Law Commons^™

Mosten And Scully’S New Book On Unbundled Legal Services, John M. Lande

Faculty Blogs

This post discusses Forrest (Woody) Mosten and Elizabeth Potter Scully’s book, Unbundled Legal Services: A Family Lawyer’s Guide. Unbundling involves providing specified services to legal clients rather than “full service” representation. Unbundling is particularly helpful in family matters because parties generally understand the issues and may represent themselves well if they have some legal help. Many family courts are overwhelmed with large numbers of cases involving self-represented litigants, so providing unbundled legal services can make a significant contribution to the legal system. In virtually all types of cases, some people have the interests in unbundling, not just family matters.

Takeaways From New Hampshire Mediation Training, John M. Lande

Faculty Blogs

This post highlights some key findings from survey data and focus-group-like comments from court mediation training for the training participants as well as readers of this blog.

Stone Soup: Learning How People Actually Prepare For Negotiation And Mediation, John Lande

Faculty Blogs

This post suggests questions in Stone Soup interviews that students can ask lawyers and mediators about how they prepare for negotiation and mediation.

Letter To Kelly, John Lande

Faculty Blogs

This is a letter I wrote to someone who was about to start law school. I advised keeping focused on their goals and how best to achieve them. I cautioned about portrayals of lawyers on TV and in the movies. I warned about the “hidden curriculum” which creates misimpressions by focusing on appellate cases. I encouraged them to remember what it is like to be a “normal” person, a perspective they may forget after being initiated in the legal tribe. I advised trying to see the world through others’ eyes.

Lessons From The Aba’S Excellent Report On Mediator Techniques, John M. Lande

Faculty Blogs

This post highlights findings from the report of the ABA Section of Dispute Resolution Task Force on Research on Mediator Techniques. The report identified 47 studies from the past four decades that analyzed effects of particular mediator actions on certain mediation outcomes. The Task Force found that none of the categories of mediator actions has clear, uniform effects across the studies. In general, the studies found that some generally uncontroversial actions – such as eliciting suggestions, focusing on emotions and relationships, building trust, expressing empathy, praising disputants, and setting agendas – may or may not produce positive effects. It found …

Sanctions For Evading Maximum Page Limits On Court Filings, Douglas E. Abrams

Faculty Publications

Judge Marrero joins a growing lineup of judges who have imposed or threatened sanctions on counsel for attempting to evade court rules that set maximum page limits on briefs, memoranda, and other filings. Orders and reported opinions catalogue various strategies, including these: presenting the main text in a font smaller than the court's required font; presenting the main text with spacing less than required double spacing; using excessive footnotes, often single-spaced or in small fonts; or narrowing required margins on the sides, the top, or the bottom of pages.

Empowering Consumers Through Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

We transact online every day, hoping that no problems will occur. However, our purchases are not always perfect: goods may not arrive; products may be faulty; expectations may go unmet. When this occurs, we are often left frustrated, with no means for seeking redress. Phone calls to customer service are generally unappealing and ineffective, and traditional face-to-face or judicial processes for asserting claims are impractical after weighing costs against likely recovery. This is especially true when seeking redress requires travel, or for crossborder claims involving jurisdictional complexities. This situation has created a need for online dispute resolution (“ODR”), which brings …

How University Title Ix Enforcement And Other Discipline Processes (Probably) Discriminate Against Minority Students, Ben L. Trachtenberg

Faculty Publications

This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement - launched with the best of intentions in response to real problems - almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, which prevents evaluation of possible disparate racial impact in higher education. Further, several aspects of the university disciplinary apparatus-including broad and vague definitions of offenses, limited access to legal counsel, and …

The Cuban Missile Crisis, Historian Barbara W. Tuchman, And The Art Of Writing, Douglas E. Abrams

Faculty Publications

From behind-the-scenes accounts, we know that an articulate best-selling book published just a few months earlier by historian Barbara W. Tuchman, a private citizen who held no government position, contributed directly to the delicate negotiated resolution of the Cuban Missile Crisis.

After chronicling Tuchman's contribution to world peace. this article discusses her later Public Douglas commentary about what she called the "art of writing," commentary that remains instructive for lawyers who write as representatives of clients or causes in the private or public sector.

