Law Commons^™

Lawyering In The Shadow Of Data, Dru Stevenson, Nicholas J. Wagoner

Dru Stevenson

Attorney bargaining has traditionally taken place in the shadow of trial, as litigants alter their pretrial behavior—including their willingness to negotiate a settlement – based on perceptions of likely outcomes at trial and anticipated litigation costs. Lawyers practicing in the shadow of trial have, in turn, traditionally formed their perception of the likely outcome at trial based on their knowledge of case precedents, intuition, and previous interactions with the presiding judge and opposing counsel in similar cases. Today, however, technology for leveraging legal data is moving the practice of law into the shadow of the trends and patterns observable in …

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 …

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 …

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs’ Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

Scott A Moss

For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how …

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 …

The Law Of Corporate Purpose, David Yosifon

David G. Yosifon

Delaware corporate law requires corporate directors to manage firms for the benefit of shareholders, and not for any other constituency. Delaware jurists have been clear about this in their case law, and they are not coy about it in extra-judicial settings, such as speeches directed at law students and practicing members of the corporate bar. Nevertheless, the reader of leading corporate law scholarship is continually exposed to the scholarly assertion that the law is ambiguous or ambivalent on this point, or even that case law affirmatively empowers directors to pursue non-shareholder interests. It is shocking, and troubling, for corporate law …

Getting Real About Globalization And Legal Education: Potential And Perspectives For The U.S., Carole Silver

Carole Silver

This article addresses whether US law schools are preparing their JD students to work in the global environment that many - if not most – law graduates will encounter. It begins by considering the significance of globalization for legal education, drawing on research analyzing its influence on legal practice as well as on higher education. It then explores possible settings and opportunities for learning to work in a global environment. For the vast majority of students whose learning must occur in the US, the presence of international students in their law school offers the potential for creating a global learning …

Gender And Global Lawyering: Where Are The Women?, Steven Boutcher, Carole Silver

Carole Silver

The dual processes of diversity and globalization are responsible for significant growth among U.S. law firms: female lawyers account for much of the increase in headcount in large law firms over the last several decades, and lawyers educated and licensed in jurisdictions outside of the U.S. have helped U.S.-based law firms expand internationally. This article draws on data gathered from lawyer biographies to examine the relationship between gender diversity and globalization, and considers whether career strategies that involve the international movement of lawyers are equally powerful for women and men. Our research suggests that gender inequality is not erased by …

Gaining From The System: Lessons From The Law School Survey Of Student Engagement About How Students Benefit From Law School, Carole Silver, Lindsay Watkins, Louis Rocconi, Heather Haeger

Carole Silver

This paper considers the factors that influence law students’ assessment of their development professionally and academically during law school. It uses responses of 5,612 third- and fourth-year law students to the Law School Survey of Student Engagement to identify student activities and behaviors that influence professional and academic gains; individual and law school characteristics also are examined. Four aspects of the law school experience emerge as common influences of students’ professional and academic development.

When Socrates Meets Confucius: Teaching Creative And Critical Thinking Across Cultures Through Multilevel Socratic Method, Erin Ryan

Erin Ryan

Keeping It Real: Using Facebook Posts To Teach Professionalism And Professional Responsibility, Anna P. Hemingway

Anna P. Hemingway