Law Commons^™

Judicial Rhetoric: Writing Persuasive Opinions, Gerald Lebovits

Arkansas Law Review

In 1947, Judge George Rose Smith denounced, in the Arkansas Law Review, the “dearth of material concerning the mechanics of writing a judicial opinion” as a “striking omission in legal literature.” He was right.

The lack of attention given to the judicial opinion-writing process back then was hard to justify. Judges spend much of their time writing decisions. Decisions are important. They determine rights and responsibilities, as well as resolve controversies. Scholars have written about every aspect of judging and legal issue—except one of the most important ones: how to decide a case and justify the decision. Judicial opinions set …

Promoting A Rhetoric Of Judicial Legitimacy In Pro Se Litigation, Alistair E. Newbern

Arkansas Law Review

In recent months, headline after headline has decried twin threats to the federal judiciary: declining public trust in the courts and escalating threats to judges’ personal safety. The public’s opinion of the Supreme Court reached “close to a three decade low” in 2025, while Americans’ confidence in the federal judiciary as a whole “dropped to a record-low 35% in 2024.”

In his 2024 Year End Report on the Federal Judiciary, Chief Justice John Roberts identified a recent uptick in four areas of “illegitimate activity” that “threaten the independence of judges on which the rule of law depends: (1) violence, (2) …

Foreword, Amanda B. Hurst

Arkansas Law Review

This Symposium, The Art of Judging, delved into the complexity of the judicial craft, discussing the intellectual, practical, and human dimensions of judicial work. The Symposium addressed courtroom management, decision-making, and opinion writing, as well as the impact of evolving technologies on these core judicial functions. Another key focus was the increasing challenges judges face in responding to litigants’ wellness issues, managing their own well-being, and maintaining the judicial persona—both inside and outside the courtroom. Though the Symposium was not born out of the aim of combating the current climate, where misinformation and misunderstanding of the judicial role threaten …

Contents, Journal Editors

Arkansas Law Review

No abstract provided.

Arkansas Law Review - Volume 79 Issue 2, Journal Editors

Arkansas Law Review

No abstract provided.

Ghostwriting The Government, Bridget C.E. Dooling

Marquette Law Review

Ghostwriting is when a writer prepares materials to be issued under someone else’s name. The word describes a politician’s use of a speechwriter, a student’s purchase of a term paper, or a tongue-twisted admirer asking a poet to craft a love letter on his behalf. It also happens inside organizations every day: staff draft documents for others “up the chain” to sign. But when legislators rely on staff and lobbyists to draft bills, when an agency head relies on staff or contractors to write a rule, and when a judge relies on her clerk for a draft opinion, the benefits …

Contract Drafting Classes Should Introduce Law Students To Real World Practice Like Other Legal Writing Classes, Ben L. Fernandez

Saint Louis University Law Journal

Contract drafting classes in law school should not just be about clear writing. They should also cover more of the process of drafting in the real world, including contributing to the substance of agreements, working with precedents, negotiating contract language, and handling a closing. A textbook author’s opinions about how various phrases should be drafted are valuable, but it must also be recognized that lawyers seldom draft from scratch. They are primarily involved with tailoring prewritten documents commonly used for business and financial transactions. And the conventions followed in those documents vary.

Original Public Meaning And The Rule Of Recognition, Andrew Jensen Kerr

William & Mary Bill of Rights Journal

Framer intent no longer possesses the same cachet it once held. But Framer influence still matters for public meaning originalism, particularly for communications like The Federalist Papers, in which Alexander Hamilton, John Jay, and James Madison marketed the work of the Philadelphia Constitutional Convention to state ratifying conventions and the constituencies they represented. Contemporary originalists posit that what the Constitution meant to this public audience at the time of ratification is cemented in time forever (the fixation thesis). The starting point for my analysis is the prosaic observation that our Framers occasionally changed their minds about the meaning of …

The Lone Dissent, Grant Christensen, Anne Mullins

Washington and Lee Law Review

What can be learned when a Supreme Court Justice decides to write a lone dissent? There exists a powerful set of incentives for Supreme Court opinions to achieve consensus. Although closely divided cases grab news headlines, unanimous opinions are actually the most commonly issued judicial alignment, and cases in which a single Justice dissents are the most unlikely. Despite voluminous academic discussion of judicial behavior, no legal scholarship has focused on the lone dissent. This Article is designed to insert consideration of lone dissenting opinions into the broader discussion of judicial behavior.

Looking at the set of Supreme Court opinions …

The Power Of Voice In The Law: Reflections Of A Public Defender Turned Federal Judge, Eunice C. Lee

Hofstra Law Review

No abstract provided.

Hi-Ho, Off To Work Asylees Must Go: New York's Need To Facilitate Migrant Work Permits, Claire S. Campuzano

Hofstra Labor & Employment Law Journal

No abstract provided.

