Law Commons^™

Social Media Campaigns As An Emerging Alternative To Litigation, Michael Tristan Morales

Tristan Morales

This article analyzes the likely impact of social media on the legal arena. In particular, it seeks to identify the extent to which social media campaigns might emerge as a viable alternative to litigation in cases where an injury occurs. The Internet has given individuals an easily accessible and broadly impactful platform for voicing allegations of indignity and injustice. By exploring the impact of social media campaigns on two areas of law in which litigation has long been deemed invaluable, consumer protection and employment law, this article seeks to demonstrate that the Internet might also soon overhaul the way we …

The Revolution In Family Law Dispute Resolution, John Lande

John Lande

In the past fifty years, the revolution in American family law led to a revolution in family law dispute resolution. Virtually every aspect of divorce law has been transformed since the Mad Men era, including grounds for divorce, characterization of marital property, child custody presumptions, and alimony and child support rules. Marriage is not assumed to be a lifelong commitment. Fault generally is not legally relevant. Gender equality is a fundamental principle. In this period, family courts struggled with an increased volume of cases and ambiguous rules. They found that the tools of litigation were poorly suited to handle most …

Teaching Students To Negotiate Like A Lawyer, John Lande

John Lande

Teaching students to negotiate effectively is central to their thinking, acting, and being like good lawyers. Virtually all lawyers spend much of their time negotiating, whether they deal with disputes or transactions. So law school negotiation courses should provide the most realistic possible portrayal of legal negotiation. This essay is intended to help instructors plan and teach negotiation courses, recognizing that every course should be tailored to fit the interests, capabilities, resources, and constraints of the instructors and students. This essay argues that many lawyers engage in “ordinary legal negotiation” (OLN), which is distinct from “romantic” theories of positional and …

The Public Speaks: An Empirical Study Of Legal Communication, Christopher R. Trudeau

Christopher R Trudeau

Most attorneys agree that writers need to tailor their writing to a particular audience. This just makes sense. So it is not a stretch to argue that to convey a clear message to a client, attorneys should use plain language. But there is little empirical data supporting the public’s preference for plain language. Rather, most sources largely rely on anecdotal evidence to prove this point. Therefore, in 2011, I conducted a study to help measure many of the following unanswered questions: to what degree does the public prefer plain language over traditional legal language? How do people react when they …

A Supreme Court Clinic’S Place In The Supreme Court Bar, Jeffrey L. Fisher

Jeffrey L Fisher

The past several years have witnessed the emergence of a new phenomenon: clinics in law schools that litigate cases in the Supreme Court. Although some commentators have written about the pedagogical goals and benefits of such clinics, no-one yet has written about their public interest mission. This article takes up that task. It begins by empirically testing, for the first time in modern literature, the clinics’ foundational assumption: that litigants in the Court who are represented by local counsel instead of Supreme Court specialists are generally at a distinct disadvantage. Finding that assumption to be accurate, the article identifies and …

Does Private Enforcement Attract Excessive Litigation? Evidence From The False Claims Act, David Y. Kwok

David Y Kwok

Private litigation can help correct wrongs, but the right to litigate can also be abused. The structure of the U.S. judicial system can make it difficult to determine how frequently private parties misuse litigation. Utilizing a new data set of False Claims Act litigation, I conduct a systematic evaluation of private litigation in the fraud context. I find law firms generally pursue a cooperative strategy with the Department of Justice rather than adopting abusive litigation practices. This suggests that private litigation may effectively complement public enforcement and that such litigation may be helpful in other areas of law.

Ten Elements Of "Real" Ethics In The Practice Of Law (And Life), David Barnhizer

David Barnhizer

The legal profession has been “running a game” on its clients and on American society in its claim that it can self-regulate. The system of ethical regulation as practiced by the legal profession and courts is not a “real” system nor can it even be said to be an Ideal system. It is a deceptive pretense and pretension. It is time to stop the deception and to construct a new way of regulating lawyers and holding them to account for deficiencies and neglect. Many lawyers will not accept this interpretation either because of self-interest or to avoid facing the uncomfortable …

"No Country For Old Men:" Junior Associates And The Real-World Practice Of Law, Ian Gallacher

Ian Gallacher

This short essay seeks to give law students hoping to be junior associates at large, big-city law firms some information about the seemingly large salaries offered to them and discusses what life might be like for them if they take a position at one of these firms. The essay begins with a discussion of how much an associate might expect to keep, after the cost of living in a large city is accounted for, from the advertised starting salary offered by such firms. It then considers what it costs the firm to pay an associate such a large salary, how …

Civility And Professionalism At The Massachusetts Bar: The Heritage And The Challenge Today, Daniel Coquillette

Daniel R. Coquillette

Introductory section for course materials for the class titled "Practicing with Professionalism," which has been proposed to the Supreme Judicial Court of Massachusetts as a new requirement for newly-admitted attorneys.

Note: Guiding The Modern Lawyer Through A Global Economy: An Analysis On Outsourcing And The Aba's 2012 Proposed Changes To The Model Rules, Patrick Poole

Patrick Poole

Over the last few decades, the dramatic changes that have occurred in the global economy have similarly altered the landscape for outsourced work both domestically and internationally. One study estimates that as many as 3.3 million white-collar jobs could be shipped abroad by 2015. This growing trend has also substantially affected the unique nature of the legal field. For the past year and a half, the American Bar Association (ABA) Ethics 20/20 Commission has been considering changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. The revision process has included soliciting input from …

States Side Story: Career Paths Of International Ll.M. Students, Or “I Like To Be In America”, Carole Silver

Carole Silver

This Article draws on an empirical study of the careers of international law graduates who earned an LL.M. in the United States, and considers the role of a U.S. LL.M. as a path for building a legal career in the United States. It identifies the institutional, political, and economic forces that present challenges to graduates who attempt to stay in the United States. While U.S. law schools prize the international diversity of their graduate students, this study reveals that the U.S. legal profession is most accessible to international students from English-speaking common law countries, whose language and background allow them …

New York's Law Of Tax Malpractice Damages: Balanced Or Biased?, Jacob L. Todres

Jacob L. Todres

In this article Professor Todres focuses on two common elements of damages often incurred by plaintiffs who are the victims of negligently rendered incorrect tax advice—additional, avoidable taxes, and interest on underpaid taxes. Both of these types of damages appear not to be recoverable under current New York law that traces its roots to Alpert v. Shea Gould Climenko and Casey, 160 A.D.2d 67, 559 N.Y.S.2d 312 (1st Dept. 1990).

As to the non-recovery of additional taxes that could have been avoided with correct advice, Professor Todres argues that current New York law is incorrect. It is based upon Alpert, …

Expanding The Lawyer's Toolkit Of Skills And Competencies: Synthesizing Leadership, Professionalism, Emotional Intelligence, Conflict Resolution, And Comprehensive Law, Susan Daicoff

Susan Daicoff

No abstract provided.

The Arbitration Fairness Index: Using A Public Rating System To Skirt The Legal Logjam And Promote Fairer And More Effective Arbitration Of Employment And Consumer Disputes, Thomas J. Stipanowich

Thomas J. Stipanowich

Recent Supreme Court decisions have heightened concerns about the degree of effective judicial oversight of consumer and employment arbitration under binding predispute agreements. Efforts to address such concerns are largely stymied by a political logjam. Because binding arbitration serves as the adjudicative backdrop for many kinds of consumer disputes or employer-employee conflict, the choice of arbitration and the kind of justice available under arbitration agreements may be every bit as important as consumer warranties and other substantive rights and remedies. Yet consumers and employees tend to know very little about arbitration and how it affects their rights and obligations; arbitration …