Legal Profession Commons^™

A Bibliography Of University Of Nebraska College Of Law Faculty Scholarship 2014-2018, Stefanie S. Pearlman, Keelan A. Weber

Marvin and Virginia Schmid Law Library: Faculty Publications

This bibliography lists faculty scholarship from 2014-2018. It updates A Bibliography of University of Nebraska College of Law Faculty Scholarship 1892–2013. This bibliography includes publications from law, law library, and law clinical faculty. It also includes assistant deans, faculty with courtesy appointments at the College of Law, and visiting faculty teaching at the College of Law for three or more years. Although we did not include the scholarship of faculty who visited for less than three years or adjunct faculty, we did include a list of those faculty members for historical purposes.

Contents:

Bibliography of Law Faculty Scholarship, 2014-2018 …

Availability's Law, Ido Kilovaty

Tennessee Law Review

Cybersecurity incidents affecting the availability of computers, networks, and data are on the rise. Distributed denial-of-service and ransomware attacks can bring down critical systems and databases, making them unavailable when most needed, potentially affecting every individual, industry, sector, and branch of government. This Article critically evaluates cybersecurity law's gap in addressing the growing threat of availability attacks to information technology systems. While cybersecurity law is defined as the legal framework that "promotes the confidentiality, integrity, and availability of public and private information, systems, and networks ... ." this Article argues that cybersecurity law is overwhelmingly concerned with confidentiality and integrity, …

Fixed Intentions: Wills, Living Wills, And End-Of-Life Decision-Making, Jane B. Baron

Tennessee Law Review

Contemporary trusts and estates law is built on the premise that individuals can and should have fixed intentions with respect to the disposition of their property at death. These intentions can and should be fixed in a written document, and that document can and should be fixed against other outside evidence of intention. Experience with end-of-life health care decision-making gives reason to question these premises. In the health care context, intentions have proven to be fluid, and the documents purporting to record individuals' wishes have often proved unreliable.

This Article examines the implications for wills of the literature on end-of-life …

Ethics And Evidence Too Hot To Handle, Douglas R. Richmond

Tennessee Law Review

No abstract provided.

"Assault Weapon" Lethality, E. Gregory Wallace

Tennessee Law Review

No abstract provided.

Simple Audits For Simple Tax Partnerships, Andrew L. Lawson

Tennessee Law Review

New rules targeting sophisticated tax partnerships unnecessarily burden small, unsophisticated taxpayers. This is a familiar narrative in partnership tax. This time, the story takes place in the rules that prescribe the process by which the IRS audits and collects tax from partnerships and partners. Designed to limit abuse, the rules are highly complex and needlessly saddle small, simple businesses with increased compliance costs and potentially excessive tax liability. Ironically, at the same time, the rules leave loopholes for sophisticated organizations able to exploit them. This Article explains these disparate consequences and suggests solutions to both limit the loopholes for large …

Contents

Tennessee Law Review

No abstract provided.

A Little Child Shall Lead Them: Juvenile Justice, Aging Out, And The First Step Act, Jalila Jefferson-Bullock

Tennessee Law Review

"When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things."

Adjusting Pre- And Post-Judgment Interest Rates For Consumer Debt Collection Actions, Christine Abely

Tennessee Law Review

This Article discusses how states can set fair, just, and equitable statutory pre- and post-judgment interest rates in the context of consumer debt collection litigation. Where states set pre- and post-judgment interest rates applicable to state civil actions, they generally choose one of the two following methods: (1) a fixed rate of interest, in some cases set decades ago and far exceeding the current market rate; or (2) a floating rate with a fixed percentage of interest added. Federal courts in civil actions with federal question jurisdiction apply a purely floating rate of interest tracking a market benchmark to calculate …

Illegal Exactions, Renee Burbank

Tennessee Law Review

Illegal exactions, or unlawful exactions, are an amorphous category of government activities with two unifying characteristics: (1) the government acts in its sovereign capacity but beyond its authority, and (2) its action enriches the government at a person's or organization's expense. The law of illegal exactions has developed through infrequent clusters of cases over 150 years, without substantial academic evaluation or discourse. The case law, thus, often lacks theoretical coherence. Lacking a single defining framework to use, courts have borrowed from torts, Fifth Amendment takings, and due process claims to define the scope of illegal exactions. Although it is an …

