Law Commons^™

Using Real Practice Systems Resources In Practice, John M. Lande

Faculty Blogs

This post describes how mediators can use ideas and materials from the Real Practice Systems Project to better understand and improve their own mediation systems. Mediators’ practice systems are the combination of factors affecting what they do before, during, and after mediation sessions. These systems include their routine procedures and strategies for dealing with recurring challenging situations. Trainers and mediation program administrators can use this to help mediators in their programs.

Resources For Using Real Practice Systems Materials In Teaching, John Lande

Faculty Blogs

This post describes how faculty can use ideas and materials from the Real Practice Systems Project to help students get realistic understandings of practice. Although the project has generally focused on the systems that mediators develop and use, it can be adapted to understand the perspectives of lawyers acting as advocates in mediation, negotiators, and in legal practice generally. In addition to requiring or recommending that students read publications about real practice systems, faculty could assign students to write papers such as (1) a Stone Soup interview of a practitioner, (2) a description of students’ actual system in simulated or …

Shifting The Central Paradigm To Dispute System Design, John Lande

Faculty Blogs

This post argues that instead of identifying our field as ADR, we should use dispute system design as our central theoretical framework. Although people often think of DSD as being used only in large organizations, individuals and small practice groups also handle streams of cases and can use these principles and techniques to improve their case management and dispute resolution procedures. DSD is about tailoring dispute systems to the needs of stakeholders, especially disputing parties. Good designs fit the stakeholders’ context and culture so that the dispute processes produce as much satisfaction of the parties’ procedural and substantive goals as …

Legal Citations: A Foundation Of Written Advocacy, Douglas E. Abrams

Faculty Publications

The article advanced this formula for achieving effective appellate advocacy: “First, you seek to persuade the court of the merit of the client’s case, to create an emotional empathy for your position. Then you assist the court to reach a conclusion favorable to the client’s interest in terms of the analysis of the law and the procedural posture of the case.”

Houston, We Have A Problem In The Dispute Resolution Field, John M. Lande

Faculty Blogs

Parties are supposed to actively participate in mediation (and other dispute resolution processes to some extent), and thus they need to understand what experts are saying. Lawyers representing clients in mediation especially need to understand the process to fulfill their ethical responsibility of competence. And certainly mediators should understand basic concepts of mediation.

Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules

Faculty Publications

This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.

This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate …

Taxation And The Constitution, Reconsidered, David Gamage, John R. Brooks

Faculty Publications

Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.

This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …

Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter

Faculty Publications

This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …

References To Robert Frost's Poetry In Advocacy And Judicial Opinions, Douglas E. Abrams

Faculty Publications

This article concerns courts whose written opinions have recently cited and quoted Frost and his poetry. By profiling Frost’s enduring influence, the article fortifies a theme I have presented in earlier “Writing It Right” articles. The theme begins in the courts, which in recent years often accent their opinions’ substantive or procedural rulings by quoting or citing well-known cultural markers from literature, sports, or popular entertainment.

Shestowsky’S Study Supports Value Of Lawyers’ Early Education Of Clients About Their Procedural Options, John M. Lande, John Lande

Faculty Blogs

This post summarizes parts of Donna Shestowsky’s study on parties’ expectations about the process used to resolve their cases. She writes, “Our findings suggest the value of educating litigants about legal procedures, helping them develop realistic expectations for what each procedure can entail for their situation, and helping them make informed decisions about whether to attend their procedures. . . . Our results suggest how important it is for lawyers to educate their clients about each of their procedural options. Effective education and managing client expectations might lead to the formation of attitudes that reflect realistic expectations, and, in turn, …

Readings And Resources For Teaching, John Lande

Faculty Blogs

This post provides links to resources that instructors can use when teaching dispute resolution.

Study Of Odr In Family Cases With Positive Results, John Lande

Faculty Blogs

This post summarizes the results of a study finding that parties who used ODR for child custody, parenting time, or child support matters were more likely to reach agreement and to rate their experience more highly than those who declined to use ODR.

Improved Writing From Reading Other Writers, Douglas E. Abrams

Faculty Publications

In 1954, a 12-year-old junior high school student wrote to Justice Felix Frankfurter seeking advice about how to prepare to become a lawyer. “The best way to prepare for the law,” Frankfurter answered, “is to come to the study of law as a well-read person.” Reading other writers, he explained, enables future lawyers to “acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking.”

Justice Frankfurter offered his young correspondent sound advice about the intimate link among reading, writing, and lawyering. Reading works from other writers with an eye toward …

Victims As Instruments, Rachel J. Wechsler

Faculty Publications

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes. Since the U.S. Supreme Court's 2004 decision in Crawford v. Washington, courts require declarants to be available for cross-examination on "testimonial" hearsay evidence. Consequently, criminal legal actors are further incentivized to employ highly coercive practices aimed at securing GBV victims' participation in the criminal legal process as evidentiary tools. These practices include arresting and incarcerating victims through …

Writing By Presidential Example: The First Inaugural Addresses Of Reagan And Obama, Douglas E. Abrams

Faculty Publications

This article is about two recent U.S. presidents who differed from one another in prominent respects. One entered the Oval Office as a staunch Republican; the other entered as a staunch Democrat. One was one of the oldest men ever to serve in the Oval Office; the other was one of the youngest. The pair assumed contrasting positions on the political spectrum.

