Legal Profession Commons^™

Taking Courthouse Discrimination Seriously: The Role Of Judges As Ethical Leaders, Susan Saab Fortney

Faculty Scholarship

Sexual misconduct allegations against Alex Kozinski, a once powerful judge in the U.S. Court of Appeals for the 9^th Circuit, spotlighted concerns related to sexual harassment in the judiciary. Following news reports related to the alleged misconduct, Chief Justice John G. Roberts, Jr. charged a working group with examining safeguards to deal with inappropriate conduct in the judicial workplace. Based on recommendations made in the Report of the Federal Judiciary Workplace Conduct Working Group, the Judicial Conference approved a number of reforms and improvements related to workplace conduct in the federal judiciary. The reforms included revising the Code of …

Evaluating Legal Needs, Luz E. Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas––a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, and barriers …

Infusing Leadership Competencies Into 1l Professional Identity Formation, Aric Short

Faculty Scholarship

Law schools across the country are beginning to address the growing need to incorporate leadership training into their curricula; however, very few explicitly cover leadership in the 1L year. This article argues for the value of providing leadership training to 1Ls as part of a required course on professional identity formation. Because foundational leadership concepts overlap in meaningful ways with core lawyering competencies, such integration is both practical and efficient. Beginning leadership in the 1L year allows law schools to build on that foundational material in later clinics, externships, upper-level classes, and other experiences, creating deeper leadership skills in their …

Teaching And Assessing Active Listening As A Foundational Skill For Lawyers As Leaders, Counselors, Negotiators, And Advocates, Lindsey P. Gustafson, Aric Short, Neil W. Hamilton

Faculty Scholarship

Our students will be more effective leaders, counselors, negotiators, and advocates as they deepen their ability to actively listen. As a professional and interpersonal skill linked closely with a lawyer’s success, our students’ ability to listen should demand our attention as legal educators. This attention is worth the effort because studies indicate active listening is not a static ability: we can teach students to be better listeners. But “active listening” is missing from most law schools’ learning outcomes or curricula, or it is only included as an undefined element of effective communication. Consequently, it is a critical lawyering skill that …

The Gender Pay Gap And High-Achieving Women In The Legal Profession, Milan Markovic, Gabrielle Plickert

Faculty Scholarship

Although women have made significant strides in the legal profession, female attorneys continue to earn far less than male attorneys. Relying on survey data from a large sample of full-time attorneys in Texas, we find a gender pay gap of thirty-five thousand dollars at the median that cannot be explained by differences in human capital or occupational segregation. We also provide evidence that the legal market especially disadvantages women who excel in law school. Whereas high academic achievement boosts male lawyers’ incomes substantially, it does not have the same effect on female lawyers’ incomes. High-achieving female lawyers earn less than …

From Pandemic To Pedagogy: Teaching The Technology Of Lawyering In Law Clinics, Sarah R. Boonin, Luz E. Herrera

Faculty Scholarship

The COVID-19 pandemic has transformed the nation’s approach to work and learning. Law schools, law firms, courts, and administrative agencies abruptly closed their offices and quickly reimagined how to perform their daily functions remotely. Many of these institutions have plans to maintain aspects of remote operations and services post-pandemic. With this in mind, the authors of this Article conducted a survey of law school clinical faculty during the winter of 2021 to better understand how clinicians pivoted their instruction and practice using technology during the pandemic. The authors use the survey results to show how the COVID-19 experience positions clinical …

Review: The Dialogical Roots Of Deduction: Historical, Cognitive, And Philosophical Perspectives On Reasoning, Brian N. Larson

Faculty Scholarship

The balance of this review addresses matters in the book that should be of particular interest to readers in the legal rhetoric and communication community. First, it addresses some concepts central to Dutilh Novaes’ effort. Second, it surveys the book’s organization, identifying some key observations and conclusions that she supports with careful evidence and argumentation. Third, it addresses Dutilh Novaes’ attention to non-European and non-Western research and logical traditions. Finally, it considers some difficult and technical passages, noting those readers should work through because the payoff is worth it and others I believe readers in our field might skip.

Educating Robot-Proof Attorneys, Tammy Oltz

Faculty Scholarship

Technology, particularly that powered by Artificial Intelligence (AI), is disrupting the legal profession. In the coming years, lawyers who do not understand technology will face both ethical and professional risks. This year, the duty of technological competence marks its tenth anniversary. While lawyers are still learning what the duty means and what it will mean in the future, one thing is certain: those who ignore it could find themselves at risk of being on the wrong side of an ethics violation.