Does A Buyer Really Have The “Luxury” Of Invoking An Mae Clause? A (Hypothetical) Mae Analysis Of The Lvmh-Tiffany Merger After Akorn, Alexandra Boeriu

Case Western Reserve Law Review

No abstract provided.

Bolstering New York’S Tenant Protection Law: Ensuring Retroactive Application Under The Heightened Regina Standard, Abigail Strange

Cardozo Law Review

Rent regulation laws have long been a cornerstone of the New York City and New York State housing markets, enacted to combat excessive rent increases that risked pricing out low- and middle-income tenants. On June 14, 2019, the New York State Legislature enacted the Housing Stability and Tenant Protection Act (HSTPA), which brought sweeping changes to New York’s rental laws, including regulated and unregulated buildings. The HSTPA significantly expanded tenant protections across New York State, and specifically in New York City, which currently has one of the highest monthly rent medians in the country. The passage of the HSTPA was …

Pass The Salt: Problem-Resolution Lawyering Across The Twenty-First Century Law Curriculum, Kris Franklin, F. Peter Phillips

Pepperdine Dispute Resolution Law Journal

Attorneys work with clients to resolve problems. Legal education can help prepare law graduates to do that work. As an added bonus, doing so would in turn help law students understand and retain the subjects they study. Law professors who teach alternative dispute resolution, lawyering skills, clinics, and sometimes traditional doctrinal courses, have all called for greater inclusion of dispute resolution in the law school curriculum. Some have urged the introduction of specific courses to prepare contemporary law students to work as problem resolvers. This Article builds on these and other calls for reform, but urges a genuine reconceptualization of …

Easing Evictions: The Need For Mediation And Formal Eviction Guidelines Between New York City Landlords And Rent-Stabilized Tenants, Halle Jaffe

Cardozo Journal of Conflict Resolution

No abstract provided.

If I Had More Time, Would I Have Written A Shorter And Faster Decision? An Empirical Examination Of The Evolution Of Trial Court Decisions, Jon Khan

Dalhousie Law Journal

This article draws from my 2019 LLM thesis on Canadian judicial decisions, where I sought to understand two things: how current approaches to judicial decision-writing may impact access to justice and how might we make decisions a better source of data while also making them more timely, concise, accessible, and consistent. It presents the results and analysis of an original empirical study of the evolution of British Columbia trial decisions over 40 years (1980–2018). It argues that the current process for writing Canadian judicial decisions likely does not further the goals of access to justice and may even hinder them. …

Eviction Court Displacement Rates, Nicole Summers

Northwestern University Law Review

This Essay introduces the concept of eviction court displacement rates, defined as the percentage of eviction filings that result in tenant displacement. The Essay argues that a jurisdiction’s eviction court displacement rate provides crucial insight into the role of its legal system in driving substantive eviction outcomes. The Essay then compiles existing data on court displacement rates and compares those rates across jurisdictions. This comparison reveals massive variation in court displacement rates nationwide. In some jurisdictions, a tenant’s likelihood of displacement upon receiving an eviction filing is approximately one in twenty. In other jurisdictions, it is higher than one in …

Stronger Than Ever: New York’S Rent Stabilization System Survives Another Legal Challenge, Charles K. Gehnrich

Fordham Law Review

The fate of New York’s rent stabilization laws (RSL) directly concerns millions of New York City residents who take shelter in the protection of the RSL from the hardships and unfair business practices that accompany an unregulated housing market during a housing crisis. After the New York State Legislature made these tenant protections stronger than ever before in 2019, affected landlords responded by petitioning the courts to dismantle the entire rent regulation regime. A federal district court in the Eastern District of New York rejected the landlords’ broad constitutional challenge in Community Housing Improvement Project v. City of New York …

دور المحكمة الصورية في تطوير التعليم القانوني التطبيقي " كلية الحقوق بجامعة فلسطين الأهلية أنموذجاً ", محمد نظمي صعابنة استاذ مساعد

Journal of Al-Azhar University – Gaza (Humanities)

ملخص:

تناولت هذه الدراسة موضوع دور المحكمة الصورية في تطوير التعليم القانوني التطبيقي" كلية الحقوق بجامعة فلسطين الأهلية أنموذجاً"، هادفة إلى بيان مفهوم المحكمة الصورية وطبيعتها، ونطاق تطبيقها، وأهميتها، وكذلك نشأتها ومكوناتها، والموقع الحسي لها من كلية الحقوق في جامعة فلسطين الأهلية.

وقد ظهر أن للمحكمة الصورية علاقة بينة بالدوائر المتعددة للجامعة، وأن هناك عدة إجراءات خاصة تتعلق باستخدامها، وآلية التدريب فيها، بما يساعد في تحقيق دورها المهم في تطوير التعليم القانوني التطبيقي الذي يربط بين الجانبين النظري والعملي للتعليم القانوني، الذي لا يخلو من المعوقات والصعوبات المتعلقة بذلك.

