Law Commons^™

The Insidious War Powers Status Quo, Rebecca Ingber

Faculty Articles

This Essay highlights two features of modern war powers that hide from public view decisions that take the country to war: the executive branch’s exploitation of interpretive ambiguity to defend unilateral presidential authority, and its dispersal of the power to use force to the outer limbs of the bureaucracy.

40 More Writing Hacks For Appellate Attorneys, Brian C. Potts

Faculty Articles

Script for Trailer: “40 More Writing Hacks for Appellate Attorneys”

Fade in on aerial view of Washington, D.C.

Zoom in on Supreme Court Building. Chopper sounds. Enter helicopter fleet flying by.

Cut to Chief Justice John G. Roberts, Jr., sitting at his desk, reading. He rubs his forehead. Tired. Anxious. Distraught.

Chief: “What a mess! This brief could have been 10 pages shorter!”

Phone rings. Chief answers on speaker.

Law clerk’s voice through phone: “Chief, turn to Appellee’s brief. You’ve got to see this!”

Chief picks up different brief. Flips it open. Zoom in on face. Eyes widen. Jaw drops. …

Language Models, Plagiarism, And Legal Writing, Michael L. Smith

Faculty Articles

Language models like ChatGPT are the talk of the town in legal circles. Despite some high-profile stories of fake ChatGPT-generated citations, many practitioners argue that language models are the way of the future. These models, they argue, promise an efficient source of first drafts and stock language. Others make similar claims about legal writing education, with a number of professors urging the acknowledgment of language models. Others go further and argue that students ought to learn to use these models to improve their writing and prepare for practice. I argue that those urging the incorporation of language models into legal …

Why Equity Follows The Law, Adam J. Macleod

Faculty Articles

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a …

Exit Engineering, Rachel Landy

Faculty Articles

How do business lawyers create value? For nearly forty years, scholars have conceptualized the business lawyer as a “transaction cost engineer” who helps contracting parties efficiently break negotiation stalemates to create more valuable deals. This theory provides meaningful insights about sophisticated corporate law practice, where outside lawyers parachute in to make one-off deals happen. However, it fails to explain the behavior of startup lawyers, who develop long-term relationships with their clients and counsel them on seemingly routine matters, well before a major transaction materializes. These lawyers are not just transaction cost engineers, they are exit engineers. This Article offers a …

A Tribute To Gerald S. "Geary" Reamey, Michael Ariens

Faculty Articles

Geary Reamey began teaching at St. Mary's University School of Law in the Fall 1982 semester. He will have taught for forty-one years at St. Mary's when he retires in May 2023. Geary is known throughout Texas for his work, both as a speaker and as a writer, educating lawyers and judges about Texas criminal law and procedure. He is known among St. Mary's Law alumni for creating and operating, along with the late John Schmolesky, a vibrant criminal law and procedure curriculum, including the first-year Criminal Law course.

Dinner With Andre: A Personal Tribute To Andre Hampton, David Dittfurth

Faculty Articles

A tribute to long-time St. Mary's University School of Law professor Andre Hampton upon his retirement.

The Lawyer As Dream Enabler, Gerald S. Reamey

Faculty Articles

In law school and in law practice, the power of preparation is reinforced. Generations of law students have heard me extol the virtue of preparation above all others. While it is true, even the best preparation will never beat luck; luck is fickle and not subject to our control. On the other hand, we totally control the amount and quality of the preparation we put into any project. I discovered preparation is more important than good looks, nice clothes, a shiny leather briefcase, eloquence, experience, or even intelligence.

The Scholar: Twenty-Five Years Of Change, Catherine Casiano

Faculty Articles

Catherine Casiano, the Assistant Dean of Admissions at St. Mary's University School of Law, a former staff writer and editor for The Scholar, reflects on the journal's twenty-fifth anniversary and evolution.

Concluding Remarks By Conference Co-Organizer, Richard H. Weisberg

Faculty Articles

This Article represents the concluding remarks made by Professor Richard H. Weisberg at "Disarmed, Distracted, Disconnected & Distressed," a conference on Modern Legal Education and the Unmaking of American Lawyers, hosted by the University of Pittsburgh School of Law and the Law & Humanities Institute, April 20-April 23, 2023.

Unsettling Human Rights Clinical Pedagogy And Practice In Settler Colonial Contexts, Jocelyn Getgen Kestenbaum, Caroline Bishop Laporte

Faculty Articles

In settler colonial contexts, law and educational institutions operate as structures of oppression, extraction, erasure, disempowerment, and continuing violence against colonized peoples. Consequently, clinical legal advocacy often can reinforce coloniality--the logic that perpetuates structural violence against individuals and groups resisting colonization and struggling for survival as peoples. Critical legal theory, including Third World Approaches to International Law (“TWAIL”), has long exposed colonial laws and practices that entrench discriminatory, racialized power structures and prevent transformative international human rights advocacy. Understanding and responding to these critiques can assist in decolonizing international human rights clinical law teaching and practice but is insufficient in …

A Quarter Century Of Challenges And Progress In Education, And An Agenda For The Next Quarter Century, Albert H. Kauffman

