Digital Commons Network^™

Why Can't I Have A Robot Lawyer? Limits On The Right To Appear Pro Se, Jessica Gunder

Articles

Some rights are more favored-and some rights are more disfavored than others. The right to self-representation is a disfavored right Despite its historic roots, the right has been subjected to judicially imposed limits that have reduced its scope. The limits on the right to self-representation include restrictions on the type of litigant that can avail themselves of the right, bars regarding the personal characteristics of litigants, barriers on the types of assistance a pro se litigant may receive, and procedural limitations on how a litigant may invoke the right. This Article is the first to study these established limitations on …

The Necessary And Proper Stewardship Of Judicial Data, Aziz Huq, Zachary Clopton

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Governments and commercial firms create profit and social gain by exploiting large pools of data. One source of valuable data, however, lies in public hands yet remains largely untapped. While the deep reservoirs of data produced by Congress and federal agencies have long been available for public use, the data produced by the federal judiciary is only loosely regulated, imperfectly available to the public at large, and largely ignored by scholars.

The ordinary process of litigation in federal courts generates an enormous volume of data. Especially after recent developments in large language models, this data holds immense potential. It can …

On The Genealogy Of Intimate Digital Harm, Aziz Huq

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No abstract provided.

Access To Justice: A Roadmap To Creating And Launching Consumer Bankruptcy Experiential Programs In Law Schools, Ishaq Kundawala

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It is increasingly difficult for people who need consumer bankruptcy relief to access it. Ironically, many of the people who most need it cannot afford it, and oftentimes they come from underserved communities. Large-scale solutions to this access to consumer bankruptcy problem have been discussed, and even proposed, but not yet implemented. While law schools cannot solve the access problem without congressional intervention, they can, at least, take steps to improve the status quo. One way law schools can address this problem is to create experiential programs focusing on consumer bankruptcy.

These types of programs offer a dual benefit. They …

Untangling Unreliable Citations, Margie Alsbrook

Articles

Citations are the vernacular that the legal profession uses to communicate the precedents that underline our arguments and analysis. They are the building blocks of legal communications and legal arguments, and lawyers and judges need to be able to rely upon the accuracy of each other’s citations to work in a stabilized democracy. Democratic stability is in jeopardy due to an erosion of norms from a variety of well-documented sources, most of which are well beyond the control of the average lawyer. But lawyers and judges can control the reliability of the authority we use in our own work product, …

Attributing Ai Authorship: Towards A System Of Icons For Legal And Ethical Disclosure, Joseph J. Avery, Patricia S. Abril, Alissa Del Riego

Articles

Over the past year, the pervasive role of large language models (LLMs) and artificial intelligence (Al) in text generation has precipitated concerns about ethical usage, authorship, and transparent attribution. This has been true in legal practice, academia, and the corporate world, as well as in countless other arenas. In this Article, we identify the gap that has opened between those demanding proper disclosure (we should know when and to what extent Al is an author) and those struggling to respond to these demands. Part of the problem is that there is no system in place, no lingua franca, no set …

Preparing Future Lawyers To Draft Contracts And Communicate With Clients In The Era Of Generative Ai, Kristen Wolff

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Thank you all for coming today. This is, I think, a really important topic. Important enough that the conference has decided to have two talks on the same topic, and Mark will be presenting on this in the next session, too. I plan on attending because I don’t think you can get enough perspectives on it right now. And hearing this information, I had to attend several talks myself before I really digested it and understood what this was all about. So, I hope that I can give you a little bit of that today. My name is Kristen Wolff. …

Exoneration Finance, Kay L. Levine, Russell M. Gold

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The path to financial compensation for the wrongfully convicted can be complex and time-consuming. Exonerees often struggle to make ends meet and function in free society, let alone navigate serpentine processes while waiting years for the recovery they deserve. Securing the assistance of an attorney is often a critical step, but too few lawyers are willing to risk accepting these complicated cases on a contingency-fee basis the only way that exoneree-clients can likely pay their lawyers without outside help.

Litigation finance an important tool for increasing access to justice in tort cases could help close this access to justice gap …

States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker

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Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing …

Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri

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The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …

Modalities Of Social Change Lawyering, Christine N. Cimini, Doug Smith

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The last decade has seen the rise of new kinds of grassroots social movements. Movements including Occupy Wall Street, Black Lives Matter, Sunrise, and #MeToo pushed back against long-standing political, economic, and social crises, including income inequality, racial inequality, police violence, climate change, and the widespread culture of sexual abuse and harassment. As these social change efforts evolve, a growing body of scholarship has begun to theorize the role of lawyers within these new social movements and to identify lawyering characteristics that contribute to sustaining social movements over time. This Article surveys this body of literature and proposes a typology …

Crimmigrating Narratives: Examining Third-Party Observations Of Us Detained Immigration Court, Linus Chan

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Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, …

How Privilege Undermines Cybersecurity, Daniel Schwarcz

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In recent years, cyberattacks have cost firms countless billions of dollars, undermined consumer privacy, distorted world geopolitics, and even resulted in death and bodily harm. Rapidly accelerating cyberattacks have not, however, been bad news for many lawyers. On the contrary, lawyers that specialize in coordinating all elements of victims’ incident-response efforts are increasingly in demand. Lawyers’ dominant role in cyber-incident response is driven in part by their purported capacity to ensure that information produced during the breach response process remains confidential, particularly in any subsequent lawsuit. By interposing themselves between their clients and any third party consultants involved in incident …

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz

Articles

This Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawyers can use traditional legal skills to refine and verify LLM legal analysis. In the process, lawyers and law students can effectively turn freely available LLMs into highly productive personal legal assistants.

What Do Law Professors Believe About Law And The Legal Academy?, Eric Martinez, Kevin Tobia

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Legal scholarship is replete with debates about competing legal theories: textualism or purposivism; formalism or realism; natural law or positivism; prison reform or abolition; universal or culturally specific human rights? Despite voluminous literature about these debates, great uncertainty remains about which views experts endorse. This Article presents the first dataset of American law professors’ views about legal theory. A study of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding debates.

Law professors also debate questions about the legal academy. These include descriptive questions: Which subjects (for example, constitutional law) and methods (for example, law …

Chatgpt, Esq.: Recasting Unauthorized Practice Of Law In The Era Of Generative Ai, Joseph J. Avery, Patricia S. Abril, Alissa Del Riego

Articles

In March of 2023, OpenAI released GPT-4, an autoregressive language model that uses deep learning to produce text. GPT-4 has unprecedented ability to practice law: drafting briefs and memos, plotting litigation strategy, and providing general legal advice. However, scholars and practitioners have yet to unpack the implications of large language models, such as GPT-4, for long-standing bar association rules on the unauthorized practice of law ("UPL"). The intersection of large language models with UPL raises manifold issues, including those pertaining to important and developing jurisprudence on free speech, antitrust, occupational licensing, and the inherent-powers doctrine. How the intersection is navigated, …

Title Theft, Stewart E. Sterk

Articles

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand. Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title. Recovery of title, however, involves costs and …

Remote Justice & Domestic Violence: Process Pluralism Lessons From The Pandemic, Andrea K. Schneider, Heather Hlavka, Sameena Mulla, Erin Schubert, Aleksandra J. Snowden, Jennica Webster

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Domestic violence procedures, like so many court processes around the world, were forced to go online and remote during the pandemic. The impact was dramatic-there were fewer restraining order petitions filed in the first place and an even lower amount granted. In short, domestic violence survivors, among the most vulnerable in our court system, were even more challenged in the last two years. Like many court systems, Milwaukee will never go back to being fully in-person for all procedures in conjunction with domestic violence. The evolving hybrid choices could provide additional access to justice, or these processes could create additional …

Designing A Fulfilling Life In The Law, Bridgette Carr, Vivek Sankaran, Taylor J. Wilson

Articles

There is a mental health crisis in the legal profession. This isn’t news; in 2017, the National Task Force on Lawyering Well-Being acknowledged that the profession has failed to give adequate regard to the well-being of lawyers. High rates of chronic stress, depression, and substance use suggest that “the current state of lawyers’ health cannot support a profession dedicated to client service and dependent on the public trust.”

Contingency Fee Conflicts: Attorneys Push For Quick-Kill Settlements When Their Clients Would Be Better Off Going To Trial, Steve Calandrillo, Chryssa V. Deliganis, Neela Brocato

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Despite the checkered history of contingency fees in the practice of law, attorneys often claim that such fee arrangements perfectly align the interests of lawyer and client. After all, contingency fee lawyers proclaim in TV ad after TV ad, "we don’t get paid unless you win." That superficial logic does not withstand economic scrutiny. Utilizing a behavioral economics lens, this Article demonstrates that contingency fee arrangements give attorneys excessive incentives to settle cases that their clients would be better off taking all the way through trial. In addition to highlighting this undertheorized problem in law, we offer normative recommendations to …

Due Process Deportations, Angelica Chazaro

Articles

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts— and thus are impervious to immigration lawyering. Even for those who make it …

The Amazing Carrie Menkel-Meadow And What Wins When Passions Collide, Lela Love

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Carrie Menkel-Meadow (sometimes referred to as “Carrie” herein) is famous in the dispute resolution world as one of the field’s founders. Her prolific writing on dispute resolution—negotiation, mediation, arbitration, and the variants of these major processes—evidences an unrivaled passion for the subject. A renaissance thinker, her intellectual explorations also extend to other areas such as women’s rights and restorative justice for victims of egregious wrongs.

Her multiple passions sometimes create dynamic tensions. For example, what happens if mediation norms threaten a woman’s rights? Or if mediators divert the focus of a dispute resolution process to the future, neglecting a horrific …

Appendix To "The Amazing Carrie Menkel-Meadow And What Wins When Passions Collide", Lela P. Love

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No abstract provided.

Justice Versus Judiciary: Justice Enthroned Or Entangled In India? (2019) By Sudhanshu Ranjan, Oxford University Press, New Delhi, Arun Thiruvengadam

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Justice Versus Judiciary: Justice Enthroned or Entangled in India? (2019) By Sudhanshu Ranjan, Oxford University Press, New Delhi

Racial Trauma In Civil Rights Representation, Angela Onwuachi-Willig, Anthony V. Alfieri

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Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District, …

The Power Of A Good Story: How Narrative Techniques Can Make Transactional Documents More Persuasive, Karen J. Sneddon

Articles

Transactional documents are complex, multi-faceted documents reviewed by various audiences at multiple points in time. They are more than descriptive legal devices that dictate the exchange of widgets for cash. While the core of many transactional documents will be the acquisition, creation, or exchange of property or services, transactional documents do more than memorialize that understanding. At first glance, transactional documents may seem simply like expository texts that aim to create the private law between the transacting parties and educate the audience by delivering a sequence of instructions, but transactional documents do much more. They tell the stories of the …

Judicial Impartiality In The Judicial Council Act 2019: Challenges And Opportunities, Brian M. Barry Dr

Articles

The Judicial Council is tasked with promoting and maintaining high standards of judicial conduct. The Judicial Council Act 2019 identifies judicial impartiality as a principle of judicial conduct that Irish judges are required to uphold and exemplify. Despite its ubiquity, judicial impartiality is perhaps under-explained and under-examined.

This article considers the nature and scope of judicial impartiality in contemporary Irish judging. It argues that the Judicial Council ought to take a proactive, multi-faceted approach to promote and maintain judicial impartiality, to address contemporary challenges that the Irish judiciary face including increasingly sophisticated empirical research into judicial performance, the proliferation of …

Contracts In The Age Of Smart Readers, Yonathan A. Arbel, Shmuel I. Becher

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What does it mean to have machines that can read, explain, and evaluate contracts? Recent advances in machine learning have led to a fundamental breakthrough in machine language models, portending a profound shift in the ability of machines to process text. Such a shift has far-reaching consequences for diverse areas of law, which are predicated on, and justified by, the existence of information barriers. Our object here is to provide a general framework for evaluating the legal and policy implications of employing language models as "smart readers"-tools that read, analyze, and assess contracts, disclosures, and privacy policies.

Synthesizing state-of-the-art developments, …

Promoting Patent Practitioner Diversity: Expanding Non-Jd Pathways And Removing Barriers, Christopher M. Turoski

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No abstract provided.

Biting The Bullet: A Bipartisan Solution To Increase Debtors' Access To Chapter 7 Relief While Exempting Firearms In A Bankruptcy Case, Ishaq Kundawala

Articles

Imagine an individual who is too broke to file for bankruptcy relief.' This irony is far too often a reality in America, especially for people living in underserved communities. Debtors are simply unable to skimp and save up even a thousand dollars to pay their bankruptcy attorney. Paying their bankruptcy attorney upfront in full is the only ticket to seeking Chapter 7 bankruptcy relief. For a variety of reasons, Chapter 7 bankruptcy relief is the most advantageous type for a majority of poor and middle-class individuals and families.4 It provides these individuals and families with an expedient, fresh financial start …