Kiser’S Soft Skills For The Effective Lawyer, John Lande

Faculty Blogs

This post describes Randall Kiser’s book, Soft Skills for the Effective Lawyer. He defines soft skills as including “intrapersonal and interpersonal competencies such as practical problem solving, stress management, self-confidence, initiative, optimism, interpersonal communication, the ability to convey empathy to another, the ability to see a situation from another’s perspective, teamwork, collaboration, client relations, business development, and the like.” He presents research showing that legal clients especially value these skills in lawyers.

Published Versions Of Tower Of Babel Symposium Articles, John M. Lande

Faculty Blogs

This post provides links to the articles in the Tower of Babel Symposium.

Dealing With Causes As Well As Symptoms Of Law Students’ And Lawyers’ Lack Of Well-Being, John Lande

Faculty Blogs

This post discusses the National Task Force on Lawyer Well-Being’s report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The report recommends that faculty “assess law school practices and offer faculty education on promoting well-being in the classroom.” It cites research suggesting that “potential culprits that undercut student well-being includ[e] hierarchical markers of worth such as comparative grading, mandatory curves, status-seeking placement practices, lack of clear and timely feedback, and teaching practices that are isolating and intimidating.” This post notes that legal practice is inherently stressful and recommends changing legal practice culture. Individual practitioners may reduce their …

Message For Students Interested In Adr, John Lande

Faculty Blogs

This post provides suggestions for things that law students interested in ADR might read and do.

The Faithless Elector And 2016: Constitutional Uncertainty After The Election Of Donald Trump, Alexander Gouzoules

Faculty Publications

Presidential electors are generally expected to vote for the candidate who won their state's election, and those who do not are referred to as "faithless electors." A majority of states have laws of varying types that bind their electors to vote for the winning presidential candidate. The 2016 election, for the first time in modern history, produced a serious movement urging electors to cast faithless votes against Donald Trump. Although this movement was not successful, 2016 saw the most faithless electors in recent history by a large margin. Three separate, ultimately unsuccessful, lawsuits were filed by would-be faithless electors in …

Federalism Implications Of Non-Recognition Of Licensure Reciprocity Under The Gun-Free School Zones Act, Royce De R. Barondes

Faculty Publications

The Gun-Free School Zones Act (GFSZA) criminalizes firearms possession within 1000 feet of an elementary or secondary school in a State unless the possessor "is licensed to do so by the State in which the school zone is located" (or one of a few other exceptions applies). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has in correspondence opined licensure through reciprocity does not make one so licensed by the State.

School zones covered by the act are ubiquitous. Were the ATF's interpretation adopted, large swaths of many States' non-rural areas would be prohibited zones for non-residents who carry …

Zika And The Regulatory Regime For Licensing Vaccines For Use During Pregnancy, Sam F. Halabi

Faculty Publications

Microcephaly and other severe fetal brain defects (congenital Zika syndrome) caused by the Zika virus have prompted an urgent effort to develop and license a safe and efficacious vaccine. Yet, that effort has run up against one of the most formidable barriers in vaccine research: pregnant women are almost always excluded from clinical trials for fear that the intervention may harm the fetus. This article analyzes the existing regulatory framework for vaccines intended for use during pregnancy in an effort to identify ways the process may be reconsidered in light of recent public health emergencies that had a disproportionate effect …

Congress And Commercial Trusts: Dealing With Diversity Jurisdiction Post-Americold, S. I. Strong

Faculty Publications

The treatment of commercial trusts reached its nadir in early 2016, when the U.S. Supreme Court held in Americold Realty Trust v. ConAgra Foods, Inc. that the citizenship of a commercial trust should be equated with that of its shareholder-beneficiaries for purposes of diversity jurisdiction. Unfortunately, the sheer number of shareholder-beneficiaries in most commercial trusts (often amounting to hundreds if not thousands of individuals) typically precludes the parties' ability to establish complete diversity and thus eliminates the possibility of federal jurisdiction over most commercial trust disputes. As a result, virtually all commercial trust disputes will now be heard in state …

The Pesky Serial Comma, Douglas E. Abrams

Faculty Publications

The "serial comma" - sometimes called the "Oxford comma" or the "Harvard comma"- comes immediately before a conjunction that separates the last of three or more elements in a series. For example, consider the trio "ready, willing, and able." Consider too "win, lose, or draw." The serial comma is the one immediately before the "and" or the "or." In statutes or private arrangements, a comma's presence (or, as in O'Connor, its absence) may hold high stakes for litigants.

