Law Commons^™

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

The Uncertain Promise Of Predictive Coding, Dana Remus

Dana Remus

No abstract provided.

Creating A Six-Semester Writing Requirement: Using Legal Writing's "Hobble" To Solve Legal Education's Problem", Kristen Konrad Robbins-Tiscione

Kristen Konrad Robbins-Tiscione

The attached article argues that the best way to solve the current crisis in legal education is for law schools to commit to teaching writing by creating a six-semester writing requirement. In a 2011 article published in the Journal of Legal Education, John Lynch urged legal writing faculty to return to an outmoded and ineffective writing pedagogy, the “product approach,” on the grounds that it would make teaching legal writing easier. This article demonstrates that what Lynch calls legal writing’s hobble has become legal education’s problem. By failing to commit to teaching writing, law students are graduating without adequate preparation …

Student, Esquire?: The Practice Of Law In The Collaborative Classroom, Nantiya Ruan

Nantiya Ruan

Law faculty and non-profit lawyers are working together in a variety of partnerships to offer students exposure to “real life” clients in the first year of law school, as well as in advanced courses in substantive areas. Teachers engaged in client-centered advocacy through experiential frameworks have broken out of their isolated silos in the law school (e.g., legal writing, clinical, externship, and doctrinal) and begun to work together. To help students develop a sense of professional identity, cultivate professional values, and tap into key intrinsic motivations for lawyering, such as serving the public good, collaborative classrooms have an important role …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

The Economy Rules: An Analysis Of The Ever-Shifting Portrayal Of Attorneys In Popular Culture, Neely M. Peden

Neely M Peden

There has most definitely been a shift in the view of elite professionals within modern pop culture. Attorneys especially have come to face “anti-establishment” movement by popular culture. Those professions which used to be revered are now examples of ill-morals and ill-behavior. Indeed, popular culture goes out of its way to make villains out of attorneys by showing unprincipled characters in legal television shows or by churning out movies that revolve around attorneys whose lives and morals are so corrupt that they need to go through some sort of personal tragedy to be redeemed. It is this paper’s contention that …

Cause Judging, Justin Hansford

Justin Hansford

Building on the framework of “cause lawyering” scholarship, this Article explores the fact that, in a similar tradition as a “cause lawyering” law practice animated by dedication to a cause, “cause judging” exists as well. This insight has implications for judicial ethics norms. The hyper-partisan nature of modern American life has already cast doubt on the possibility that politically appointed judges can ever truly attain the “appearance of impartiality” demanded by judicial recusal standards. Instead, judicial ethics norms should embrace the fact that judges have moral and political ideals that inform their rulings when they exercise judicial discretion, and that …

A Dialogue On Jordanian Legal Education, George Critchlow, Nisreen Mahasneh

George Critchlow

This a readable article about the need for legal education reform in Jordan. It grew out of the experiences, discussions, and shared interests of the co-authors – a Jordanian female law professor and an American male law professor who have worked with the American Bar Association Rule of Law Initiative (ABA ROLI) and Jordanian law faculties to develop strategies for strengthening legal education in Jordan. The article is unusual in that it is presented as a dialogue in order to identify and reflect the authors’ different professional and cultural perspectives. The text is supported by citation to authority in conventional …

Professional Ethics, Dhaaranee Krb Naidu

dhaaranee krb naidu

No abstract provided.

Timeless Trial Strategies And Tactics: Lessons From The Classic Claus Von Bülow Case, Daniel M. Braun

Daniel M Braun

In this new Millennium -- an era of increasingly complex cases -- it is critical that lawyers keep a keen eye on trial strategy and tactics. Although scientific evidence today is more sophisticated than ever, the art of effectively engaging people and personalities remains prime. Scientific data must be contextualized and presented in absorbable ways, and attorneys need to ensure not only that they correctly understand jurors, judges, witnesses, and accused persons, but also that they find the means to make their arguments truly resonate if they are to formulate an effective case and ultimately realize justice. A decades-old case …

Planting People, Growing Justice: The Three Pillars Of New Social Justice Lawyering, Artika Renee Tyner

Artika Renee Tyner

This article explores the tools that lawyers can employ to build and sustain social change. These tools add a new dimension to scholarly research in the field by focusing on the role of lawyers as leaders as they seek to influence processes of social change, transform systems, and empower others to lead. This Article draws upon principles of social justice lawyering, which acknowledge that lawyers have a fiduciary duty to create equal justice under the law. It combines these frameworks with leadership theoretical perspectives since there is a dearth of research available on the role of lawyers as leaders in …

International Arbitration Scholarship And The Concept Of Arbitration Law, Stavros Brekoulakis