كلمات مفتاحية: المحكمة الصورية، التعليم القانوني التطبيقي

Abstract:

This study is …

The Rise Of Transnational Commercial Courts: The Astana International Financial Centre Court, Ilias Bantekas

Pace International Law Review

The proliferation of international commercial courts aims to boost income from legal services and serve as a catalyst for newly found rules of law and thus attract investor confidence. The latter is the underlying purpose for the creation of the Astana International Financial Centre (AIFC) and its Court. The Court’s legal framework is set out in the tradition of its competitors in the Gulf and similarly employs an impressive lineup of former senior judges from the United Kingdom. It is a unique experiment because it strives to create a balance between maintaining a judicial institution of the highest caliber while …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Catholic University Law Review

The focus of this Essay is on the importance that apparent honesty has on the persuasive force of Supreme Court opinions. Legal scholars and Supreme Court Justices have observed the connection between the Court’s legitimacy and the persuasive force of its opinions. Because the Court’s opinions are both an exercise of the Court’s power and the justification for that power, the Justices’ opinions must be persuasive.

The study of rhetoric has long recognized three methods of persuading an audience of the correctness of a particular view. Those methods are appeals to logic, credibility, and emotion. Of theses three methods, I …

Child Abuse And Cannabis Use: How A Prima Facie Standard Mischaracterizes Parental Cannabis Consumption As Child Neglect, Jasmine Harris

Cardozo Law Review

No abstract provided.

Save It For The Judge? A Case Study On The Effects Of Big Money On State Judicial Elections And The Call For Stronger Recusal Rules, Gustavo A. Jimenez

Indiana Journal of Law and Social Equality

No abstract provided.

Goodbye To Concurring Opinions, Meg Penrose

Duke Journal of Constitutional Law & Public Policy

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors. The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common …

Pro Se, No Say?: The Impact Of Presumptive Mediation In The New York State Court System On Self-Represented Litigants, Sarah Konnerth

Fordham Law Review

In May 2019, the New York State Unified Court System announced its plan to refer all civil cases to various forms of alternative dispute resolution at the earliest stage of litigation. The presumptive alternative dispute resolution initiative aims to decrease costs associated with litigation, improve case outcomes, and reduce case delays. In the context of mediation, litigants, both represented and self-represented, may be seated across from each other at a table to discuss their disputes with the assistance of a neutral third party. This Note examines mediation and discusses the policy implications of a presumptive mechanism for pro se parties. …

Reporting Certainty, James A. Macleod

BYU Law Review

Legal theorists, judges, and legal writing instructors persistently decry the assertions of certainty—”obviously X,” “undoubtedly Y,” etc.—that litter judicial opinions. According to the conventional view, the rhetoric of certainty that these assertions epitomize is disingenuous. It also reflects, and even encourages, poor judicial decision-making. And as if that were not enough, it is so unpersuasive that it is counter-persuasive: it signals uncertainty, nonobviousness, etc.—the exact opposite of what its author intends. Judges, for these and other reasons, should abstain from needless assertions of certainty and the myopic thinking they evince. That much is certain.

Yet the rhetoric of certainty persists. …

A Tenant’S Fate In The Mountain State: What State Ex Rel Morrisey V. Copper Beech Townhome Communities Means For Tenants As Consumers, Emily Ann Cramer

West Virginia Law Review

No abstract provided.

Menulis Di Jurnal Hukum: Gagasan, Struktur, Dan Gaya, Andri Gunawan Wibisana

Jurnal Hukum & Pembangunan

Writing articles in a law review is different from writing an opinion in a newspaper or articles in other types of journals. Indonesian authors often fail to indicate the problems to be discussed, the proposed thesis statement or idea (claim), and the structure of the article. They also write too descriptive and employ very limited references. This paper aims to support the authors to find out important aspects in formulating a good legal article. For this reason, this paper explains that an article must contain the claim, and be novel, non-obvious, and useful. This paper also explains the importance of …

Contrastive Analysis And Contrastive Rhetoric In The Legal Writing Classroom, Diane B. Kraft

New Mexico Law Review

In the past several decades, the number of English-as-a-second-language (ESL) speakers attending law schools as part of J.D. and LL.M. programs has increased dramatically. While some of these students are fluent in English, many are not yet able to read, write, and speak English, or understand spoken English, at the advanced level required for successful graduate work in law. The language problems are sometimes grammatical, sometimes cultural, and often both. For those students who are required to complete a writing course as part of their graduate program, deficiencies in writing ability can be a difficult obstacle to overcome. For the …

The Art Of The Effective Reply, Peter M. Mansfield

The Journal of Appellate Practice and Process

No abstract provided.