Law Commons^™

Persuading With Precedent: Understanding And Improving Analogies In Legal Argument, Jacob M. Carpenter

Faculty Publications

When writing persuasive briefs, attorneys use comparisons — metaphors or case-based analogies — to help explain their analyses and support their positions. But attorneys use the two types of comparisons for very different purposes. Several legal scholars have explored how attorneys use metaphors in their legal writing. While the existing scholarship on legal metaphors is excellent, it is not sufficient to properly understand how to best draft case-based analogies. Unfortunately, case-based analogies have been surprisingly understudied despite their critical role in persuasive legal briefs. Not surprisingly, many attorneys are unaware of how far short their analogies fall from reaching their …

Writing In Law Reviews, Bar Association Journals, And Blogs (Part I), Douglas E. Abrams

Faculty Publications

Lawyer's commonly write as the client's representative, but this article explores three opportunities for lawyers who wish also to write sometimes in non-representational roles. Part I here discusses writing or co-writing law review articles.

Glatt V. Fox Searchlight And The Rhetorical Value Of Inter-Circuit Dialogue, Stephen Smith

Faculty Publications

No abstract provided.

"What We Lose In Sales, We Make Up In Volume": The Faulty Logic Of The Financial Services Industry's Response To The Consumer Financial Protection Bureau's Proposed Rule Prohibiting Class Action Bans In Arbitration Clauses, Richard Frankel

St. Mary's Law Journal

Abstract forthcoming.

Civility (Part Ii), Douglas E. Abrams

Faculty Publications

No abstract provided.

Creac In The Real World, Diane B. Kraft

Law Faculty Scholarly Articles

This article will examine the extent to which common legal writing paradigms such as CREAC are used by attorneys in the "real world" of practice when writing on the kinds of issues law students may encounter in the first-year legal writing classroom. To that end, it will focus on the analysis of two factor-based criminal law issues: whether a defendant was in custody and whether a defendant had a reasonable expectation of privacy. In focusing on "first-year" issues, the article seeks not to examine whether organizational paradigms are used at all in legal analysis, but to discover whether and how …

Stein Center News - June 2015, Stein Center For Law And Ethics

Stein Center News

No abstract provided.

Stein Center For Law And Ethics Annual Report 2014 To 2015, Sherri Levine

Annual Reports

No abstract provided.

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

Marquette Law Review

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

Mind The Gap: Teaching Research As A Fluid, Ever-Present Concept In The First-Year Legal Research And Writing Classroom, Julie Spanbauer

Mercer Law Review

A couple of years ago, the closed-memorandum problem I assigned as the first writing project for my fresh-faced legal research and writing students involved a legal issue that I manipulated by eliminating discussion of one of the elements of a tort in order to simplify the assignment. Each of the cases provided to the students were similarly redacted to omit discussion of the same element. The students were given the standard instruction that they were not permitted to consult or cite to any outside sources. When I began reading their papers, I noticed that a majority of the students had …

Of Reptiles And Velcro: The Brain's Negativity Bias And Persuasion, Kenneth D. Chestek

Nevada Law Journal

No abstract provided.

What Happens Next: Metaphor In Disaster Recovery Policy, Sarah E. Jenkins

BYU Law Review

No abstract provided.

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

Articles

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Faculty Articles

The primary focus of this Article is on providing practical advice on how to write a reasoned decision or opinion (Section IV). However, experts in education theory have found that adult learners do best when they understand why certain information is being presented, so the discussion of how to write reasoned judgments will be preceded by a brief section on why such judgments are necessary or useful (Section III). This Article also considers what a reasoned decision or opinion actually is as a preliminary matter (Section II), since it is impossible to write such a document without a true appreciation …

Creac In The Real World, Diane B. Kraft

Cleveland State Law Review

This article will examine the extent to which common legal writing paradigms such as CREAC are used by attorneys in the “real world” of practice when writing on the kinds of issues law students may encounter in the first-year legal writing classroom. To that end, it will focus on the analysis of two factor-based criminal law issues: whether a defendant was in custody and whether a defendant had a reasonable expectation of privacy. In focusing on “first-year” issues, the article seeks not to examine whether organizational paradigms are used at all in legal analysis, but to discover whether and how …

Welcome To The Jungle, Where The Rent Is Too Damn High: Using Rent Regulation In New York City To Maintain An Affordable Housing Stock, Gabrielle Denaro

Cardozo Journal of Conflict Resolution

First, this Note describes and explains the difference between rent control and rent stabilization in New York City. Then, the history of rent control and rent stabilization laws is discussed, followed by an analysis of the arguments of those both for and against the preservation of rent regulation. Further, this Note discusses the issue of gentrification. Finally, this Note proposes an idea for an arbitration forum, and explains the logistics of how it would work and how it could benefit the system overall.