However, even without that regulatory obligation, lawyers who continue to ignore the current technological revolution put themselves at risk …

Free-Ing Criminal Justice, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Practicing With Conviction: Race, Reentry, And The Legal Profession, Nicole Smith Futrell

Faculty Scholarship

Within recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial disparities continue to persist in our society. While most of these legal institutions have made some recognition of the fact that the legal system has played a role in perpetuating systemic racism, they have essentially failed to address how discrimination against system-impacted individuals continues to deepen racial and socioeconomic …

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of …

Judging Without A J.D., Sara Sternberg Greene, Kristen M. Renberg

Faculty Scholarship

One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that, empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree, and seventeen states do not require judges who adjudicate eviction cases …

Toward More Robust Self-Regulation Within The Legal Profession, Veronica Root Martinez, Caitlin-Jean Juricic

Faculty Scholarship

The Trump Administration left reverberations throughout American life, and the legal profession was not insulated from its impact. The conduct of lawyers—both public and private—working on behalf of former President Trump was the subject of constant conversation and critique. The reality, however, is that the questions regarding the conduct of the Trump Administration lawyers, are rooted, in part, in more fundamental questions about the appropriate role of the lawyer within society. This Essay advocates for the adoption of a self-regulation scheme whereby lawyers regulate and oversee the conduct of other lawyers, to ensure that members of the legal profession are …

Law Review And Finding A Place In The Academy, Jenny E. Carroll

Faculty Scholarship

Membership on the Texas Law Review created opportunities for me, taught me a lot about editorial processes, and served as a reminder that I was a law outsider. The last of these is the focus for this essay, not because it is the most important or because it stands alone (it doesn’t), but because I believe there are other rooms in which to reminisce fondly about law review. Here, I want to speak more honestly about my experience because that experience, as an outsider, has influenced me most as a scholar, teacher, and advocate.

Protecting Sentient Artificial Intelligence: A Survey Of Lay Intuitions On Standing, Personhood, And General Legal Protection, Eric H. Martinez, Christoph Winter

Faculty Scholarship

To what extent, if any, should the law protect sentient artificial intelligence (that is, AI that can feel pleasure or pain)? Here we surveyed United States adults (n = 1,061) on their views regarding granting 1) general legal protection, 2) legal personhood, and 3) standing to bring forth a lawsuit, with respect to sentient AI and eight other groups: humans in the jurisdiction, humans outside the jurisdiction, corporations, unions, non-human animals, the environment, humans living in the near future, and humans living in the far future. Roughly one-third of participants endorsed granting personhood and standing to sentient AI (assuming …

Getting Comfortable With Discomfort, Diversity & Repair, Luz E. Herrera

Faculty Scholarship

The topic of this year's conference, diversity, pluralism, and repair, gives us so much to talk about, that for me, it was hard to know where we were to begin. Dean Angela Onwuachi-Willig focused on judicial appointments and the importance of a diverse bench for the legal profession, and in our society. She also discussed becoming comfortable with discomfort and I wanted to pick up on that thread. When I think about discomfort, I think about my own journey in the legal profession.

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

The Intersectional Race And Gender Effects Of The Pandemic In Legal Academia, Angela Onwuachi-Willig

Faculty Scholarship

Just as the COVID-19 pandemic helped to expose the inequities that already existed between students at every level of education based on race and socioeconomic class status, it has exposed existing inequities among faculty based on gender and the intersection of gender and race. The legal academy has been no exception to this reality. The widespread loss of childcare and the closing of both public and private primary and secondary schools have disproportionately harmed women law faculty, who are more likely than their male peers to work a “second shift” in terms of childcare and household responsibilities. Similarly, women law …

Sweet Are The Uses Of Adversity, Nicholas Allard

Faculty Scholarship

No abstract provided.

Introduction: Lenses, Methods, And Approaches In Intellectual Property Research, Irene Calboli, Maria Lillà Montagnani

Faculty Scholarship

The relevance of Intellectual Property (IP) Law in our society has increased dramatically over the last several years. Globalization, digitization, and the rise of post-industrial information-based industries have all contributed to a new prominence of IP Law as one of the most important factors in driving innovation and economic development. At the same time, the significant expansion of IP rules has impacted many areas of public policy such as public health, the environment, biodiversity, agriculture, and information, in an unprecedented manner. No longer relegated to a cohort of few specialized experts, IP Law is now at the front and centre …

(Re)Framing Race In Civil Rights Lawyering, Angela Onwuachi-Willig, Anthony V. Alfieri

Faculty Scholarship

A review of Henry Louis Gates, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (Penguin Press, 2019). The Review proceeds in four parts. Part I parses Gates’s analysis of the rise of white supremacist ideology and the accompanying concept of the “Old Negro” during the Redemption era and the countervailing emergence of the concept of a “New Negro” culminating in the Harlem Renaissance. Part II examines the lawyering process as a rhetorical site for constructing racialized narratives and racially subordinating visions of client, group, and community identity through acts of representing, prosecuting, and defending people of …

Specialty Bar Associations And The Marketing Of Ethics: The Example Of The Academy Of Adoption Attorneys, Malinda L. Seymore

Faculty Scholarship

In a world of lawyer jokes, memes of sleazy lawyers and the ubiquity of bad lawyers in television shows and movies, lawyers have reason to push back against negative public perceptions of lawyers’ ethics. This article examines the role of specialty bar associations, by using the example of the Academy of Adoption Attorneys, in marketing ethics to the public.

