Legal Writing and Research Commons^™

The Trouble With Amicus Facts, Allison Orr Larsen

Faculty Publications

The number of amicus curiae briefs filed at the Supreme Court is at an all-time high. Most observers, and even some of the Justices, believe that the best of these briefs are filed to supplement the Court’s understanding of facts. Supreme Court decisions quite often turn on generalized facts about the way the world works (Do violent video games harm children? Is a partial birth abortion ever medically necessary?). To answer these questions, the Justices are hungry for more information than the parties and the record can provide. The consensus is that amicus briefs helpfully add factual expertise to the …

An Offer They Can’T Refuse: Teaching Persuasive Writing Through A Settlement Offer Email Assignment, Alyssa Dragnich, Rachel H. Smith

Faculty Publications

(Excerpt)
/="/">Do you catch more flies with honey than with vinegar? Our first-year legal writing students had to confront this question as part of a new assignment we introduced in the spring of 2014 that required them to write an email settlement offer to opposing counsel. This assignment fit easily into our trial and appellate brief assignments, allowed students to learn about persuasive writing in a new format, and helped students experience a bit of the creativity of law practice.

At Miami Law, we follow a fairly traditional model for a two-semester legal writing curriculum. In the fall, students …

George Orwell's Classic Essay On Writing: The Best Style Handbook For Lawyers And Judges, Douglas E. Abrams

Faculty Publications

As Orwell's title intimates, the essay included criticism of political writing done by government officials and private observers. The essay's staying power, however, transcends the political arena. By calling on writers of all persuasions to "simplify your English," Orwell helped trigger the plain English movement, which still influences legislators, courts, administrative agencies, and law school legal writing classes.

This article proceeds in two parts. First I describe how judges, when they challenge colleagues or advocates in particular cases, still quote from Orwell's plea for clear expression and careful reasoning. Then I present Orwell's diagnosis of maladies that plagued contemporary prose, …

Report Of The Aals Committee On Libraries And Technology, Subcommittee On Law Library Reporting Structures, Aals Committee On Libraries And Technology, Subcommittee On Law Library Reporting Structures, Anne Klinefelter, Kay L. Andrus, Joanne A. Epps, Frank Liu, Susan Nevelow-Mart, Spencer Simons

Faculty Publications

The reporting structure for academic law libraries is a topic of renewed debate. Tradition and accreditation standards for law schools have supported law school oversight of law libraries to ensure that library services would focus on the goals of the law school. Because legal research has been considered a bedrock component of legal education and legal practice, law libraries have long been closely aligned with law schools. However, new information technologies, increased pressures for efficiencies, growing interest in interdisciplinary work, and growing interdisciplinary demand for lawyer librarian expertise in information law have inspired questions about potential advantages of strengthening the …

Erasing Boundaries: Inter-School Collaboration And Its Pedagogical Opportunities, David I.C. Thomson, Ian Gallacher, Amy R. Stein, Robin Boyle

Faculty Publications

(Excerpt)

This article, based on a presentation that we gave at the AALS conference in New York in January of 2014, suggests that technology opens up new possibilities for law schools by allowing students from different schools to participate in complex inter-school simulations that can, if carefully prepared, teach important lessons about lawyering skills, behavior, and provide rich opportunities for the development of professional identity. It can, in short, deepen and enrich the experiential learning opportunities that law schools offer. The article does not propose that law school faculty should teach or grade students from another school, but that the …

Supporting And Promoting Scholarly Life In Turbulent Times, A. Benjamin Spencer

Faculty Publications

One of the most important contributions a law school can make is to the development of the law through scholarly research. As one of the three pillars of being an academic-the other two being teaching and service-producing legal scholarship in one's respective area of expertise is an enterprise that nearly all law schools would like to support. However, during these challenging times for legal education arising from enrollment declines and the resultant adverse budgetary impacts, fully supporting legal scholarship can be particularly challenging. Having served as Associate Dean for Research I at Washington & Lee University School of Law ("W …

Between England And France: A Cross-Channel Legal Culture In The Late Thirteenth Century, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Organizational Alliances By U.S. Schools, Elizabeth Chambliss

Faculty Publications

U.S. law schools increasingly are forming organizational alliances with other training providers in the interests of market expansion and/or consolidation. At the top of the market, U.S. law schools are seeking to brand their positions within the global economy by forming alliances with elite foreign law schools, business schools, and corporate law firms and clients. Schools outside of this market are moving to establish alternative niches through alliances with solo and small firm practitioners, CLE providers, and other organizations serving low-and middle-income clients, as well as through the development of accelerated and/or specialty degrees. Schools at all levels are increasingly …

Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams

Faculty Publications

In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”

Introduction: The Will To Survive, Rachel H. Smith

Faculty Publications

No abstract provided.

Should Laptops Be Banned? Providing A Robust Classroom Learning Experience Within Limits, Robin A. Boyle

Faculty Publications

(Excerpt)
/="/">Technology abounds today’s law students. Laptops, iPods, iPads, and BlackBerrys are just a few of the newly developed modes of communication, notetaking, and music-storing devices that creep into our vocabulary – and students’ backpacks. Given the competitive nature of law school, students understandably bring laptops to class hoping to maximize their performance. Unfortunately for all involved, students use their laptops beyond the task of note-taking. The distractions that present themselves in class have led law professors to complain on various fora about the frequency of laptop use in the classroom. Some posit that students’ inappropriate use of laptops …

What Great Writers Can Teach Lawyers And Judges: Precise, Concise, Simple And Clear, Douglas E. Abrams

Faculty Publications

Despite some imperfections across disciplines, advice from well-known fiction and non-fiction writers can serve lawyers and judges well because law, in its essence, is a literary profession heavily dependent on the written word. There are only two types of writing - good writing and bad writing. As poet (and Massachusetts Bar member) Archibald MacLeish recognized, good legal writing is simply good writing about a legal subject. "Lawyers would be better off," said MacLeish, "if they stopped thinking of the language of the law as a different language and realized that the art of writing for legal purposes is in no …

Justice Jackson And The Second Flag-Salute Case: Reason And Passion In Opinion-Writing, Douglas E. Abrams

Faculty Publications

In 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette. With Justice Robert H. Jackson writing for the six-Justice majority, the Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state-imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson's effort "may be the most eloquent majority opinion in the history of the Supreme Court."

An Empirical Analysis Of Collaborative Practice, John M. Lande

Faculty Publications

This article summarizes empirical research about Collaborative Practice, the Collaborative movement, its interaction with other parts of the dispute resolution field, and its impact on the field. It reviews studies of Collaborative Practice describing the individuals involved in Collaborative cases, how the process works, the operation of local practice groups, and the impact of Collaborative Practice on legal practice generally. Based on this analysis, it suggests an agenda for future research. Finally, it offers suggestions for constructive development of the Collaborative field.

Symposium Introduction - The Law Librarian's Role In The Scholarly Enterprise, Duncan E. Alford

Faculty Publications

No abstract provided.

Book Review: Unified Business Laws For Africa: Common Law Perspectives On Ohada, Duncan E. Alford

Faculty Publications

No abstract provided.

Book Review: Lexicon Of Human Rights, Duncan E. Alford

Faculty Publications

No abstract provided.

The Universe Of Thinkable Thoughts Versus The Facts Of Empirical Research, Joseph A. Custer

Faculty Publications

Mr. Custer considers the use of "literary warrant" as it affects the usefulness of the West Digest System, and reports on the results of a survey he conducted with both legal practitioners and law faculty. He concludes that the West Digest System has some viability, but it will need to extend its literary warrant to remain a player in today's legal culture.

The Legal Writing Institute: Celebrating 25 Years Of Teaching & Scholarship, Robin Boyle

Faculty Publications

(Excerpt)

BRITTANY FLOWE: Welcome everyone. I am Brittany Flowe, the Lead Articles editor of the Mercer Law Review. On behalf of all the students and faculty, we are truly grateful for your presence here today. We are excited and honored to be celebrating the twenty-fifth anniversa­ry of the Legal Writing Institute. Thank you all for being here; we are looking forward to a wonderful panel. Now, I would like to introduce Dean Daisy Hurst Floyd.

DEAN DAISY FLOYD: Thank you everyone. Good morning. It is my great privilege to welcome you to Macon, to Mercer University, and to Mercer University's …

Meeting Students’ Demand For Models Of Good Legal Writing, Patricia Grande Montana

Faculty Publications

(Excerpt)

First-year legal writing students always plead for model examples of the types of writing we teach. Though most legal writing texts include an appendix of sample legal documents, the students invariably ask for more. They insist that a multitude of samples are needed to fully grasp the structure and organizational approach that is expected of them. Their reasons for wanting models of good legal writing are not without merit. Interoffice memoranda, trial and appellate briefs, as well as the other kinds of legal documents we teach in the first-year writing curriculum are unlike anything our law students have previously …

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong

Faculty Publications

This article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the article is applicable to both domestic class arbitrations …

Law Students Are Different From The General Population: Empirical Findings Regarding Learning Styles, Robin Boyle, Jeffery Minneti, Andrea Honigsfeld

Faculty Publications

(Excerpt)
It was a snowy day during a semester break when Prof. Robin Boyle was discussing teaching law students and learning styles with Dr. Andrea Honigsfeld, who has performed numerous empirical studies and has published many books and articles on teaching to the learning style of children and adults. Also at the table was Susan Rundle, president of Performance Concepts International (PCI). PCI develops and administers the Building Excellence (BE) Survey, an online learning style assessment survey (described below). Prof. Boyle was aware during this conversation that professors who teach in other graduate programs are fascinated by law students. Dr. …

Researching Initiatives And Referendums In Arkansas, Joseph A. Custer

Faculty Publications

This bibliographic essay and guide to researching Arkansas initiatives and referendums is intended to assist anyone interested in this vital subject.

Book Review: Index To Legal Citations And Abbreviations, 3rd Ed., Duncan E. Alford

Faculty Publications

No abstract provided.

The Case For "Thinking Like A Filmaker": Using Lars Von Trier's Dogville As A Model For Writing A Statement Of Facts, Elyse Pepper

Faculty Publications

Part I of this Article introduces movies as a persuasive medium. Part II examines the value of movies as teaching tools in the law school context. Part III breaks down the movie Dogville and demonstrates how it might be used to create two Statements of Facts in a fictionalized criminal case. Part IV recaps the lessons learned from using a film as a model for fact writing.

Better Revision: Encouraging Student Writers To See Through The Eyes Of The Reader, Patricia Grande Montana

Faculty Publications

(Excerpt)

Revision is an integral part of the first-year legal writing curriculum. Students rewrite most of their writing assignments for a grade, and, in many cases, the rewrites are weighted more heavily than the first drafts. The purposes of a rewrite in legal writing, as with other writing, are to resolve any inconsistencies and fill in gaps, strengthen the analysis and reasoning, and present the information in the clearest way possible. Though legal writing professors devote substantial time to the rewrite phase of assignments, in my experience, law students traditionally treat an assignment as completed as soon as they turn …

Persuasion In A Familiar Activity: The Parallels Between Resume Writing And Brief Writing, Patricia Grande Montana

Faculty Publications

(Excerpt)
/="/">To succeed in drafting a “winning” brief, you must approach it like you approach any other persuasive piece of writing in everyday life. A résumé is one such type of writing.Although many writers might not realize that composing a résumé is an exercise in persuasion, it is. The résumé’s purpose is simple: to persuade the employer to hire the applicant. Thus, a good résumé will be tailored to the needs of the employer. To achieve this goal, writers of successful résumés will carefully consider the employer throughout the planning, drafting, and revising processes. They will step into the …

The Blind Leading The Blind: What If They’Re Not All Visual Or Tactile Learners?, Robin A. Boyle, James B. Levy

Faculty Publications

(Excerpt)

As legal writing professors, we exalt analysis over intuition and are trained to follow the facts rather than engage in guess-work. We train our students to do the same. Yet when it comes to the pedagogy of legal analysis, we sometimes disregard our training by relying on observations and anecdotal evidence. Specifically, we may be assuming that the vast majority of our students are visual and/or tactile learners because they have grown up using computers, and we see students using computers all the time. Implicit in our assumption is that learning styles are determined by environmental factors alone or …

Suggestions On How To Conduct Empirical Research: A Behind-The-Scenes View, Robin A. Boyle, Joanne Ingham

Faculty Publications

(Excerpt)

The conference theme of empirical research at the 2006 Association of American Law Schools Annual Meeting, held in Washington,D.C., indicated an interest on the part of doctrinal and skills professors to conduct their own studies. The conference title, Empirical Scholarship:What Should We Study and How Should We Study It?, along with the plentiful workshops on the topic, evidenced the acceptance in the academe of empiricism.As a researcher noted, “Empirical legal scholarship … is arguably the next big thing in legal intellectual thought.”

Assisting legal writing professors with their growing interest in conducting empirical studies, the authors presented at the …

Mandarin Chinese: An Annotated Bibliography Of Self-Study Materials, Duncan E. Alford

Faculty Publications

The People’s Republic of China is currently the seventh largest economy in the world and is projected to be the largest economy by 2050. Commensurate with its growing economic power, the PRC is using its political power more frequently on the world stage. As a result of these changes, interest in China and its legal system is growing among attorneys and academics. International law librarians similarly are seeing more researchers interested in China, its laws and economy. The principal language of China, Mandarin Chinese, is considered a difficult language to learn. The Foreign Service Institute has rated Mandarin as “exceptionally …