Despite these differences, however, the pair – Ronald Reagan and Barack Obama – shared an important common denominator. As president, both achieved recognition as “great communicators,” thanks in large part to their speeches marked by dexterity with the …

The Legal Profession, Judiciary, And Dispute Resolution, John M. Lande

Faculty Blogs

The January 2022 issue of Dispute Resolution Magazine reports results of a survey of past contributors conducted by Editorial Board co-chairs Andrea Schneider and Michael Moffitt.

This post uses some of the survey responses to suggest that we recognize the legal profession and judiciary as part of the dispute resolution field.

How You Can Build A Mediation Model To Optimize Your Own Cases, John M. Lande

Faculty Blogs

Description of why formal mediation models, such as the facilitative and evaluative models, are incomplete and often misleading. Mediators constantly must answer the question “What do I do now?”, and the formal models don’t help in most situations. Lande suggests how mediators can develop their own, unique mediation models, relying in part on the work of psychologists Kenneth Kressel, Daniel Kahneman, and Amos Tversky.

Muddy Waters: Fair Use Implications Of Google V. Oracle America, Inc., Gary Myers

Faculty Publications

The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately left the software copyright questions for another day, but it did render an important decision on fair use, the first major precedent on this important topic since 1994.

The Court’s fair use ruling provides important guidance on the scope of fair use …

New York's Requirements For Contractual Definiteness With Application To The Formation Of Investment Vehicles, Royce De R. Barondes

Faculty Publications

A review of 82 modern New York cases reveals an unexpected frequency of authority requiring contractual definiteness as to what may reasonably appear to be minor terms.
Illustrative are cases holding inadequately definite ordinary ways preliminary agreements may express compensation on a percentage of net basis. Other unexpected authority (i) is less willing than expected to allow subsequent actions to provide sufficient definiteness to initially indefinite agreements and (ii) denies the enforceability of confidentiality provisions and a right of first refusal.
The survey includes some unexpected support for contracts specifying a plausibly material portion of the consideration with inadequate definiteness …

Structural Precarity And Potential In Condominium Governance Design, Andrea Boyack

Faculty Publications

In the early hours of June 24, 2021, half of Champlain Towers South Condominium, a thirteen-story multifamily building located in the Miami suburb of Surfside, collapsed without warning. The Miami Herald called the collapse “unprecedented” in that one wing “simply caved in––for no obvious reason.” The collapse killed ninety-eight people and was the deadliest multifamily building engineering failure in US history. After an arduous search and rescue and safely dismantling the rest of the structure, inquiries sought to determine why this deadly collapse happened. Who was to blame, and what could have been done differently?

Within six months of this …

Public Schools To Public Services, Laura Wilcoxon

Faculty Publications

No abstract provided.

Addressing Big Tech's Market Power: A Comparative Institutional Analysis, Thomas A. Lambert

Faculty Publications

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union's Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established "Digital Markets Unit." After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …

State Rejection Of Federal Law, Thomas B. Bennett

Faculty Publications

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to "reject" a decision of the U.S. Supreme Court, because no "sound reasons justif[ied] following" it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought "at the very least to freeze' the state's ... law to prevent" state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not. Unlike more notorious …

Charles Dickens' Novels In The Courts, Douglas E. Abrams

Faculty Publications

This article examines written judicial opinions that contain references to novels by Charles Dickens (1812-1870), the British novelist and social critic who is widely regarded as one of the greatest writers of the Victorian Age. Americans today still read Dickens’ best-known novels, and the U.S. Supreme Court and the lower federal and state courts have cited and quoted from them.

Resorbing Patent Law's Kessler Cat Into The General Law Of Preclusion, Dennis D. Crouch, Homayoon Rafatijo

Faculty Publications

It has become exceedingly common in our legal system that courts, in the guise of respect for precedent, compound upon errors. Legal precedents are written documents, but "[t]he reality we can put into words is never reality itself." As such, we seldom find a court decision that embodies the entire legal reality regarding the questions presented. In this respect, the legal system inherently suffers from a lack of what mathematicians call completeness. Each decision gives rise to countless inferences because what lower courts observe by reading the precedent is not the entire legal reality but an incomplete reality exposed to …

Food, Freedom, Fairness, And The Family Farm, Robin M. Rotman, Sophie Mendelson

Faculty Publications

The concept of the “family farm” holds powerful sway within the American narrative, embodying both nostalgia for an imagined past and anxiety for a future perceived to be under threat. Since the founding of the United States, this cultural ideal has been invoked in support of a rosy vision of agrarian democracy while obscuring the ways in which the U.S. Department of Agriculture’s codified definition of “family farm” has unfairly aggregated advantages for the benefit of a particular kind of family (nuclear) and farmer (white, male, straight). At the same time, consumers are misled by an under-interrogated conflation of family …

Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules

Faculty Publications

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.

A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …