Law Commons^™

Charlie Irvine's Challenge To Mediators To Describe Your Mediation System, John M. Lande

Faculty Blogs

Charlie Irvine is the Course Leader on the University of Strathclyde’s (Scotland) MSc/LLM in Mediation and Conflict Resolution and the Director of the Strathclyde Mediation Clinic. The Clinic provides a free mediation service in which experienced practitioners work alongside trainee mediators to help people resolve disputes without going to court or tribunal. The following is Charlie’s Director’s Column published in Mediation Matters!, the Clinic’s quarterly newsletter. Irvine wrote an account of his own mediation system that was one of ten real mediation systems Lande analyzed in Real Mediation Systems to Help Parties and Mediators Achieve Their Goals.

Does The Community Choice Aggregation Approach Advance Distributed Generation Development? A Case Study Of Municipalities In California, Robin M. Rotman, Jun Deng

Faculty Publications

Globally, decentralized energy systems are gaining popularity due to their potential for energy accessibility, energy resilience, and sustainability benefits. Existing research on an energy system decentralization approach, community choice aggregation (CCA), shows its ability to lower energy costs and increase renewable electricity consumption for U.S. communities. Nevertheless, research on the relationship between CCA and distributed electricity generation development is lacking. This paper fills this gap by investigating if the CCA approach associates with distributed generation capacity interconnection in California municipalities. The finding shows that although the average capacity has increased for all municipalities throughout the study period, contrary to proponents’ …

References To Beatles Songs In Advocacy And Judicial Opinions, Douglas E. Abrams

Faculty Publications

This article surveys the indelible mark that the Beatles (Paul McCartney, John Lennon, George Harrison, and Ringo Starr) continue to leave on courts in the United States more than half a century after the quartet burst onto the American scene with their three television appearances on the Ed Sullivan Show in February of 1964, six years before the band’s breakup.

What Lawyers Can Teach Their Employed Law Students About 'Impactful Legal Writing', Douglas E. Abrams

Faculty Publications

This article concerns the value of teaching employed law students about the potency of “impactful legal writing” – legal writing that can have a substantial impact on someone other than the student writer. Much of the employer’s most instructive teaching about impactful legal writing occurs at the beginning of an assignment, rather than solely during review after the student has completed the assignment. This article identifies four ways an employed law student’s impactful writing when fulfilling assignments differs from the effect of students’ academic writing in law school. Each of the four ways enables the employer to deliver practical lessons …

Intersectional Management: An Analysis Of Cooperation And Competition On American Public Lands, Robin M. Rotman, Abigail M. Hunt

Faculty Publications

The United States government holds public lands in trust for the whole of the American people. This article focuses on National Monuments under the Antiquities Act. It argues that the federal government should renew its approach to the management of these lands by incorporating principles of environmental justice and long- term environmental viability. The article begins by examining the historical and legal foundations of federal lands in the United States, with a focus on the Antiquities Act. It then reflects on recent litigation and political controversy surrounding Bears Ears National Monument and Grand Staircase–Escalante National Monument, to illustrate how the …

Real Mediation Systems To Help Parties And Mediators Achieve Their Goals, John M. Lande

Faculty Publications

This article argues that it is time for a paradigm shift in our current general mediation theory because of numerous problems. Our current theory is incomplete at best and seriously misleading at worst. The traditional mediation models are oversimplified, poorly mapping onto the reality of practice. They combine multiple elements that are not necessarily correlated. Many practitioners ignore them because they are confusing or not helpful. People do not understand the theoretical meanings because the terms are not consistent with commonly understood language. Arguments about what is or is not real or good mediation have spawned unhelpful ideological divisions in …

Policy Comparison Of Lead Hunting Ammunition Bans And Voluntary Nonlead Programs For California Condors, Robin M. Rotman, John H. Schulz, Samantha Totoni, Sonja A. Wilhelm Stanis, Christine Jie Li, Mark Morgan, Damon M. Hall, Elisabeth B. Webb

Faculty Publications

The endangered California condor (Gymnogyps californianus) is negatively affected by lead poisoning from spent lead‐based hunting ammunition. Because lead poisoning is the primary mortality factor affecting condors, the California Fish and Game Commission banned lead hunting ammunition during 2008 in the southern California condor range followed by a statewide ban implemented in 2019. In contrast, the Arizona Game and Fish Department instituted an outreach and awareness program encouraging voluntary use of nonlead hunting ammunition in the northern portion of the state during 2005 and a similar program was launched in Utah during 2012. The juxtaposition of policy tools provided a …

How Law Students' Part-Time Legal Employment Can Help Employers Improve Their Own Writing Skills, Douglas E. Abrams

Faculty Publications

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing — conciseness, precision, simplicity, and clarity.

