Legal Writing and Research Commons^™

Fight The Hypo: Fake Arguments, Trolleyology, And The Limits Of Hypotheticals, Jethro K. Lieberman

Tribeca Square Press

The hypothetical is the staple of the law school classroom and useful in most intellectual endeavors. But, this inaugural lecture argues, interlocutors frequently misuse and misinterpret responses to hypotheticals because they demand that their respondents accept the “facts” embedded within. This form of argument, dubbed “FAKE” (for “Facts Are Known Exactly”), poses “facts” that are either impossible to accept or highly improbable and that would provoke counterarguments but for the command to accept the facts as hypothesized. The author presents his thesis in part through the lens of recent literature on the ethics of runaway trolley cars (these cases constitute …

Accessing Law: An Empirical Study Exploring The Influence Of Legal Research Medium, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

The legal profession is presently engaged in an uncontrolled experiment. Attorneys now locate and access legal authorities primarily through electronic means. Although this shift to an electronic research medium radically changes how attorneys discover and encounter law, little empirical work investigates impacts from the shift to an electronic medium.

This Article presents the results of one of the most robust empirical studies conducted to date comparing research processes using print and electronic sources. While the study presented in this Article was modest in scope, the extent and type of the differences that it reveals are notable. Some of the observed …

On The Receiving End Of Influence: Helping Craft The Scholarship Of My Students And How Their Work Influences Me, Angela Mae Kupenda

Journal Articles

My essay is divided into two parts. In part one I share about the struggle I had to endure to even allow myself the opportunity to be influenced by my students. Institutional struggles and professorial expectations as to how the academy should operate were hurdles I had to clear. Also, I had personal hurdles of making the commitment that I did for over five years. In part two, I primarily focus on some of my law students’ scholarship over the past five years and reflect on the life changing influence they have had on me. Their work and dedication have …

Texting And The Friction Of Writing, Lindsey P. Gustafson

Law Faculty Scholarship

No abstract provided.

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, Table of Contents and Preface for St. Thomas Law Review Volume 26, Issue 3, Spring 2014.

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 …

Understanding Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting …

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in …

From Theory And Research To Policy And Practice In Work And Employment - And Beyond?, Harry W. Arthurs

Articles & Book Chapters

This paper was delivered as the keynote address to the 50th Annual Conference, Canadian Industrial Relations Association, 29 May 2013. My thanks to Alex Zamfir, JD Candidate, Osgoode Hall Law School, for his editorial and research assistance.

A Prequel To Law And Revolution: A Long Lost Manuscript Of Harold J. Berman Comes To Light, John Witte Jr., Christopher J. Manzer

Faculty Articles

The late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumental Law and Revolution series on the Western legal tradition. Berman wrote a short book, Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, including Law and Revolution. He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the …

Book Review: Presumed Incompetent: The Intersections Of Race And Class For Women In Academia, Sonia N. Lawrence

Articles & Book Chapters

This is a book review of Presumed Incompetent: The Intersections of Race and Class for Women in Academia Gabriella Gutierrez y Muhs, Yolanda Flores Niemann, Carmen G. Gonzalez, and Angela P. Harris, eds., Boulder, CO: Utah State University Press, 2012.

Unplanned Coauthorship, Shyamkrishna Balganesh

Faculty Scholarship

Unplanned coauthorship refers to the process by which contributors to a creative work are treated by copyright law as coauthors of the work based entirely on their observable behavior during its creation. The process entails a court imputing the status of coauthors to the parties ex post, usually during a claim for copyright infringement. For years now, courts and scholars have struggled to identify a coherent rationale for unplanned coauthorship and situate it within copyright’s set of goals and objectives. This Article offers a novel framework for understanding the rules of unplanned coauthorship using insights from theories of shared intentionality. …

Legal Writing, Therapeutic Jurisprudence, And Professionalism, Shelley Kierstead

Articles & Book Chapters

“Professionalism as a personal characteristic is revealed in an attitude and approach to an occupation that is commonly characterized by intelligence, integrity, maturity, and thoughtfulness.”

“Words are the principal tool of lawyers and judges, whether we like it or not.”

