Convictions: From Pattern Matching To Medical Opinions About Child Abuse, Keith A. Findley

Dickinson Law Review (2017-Present)

The new scrutiny that has been applied to the forensic sciences since the emergence of DNA profiling as the gold standard three decades ago has identified numerous concerns about the absence of a solid scientific footing for most disciplines. This article examines one of the lesser-considered problems that afflicts virtually all of the pattern-matching (or “individualization”) disciplines (largely apart from DNA), and even undermines the validity of other forensic disciplines like forensic pathology and medical determinations about child abuse, particularly Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT). That problem is the absence or misuse of statistics. This article begins by applying …

It’S Worth Whatever Someone Paid For It: How Courts Have Misinterpreted Bfp’S Reasoning, Jacob Ryder

Dickinson Law Review (2017-Present)

Historically, bankruptcy courts have used the Bankruptcy Code’s avoidance powers—fraudulent conveyances in § 548 and preferential transfers in § 547—to avoid pre-bankruptcy-petition transfers. These avoidance powers were used even when the transfer in question was a mortgage or tax foreclosure sale. This has changed in response to the U.S. Supreme Court’s opinion in BFP v. Resolution Trust Corp. The BFP Court concluded that § 548 could not be used to avoid a mortgage foreclosure sale that complied with state foreclosure law. To do so, the Court had to interpret the operative language in § 548: “reasonably equivalent value.” The Court …

Increasing Substantive Fairness And Mitigating Social Costs In Eviction Proceedings: Instituting A Civil Right To Counsel For Indigent Tenants In Pennsylvania, Robin M. White

Dickinson Law Review (2017-Present)

The U.S. Constitution provides criminal defendants the right to a court-appointed attorney but gives no similar protection to civil litigants. Although federal law does not supply any categorical rights to counsel for civil litigants, all 50 states have instituted the right in at least one category of civil law that substantially impacts individuals’ rights. Since 2017, several U.S. cities have enacted such a right for tenants facing eviction. In so doing, these cities responded to American families’ increasing rent burden, the recent publication of nationwide eviction data, the sociological research concerning the impact of eviction, and the lack of procedural …

Legal Research & Writing: An Undergraduate Pre-Law Course Design, Rachel Kathleen Strieber

Senior Theses

The purpose of this project-based thesis is to develop an undergraduate pre-law course that teaches legal research and writing (LRW) and to design its respective description, topics, reading materials, sample syllabus document, and a sample lesson plan. The research portion of this thesis will study the pedagogy of LRW and the connection between LRW skills and the students’ success in law school and careers in law. Preparing students to excel in LRW skills prior to law school through the proposed undergraduate pre-law LRW course will yield a stronger performance in a first-year law LRW course to follow and amplify students’ …