How The Real Practice Systems Project Can Help Improve Mediation Quality, John M. Lande

Faculty Blogs

Improving mediation quality is tricky. This post describes how the Real Practice Systems Project can help.

Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce De R. Barondes

Faculty Publications

This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes.

First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate.

Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s …

References To Classic American Novels In Advocacy And Judicial Opinions, Douglas E. Abrams

Faculty Publications

With this Journal of the Missouri Bar article, the survey of courts’ cultural markers returns to literature – particularly American literature. Besides “To Kill a Mockingbird,” federal and state courts in their written opinions have cited and quoted from other classic novels written by American authors, including "Catch-22", "Moby-Dick", and "The Grapes of Wrath".

The Case Of The Missing Device Patents, Or: Why Device Patents Matter, Erika Lietzan, Kristina M. L. Acri, Evan Weidner

Faculty Publications

A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term "restoration") ask for one. In contrast, most drug companies entitled to this same patent extension ask for one.

In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how …

Burning Questions: Changing Legal Narratives On Cannabis In Indian Country, Robin M. Rotman, Sam J. Carter

Faculty Publications

In the not-so-distant past, thoughts of Cannabis legalization in the United States were radical. In the present day, the narratives around Cannabis are changing. The term “present day” affixes this Article to early 2023, a snapshot in time. To understand the current legal narratives surrounding Cannabis, and what they might become in the future, it is important to examine the history of Cannabis law and policy in United States. This Article begins by discussing Cannabis regulation in the United States, from the rise of federal regulation to the gradual deregulation by states with tacit federal consent. The Article then examines …

Selections From The Civil Right To Keep And Bear Arms: Federal And Missouri Perspectives (2023 Edition), Royce De R. Barondes

Faculty Publications

This work contains two chapters from a longer work titled The Civil Right to Keep and Bear Arms: Federal and Missouri Perspectives (2023 Edition). The included chapters address two subjects. First, the chapters address application to select circumstances of the principles adopted in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Those include (i) non-temporary governmental seizure or retention of individual arms (in contrast to a ban on all a subject's firearms possession and seizures in Terry stops); (ii) changes in Federal regulation mandating indefinite records retention by dealers; (iii) disabilities arising from …

There Is No Such Thing As Circuit Law, Thomas B. Bennett

Faculty Publications

Lawyers and judges often talk about “the law of the circuit,” meaning the set of legal rules that apply within a particular federal judicial circuit. Seasoned practitioners are steeped in circuit law, it is said. Some courts have imagined that they confront a choice between applying the law of one circuit or another. In its strong form, this idea of circuit law implies that each circuit creates and interprets its own body of substantive law that is uniquely applicable to disputes that arise within the circuit’s borders.

This article argues that the notion of circuit law is nonsensical and undesirable …

The Causation Canon, Sandra F. Sperino

Faculty Publications

It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon-the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish "but-for" cause.

This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.

The …

Conservation Easements: A Tool For Preserving Wildlife Habitat On Private Lands, Robin M. Rotman, Sarah A. Brown, Michael A. Powell, Sonja A. Wilhelm Stanis

Faculty Publications

Conservation easements are an essential tool for conserving private lands, and they have great potential for enhancing wildlife habitat and biodiversity. Private land conservation in the United States is likely to increase in the coming years, in light of Executive Order No. 14,008, issued by President Joseph Biden on January 27, 2021, which set a goal of conserving at least 30% of U.S. lands and waters by 2030 (Executive Office of the President 2021). There is, therefore, a need to evaluate the effect of conservation easements on wildlife habitat and biodiversity and to make recommendations for further enhancing the effectiveness …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support "Evergreening" Allegations, Erika Lietzan, Kristina M. L. Acri

Faculty Publications

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms — including to antitrust law and drug regulatory law — to address this purported problem. This paper evaluates empirical data offered to substantiate “evergreening” and explains that these data — though mostly accurate — do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the …