Legal Writing and Research Commons^™

Making Students Practice Ready: Standalone Email And Summary Email Simulations, Betsy Byra, Seth Reiner

Faculty Scholarship

Legal research and writing (“LRW”) curricula emphasize the importance of efficient and effective communication, traditionally providing students with the opportunity to hone this skill through two lengthy and formulaic assignments: a predictive memo and a persuasive brief. These prompts miss key opportunities to engage students in the practice of thinking and writing like lawyers outside the confines of this formal structure. This is a problem because email research memoranda have become the primary mode of communication at firms among junior-level lawyers.This shift has largely been driven by client and supervisor demands for greater efficiency and concision, and will likely only …

Inexcuseable? Building An Artificial Intelligence Microexpert On Contract Excuse Doctrine, Mark Edwin Burge

Faculty Scholarship

This article details and advocates for a general methodology for creating a "microexpert" grounded in a user-defined set of legal sources and widelyaccessible tools for integrating generative artificial intelligence (AI) into legal analysis. The study focuses particularly on background contract excuse doctrines of impossibility, impracticability, and frustration of purpose, which are collectively a methodologically challenging area of law to rationalize due to factintensive variables that undermine their predictability. Particular challenges include assessing the foreseeability of the event that led to the contract's nonperformance, the extent of the hardship or burden on the party seeking excuse, and the purpose of the …

Grading Machines: Can Ai Exam-Grading Replace Law Professors?, Kevin L. Cope, Jen Frankenreiter, Scott Hirst, Eric A. Posner, Daniel Schwarcz, Dane Thorley

Faculty Scholarship

In the past few years, large language models (LLMs) have achieved significant technical advances, such that legal-advocacy organizations are increasingly adopting them as complements to—or substitutes for—lawyers and other human experts. Several studies have examined LLMs' performance in taking law school exams, finding mixed results. Yet there have been no published studies systematically analyzing LLMs' competence at one of law professors' chief responsibilities: grading law school exams. This paper presents results of an analysis of how LLMs perform in evaluating student responses to legal analysis questions of the kind typically administered in law school exams. The underlying data come from …

Amicus Brief In Trump V. Barbara: An Originalist Defense Of Birthright Citizenship, Jed Handelsman Shugerman, Evan D. Bernick

Faculty Scholarship

For nearly all of the first 235 years under the Constitution, the citizenship of every child born in the United States to alien parents, with immaterial exceptions, was a given. Then, in 2025, the Trump administration changed course. Even though the Fourteenth Amendment makes no mention of limiting birthright citizenship to the children of domiciled parents, the Government now claims that is what “subject to the jurisdiction thereof” has always meant. While the Government and its amici admit that the common law recognized the citizenship of children of transient aliens, their remaining “survey of history range[s] from the constitutionally irrelevant” …

Llm-Assisted Legal Propositions Identification From Party Arguments In The U.S. Supreme Court Briefs, Heng Zheng, Alex Zhang

Faculty Scholarship

Merits briefs are central to U.S. litigation, serving as the primary means for parties to present arguments and persuade judges. Legal propositions in these merits briefs are the atomic units of arguments, whose relationships evolve throughout litigation and inform court decisions and precedent. Large language models (LLMs) have been applied to legal document review, but there is limited evidence on their ability to identify legal propositions in merits briefs. Given the labor-intensive nature of the task, we evaluate a human-AI collaborative approach to identifying legal propositions in the U.S. Supreme Court merits briefs, in which legal annotators review and revise …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Faculty Scholarship

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

Ain’T Nothing Like The Real Thing: How Legal Research Programs Can Provide The Needed Safety Rails For Pro Se Litigants Using Ai In Litigation, Nicole Belbin

Faculty Scholarship

An estimated 92% of legal needs go unmet in America, leaving a growing number of pro se litigants to “manage their own cause.” Between 2000 and 2019, 27% of all civil cases filed in U.S. District Courts, totaling 1,501,079 cases, had at least one party without attorney representation. The legal profession is abuzz about the potential for generative artificial intelligence (GenAI) tools to “smooth out any mismatch between available resources and urgent needs in our court system”; however, “hallucinations” have quickly proved a limitation to reaching this technology’s full potential. The complexity of legal research and analysis increases the chance …

Measuring Lawyer Mental Illness: Evidence From Two National Surveys, Benjamin David Pyle, Clifford Rosky

