Law Commons^™

Unmasking Aall’S Idea Special Committee: A Closer Look At The Committee’S Process For Creating Aall’S New Diversity, Equity & Inclusion Policy, Ronald E. Wheeler

Faculty Scholarship

The goal of this column is to describe the process used by the American Association of Law Libraries (AALL) Inclusion, Diversity, and Equity Awareness (IDEA) Special Committee, which provided the foundation and resources for AALL to create the new Diversity, Equity & Inclusion Policy. The committee, initially appointed and charged by the 2020 AALL President Emily R. Florio, began meeting in 2020, and started its work with discussions aimed at defining and narrowing the scope of its charge and finding consensus on what we were setting out to accomplish. During this initial stage, our discussions helped us find commonality to …

The Intersectional Race And Gender Effects Of The Pandemic In Legal Academia, Angela Onwuachi-Willig

Faculty Scholarship

Just as the COVID-19 pandemic helped to expose the inequities that already existed between students at every level of education based on race and socioeconomic class status, it has exposed existing inequities among faculty based on gender and the intersection of gender and race. The legal academy has been no exception to this reality. The widespread loss of childcare and the closing of both public and private primary and secondary schools have disproportionately harmed women law faculty, who are more likely than their male peers to work a “second shift” in terms of childcare and household responsibilities. Similarly, women law …

(Re)Framing Race In Civil Rights Lawyering, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

A review of Henry Louis Gates, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (Penguin Press, 2019). The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. Part II examines the lawyering process as a rhetorical site for constructing racialized narratives and racially subordinating visions of client, group, and community identity through acts of representing, prosecuting, and defending people of …

A Cross-Cutting Public Law Scholar For The Ages, Nicole Huberfeld

Faculty Scholarship

Thanks to Fred Shapiro’s labor, we can see that the under-fifty category of most-cited legal scholars better represents the lawyering population than the all-time rankings of legal scholars, as it has more modern and diverse scholarship, and it has a higher percentage of women than the all-time rankings of legal scholars. Anyone who knows Professor Abbe Gluck’s work cannot be surprised that she is included among the most-cited scholars under the age of fifty. ¹ Abbe is a force of nature, a brilliant legal mind with a diabolical work ethic. Even if she ceased publishing today, her scholarly legacy would …

Brief Of The Boston University Center For Antiracist Research As Amicus Curiae In Support Of Petitioner In Larry Thompson V. Police Officer Pagiel Clark, Shield #28472; Police Officer Paul Montefusco, Shield #10580; Police Officer Phillip Romano, Shield #6295; Police Officer Gerard Bouwmans, Shield #2102, Respondents, Angela Onwuachi-Willig, Jasmine Gonzales Rose, Neda Khoshkhoo, Caitlin Glass

Faculty Scholarship

INTEREST OF AMICUS CURIAE

The Boston University Center for Antiracist Research (the “Center”) is a nonpartisan, nonprofit university-based research institution that convenes researchers, scholars, and policy experts across disciplines to find novel and practical ways to understand, explain, and solve seemingly intractable problems of racial injustice and inequity. The Center’s interest in this case arises from its expertise in researching and understanding the harms of policies, practices, and actions that produce and sustain racial inequities, and in advancing antiracist alternatives that promote racial equity.

The Second Circuit’s interpretation of the so-called “favorable termination rule,” which imposes an “indications-of-innocence” standard, is …

The 'Other' Market, Cody Jacobs

Faculty Scholarship

The hiring market for tenure-track non–legal writing positions is a world unto itself with its own lingo (i.e., “meat market” and “FAR form”), its own unwritten rules (i.e., “Do not have two first-year courses in your preferred teaching package.”), and carefully calibrated expectations for candidates and schools with respect to the process and timing of hiring. These norms and expectations are disseminated to the participants in this market through a relatively well-established set of feeder fellowships, visiting assistant professor programs, elite law schools, blogs, and academic literature on the subject.

But there is another market that goes on every year …

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

Faculty Scholarship

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly because many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …

Race And Class: A Randomized Experiment With Prosecutors, Christopher Robertson, Shima Baradaran Baughman, Megan Wright

Faculty Scholarship

Disparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors’ decisions about how to charge and resolve cases. Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity. Disparities may also be driven by socio-economic class differences, which are highly correlated with race.

This article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors’ charging decisions. Case-vignettes are manipulated between-subjects in five conditions to test effects of defendants’ race and class status. …

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 success …

Adr And Access To Justice: Current Perspectives, Rory Van Loo, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Ellen Waldman

Faculty Scholarship

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We …

Comment On Brewer: Form And Content In Legal Proof (Or Why Everybody Wins - Or At Least Gets A Participation Trophy), Gary S. Lawson

Faculty Scholarship

In 1980, I was in a Contracts class taught by the incomparable Arthur Leff. It became very clear very quickly that one student in that class was (apart from Professor Leff) the smartest and most interesting person in the room. That person was Scott Brewer. More than three and a half decades later, when I thought about who I would most like to invite to comment on my book Evidence of the Law: Proving Legal Claims, one name immediately shot into my mind: Scott Brewer. He was, as the saying goes, at the very top of my draft board. He …

The Promise Of Lutie A. Lytle: An Introduction To The Tenth Annual Commemorative Lutie A. Lytle Black Women Law Faculty Workshop Iowa Law Review Issue, Angela Onwuachi-Willig

Faculty Scholarship

It is with great pleasure and pride that I offer this introduction and welcome to this special Iowa Law Review issue in celebration of the Tenth Annual Commemorative Lutie A. Lytle Black Women Law Faculty Workshop. Named after Lutie A. Lytle, an African American woman who became the first female law professor in the nation (and, likely, in the world) in 1897, the Workshop has afforded diverse law faculty an unparalleled opportunity to prepare for the job market; to develop teaching and leadership skills; to hone scholarly agendas; and to workshop articles, book proposals, and "ideas-inprogress" since its founding at …

Why Is There No Clear Doctrine Of Informed Consent For Lawyers?, Nancy J. Moore

Faculty Scholarship

Written as a contribution to a symposium issue of the Toledo Law Review honoring retiring professor Susan Martyn, this article takes as its starting point an early article by Professor Martyn entitled “Informed Consent in the Practice of Law.” In that article, Professor Martyn decried the inability of clients to control the course of their representation and urged state legislatures to remedy this situation by enacting legislation creating an action in damages based upon a lawyer’s failure to obtain the client’s informed consent. Such an action would be similar to common law actions that courts had recently recognized by patients …

Is This The Law Library Or An Episode Of The Jetsons?, Ronald E. Wheeler

Faculty Scholarship

In this brief essay penned for the inaugural online edition of the Journal of the Legal Writing Institute, Professor Wheeler discusses his vision for the future of law libraries and the future of legal research, legal research instruction, law teaching, and law related technologies.

Stereotype Threat And Law Librarianship, Ronald E. Wheeler

Faculty Scholarship

Mr. Wheeler looks at the concept of stereotype threat and discusses ways to confront and combat it in a diverse society. He proposes some simple solutions within the American Association of Law Libraries (AALL) and the law librarianship profession to help diminish the effects of this psychological barrier.

Preface, Ken I. Kersch, Linda C. Mcclain

Faculty Scholarship

In an essay in the Texas Law Review not too long ago, Sandy Levinson lamented the degree to which law reviews—most prominently the Michigan Law Review—were sharply cutting down on the space they were devoting to book reviews.1 This was especially unfortunate as law professors were publishing more and more books. The publication of a book, as opposed to a journal article, was for many a deliberate choice involving an effort to address subjects at greater length, in greater depth, and on a broader scale for a wider scholarly (and perhaps educated popular) audience. Thematic review essays on books, whether …

Let's Talk About Race, Ronald E. Wheeler

Faculty Scholarship

Despite other scholars’ suggestions that law librarianship and the American Association of Law Libraries lack diversity, Mr. Wheeler examines numerical and anecdotal data indicating that efforts to promote racial and ethnic diversity within AALL and the profession are beginning to show positive results.

Persuasive Visions: Film And Memory, Jessica Silbey

Faculty Scholarship

This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinema verite), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive …

Aall Diversity Redelineated, Ronald E. Wheeler

Faculty Scholarship

There are other types of diversity beyond race, ethnicity, and sexual orientation. Professor Wheeler explores various ways that law librarians experience different types of diversity in law librarianship. Through anecdotes, Wheeler demonstrates that in many ways all law librarians both contribute to and benefit from diversity in our profession.

Contingent Compensation Of Post-Conviction Counsel: A Modest Proposal To Identify Meritorious Claims And Reduce Wasteful Government Spending, Christopher Robertson

Faculty Scholarship

This contribution to a symposium on post-conviction litigation argues that the lack of properly-incentivized counsel is a primary problem with our failing system of habeas litigation. The lack of counsel causes a great flood of frivolous petitions by pro se prisoners, while also preventing prisoners with meritorious claims from getting relief. The lack of counsel, and more fundamentally, the lack of funding therefor, thus perpetuates the problem of incarceration waste. Government-funded contingent compensation of post-conviction counsel may be the most promising way to help courts identify the bona fide cases deserving of relief, providing more accurate justice and saving money …

Implications Of Globalization For The Professional Status Of Lawyers In The United States And Elsewhere, Nancy J. Moore

Faculty Scholarship

No abstract provided.

The Politics Of Law And Film Study: An Introduction To The Symposium On Legal Outsiders In American Film, Jessica Silbey

Faculty Scholarship

The articles collected in this Symposium Issue on Legal Outsiders in American Film are examples of a turn in legal scholarship toward the analysis of culture. The cultural turn in law takes as a premise that law and culture are inextricably intertwined. Common to the project of law and culture is how legal and cultural discourse challenge or sustain communities, identities and relations of power. In this vein, each of the articles in this Symposium Issue look closely at a film or a set of films as cultural objects which, when engaged critically, help us think about law as an …

Truth Tales And Trial Films, Jessica Silbey

Faculty Scholarship

Investigations into law and popular culture preoccupy themselves with understanding how law and popular cultural forms work together to challenge or sustain community structures, identity and power. It is inevitable at this point in our cultural history that law and popular culture are intertwined. There are too many television shows, films, popular novels and web-based entertainment to withdraw "the law" (whatever that is) from the domain of popular culture. This article takes as a given the intermixing of law and popular culture, embracing it as a new feature of our popular legal consciousness. I suggest that one result of this …

The Lawyer As Citizen, James E. Fleming

Faculty Scholarship

The moral schizophrenia of the lawyer-person wrought by the American adversarial system's differentiation of professional morality from personal morality is at once alienating and anesthetizing. Alienating in that it separates a person from her/his actions taken in performing a professional role by attributing responsibility for these actions and their consequences to the role itself rather than to the individual. Anesthetizing in that it permits if not requires a professional to constrict the moral universe inhabited on the job, extruding moral sentiments that she/he otherwise might feel, numbing the moral sense of ordinary personal responsibility.

Conflicts Of Interests In The Representation Of Children, Nancy J. Moore

Faculty Scholarship

Conflicts of interests arise whenever the representation of a client may be materially limited by the lawyer's duties to either another client or a third person or by the interests of the lawyer herself.' Analyzing such conflicts typically requires identifying situations involving a potentially impermissible conflict, determining whether the conflict is consentable, and, if it is, obtaining consent after full disclosure.2 Conflicts analysis is difficult enough when the client is an adult.3 When the client is a child, however, the analysis is complicated by a number of factors. For example, in the wide variety of cases in which children (or …

Review Of "Constitutional Torts" By Sheldon H. Nahmod, Michael L. Wells, Thomas A. Eaton, Jack M. Beermann

Faculty Scholarship

The most interesting issues in the field of constitutional torts, involving the legal and moral bases for the government's responsibility for injuries it causes, are the most difficult ones for lawyers to explore. The question whether, as a moral or social policy matter, governments and government officials should enjoy immunities or other defenses not available to private individuals is rarely confronted directly in judicial opinions or in scholarship on constitutional torts, yet it lurks behind many of the doctrinal issues that come up in constitutional tort litigation.¹ A slight scratch on the surface of doctrines as disparate as official …

The Law Between The Bar And The State, Susan P. Koniak

Faculty Scholarship

The traditional understanding of the relation between law and professional legal ethics is that legal ethics covers matters not covered by law; that ethics sits passively above law, starting where law leaves off. In this Article, Professor Susan Koniak argues that this understanding is wrong. She asserts that professional ethics are in competition and conflict with law as it is embodied in the pronouncements of courts and legislatures. Although "law" is usually considered to be the near exclusive preserve of the state, the Article contends that private groups also have "law," but it is usually called "ethics." The legal profession's …

Doctors And Lawyers And Wolves, George J. Annas

Faculty Scholarship

Relations between lawyers and physicians, and therefore between law and medicine, are getting more and more destructive and counterproductive. It used to be a joke, but it's not funny anymore. We can't afford the continuing and escalating acrimony between our professions and it's time that we take constructive steps in the public interest to deal with it.