Specialty bar associations have been seen as sites of lawyer socialization and professionalism. Though there are thousands of specialty bar associations with aspirational ethical codes, the Academy of Adoption Attorneys is unusual among such associations in having a mandatory ethics code, …

But Is It Good: The Need To Measure, Assess, And Report On Court-Connected Adr, Nancy A. Welsh

Faculty Scholarship

We know that very few civil matters reach disposition through trial—but what do we really know about how civil cases do reach disposition? What number of civil cases reach disposition through settlement? What number of civil cases reach settlement through court-connected “alternative” dispute resolution (ADR)? Do we know enough about the results of courtconnected ADR to be able to detect potential patterns of systemic discrimination? This Article examines what we know from federal and state court systems’ public reporting and finds: 1) only a minority of federal district courts and state court systems report regarding dispositions through settlement; 2) there …

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Faculty Scholarship

This Essay explores the challenges of that representation and the false dichotomies it creates—dichotomies that carry tremendous burdens for stakeholders—from my perspective as a public defender. It is the only perspective I know, and so it is an incomplete story. I cannot tell the whole story of representation no matter how generous the word count or deadline. I do not know it. Nor can I tell my complete story of what it was to be a representative. But this is a start. My story is written in the first person and tries at once both to be personal and to …

Legal Services Needs Assessment For Rio Grande Valley Residents In Texas: A Comprehensive T3 Report, Amber Baylor, Nandita Chaudhuri, Luz E. Herrera, Felipe Hinojosa

Faculty Scholarship

This report presents the findings of a legal needs assessment and oral history project that was simultaneously undertaken from August 2019 to September 2020 in the Rio Grande Valley region of Texas. The purpose of the research is to provide a detailed discussion about access to legal information and to document the pertinent legal needs in the Rio Grande Valley. The project documented respondents’ perceptions of the area’s legal assets and needs.

The report captured information from more than 600 individuals who participated in surveys, focus groups, and interviews to create an overview of the historic legal-resource environment that exists …

Results Of The Legal Incubator Lawyers' Survey, Aba Standing Committee On The Delivery Of Legal Services, Center For Computer-Assisted Legal Instruction, Luz E. Herrera, Rebecca Sandefur, Briana Morris

Faculty Scholarship

Legal incubators, also known as law firm incubators, in the United States are designed to help lawyers develop and launch law practices while expanding access to underserved populations. Based on business incubator models, legal incubator programs support the creation of new law firms by providing space, mentoring, and training to licensed lawyers. Most of the law firms produced by these legal incubators are solo or small firms that exist as both for profit businesses and nonprofit entities. Since the first legal incubator appeared in 2007, over 70 self-identified legal incubator programs have emerged around the globe.

In 2016, the ABA …

Practicing The Be Practice Ready: Making Competent Legal Researchers Using The New Process And Practice Method, Jason Murray

Faculty Scholarship

No abstract provided.

Mitchell Hamline School Of Law Summer 2020 Covid-19 Legal Response Clinic, Natalie Netzel, Ana Pottratz Acosta, Joanna Woolman, Kate Kruse, Jon Geffen

Faculty Scholarship

This essay is a reflection on lawyering in a time of crisis. It details the Mitchell Hamline School of Law Clinical Faculty’s response to the community needs resulting from the COVID-19 pandemic by creating the COVID-19 Legal Response Clinic. It also recounts the impact of the murder of George Floyd and the long overdue national reckoning with systemic racism, sparked in our city. Additionally, against this backdrop, it examines the trauma-informed approach taken in clinical work and the classroom to help students process their own trauma and apply this approach in their work with clients.

Amid these concurrent crises in …

Roberta Karmel And The "Brooklyn School", Edward J. Janger

Faculty Scholarship

No abstract provided.

Precedent As Rational Persuasion, Brian N. Larson

Faculty Scholarship

The ways that judges and lawyers make and justify their arguments and decisions have profound impacts on our lives. Understanding those practices in light of theories of reasoning and argumentation is thus critical for understanding law and the society it shapes. An inquiry that explores the very foundations of all legal reasoning leads to a broad, important question: How do lawyers and judges use cited cases in their legal arguments? It turns out there is practically no empirical research to suggest the answer. As the first step in a comprehensive empirical effort to answer this question, this article performs a …