Law Commons^™

Bridging The Gap Between Unmet Legal Needs And An Oversupply Of Lawyers: Creating Neighborhood Law Offices - The Philadelphia Experiment, Jules Lobel, Matthew Chapman

Articles

In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with. This article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, …

Preparing For Service: A Template For 21st Century Legal Education, Michael J. Madison

Articles

Legal educators today grapple with the changing dynamics of legal employment markets; the evolution of technologies and business models driving changes to the legal profession; and the economics of operating – and attending – a law school. Accrediting organizations and practitioners pressure law schools to prepare new lawyers both to be ready to practice and to be ready for an ever-fluid career path. From the standpoint of law schools in general and any one law school in particular, constraints and limitations surround us. Adaptation through innovation is the order of the day.

How, when, and in what direction should innovation …

Improving The Performance Of The Performance Test: The Key To Meaningful Bar Exam Reform, Ben Bratman

Articles

If there are going to be bar exams in the United States — and there are, for the foreseeable future — then the lingering question is how to improve them to better serve the goal of evaluating minimum competence. The bar exam is roundly and rightly criticized by academics and practitioners as disconnected from the actual functions that lawyers perform. The focus of the exam, critics say, is too much on knowledge and memorization of law. That focus is exacerbated by the recent addition of a seventh substantive subject, Civil Procedure, to the Multistate Bar Examination (MBE).

The path to …

Innovators, Esq.: Training The Next Generation Of Lawyer Social Entrepreneurs, Stephanie Dangel, Michael J. Madison

Articles

Today’s law school graduates need to be entrepreneurial to succeed, but traditional legal education tends to produce lawyers who are “strange bedfellows” with entrepreneurs. This article begins by examining the innovative programs at many law schools that ameliorate this tension, including the programs offered by our Innovation Practice Institute (IPI) at the University of Pittsburgh School of Law. Although these programs train law students to represent entrepreneurs and to be entrepreneurial in law-related careers, few (if any) law schools train law students to be “business” entrepreneurs. Drawing on our own experiences and the writings of Bill Drayton, the lawyer who …

Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez

Articles

This article discusses how traditional teaching practices can reinforce systemic discrimination, exclusion, subordination and oppression within the classroom in particular detriment to women and students of color. The article traces the discussions about pedagogy in Outcrit literature and proposes that Outcrit scholars teaching techniques within the classroom should reflect anti-subordination praxis in teaching. Drawing from the work of Freire, Bell and others, the article proposes that teaching from an anti-subordination perspective requires a praxis of collaborative, non-hierarchical teaching that calls for an epistemological shift. A pedagogy that frees the student to think independently and leads to an experience where there …

Foreword Snx 2014: Challenges To Justice Education: South-North Perspectives, Sheila I. Velez Martinez

Articles

“Towards an Education for Justice: South North Perspectives” was the theme of the XI LatCrit South North Exchange on Theory, Culture and Law, convened at the Universidad de los Andes in Bogotá, Colombia in 2014. Scholars, students and activists from more than 10 countries encompassing the Global South and Global North engaged in a critical and animated exchange on the changing space of legal studies and how this change can be stirred towards acknowledging the need to integrate a concern for justice as part of legal education. The premise of the Conference was that the dominant model of legal education, …

Proposed Amendments To The Federal Judicial Misconduct Rules: Comments And Suggestions, Arthur D. Hellman

Testimony

In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved a revised set of rules for handling complaints of misconduct or disability on the part of federal judges. Moving away from the decentralizing approach of the pre-2008 Illustrative Rules, the new rules were made binding on all of the federal judicial circuits.

On September 2, 2014, the Conference’s Committee on Judicial Conduct and Disability (Conduct Committee) issued a set of draft amendments to the Rules. The announcement invited comments on the proposed amendments. This statement was submitted in response to …

Experiential Education As Critical Pedagogy: Enhancing The Law School Experience, Spearit, Stephanie Ledesma

Articles

This article examines the shift to greater experiential education in law school through the lens of critical pedagogy. At its base, critical pedagogy is about devising more equitable methods of teaching, helping students develop consciousness of freedom, and helping them connect knowledge to power. The insights of critical pedagogy are valuable for a fuller understanding of experiential education and its potential to affect students in profound ways, particularly as a means of empowerment. Although this is an understudied area of pedagogical scholarship, power relations are at the heart of legal education. Critical pedagogy offers a frame for considering how experiential …

Visions Of The Future Of (Legal) Education, Michael J. Madison

Articles

One law professor takes a stab at imagining an ideal law school of the future and describing how to get there. The Essay spells out a specific possible vision, taking into account changes to the demand for legal services and changes to the economics and composition of the legal profession. That thought experiment leads to a series of observations about values and vision in legal education in general and about what it might take to move any vision forward.

Cy Pres In Class Action Settlements, Rhonda Wasserman

Articles

Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”

Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the …

The Federal Judicial Conduct And Disability System: Unfinished Business For Congress And For The Judiciary, Arthur D. Hellman

Testimony

For most of the nation’s history, the only formal mechanism for dealing with misconduct by federal judges was the cumbersome process of impeachment. That era ended with the enactment of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (1980 Act or Act). In 2002, Congress made modest amendments to the Act and codified the provisions in Chapter 16 of Title 28. In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved the first set of nationally binding rules for misconduct proceedings.

Under the 1980 Act and …

Teaching Law And Digital Age Legal Practice With An Ai And Law Seminar: Justice, Lawyering And Legal Education In The Digital Age, Kevin D. Ashley

Articles

A seminar on Artificial Intelligence ("Al") and Law can teach law students lessons about legal reasoning and legal practice in the digital age. Al and Law is a subfield of Al/computer science research that focuses on designing computer programs—computational models—that perform legal reasoning. These computational models are used in building tools to assist in legal practice and pedagogy and in studying legal reasoning in order to contribute to cognitive science and jurisprudence. Today, subject to a number of qualifications, computer programs can reason with legal rules, apply legal precedents, and even argue like a legal advocate.

This article provides a …

Cooperation In Legal Education And Legal Reform, Ronald A. Brand

Articles

This contribution to the symposium Special Report on Kosovo After the ICJ Opinion focuses on legal education and its role in the legal reform necessary to any state that is transitioning to a new system of government. It does so by considering first the importance of legal education as a U.S. export to transition countries. This necessarily requires a reciprocal consideration of the importance to U.S. law schools of considering the external, international effect of implementing changes in the traditional structure of U.S. legal education, and about how teaching methods both distinguish differing legal systems and require cross-system consideration of …

Lawyering In Place: Topographies Of Practice And Pleadings In Pittsburgh, 1775-1895, Bernard J. Hibbitts

Articles

Even in the digital age, lawyering is always located. Lawyers live and work in physical space, and they deal with other lawyers and with clients who also have at least some measure of physicalized existence. Distracted and ofttimes overwhelmed by written records, legal historians have traditionally paid little attention to the physical environment of lawyering, but under the influence of contemporary cultural factors this is beginning to change. Indeed, in light of recent works on American, English and even ancient law it may be time to recognize the birth pangs of a new interdisciplinary field that we might label “legal …

Secret Class Action Settlements, Rhonda Wasserman

Articles

This Article analyzes the phenomenon of secret class action settlements. To illustrate the practice, Part I undertakes a case study of a class action lawsuit that recently settled under seal. Part II seeks to ascertain the scope of the practice. Part II.A examines newspaper accounts describing class action settlements from around the country. Part II.B focuses on a single federal judicial district – the Western District of Pennsylvania – and seeks to ascertain the percentage of suits filed as class actions that were settled under seal. Having gained some understanding of the scope of the practice, the Article then seeks …

Exporting Legal Education: Lessons Learned From Efforts In Transition Countries, Ronald A. Brand

Articles

A convergence of inward and outward-looking processes in US law schools creates both risk and potential reward in the development of legal education. As law faculties engage in the current process of changing the traditional law school curriculum, they should carefully coordinate a desire for internal goals with an understanding of external impact, realizing that this process is likely to affect not just US law schools, but legal education across the globe. Changes in the curriculum at US law schools should be responsive, not only to concerns about the legal marketplace in the United States, but also to the impact …

The Technology Of Law, Bernard J. Hibbitts

Articles

This paper argues that contemporary fascination with the law of technology (IP, cyberlaw, etc.) has led us to overlook the fundamental impact of the "technology of law," and offers suggestions for creating "neterate" lawyers more comfortable with and cognizant of technology itself. The author describes how the legal news service JURIST implements many of these suggestions and provides a unique learning experience for its law student staffers.

Transnational Class Actions And Interjurisdictional Preclusion, Rhonda Wasserman

Articles

As global markets expand and trans-border disputes multiply, American courts are pressed to certify transnational class actions -- i.e., class actions brought on behalf of large numbers of foreign citizens or against foreign defendants. While the Supreme Court's recent decision in Morrison v. National Australia Bank Ltd. is likely to reduce the number of "foreign-cubed" or "f-cubed" securities fraud class actions filed in the United States (at least in the short term), it is unlikely to inhibit the filing of transnational class actions involving securities listed on domestic stock exchanges, transnational class actions raising claims that arise under federal laws …

Learning By Doing: An Experience With Outcomes Assessment, Mary Crossley, Lu-In Wang

Articles

An emphasis on assessment and outcomes measures is a drum beat that is growing louder in American legal education. Prompted initially by the demands of regional university accreditation bodies, the attention paid to outcomes assessment is now growing with the forecast that the ABA will revise its accreditation standards to incorporate outcomes measures. For the past three years, the University of Pittsburgh School of Law has been developing a system for assessing the learning outcomes of its students. By describing our experience here at Pitt Law, with both its high and low points, we hope to suggest some helpful pointers …

Promoting The Rule Of Law: Cooperation And Competition In The Eu-Us Relationship, Ronald A. Brand

Articles

Both the United States and the European Union fund programs designed to develop the rule of law in transition countries. Despite significant expenditures in this area, however, neither has developed either a clear definition of what is meant by the rule of law or a catalogue of programs that can result in coordination of rule of law efforts. This article is the result of a presentation at a May 2010 policy conference at the University of Pittsburgh School of Law, at which U.S. and EU government officials, scholars, and practitioners discussed the concept of rule of law and efforts to …

Conflict Of Interest And Disqualification In The Federal Courts: Suggestions For Reform, Arthur D. Hellman

Testimony

Although federal judges do not run for election, over the last three decades the process of nomination and confirmation has become politicized to a disturbing degree. There is a real danger that the judges will come to be perceived not as dispassionate servants of the law but as political actors who pursue political or ideological agendas. One consequence of these developments is likely to be increased scrutiny of judges’ responses to motions to recuse. Here as in other aspects of the operations of the judiciary, “just trust us” is no longer sufficient.

Two provisions of Title 28 of the United …

Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman

Testimony

In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from the …

Voices Saved From Vanishing, Vivian Grosswald Curran

Articles

Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain examines the lives of eighteen émigré lawyers and legal scholars who made their way to the United Kingdom, almost all to escape Nazism, and analyzes their impact on the development of English law.

Bringing Sexual Orientation And Gender Identity Into The Tax Classroom, Anthony C. Infanti

Articles

A recent piece in the Journal of Legal Education analyzing student surveys by the Law School Admission Council reports that, despite improvement in the past decade, LGBT students still experience a law school climate in which they encounter substantial discrimination both inside and outside the classroom. Included among the list of "best practices" to improve the law school climate for LGBT students was a recommendation to incorporate discussions of LGBT issues in non-LGBT courses, such as tax. In a timely coincidence, the Section on Sexual Orientation and Gender Identity Issues held a day-long program at the 2009 AALS annual meeting …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Articles

In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit "lottery." The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

Writing To Learn Law And Writing In Law: An Intellectual Property Illustration, Michael J. Madison

Articles

This essay, prepared as part of a Symposium on teaching intellectual property law, describes a method of combining substantive law teaching with a species of what is commonly called "skills" training. The method involves assessing students not via traditional final exams but instead via research memos patterned after assignments that junior lawyers might encounter in actual legal practice. The essay grounds the method in the theoretical disposition known generally as "writing to learn." It argues that students are likely to learn intellectual property law effectively if they learn to practice as intellectual property lawyers, and specifically to write as intellectual …

The Curious Complications With Back-End Opt-Out Rights, Rhonda Wasserman

Articles

Class action litigation seeks to mediate pressing conflicts between individual autonomy and collective justice; federal supervision and local control; self-interested class counsel and the represented class. These conflicts are exacerbated when a federal court that approves a class action settlement later seeks to enjoin state court litigants from violating its terms. Yet the demand for such injunctions has increased in light of the advent of back-end opt-out rights. In recent years, class members have been afforded back-end, or delayed, opportunities to opt out of a class action once the terms of the settlement are disclosed. These back-end opt-out rights may …

Legal Scholarship, Humility, And The Scientific Method, David J. Herring

Articles

This essay responds to the question of What next for law and behavioral biology? by describing an approach to legal scholarship that relies on the scientific method. There are two steps involved in this approach to legal scholarship. First, the legal scholar must become familiar with an area of scientific research that is relevant to the development of law and policy. (This essay uses behavioral biology research as an example.) Second, the legal scholar must seek and form relationships across disciplines, becoming an active member of a scientific research team that conducts studies relevant to particular issues of law and …

Reining In The Supreme Court: Are Term Limits The Answer?, Arthur D. Hellman

Book Chapters

Once again, life tenure for Supreme Court Justices is under attack. The most prominent proposal for reform is to adopt a system of staggered non-renewable terms of 18 years, designed so that each President would have the opportunity to fill two vacancies during a four-year term. This book chapter, based on a presentation at a conference at Duke Law School, addresses the criticisms of life tenure and analyzes the likely consequences of moving to a system of 18-year staggered terms for Supreme Court Justices.

One of the main arguments for term limits is, in essence, that the Supreme Court should …

Computer Models For Legal Prediction, Kevin D. Ashley, Stephanie Bruninghaus

Articles

Computerized algorithms for predicting the outcomes of legal problems can extract and present information from particular databases of cases to guide the legal analysis of new problems. They can have practical value despite the limitations that make reliance on predictions risky for other real-world purposes such as estimating settlement values. An algorithm's ability to generate reasonable legal arguments also is important. In this article, computerized prediction algorithms are compared not only in terms of accuracy, but also in terms of their ability to explain predictions and to integrate predictions and arguments. Our approach, the Issue-Based Prediction algorithm, is a program …