Information Age Technology, Industrial Age Laws, Elizabeth Winston

Tennessee Law Review

The United States patent system was born during the Industrial Age at a time where the focus was on promoting innovation in machines and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The Industrial Age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information Age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. Adequate …

Righteous Indignation: Prosecutorial Misconduct, Brady, And The Cognitive Limits Of Self-Policing, Jonathan Harwell, Marshall Jensen, Sarah Heath Olesiuk, Sally B. Seraphin

Tennessee Law Review

No abstract provided.

The Origination Clause's Missing Piece, Chris Land

Tennessee Law Review

The Origination Clause is nearly constitutional surplusage today. The scope of the Clause has been limited by the U.S. Supreme Court to a very narrow class of revenue legislation that emerges from the U.S. House of Representatives.

This Article, for the first time, analyzes historical evidence that the U.S. Supreme Court has defined the constitutional scope of 'Bills for raising Revenue" and the concomitant reach of the Clause in a manner that fails to account for Revolutionary-era British revenue legislation. Four of the five bills passed by the British Parliament which contributed to the outbreak of the Revolutionary War, i.e., …

Table Of Cases

Tennessee Law Review

No abstract provided.

Thomas L. Shaffer: A Remembrance, Noel Augustyn

St. Mary's Journal on Legal Malpractice & Ethics

Tribute to Thomas L. Shaffer

Looking Back: A Case Study Of Career Interest And Experiential Learning In Law School, David I.C. Thomson, Stephen Daniels

Sturm College of Law: Faculty Scholarship

This article is divided into four parts. First, some general observations on what led us to think about our research differently-the importance of career relevance with attention to students interested in a business-related career. Second, an overview of our ongoing study of students and experiential learning at Denver Law-a study designed to follow an incoming class as it goes from first year to last and into the practice of law. Third, through the lens of career interest, an analysis of 1L Denver Law students' preferred style of learning and their views on experiential learning. Fourth, a corresponding analysis of Denver …

Jewish Lawyers And The U.S. Legal Profession: The End Of The Affair?, Eli Wald

Touro Law Review

No abstract provided.

The Legal Ethics Of Secret Client Recordings, John Bliss

Sturm College of Law: Faculty Scholarship

Is it professional misconduct for a lawyer to record lawyer-client conversa- tions without providing notice? When this question hit the national headlines with the summer 2018 release of Michael Cohen’s recordings of Donald Trump, an unresolved area of legal ethics doctrine was brought to public attention. The ABA’s current position is that the Standing Committee is “divided” and unable to offer a disciplinary standard on secret client recordings. This ambivalence is reflected in the lack of consensus across U.S. jurisdictions. Amid recent trans- formative developments in recording technology, and heated public debate about the risks and benefits of secret recording, …

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

As Seen Through The Eye Of The Camera: A Portrayal Of How Cultural Changes Societal Shifts And The Fight For Gender Equality Transformed The Law Of Divorce, Taylor Simpson-Wood

Faculty Scholarship

No abstract provided.

Ethical Limitations On Lawyer-To-Lawyer Online Consultations Regarding Pending Cases, Robert Derner

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and when lawyer-to-lawyer consultations are permitted in the online world. In all lawyer-to-lawyer consultations, but especially with the online variety, a lawyer must avoid violating the principle of confidentiality when consulting other lawyers about client matters. While in-person lawyer-to-lawyer consultations have been commonplace in the legal profession for decades, the rise of listservs and social media networks has caused many lawyers to seek advice from colleagues on the Internet.

In considering online lawyer-to-lawyer consultations, there are two major issues. Firstly, a lawyer must determine whether the jurisdiction in which he or she practices permits online lawyer-to-lawyer …

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Articles

No abstract provided.