Stavros Brekoulakis

This article is about the concept of arbitration law and its relationship with international arbitration scholarship. It argues that the field of international arbitration scholarship has developed in isolation and never fully engaged with the crucial movements of international legal scholarship that advanced a more progressive and humanitarian concept of international law. The dearth of interdisciplinary scholarship in arbitration has had two undesirable implications. First, it has had a negative impact on how non-arbitration scholars and the public perceive arbitration. Secondly, and more importantly for the purposes of this article, it has crucially impaired the concept and autonomy of arbitration …

Collaborating With Students As Co-Authors, Wendy B. Davis

Wendy B. Davis

The purpose of this article is to describe the process of collaborating with students enrolled in a course to produce a casebook to be published after the conclusion of the course. I have written two published casebooks, with significant portions of each book written by students as contributing authors. Utilization of a variety of teaching methods facilitates learning by our students. While this article only describes one end- result, the creation of a casebook, the process of creating that book involves many different teaching methods, thus many different opportunities to address students’ differing learning styles. Students learn best when they …

Religious Law Schools And Democratic Society, Jennifer Wright

Jennifer Wright

Many believe that, in a democratic society, the law must be approached as a purely secular, neutral system to which all members of society can assent. Discussion of religious foundations of law is condemned as inherently divisive and destructive of democratic process. Many in the legal academy believe that law school education should not involve teaching students to examine the moral foundations of the law and the legal system, and certainly should not invite and challenge law students to examine their professional role in the justice system in light of their own moral commitments and religious faiths. Law students both …

Medical Marijuana Lawyers: Outlaws Or Crusaders?, Sam Kamin, Eli Wald

Sam Kamin

While marijuana remains a prohibited substance under federal law – one whose manufacture, possession, or distribution is a serious felony – 17 states plus the District of Columbia have legalized the drug for certain medical uses. This tension between state and federal law creates confusion for all of those who work in the emerging medical marijuana (“MMJ”) industry. As marijuana moves from the shadows to the storefronts, it becomes a business. Businesses have employees, shareholders and leases; they must comply with state and local zoning ordinances and pay their taxes. In most businesses, proprietors turn to lawyers for help with …

Legal Applications Of Modern Finance, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

While scholars and practitioners have applied economics to law successfully for decades, there has been almost no similar application of modern finance. Courts have used the central concept of classical finance, time value of money, for many years, but their use is still unsophisticated.

This article details two ways to apply modern finance to law. This article first describes a method of improving courts’ time value of money calculations, by using a systematically complete four factor analysis to determine the appropriate discount rate. This article then describes a method of calculating future damages that uses market price of risk, based …

Deceiving Law Students: Employment Statistics & Tort Liability, Angie D. Roberts-Huckaby

Angie D. Roberts-Huckaby

Controversy is rampant in American legal education. In less than a year, an unprecedented fourteen separate class action lawsuits have been filed against fourteen different law schools. The lawsuits each allege that the schools have disseminated postgraduate employment statistics in ways that are fraudulent and misleading. Students’ primary goal, when applying to law school, is to become lawyers. Law school is not an institution students attend merely to satisfy intellectual curiosity. Law school is a grueling three-year endurance race challenging student’s intellectual reasoning, emotional rationale, and financial security. Therefore, it is critical for students to choose the right school7 Law …

Like A Glass Slipper On Step-Sister, How The One-Ring Rules Them All At Trial, Cathren Page

Cathren Page

The literary concept of an endowed object can weave a thread of narrative continuity throughout a trial and resonates in the mind of the judge or juror. In literature, an endowed object is a material object that reverberates with symbolic significance throughout the story. The object can develop the theme, character, and emotions. Examples include Cinderella’s glass slipper, the one-ring, the handkerchief in Othello, and the mocking jay pin from The Hunger Games. Endowed objects have been persuasive symbols in famous trials as well. Endowed objects include the glove in the O.J. Simpson murder trial and John Wilkes Booth’s boot …

Not “Politics As Usual”: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Brett Waldron

No abstract provided.

Advising Presidents: Robert H. Jackson And The Problem Of Dirty Hands, William Casto

William Casto

ABSTRACT Not so long ago, legal advice given to President George W. Bush regarding torture sparked considerable controversy, and discussions were frequently distorted by rancorous partisanship. The present essay uses advice given to President Franklin Roosevelt by Attorney General, later Justice, Robert Jackson as a laboratory for exploring the ethical dimensions of the advisory relationship. In particular, this essay examines the president’s unilateral decision in 1940 to transfer fifty destroyers to the British. That Destroyer Deal is distant in time and is now relatively uncontroversial. Today, everyone agrees with the substantive policy of helping Great Britain against Nazi Germany. The …

The Department Of Health And Human Services Vs. Attorneys: Will The Federal Courts Tame An Agency Run Amuck, Anne M. Rife

Anne M Rife

The Department of Health and Human Services vs. Attorneys – Can and Will the Federal Courts Tame an Agency Run Amuck? ABSTRACT Medicare has been a system destined for financial trouble arguably since its creation in 1965. For years, Congress and the Department of Health and Human Services (“DHHS”) have passed legislation, regulations, and implemented procedures to try to save it. But, when DHHS decided to protect Medicare by suing attorneys, it took its role too far and placed attorneys in an ethical and procedural maelstrom. In Haro v. Sebelius, the United States District Court of Arizona recently addressed DHHS’s …