Faculty Articles

As a native Texan who attended intentionally segregated Texas public schools, then an effectively segregated Texas public law school, litigated many cases against discrimination in Texas education, and now teaches Texas education law, I have what I think to be informed opinions on where we have been, where we are going, and what we should do next. I will briefly describe our sad history of discrimination in segregation, school finance, testing, higher education, and lack of responsiveness to newer issues in education at all levels. I will then summarize some of our ongoing challenges and some possible approaches that I …

On Women Professors Who Teach Legal Writing: Addressing Stigma And Women's Health, Amanda L. Stephens, Sean A. Vina

Faculty Articles

Since the late 1980s, legal writing (LW) professors have been disproportionately white women because the LW field has been stigmatized as "women's work. "As a result, these teaching positions typically have been low status and afforded with less pay and job security in comparison to tenure-track doctrinal law professor positions. Compounding--or intersecting--with the stigma of teaching LW are LW professors' social statuses as women and/or other marginalized statuses. These statuses intersect and influence how and what they teach and the legal academy's attitudes toward them.

Although previous scholarship has briefly addressed legal skill classes' stigmatization, no scholarship to date has …

Casting Spectres, Peter Goodrich

Faculty Articles

Megalithic monuments to colonial rule, the High Courts of Bombay, Calcutta and Madras tower over their respective cityscapes. What do such anachronic and anachronistic architectural presences mean for the populace? How do these looming stones inform the indigenous practice of contemporary law? What sensibility of jurist and the juridical do these lapidary structures inculcate, impose or instil? For Khorakiwala, their khora, tone or reverberations imbued her life as a student, and formed her sense of legal identity and identification, even generating a sense of pride and belonging. When she returns to study these reliquary juggernauts, these chattering anglophonic stones, these …

The End Of The Golden Age Of American Legal Education: My Year As Interim Dean, Vincent R. Johnson

Faculty Articles

This article is part of the story of my year as interim dean. The year began without a sign of trouble anywhere on the horizon and ended with an empty campus, cancellation of traditional law school events, face masks and social distancing requirements, uncertainty about whether new law graduates would be able to take the bar exam, and furloughs and layoffs of law school personnel. As my year drew to a close, dozens of American law school deans were meeting online every Friday to share information about how to cope with the challenges of the Covid-19 Pandemic and the uncertainties …

Testing Privilege: Coaching Bar Takers Towards "Minimum Competency" During The 2020 Pandemic, Afton Cavanaugh

Faculty Articles

The year 2020 was challenging for the bar exam. The longstanding argument that the bar exam is not a fair measure of the minimum competence of someone to practice law was cast into harsh relief and the truth-that the bar exam tests the privilege of its examinees-became startlingly apparent. Not only did 2020 kick off with a devastating global pandemic, but we also saw the rage against systemic racial injustice reach a boiling point just as we were charged with staying in our homes to avoid contracting COVID-19. With a pandemic raging, overt White supremacy on the rise, and racial …

Collective Wisdom: When To Impeach With An Inconsistent Statement, A. J. Bellido De Luna

Faculty Articles

The recognition of multiple goals of cross-examination is nothing new. Despite early emphasis on cross-examination as being needed to expose “mendacity,” Dean Wigmore viewed cross-examination as the essence of the trial and truth-seeking process in the United States. He viewed it as capable of serving two ends: proving untruths and completing the story by eliciting facts that “remained suppressed or undeveloped” on direct examination, including “the remaining and qualifying circumstances of the subject of testimony, as known to the witness.” Precisely because of the presence of dual objectives, timing is everything. Said differently, assume a witness has information useful to …

Afterword: Collective Knowledge Production Toward Transformative Social Change: A Community-Grounded Model, Steven Bender

Faculty Articles

No abstract provided.

Texas Supreme Court’S Failure To Offer Alternative Licensure Option Unnecessarily Hinders Our State’S Future Lawyers, Michael Ariens

Faculty Articles

No abstract provided.

Law Schools Harm Genizaros And Other Indigenous People By Misunderstanding Aba Policy, Bill Piatt, Moises Gonzales, Katja Wolf

Faculty Articles

Law schools justifiably seek to enroll a diverse student body in order to enrich the academic experience and environment, and to provide attorneys who will serve all segments of our society. American law schools enjoy the constitutional right to maintain such diversity. Indeed, accreditation standards promulgated by the American Bar Association ("ABA") require it. The Association of American Law Schools carries a similar mandate.