Faculty Scholarship

The American Bar Association declared a “well-being crisis” among lawyers, but the empirical basis for this claim has been contested in recent years. This study systematically compares two high-quality, nationally representative surveys —the National Health Interview Survey (NHIS) and the National Survey on Drug Use and Health (NSDUH)—to measure the prevalence of mental illness and alcohol misuse among lawyers. In both surveys, lawyers report elevated rates of alcohol misuse compared to the general public and similarly educated peers. The NHIS finds that lawyers experience psychological distress at rates lower than the general public and similar to, or moderately higher than, …

Opening Brief For Plaintiff-Appellant Emery Barron, Steven Mitchell, Carolyn Sacco, Shaina Sikka, Madeline H. Meth

Faculty Scholarship

By the time Emery Barron sued Pennsylvania Department of Corrections officials in 2021, they had kept him caged for almost six years in solitary confinement without providing a pathway for him to reenter general population. Department of Correction policy calls for officials to review the ongoing need for solitary confinement after an initial ninety-day stint in disciplinary confinement. However, procedural carve outs allow officials to leave people like Barron in solitary indefinitely without an opportunity to be heard by a decisionmaker and without requiring officials to assert any legitimate penological interest behind the confinement.

Under this scheme, which violated both …

Opening Brief For Plaintiff-Appellant Jacob Julick, Aryssa Harris, Cameron Tong, Madeline H. Meth

Faculty Scholarship

For ten days in the middle of winter, officers at the Kentucky State Penitentiary (KSP) confined Jacob Julick in freezing cells, dressed only in paper boxers, and without access to hygiene products, a shower, cleaning products, bedding, or shoes. The reason? Mistaken retribution in response to a recent assault on an officer in which Julick was not involved.

When Julick reported experiencing suicidal thoughts, Defendant Officer Jason Denny mocked him, telling him to “kill [him]self and do them the favor.” Shortly after, Julick was moved from his first solitary cell to a strip cage where he was handcuffed, shackled, and …

Social Media Participation And Scholarly Success In Law, Julian Nyarko, David E. Pozen

Faculty Scholarship

Using a novel dataset on Twitter activity as well as a novel corpus of law journal publications, this paper examines the impact of social media activity on the scholarly success of U.S. law professors. We find that joining Twitter increases citation counts by an average of 22% per year and improves article placements by up to 10 ranks for law professors, relative to a synthetic control group. These positive returns apply across nearly all classes of scholars and are magnified for those who post frequently about their own work. The identified citation boost would be even larger than 22% if …

Replacement Opening Brief For Plaintiff-Appellant Timothy Olmos, Ciara Gerendas, Noah Goldstein, Eli O'Neal, Madeline H. Meth

Faculty Scholarship

Today, nearly everyone relies on a cellphone. Many use their phones to store a wealth of private information, including conversations over text messages and emails; photographs of family, friends, pets, and joyous occasions; and confidential banking and medical records. The Supreme Court, therefore, regards a cellphone search as one that “typically expose[s] to the government far more than the most exhaustive search of a house.”

The Supreme Court also recognizes that despite the legal status of people subject to probation conditions, probationers still retain Fourth Amendment protections against unreasonable searches. And this Court has held that probationers, who like almost …

Replacement Reply Brief For Plaintiff-Appellant Mona Salcida Murillo, Madeline H. Meth

Faculty Scholarship

Defendants’ response brief contains a laundry list of all the ways they think Mona Murillo fell short in trying to vindicate her rights to be free from sex discrimination and retaliation while incarcerated at Salinas Valley State Prison. They devote page after page to cataloging the regulations that govern her claims, describing the intricacies of the three-tiered grievance system, and recounting her repeated efforts to navigate that morass. And from all of that, they draw the conclusion that Murillo’s lawsuit should be thrown out of court.

In the process, Defendants take the exhaustion requirement to an extreme that even the …

Amicus In Trump V. Cook: The Fed, Offices As Property, And The Meaning Of “Cause”, Jed Handelsman Shugerman

Faculty Scholarship

The Federal Reserve Act states that “each member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President.” 12 U.S.C. § 242. Based on the historical record, when Congress creates an office with a fixed term of years and protects against removal without “cause,” Congress has both granted “a constitutionally protected property interest” under the Fifth Amendment (that cannot be taken away without “due process”) and extended a statutory entitlement to receive fair notice and a meaningful opportunity to respond before any removal may …

Medium Matters In Preparing For Law Practice: Critical E-Reading, Amanda L. Sholtis

Faculty Scholarship

No abstract provided.

Sails Symposium Launch On International Law Scholarship: What We Write, Where We Publish, And Why It Matters, Kathleen Claussen, Melissa J. Durkee, Rebecca Ingber, Steven Arrigg Koh

Faculty Scholarship

Despite the centrality of international law scholarship in international law, little work has been done to understand the contours and forces at work in what international law scholars write, where they publish that work, who reads international law scholarship, and scholarship's relationship to the policy world. For international lawyers, identifying answers to these questions and appreciating the impact of our collective work is essential, particularly at a moment of profound political struggle in communities around the world. We have remarkably few data as to what topics, methodologies, and perspectives of international law scholarship journals and publishers print, by whom, in …

Replacement Opening Brief For Plaintiff-Appellant Mona Salcida Murillo, Elise Chigier, Bilal Mubarack, Daniel Siemers, Erin Hunter, Madeline H. Meth

Faculty Scholarship

When Mona Murillo tried to assert her rights to be free from sex discrimination and physical threats from prison officials at Salinas Valley State Prison (SVSP), those officials conspired to punish her and obstruct her efforts to remedy these harms. Murillo is a transgender woman who, while incarcerated at SVSP, repeatedly complained about unsafe working conditions (created and maintained because of her sex) and sex-based harassment perpetrated by Defendants Lopez, Garcia, Lepe, and Castillo. In return, Murillo was subjected to threats, fabricated disciplinary charges, and deliberate efforts to deny her access to necessary work gear by these same Defendants and …

Every Law School Should Have A Poet, Susan Ayres

Faculty Scholarship

This is an imaginative work that explores gaslighting in the workplace.

Response To Petition For Rehearing En Banc, Felicia M. Sonmez V. Wp Company Llc Et Al, Madeline H. Meth, Brian Wolfman, Becca Steinberg, Regina Wong, Elizabeth Brownstein, Nathaniel Allen Deacon

Faculty Scholarship

Felicia Sonmez alleges that the Washington Post violated the D.C. Human Rights Act by banning her from covering certain stories because she is a woman and a sexual-assault survivor. Op. 2-3. After finding Sonmez’s detailed allegations plausible, a panel of this Court rejected as premature the Post’s First Amendment defense that its decision was driven not by discrimination but by a desire to maintain an appearance of objectivity. Op. 4. Because “what actually motivated the Post editors to impose the bans on Sonmez is a factual question,” the panel held, the Post’s First Amendment defense could not be resolved on …

Petition For Initial Hearing En Banc, United States V. Michael Norwood, Becca Steinberg, Brian Wolfman, Regina Wong, Madeline H. Meth, Sara Brizio, Elizabeth Brownstein, Shreya Sarin

Faculty Scholarship

This appeal involves a question of exceptional importance because it implicates binding circuit precedent that directly conflicts with the United States Sentencing Commission’s exercise of statutorily delegated authority. Congress expressly charged the Commission with promulgating policy statements and guidelines establishing, among other things, a framework governing compassionate release of federal prisoners. 28 U.S.C. § 994(a), (t). So, when Congress provided that district courts could consider a sentence reduction if warranted by “extraordinary and compelling reasons,” 18 U.S.C. § 3582(c)(1)(A), Congress did not define that phrase. Instead, it directed the Commission to do so. 28 U.S.C. § 994(t).

The Commission did …

Reply Brief For Plaintiff-Appellant, Jane Roe V. Marshall University Board Of Governors, Ryan M. Donovan, J. Zak Ritchie, Madeline H. Meth, Gregory Bowe, Erin Hunter, Sarah Monahan

Faculty Scholarship

Marshall does not dispute that Jane Roe’s experience as a student there was marred by fellow-student John Doe’s repeated sexual harassment. Doe’s harassment of Roe escalated on September 3, 2022, when he sexually assaulted her at a Marshall-football-watch party near campus. Instead of supporting Roe to confront the assault’s aftermath or the lingering on campus hostile environment, Marshall punished her, pretextually shuffling her through an investigation riddled with procedural deficits, in an attempt to cover its tracks.

Marshall argues it isn’t liable because it lacks control over all off-campus sexual assaults. But it undermines itself by admitting it exercised control …

Decriminalization Matters: Lgbtq Transnational Litigation Networks And Movement Lawyering In The Global South, Ayodeji Kamau Perrin

Faculty Scholarship

In the last decade, a distinct sociolegal phenomenon has been sweeping across the Global South—the judicial decriminalization of same-sex sexual conduct. On the other hand, progress on LGBTQ rights has occurred in parallel to transnational countermobilization and backlash against LGBTQ rights. Yet, neither the phenomenon of judicial decriminalization nor the countermobilization and backlash to decriminalization has attracted the attention that these phenomena deserve from doctrinal legal scholars, comparative and international law scholars, or legal mobilization scholars.