True Friends Never Disappear, Alberto R. Gonzales

Law Faculty Scholarship

In this reflective essay published in Student Lawyer, Alberto R. Gonzales recounts his personal and professional journey from a childhood marked by poverty to service at the highest levels of state and federal government, including as U.S. attorney general. Gonzales describes how early material deprivation fueled his ambition, leading him to elite educational institutions and a prestigious legal career. Yet, despite significant professional accomplishments—including service as a Texas Supreme Court justice, White House counsel, and attorney general—he reflects that achievement alone did not bring lasting fulfillment. Instead, he emphasizes the enduring importance of authentic relationships, particularly with family and …

A Jewish Perspective On Tom Shaffer: Zecher Tzadik Livracha (May The Memory Of The Righteous Be A Blessing), Russell G. Pearce

St. Mary's Journal on Legal Malpractice & Ethics

Tribute to Thomas L. Shaffer

Securing Technological Privacy: Modernizing The Texas Disciplinary Rules Of Professional Conduct To Protect Electronic Data, Ashley "Nikki" Vega

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and why the Texas Disciplinary Rules of Professional Conduct (the “Texas Disciplinary Rules”) should be updated to reflect the modernization of technology. Lawyers must keep abreast of changes in the law and its practices; including those which are technological in nature. The American Bar Association (the “ABA”) recently amended the “technology provisions” of its Model Rules of Professional Conduct (the “Model Rules”); namely Rule 1.1 “Competence” and Rule 1.6 “Confidentiality of Information” in order to keep up with the benefits and risks associated with technology in the legal profession. Additionally, over half of all jurisdictions have …

The Drive To Advise: A Study Of Law Students At A Pro Bono Brief Advice Project, Linda F. Smith

Utah Law Faculty Scholarship

Law school aims to teach lawyering skills as well as legal analysis. While all students must acquire the skills of legal analysis, research and writing, law schools may decide what other skills to teach. Students also acquire skills and habits in informal ways, through clerkship experiences or pro bono volunteer work. However, there has been almost no study of what “skills” students pick up in these informal ways, and whether there are skills that would better be learned as part of the curriculum. This study looks at the skill of legal interviewing employed by students in a pro bono brief …

Professional Identity Formation Through Pro Bono Revealed Through Conversation Analysis, Linda F. Smith

Utah Law Faculty Scholarship

Law school is supposed to teach legal analysis and lawyering skills as well as mold law students’ professional identities. Pro Bono work provides an opportunity for law students to use their legal knowledge and skills and to develop their identities as emerging legal professionals. As important as both pro bono work and identity formation are, there has been very little research regarding how pro bono contributes to students’ identity formation. This paper utilizes a data set of over forty student-client consultations at a pro bono brief advice clinic that have been recorded and transcribed. It uses conversation analysis to study …

Learning From Our Mistakes: Conversation Analysis Reveals Best Practices For A Student-Staffed Pro Bono Project, Linda F. Smith

Utah Law Faculty Scholarship

Law schools make “pro bono” opportunities available to students to introduce them to the responsibilities of the profession. Often these pro bono law students help in “brief advice” projects staffed by volunteer attorneys. This staffing-supervision structure presents challenges in ensuring clients receive competent, individualized advice and the students receive adequate oversight so that this is a positive learning experience for them. This paper analyzes transcripts from 46 recorded student-client interviews and 35 student-attorney consultations. It focuses on those cases where there were “errors or omissions” -- either the client got some erroneous advice or the client did not receive complete, …

“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

University of Michigan Journal of Law Reform

First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of “adequacy …

2019 Camp Courthouse Colloquy United States Court Of Appeals For The Second Circuit: Leadership And Mediation, Colin Powell

Cardozo Journal of Conflict Resolution

A mediator serves many roles during the course of a mediation, including facilitator, listener, problem-solver, and agent of reality testing. Often understated is the mediator's role as a leader. To conduct an effective mediation, a mediator must be able to lead counsel and the parties on a path where they will be open to engage in frank risk assessment and consideration of options other than continued litigation. A mediator can learn how to be a better leader by studying leadership in others.

This year's Colloquy focuses on leadership and mediation. The powerful and insightful lessons on leadership drawn from General …