In seeking to create a diverse student body, law schools offer applicants the opportunity to identify their backgrounds. There generally is no "diversity police" checking on the accuracy of the self-identification as a member of a …

Happy Golden Anniversary, St. Mary's Law Journal!, Stephen M. Sheppard

Faculty Articles

Half a century ago, a handful of dedicated St. Mary's law students and faculty begat a premiere experience in legal education, the St. Mary's Law Journal. As the Journal marks its 50th anniversary, it continues to represent the diligence, imagination, practicality, and sheer effort of our faculty and students,

Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod

Faculty Articles

The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent …

State Bar Efforts To Deny Accreditation To Faith-Based Cle Ethics Programs Sponsored By Religiously Affiliated Law Schools, Bill Piatt

Faculty Articles

Religiously affiliated law schools focus on the integration of faith in the formation of future attorneys and leaders. Yet our students are only our students for three years. We can extend our influence and continue to provide a faith-based perspective to them and to other attorneys during the thirty, forty, or more years of their careers by offering continuing legal education (CLE) courses, which bring attorneys and judges together to provide a model for incorporating faith and morality into our professional roles. However, CLE programs must receive accreditation by state authorities if participants are to receive credit for them. Recently, …

Using The Terms Integrative And Distributive Bargaining In The Classroom: Time For Change, Rishi Batra

Faculty Articles

The terms "integrative bargaining" and "distributive bargaining" have been with us in the dispute resolution literature since at least the 1960s, when A Behavioral Theory of Labor Negotiations was first published in 1965 by Richard Walton and Robert McKersie. While the terms were popularized by these two authors, the authors themselves acknowledged the long line of predecessors, including Mary Parker Follett, who led them to promote these categories. Since that time, "integrative" and "distributive" have been with us and have captured the imagination of scholars, trainers, and practitioners while remaining popular in the dispute resolution literature today. Despite the proliferation …

Work Drive Matters: An Assessment Of The Relationship Between Law Students’ Work-Related Preferences And Academic Performance, Jeffrey Minneti

Faculty Articles

This article explores the dimensions of law students' schoolwork-related preferences and discusses an empirical assessment of those preferences. The assessment revealed two findings: (1) a positive correlation between students' schoolwork-related preferences and their first-year law school cumulative grade point average (LGPA); and (2) students' schoolwork-related preferences significantly enhanced the predictive power of the traditional law school success predictors, law students' LSAT performance and their undergraduate cumulative grade point average (UGPA). During spring 2014, 215 law students responded to a survey that included questions from the Multidimensional Work Ethic Profile (MWEP) and Work Drive Inventory. Analysis of the responses indicated that …

Applied Legal Storytelling: A Bibliography, Christopher Rideout

Faculty Articles

This article contains a bibliography on the movement known as Applied Legal Storytelling. Those who are interested in Applied Legal Storytelling examine the use of stories—and of storytelling or narrative elements—in law practice, in law school pedagogy, and within the law generally. The Applied Legal Storytelling movement is largely associated with a series of biennial academic conferences that began in 2007, and the majority of the entries in this bibliography originated with presentations at one of those conferences. But the bibliography also acknowledges a number of articles that pre-date 2007 and that could be called precursors. The bibliography first lists …

Toward A Clinical Pedagogy Of Externship, Elizabeth Ford

Faculty Articles

Externships offer a tantalizing experiential option for law schools. Students are hungry for the real-world experience, the networking potential, and the chance to take the skills they have learned in the classroom to the next level. Administrators love externships because of their high enrollment, low cost nature: externships leverage small amounts of resources from hundreds of outside organizations. Faculty appreciate these programs because they provide students with context and skills, inspire them in the doctrinal classroom, and require little diversion of resources from the more traditional faculty ranks. However, the danger of grasping too tightly to externships as the experiential …

Judicial Education And Regulatory Capture: Does The Current System Of Educating Judges Promote A Well-Functioning Judiciary And Adequately Serve The Public Interest?, S. I. Strong

Faculty Articles

This phenomenon suggests a pressing need for further scrutiny into matters relating to the education of judges in this country. This Essay therefore considers of a number of fundamental issues relating to judicial education in the United States so as to consider, at least as a preliminary matter, whether regulatory capture exists. Given the scope of this Essay, some issues are necessarily excluded. Nevertheless, this Essay hopes to trigger a deeper debate about judicial education in this country.

The structure of the analysis is as follows. First, the Essay considers certain obstacles to research concerning judicial education as a means …

Internprofessional Education, Patricia E. Roberts

Faculty Articles

As legal educators consider how to improve the outcomes of legal education, maximizing the knowledge, skills, and values taught during the law school experience, consideration should be given to increasing interprofessional learning opportunities in the curricula. As Best Practices for Legal Education suggested, the creative thinking necessary for effective problem-solving includes an understanding of interprofessional dimensions of practice, but interprofessional opportunities are still the exception rather than the norm in legal education. Interprofessional legal education intentionally asks law students to blend the knowledge, skills, and values of two or more professions in order to address complex legal problems. Placing students …

Examining The Practice Of Developing Human Rights Indicators To Facilitate Accountability For The Human Right To Water And Sanitation, Benjamin Mason Meier, Jocelyn Getgen Kestenbaum, Georgia Lyn Kayser, Urooj Quezon Amjad, Jamie Bartram

Faculty Articles

Flowing from the evolution of international legal obligations for water and sanitation, human rights practice has shifted to address state accountability for a human right to water and sanitation through the development of human rights indicators. This policy note focuses on efforts to develop indicators for state reporting to human rights treaty bodies, with human rights norms framing national reports and treaty bodies employing indicators to monitor the progressive realization of the human right to water and sanitation. In supporting evidence-based treaty monitoring through the United Nations (UN), both the UN High Commissioner for Human Rights and the UN Special …