The Pesky Serial Comma, Douglas E. Abrams

Faculty Publications

No abstract provided.

The New Handshake: Where We Are Now, Amy J. Schmitz, Colin Rule

Faculty Publications

The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.

What Theory Do Practitioners Want?, John M. Lande

Faculty Blogs

There isn’t a single negotiation theory – it comes from many different sources. For example, one person said that labeling using conceptual frameworks, such as Roger Fisher’s and Daniel Shapiro’s five core concerns, can be useful in understanding and dealing with emotions. Others pointed to the value of procedural justice, human needs, and social value theories. Social value theory involves people’s orientations about resource allocation.

References To Spring's Championship Sports In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

t'he courts' own careful use of sports references invites advocates to carefully use sports references in the-i briefs and other written submissions. With the post-season playoffs and the World Series holding sports fans' attention, I wrote in the journal's September-October 2016 issue about the role of baseball references in judicial opinions and written advocacy. As attention turned to post-season playoffs and the Super Bowl, I wrote in the January-February 2017 issue about football references.

The trilogy of articles concludes here with sampling of judges' recent references to four sports that hit high notes every Spring Basketball, with the National Basketball …

Limiting The Collective Right To Exclude, Andrea Boyack

Faculty Publications

For decades, society’s disparate interests and priorities have stymied attempts to resolve issues of housing affordability and equity. Zoning law and servitude law, both of which have been robustly empowered by decades of jurisprudence, effectively grant communities the legal right and ability to exclude various sorts of residences from their wealthiest neighborhoods. Exclusion by housing type results in exclusion of categories of people, namely, renters, the relatively poor, and racial minorities. Although our society’s housing woes may indeed be intractable if we continue to treat a group’s right to exclude with the level of deference that such exclusionary efforts currently …

Review Essay: Charity For The Autonomous Self, Carl H. Esbeck

Faculty Publications

Review essay for "Charity Law and the Liberal State", by Matthew Harding and "Religion, Charity and Human Rights", by Kerry O'Halloran.

Players Remember: A Coach's Impact Remains Long After The Game Ends, Douglas E. Abrams

Faculty Publications

No abstract provided.

Drop Everything And Read Noam’S Masterpiece Right Now, John Lande

Faculty Blogs

This post describes Noam Ebner’s article, Negotiation is Changing. He argues that people’s everyday behaviors have changed in recent years, and that “people-as-negotiators, and therefore negotiation itself, have also undergone significant change.” He describes how people’s bodies are physiologically changing, how we are changing our behaviors, how we are being changed by our new behaviors, and how we are interacting in new ways. He illustrates his thesis by describing changes in behavioral, psychological, and emotional elements of negotiation including attention, communication, empathy, and

Moving Negotiation Theory From The Tower Of Babel Toward A World Of Mutual Understanding Summary, John M. Lande

Faculty Blogs

Our current negotiation theory needs improvement. As we develop better negotiation theory, we should start by appreciating the valuable work that has been done by our predecessors. Moving forward, we should acknowledge that scholars are subject to the same cognitive biases that we document in our work. For example, it is easy to fall prey to the status quo and confirmatory biases that keep us from developing better understandings of negotiation. Thus we should take conscious action to carefully consider how traditional ways of thinking distort our understandings and whether there are better ways to understand negotiation. This is particularly …

What Is Negotiation, Anyway?, John M. Lande

Faculty Blogs

This is a particularly useful article for the first class or two of a negotiation course, guaranteed to stimulate a spirited discussion.

Prenatal Abandonment: 'Horton Hatches The Egg' In The Supreme Court And Thirty-Four States, Mary M. Beck

Faculty Publications

Under prenatal abandonment theory, fathers can lose their parental rights to nonmarital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers' paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; …

Recalibrating The Federal Economic Crime Guideline: An Admiring Rejoinder To Judge Bennett And Friends, Frank O. Bowman Iii

Faculty Publications

I have read with the greatest pleasure the article on federal white-collar crime sentencing by U.S. District Judge Mark Bennett and Professors Justin Levinson and Koichi Hioki. They review the history of fraud sentencing in the Sentencing Guidelines era, offer a persuasive critique of some deficiencies in the current regime, present the results of their own survey of judicial attitudes toward sentencing a representative fraud case, and propose a series of useful prescriptions for change. Inasmuch as they are kind enough to cite my own work approvingly throughout the article, it will come as no surprise that I agree with …