Writing Reasoned Decisions And Opinions: A Guide For Novice, Experienced, And Foreign Judges, S. I. Strong

Journal of Dispute Resolution

Producing well-written reasoned judgments (a term that is used herein to denote both trial court decisions and appellate opinions) is the goal of all members of the bench. Badly written rulings can have significant legal consequences for both the parties, who may incur costs as a result of a need to appeal a poorly worded decision or opinion, and society as a whole, since a poorly drafted precedent may drive the law in an unanticipated and unfortunate direction or lead to increased litigation as individuals attempt to define the parameters of an ambiguous new ruling. As a result, helping judges …

A Tightrope Over Both Your Houses: Ensuring Party Participation And Preserving Mediation's Core Values In Foreclosure Mediation, Heather Scheiwe Kulp

Pepperdine Dispute Resolution Law Journal

The article focuses on the laws made for regulating the party's participation in preserving the principles of mediation for the resolution of disputes related to the foreclosure crisis. Topics discussed include the impact of the foreclosure crisis on the housing and domestic markets, the impact of foreclosures on the sales and price value of the houses and the impact of the foreclosure crisis on the economic conditions of the local communities.

Housing Changing Households: Regulatory Challenges For Micro-Units And Accessory Dwelling Units, John Infranca

Suffolk University Law School Faculty Works

The existing stock of affordable rental housing falls significantly short of the need in many areas of the country. In addition, available housing frequently does not match the specific needs of prospective tenants, which have changed as household sizes shrink, more people are living alone, and people are living longer. This misalignment has been exacerbated by regulatory environments that have not kept pace with evolving housing demands. Likely as a result, cities throughout the country have seen an increase in illegal housing units – units that do not conform to zoning or building codes and may not provide safe living …

Single-Room Occupancy Housing In New York City: The Origins And Dimensions Of A Crisis, Brian J. Sullivan, Jonathan Burke

City University of New York Law Review

No abstract provided.

Resistance Is Not Futile:Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly

UC Law Journal

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of …

Book Review Of Five Chiefs: A Supreme Court Memoir, By John Paul Stevens, Thomas E. Baker

Journal of Legal Education

No abstract provided.

Resistance Is Not Futile: Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly

Faculty Scholarship

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of …

Explanatory Parentheticals Can Pack A Persuasive Punch, Eric P. Voigt

McGeorge Law Review

No abstract provided.

Dios Mio: The Kiss Principle Of The Ethical Approach To Copyright And Right Of Publicity Law, Michael D. Murray

Law Faculty Scholarly Articles

To copy or not to copy, to exploit the famous celebrity image or not to exploit it; these are the questions. The message of the modern legal world communicated through multiple voices in the academy is that copying often is perfectly acceptable and even laudable. An artist or designer might conclude that it is both legal and ethical to use whatever you can, use whatever you can get away with, and use it until you get sued for using it. Yet plagiarism in the arts and sciences is nearly universally condemned. This Article proposes an ethical approach to the use …

The Privatization Of Civil Justice: An Exposition On New York's Prompt Payment Law And Its Imposition Of Mandatory Arbitration, James M. Tsimis

Touro Law Review

No abstract provided.

Intelligible Justice, Michael Serota

University of Miami Law Review

No abstract provided.

The Use Of Mediation As A Complement To The Integrated Domestic Violence Courts Of New York, Lauren K. Williams

Cardozo Journal of Conflict Resolution

In 2001, New York created the Integrated Domestic Violence Courts in order to more efficiently and more comprehensively address domestic violence cases. Domestic violence cases that were formerly spread out between two or three different courts can now be resolved in front of one judge. While this new court does minimize the hassle for the parties involved in the dispute and does eliminate inconsistent rulings by different judges in different courts, this new court structure does not address some problems that have existed with courts' approaches to resolving domestic violence. These problems include (1) that abusers can often afford to …

Transtemporal Separation Of Powers In The Law Of Precedent, Randy Beck

Scholarly Works

The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.

This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing …

What Can We Demand Of Judges In Return For Independence?, David Klein

South Carolina Law Review

No abstract provided.