Rethinking Regulation And Innovation In The U.S. Legal Services Market, Ray W. Campbell

Ray W Campbell

For decades, academics have argued that the US system for regulating the practice of law inhibits innovation. Despite that academic consensus, we live in an age of unparalleled innovation in the way legal services are provided to clients in the United States. What gives? How can we live in a regulatory environment that prevents innovation, and have such an abundance of it? Where is this innovation coming from, and from whence might more innovation come? The answers are neither simple nor obvious. Understanding this changing landscape requires a close look both at how innovations take root and at the US …

The Duty To Advise The Lorax: Environmental Advocacy And The Risk Of Reform, Keith Rizzardi

Keith Rizzardi

Lawyers have an ethical duty to advise their clients on moral, economic, social and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to …

Rethinking Regulation And Innovation In The U.S. Legal Services Market, Ray W. Campbell

Ray W Campbell

For decades, academics have argued that the US system for regulating the practice of law inhibits innovation. Despite that academic consensus, we live in an age of unparalleled innovation in the way legal services are provided to clients in the United States. What gives? How can we live in a regulatory environment that prevents innovation, and have such an abundance of it? Where is this innovation coming from, and from whence might more innovation come? The answers are neither simple nor obvious. Understanding this changing landscape requires a close look both at how innovations take root and at the US …

Where You Stand Depends On Where You Sit: Bureaucratic Incorporation Of Immigrants In Federal Workplace Agencies, Ming H. Chen

Ming H Chen

Abstract. This article integrates legal scholarship on immigrant workers with social science theory about the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants’ rights can be protected when workplace agencies integrate immigrants into their law enforcement activities, in accordance with their professional ethos and without regard to personal politics. Building on the concept of bureaucratic incorporation, I argue that regulatory agencies will resist contractions of workers’ rights when their staff’s commitments as civil servants and lawyers clash with judicial interpretations of immigrants’ rights. The implication is that strongly pro-immigrant politics are not necessary for …

What We Can Learn About The Art Of Persuasive From Candidate Abraham Lincoln: A Rhetorical Analysis Of The Three Speeches That Propelled Lincoln Into The Presidency, Michael W. Loudenslager

Michael W. Loudenslager

Abraham Lincoln is renowned as an impressive orator and writer, and historians have long studied his speeches and writings. However, commentators largely have not focused upon the persuasive techniques utilized by Lincoln in his speeches. Lincoln was an experienced litigator, and over the course of his legal career, he tried a voluminous number of cases, was involved in several appeals before the United States Supreme Court, and argued numerous times before the Illinois Supreme Court. These experiences helped Lincoln cultivate various manners of persuading judges and juries. Similarly, one major goal of Lincoln’s speeches, as with any politician, was to …

Team-Based Learning In Law, Margaret Sova Mccabe, Sophie Sparrow

Margaret Sova McCabe

Used for over thirty years in a wide variety of fields, Team-Based Learning is a powerful teaching strategy that improves student learning. Used effectively, it enables students to actively engage in applying legal concepts in every class -- without sacrificing coverage. Because this teaching strategy has been used in classes with over 200 students, it also provides an efficient and affordable way to provide significant learning. Based on the principles of instructional design, Team-Based Learning has built-in student accountability, promotes independent student preparation, and fosters professional skills. This article provides an overview of Team-Based Learning, reasons to adopt this teaching …

Competing Conceptions Of Legal Objectivity: An Ignored Publicity Versus A Surprisingly Unhelpful Naturalism, Kenneth K. Ching

Kenneth K Ching

Law’s legitimacy depends on law’s objectivity. But before we can ask whether law is objective, we need to define legal objectivity. This article argues for a reason-based conception of legal objectivity that is probative of law’s legitimacy.

Judge Richard Posner and Dr. Brian Leiter claim that legal objectivity cannot be reason-based. They say legal objectivity should be based on empirical science. They argue law should be naturalistic. This article argues that naturalism is the wrong approach to legal objectivity for at least four reasons: (1) the lack of good reason to privilege scientific epistemology over a reason-based epistemology, (2) naturalism’s …

The Corporate Gatekeeper In Ethical Perspective, Christopher T. Hines

Christopher T Hines

The fallout from the financial crisis continues to inform the development of corporate and securities law, and the new regulatory landscape for economic activity within the United States is beginning to take form. This evolutionary process, however, has been anything but stable or certain. As might be expected, in concert with such momentous change in law and policy, recriminations for and associated investigations of past activity continue to affect competent regulators as well as market participants. Nevertheless, while many of the underlying causes of the financial crisis are now better understood by both policy makers and scholars, the question remains—given …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …