Legal Writing and Research Commons^™

Reshaping Intellectual Property Scholarship From Within, Peter K. Yu

Faculty Scholarship

Written for the Symposium collecting papers from the Race + IP 23 Conference, this article explores intellectual property scholarship that has been either overlooked or marginalized. Because scholars of color are often outsiders looking in, the article identifies opportunities to reshape intellectual property scholarship from within. Even though the focus of this article was chosen with readers of this Symposium in mind, its insights will be relevant to all scholars.

This article begins by calling on scholars to develop a deeper appreciation of the intrinsic motivations of authors and inventors. It then discusses the oft-overlooked inequalities of creativity and innovation …

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

Faculty Scholarship

Issues Presented:

Title IX prohibits schools from responding with deliberate indifference to student-on-student sexual harassment that interferes with, or threatens to interfere with, a victim’s education. It also prohibits schools from retaliating against students who engage in Title IX protected activity, such as reporting an assault. Here, another Marshall student sexually assaulted Roe at an offcampus residence near Marshall’s campus. Roe reported the assault and other instances of student-on-student relationship abuse. In the assault’s aftermath, Roe missed classes and limited her time on campus because she was afraid of encountering her assailant. Her grades suffered. Marshall did not address the …

Opening Brief For Plaintiff-Appellant Brandon Velez, Stephen T. Martin, Seth J. Hipple, Madeline H. Meth, Elise Chigier, Bilal Mubarack, Daniel Siemers

Faculty Scholarship

Reasons Why Oral Argument Should Be Heard: Oral argument would significantly aid this Court. This appeal presents important questions about what constitutes excessive force, retaliatory arrest, and unlawful failure to train police officers. Oral argument would allow the Court to investigate the complex facts at issue and the elements of these claims.

Common Measures Of Vaccination Intention Generate Substantially Different Estimates That Can Reduce Predictive Validity, Jessica Fishman, K. Aleks Schaefer, Daniel Scheitrum, Christopher Robertson, Dolores Albarracin

Faculty Scholarship

Surveys often estimate vaccination intentions using dichotomous ("Yes"/"No") or trichotomous ("Yes," "Unsure," "No") response options presented in different orders. Do survey results depend on these variations? This controlled experiment randomized participants to dichotomous or trichotomous measures of vaccine intentions (with “Yes” and “No” options presented in different orders). Intentions were measured separately for COVID-19, its booster, and influenza vaccines. Among a sample of U.S. adults (N = 4,764), estimates of vaccine intention varied as much as 37.5 ± 17.4 percentage points as a function of the dichotomous or trichotomous response set. Among participants who had not received the COVID-19 vaccine, …

Contracting Hoop Dreams: Using Sports Law To Teach Transactional Practice, Cody Jacobs

Faculty Scholarship

One of the places I find the most joy in teaching legal writing is problem development—writing compelling factual scenarios that give students interesting legal issues to work through is rewarding and fun.  The best prompts will motivate students to really jump into their role representing their client and encourage them to think about the “big picture”—how the law ties into social, political, and economic structures in society at large.  Much has been written about the best ways to do this in the context of litigation assignments (briefs, memos, etc.), but there has been less discussion about problem creation in the …

Reply Brief For Plaintiff-Appellant Rocky Freeman, Madeline H. Meth

Faculty Scholarship

Because the Probation Office “dropped the ball,” JA199, false information remained in Rocky Freeman’s pre-sentence report for years. The Bureau of Prisons knew or should have known that it was relying on an inaccurate PSR. Yet, it failed to take any action to obtain correct information until Freeman discovered that BOP had been treating him as if he were a contract killer who had murdered two victims—effectively punishing him for acquitted conduct contrary to a court order. Instead of designating Freeman to the lowest-security-level facility for which he was qualified within 500 miles of his family, the United States sent …

Constructing A Liberal/Progressive “Constitution In Exile”: An Appreciation Of Jack Balkin’S Memory And Authority, James E. Fleming

Faculty Scholarship

Balkin’s book makes clear why many liberal/progressive criticisms of conservative originalists—that they get the history wrong or cherry-pick it, that they only selectively insist upon originalism and otherwise ignore it, and the like—deliver at best glancing blows (as far as the conservative originalists are concerned). For one thing, he shows that the construction of memory entails the construction of forgetting (or erasure),7 which is essential to originalist projects that whitewash our historical injustices and repudiate the progressive aspirations embodied in our history. Hence, when conservative originalists erase unjust aspects of our history, and liberals and progressives criticize them for not …

Even Laypeople Use Legalese, Eric H. Martinez, Francis Mollica, Edward Gibson

Faculty Scholarship

Whereas principles of communicative efficiency and legal doctrine dictate that laws be comprehensible to the common world, empirical evidence suggests legal documents are largely incomprehensible to lawyers and laypeople alike. Here, a corpus analysis (n=59 million words) first replicated and extended prior work revealing laws to contain strikingly higher rates of complex syntactic structures relative to six baseline genres of English.

Next, two pre-registered text generation experiments (n=286) tested two leading hypotheses regarding how these complex structures enter into legal documents in the first place. In line with the magic spell hypothesis, we found people tasked with writing official laws …

Civic Education And Democracy's Flaws, Robert L. Tsai

Faculty Scholarship

Today, liberalism and democracy are beset by competitors that seek to return power to religious traditionalists or partisans masquerading as civic republicans. In such an environment, can civic education do some good, and even help bridge our society’s deepening divides?

Seana Shiffrin has characteristically brought deep learning and penetrating insight to the project of civic education in a modern democracy. Against a “dominant” model of citizenship in which “citizens vote and hand off power to their representatives”— which she believes encourages the people to maintain an unhealthy distance from government— she proposes a richer account of political community in which …

Interview With David Webber: Reflections On The Past, Present, And Future Of Labor's Capital, Alvin Velazquez, David H. Webber

Faculty Scholarship

ALVIN VELAZQUEZ: Good afternoon! My name is Alvin Velazquez. I am an Associate General Counsel at the Service Employees International Union (SEIU), where for the last fifteen years I have given advice on bankruptcy, corporate law matters, and tech matters. I’m also an adjunct professor at Georgetown Law School where I have taught employment law and am teaching a seminar called Systemic Racism, Colonialism, and Bankrupt Governments.1 Before arriving at SEIU I worked as a litigation associate at several large law firms. I also admit, rather sheepishly, that I am one of the few graduates of Cornell in the labor …

Persistent Identifiers And The Next Generation Of Legal Scholarship, Aaron Retteen, Malikah Hall-Retteen

Faculty Scholarship

This article discusses the importance of the most common persistent identifiers in scholarly communications—the digital object identifier and the ORCID identifier—to legal scholarship. Persistent identifiers help preserve and disseminate academic content and data-driven services that leverage this information standard are now integrated into the publication process. Because legal publishers have not widely adopted persistent identifiers, the legal discipline cannot enjoy the benefits offered by this system. This article looks at barriers to implementing persistent identifiers among legal publishers and provides an anecdotal example of creating a sustainable workflow between the law library and student-run law journals.

The Last Colony Of The Mind: Narrative, Legal Advocacy, And The Decolonization Of Legal Knowledge, Ayodeji Kamau Perrin

Faculty Scholarship

Philippe Sands’ The Last Colony¹ tells the story of how Chagos Islanders won the right to return to the lands of their birth through a 2019 Advisory Opinion of the International Court of Justice (ICJ).² In 1965, while the United Kingdom stood in the midst of conceding to the independence claims of myriad anti-colonialists throughout its imperial holdings, it took the anachronistic step of creating a colony—the British Indian Ocean Territory (BIOT).³ In flagrant violation of UN Resolution 1514,⁴ the United Kingdom detached the Chagos Archipelago from the colony of Mauritius. And between 1967 and 1973, …

Re-Evaluating Gpt-4’S Bar Exam Performance, Eric H. Martinez

Faculty Scholarship

Perhaps the most widely touted of GPT-4’s at-launch, zero-shot capabilities has been its reported 90th-percentile performance on the Uniform Bar Exam. This paper begins by investigating the methodological challenges in documenting and verifying the 90th-percentile claim, presenting four sets of findings that indicate that OpenAI’s estimates of GPT-4’s UBE percentile are overinflated. First, although GPT-4’s UBE score nears the 90th percentile when examining approximate conversions from February administrations of the Illinois Bar Exam, these estimates are heavily skewed towards repeat test-takers who failed the July administration and score significantly lower than the general test-taking population. Second, data from a recent …

A Conversation On The Carceral Home, Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, James Kilgore

Faculty Scholarship

On February 8, 2024, scholars Ngozi Okidegbe, Kate Weisburd, Emmett Sanders, and James Kilgore met virtually at the Boston University School of Law to hold a conversation on Professor Weisburd’s article, The Carceral Home, 103 B.U. L. Rev. 1879 (2023).

The Case For Scientific Jury Experiments, Bernard Chao, Christopher Robertson, David Yokum

Faculty Scholarship

For decades, litigators have relied on focus groups. While this approach can help identify issues for further exploration, attorneys often use focus groups to shape trial strategy or even predict outcomes. But focus groups are ill-suited for these applications because they suffer from three basic weaknesses: 1) they cannot explore unconscious decision-making; 2) they use too few mock jurors to provide reliable answers, and 3) they can become echo chambers that only surface a subset of the issues that an actual jury will consider.

Fortunately, recent technical advances in crowdsourcing and insights into human decision-making have opened the door to …

Trial Selection And Estimating Damages Equations, Keith N. Hylton

Faculty Scholarship

Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions.

The Partisan Republic: Democracy. Exclusion, The The Fall Of The Founders' Constitution, 1780s-1830s, Matthew Crow, Katlyn Marie Carter, Graham G. Dodds, Jessica K. Lowe, Stephen J. Rockwell, Saul Cornell, Gerald F. Leonard

Faculty Scholarship

This article is a forum on Gerald Leonard and Saul Cornell's The Partisan Republic: Democracy. Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s (Cambridge University Press, 2019). ISBN 978-1-107-02416-8

Roundtable Contents:

• Introduction by Matthew Crow, Hobart and William Smith Colleges
• Review by Katlyn Marie Carter, University of Notre Dame
• Review by Graham G. Dodds, Concordia University, Montreal, Canada
• Review by Jessica K. Lowe, University of Virginia School of Law
• Review by Stephen J. Rockwell, St. Joseph's University
• Author's Response by Saul Cornell, Fordham University
• Author's Response by Gerald Leonard, Boston University

Criminal Law's Hidden Consensus, Steven Arrigg Koh

Faculty Scholarship

American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law …

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …

Becoming Steve Bright, Robert L. Tsai

Faculty Scholarship

This is a "Director's Cut" version of material that appears in condensed form in Robert L. Tsai, "Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All" (Norton 2024). This essay to be published in Kentucky Law Journal was originally Chapter One. Drawing on archival documents and interviews, this essay delves into Stephen Bright's childhood growing up in Kentucky first in segregated Danville and later in Lexington once he emerges as a social activist and student body president. Special attention is paid to the Vietnam era protests that engulfed the University of Kentucky in the wake of the Kent …

One Tort, Four Iracs, And Five Lessons About Rule Support Cases, Alissa Bauer

Faculty Scholarship

No abstract provided.

Legal Clutter: How Concurring Opinions Create Unnecessary Confusion And Encourage Litigation, Meg Penrose

Faculty Scholarship

Good judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed …

Creating Persistent Law Review Article Links With Digital Object Identifiers, Valeri Craigle, Benjamin J. Keele, Aaron Retteen

Faculty Scholarship

A case study for how to use digital object identifiers (DOIs) to make online journals more accessible and improve their site user reports.

Even Lawyers Do Not Like Legalese, Eric H. Martinez, Francis Mollica, Edward Gibson

Faculty Scholarship

Significance

Stories From The Negative Spaces: United States V. Thind And The Narrative Of (Non)Whiteness, Joy Kanwar

Faculty Scholarship

No abstract provided.

Reconceiving Argument Schemes As Descriptive And Practically Normative, Brian N. Larson, David Seth Morrison

Faculty Scholarship

We propose a revised definition of “argument scheme” that focuses on describing argumentative performances and normative assessments that occur within an argumentative context, the social context in which the scheme arises. Our premise-and-conclusion structure identifies the typical instantiation of an argument in the argumentative context, and our critical framework describes a set of normative assessments available to participants in the context, what we call practically normative assessments. We distinguish this practical normativity from the rationally or universally normative assessment that might be imposed from outside the argumentative context. Thus, the practical norms represented in an argument scheme may still be …

Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans

Faculty Scholarship

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. …

Centering Students’ Rhetorical Knowledge: The Community Of Inquiry As Formative Assessment, Brian N. Larson

Faculty Scholarship

This essay describes an approach to peer review and classroom workshopping intended to develop a community of inquiry in the first-year law school classroom, center students’ own rhetorical knowledge, and establish the authority of students—especially minoritized students—as rhetorical agents. The technique described in this essay works from the presumption that each student who comes to law school comes with rich rhetorical experience. In other words, they have extensive experience constructing discourse suited to certain audiences and certain contexts. They use a variety of tools to construct such discourse, including linguistic registers (or styles) and rhetorical genres (such as the academic …

Bob Lutz - Expert, Mentor, And Friend, Diane Penneys Edelman

Faculty Scholarship

No abstract provided.

Exemplary Legal Writing 2021: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

This is not the first great book that Erwin Chemerinsky, Dean of Berkeley Law School, has authored, but it is perhaps his most chilling. For in 308 pages of tightly reasoned detail, he demonstrates beyond cavil how the Supreme Court of recent decades (and well before the addition of the Trump appointees) undertook to undercut most of the reforms by which the Warren Court had sought to reduce police misconduct.