In this paper, I help to remedy this oversight by making three contributions to legal mobilization scholarship and to international law and relations scholarship. …

Grading Legal Research, Julie Tedjeske Crane

Faculty Scholarship

Law school grading practices often conflict with legal research instruction goals. Small class sizes render norm-referenced (curved) grading unreliable, and the emphasis on ranking students detracts from learning essential skills. Drawing on scholarship on legal education and other disciplines, this article examines several grading approaches that may better serve students and instructors, including criteria-referenced, specification-based, and equitable grading systems. It offers practical suggestions for improving grading practices, such as working with colleagues on assessment design, being intentional about grading formative work, and using anonymous grading. The article concludes with a call for more discussion about grading in legal research courses.

As They Think Best: A History Of The "One Crowded Hour" Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Information Retrieval In The Age Of Generative Ai: A Mismatch That Matters, Alex Zhang

Faculty Scholarship

This short piece explores a widespread and yet underexamined or even overlooked misconception, that is, large language models (LLMs) function like traditional legal research databases. They do not. As a matter of fact, information retrieval from databases functions very differently from LLMs in terms of inputs, retrieval processes, and outputs. These differences have significant implications for transparency, traceability, and overall effectiveness in AI-driven legal research. Without intentional oversight and adaption, these changes could profoundly affect how we develop research skills and a cumulative knowledge base, both of which are essential skills for lifelong learning in the legal field.

This article …

Best Practices For Creating Hypotheticals For Legal Research And Writing, Olivia Smith Schlink, Aimee Self-Pittman, Theresa Tarves, Melissa Strickland

Faculty Scholarship

No abstract provided.

Design Problems, Mark P. Mckenna, Jessica Silbey

Faculty Scholarship

This Essay draws on our empirical research into designers and their work to investigate the limits of intellectual property law for achieving its goal of progress in the design context. We focus on two related aspects of our research and also address a pressing doctrinal question in design patent law. The two research questions we discuss are: (1) How do designers conceive of and solve design problems through innovative design practice?; and (2) How do designers incorporate human values of coherence, inclusivity, and sustainability in their process, imbuing their practice with a kind of politics? The related doctrinal question concerns …

Brief Amicus Curiae Of Professor Jed Hanelsman Shugerman In Support Of Respondents, Jed Handelsman Shugerman

Faculty Scholarship

Amicus Curiae Jed Handelsman Shugerman is a Professor of Law at Boston University. He holds a JD and a PHD is History. Shugerman subscribes to the interpretation of the Constitution based on original public meaning (i.e. originalism). He has written extensively on the history of presidential power and the original public meaning of Article II.

Shugerman and Gary Lawson have co-written "Presidential Removal as Article I, not Article II," offering originalist alternatives to limit Congress's power to restrict presidential removal power, while allowing good-cause conditions in traditional exceptional cases. This amicus brief summarizes these alternatives and shows how they are …

What We Should Know About The Reliability Of Empirical Legal Studies, Kathryn Zeiler

Faculty Scholarship

The findings of replication studies conducted in the early 2010s led many to declare that science was in the midst of a “replication crisis.” Since then, a growing number of reforms have been proposed and tested. The field of empirical legal studies seems behind other fields such as psychology, economics, political science, medicine, biology, and others that have taken significant steps toward uncovering the general reliability of the field’s empirical work, investigating the causes of observed unreliability, and instituting and testing the effects of various reforms. The purpose of this Article is to summarize what we know about the reliability …

Reply Brief For Plaintiff-Appellant Brandon Velez, Stephen T. Martin, Seth J. Hipple, Madeline H. Meth

Faculty Scholarship

Defendants don’t want to face the evidence, including video footage, that shows them escalating a traffic stop in front of Velez’s home to a forceful arrest because Velez exercised his First Amendment rights. So, instead of dealing with the record directly, Defendants rely entirely on the district court’s (improper) view of the record, which on appeal from that court’s grant of summary judgment is subject to this Court’s de novo review. Besides ignoring the evidence that favors Velez, Defendants leave unaddressed this Court’s key cases, citing only precedent in which officers confronted wildly different circumstances from those presented here.

When …