The quotes above refer to two quintessential aspects of lawyers’ work. First, as members of a self-regulated profession, we must aspire to a level of professionalism that is characterized by intelligence, maturity, and thoughtfulness. Second, regardless of the tasks we undertake, words are critically important to lawyers. Not only must we be able to conduct comprehensive and coherent legal analysis; …

Meeting The Challenges Of Instructing International Law Graduate Students In Legal Research, Nina E. Scholtz, Femi Cadmus

Faculty Scholarship

Teaching international LL.M. students legal research offers its own peculiar challenges. The brevity of the LL.M. program and the limited time available for thoroughly introducing basic research concepts have made it particularly difficult, but the innovative and creative methods of instruction highlighted in this article have provided good solutions.

Legal Writing: A History From The Colonial Era To The End Of The Civil War, David R. Cleveland

Law Faculty Publications

No abstract provided.

The Many Texts Of The Law, Michael Davis, Dana Neacsu

Law Faculty Publications

This paper contends that even as jurists invoke the official canonic version of the legal text, it is in danger of being replaced for the jurist, as well as for the lay person, if it has not been substituted already, by some apocryphal, inauthentic or casual text. We argue that in addition to the approximate nature of legal knowledge, the overuse of overedited and perverted casebooks, as well as the distribution of legal information among imperfect sources – some official but partial, others inauthentic but highly accessible, and a few reliable but highly unaffordable commercial sources – are largely responsible …

Mexican Law And Legal Research, Julienne Grant, Jonathan Pratter, Bianca Anderson, Marisol Floren-Romero, Jootaek Lee, Lyonette Louis-Jacques, Teresa Miguel-Stearns, Sergio Stone

Faculty Publications & Other Works

No abstract provided.

To Abbreviate Or Not To Abbreviate: A Perspective On Administrative Agency Bluebook Citations, Taryn L. Rucinski

Elisabeth Haub School of Law Faculty Publications

For students and practitioners, one of the most confusing issues posed today by The Bluebook lies in when and how to abbreviate federal and state administrative agency names. Or to put it another way: Do I use: EPA, E.P.A., Envtl. Protection Agency, or U.S. Envtl. Protection Agency?

Writing (And Reading) Appellate Briefs In The Digital Age, Mary Beth Beazley

Scholarly Works

In this essay, Professor Beazley briefly reviews a slice of the voluminous research about how human beings read digital as opposed to paper text. In particular, she discusses studies of knowledge workers (defined to include those who use or generate knowledge in their work)4 and those who engage in active reading (defined as a reading process that includes nonsequential reading, searching a text, comparing texts, annotating, bookmarking, and the like).She concludes by making suggestions for legal readers, legal writers, courts, and database providers as to how best to accommodate the process of digital reading.

Hiding In Plain Sight: "Conspicuous Type" Standards In Mandated Communication Statutes, Mary Beth Beazley

Scholarly Works

Professor Beazley defines the concept of mandated communication statutes in this examination of typeface, language, and the mind's ability to comprehend certain syntax. This article has a simple premise: when a government mandates written communication, it should present the mandated communication in a way that speeds comprehension. When communication is so important that the government is mandating the words and the presentation method, the writer and not the reader should not bear the burden of making sure that the information is comprehensible. In other words, the reader should not have to work to decipher the information; the writer should work …

The Trouble With Categories: What Theory Can Teach Us About The Doctrine-Skills Divide, Linda H. Edwards

Scholarly Works

We might not need another article decrying the doctrine/skills dichotomy. That conversation seems increasingly old and tired. But like it or not, in conversations about the urgent need to reform legal education, the dichotomy’s entailments confront us at every turn. Is there something more to be said? Perhaps surprisingly, yes. We teach our students to examine language carefully, to question received categories, and to understand legal questions in light of their history and theory. Yet when we talk about the doctrine/skills divide, we seem to forget our own instruction.

This article does not exactly take sides in the typical skills …

Toward A Jurisprudence Of The Civil Rights Acts, Robin West

Georgetown Law Faculty Publications and Other Works

What is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: …

The Accidental Archivists: Lessons Learned From A Digital Archive Project, Robert Linz, Karen Selden, Georgia Briscoe

Publications

This article tells the story of the University of Colorado Law Library’s successful effort to develop its first digital archive. The sudden death of the Law School’s Dean was the catalyst for this project, with a goal to unveil the archive at a memorial symposium scheduled nine months in the future. The Law Library staff had never tackled a project of this type or scale before. This article discusses the technological, cataloging and management issues which were encountered during the project. It also provides advice and tips on how librarians in their own institutions can accomplish such a project.

The 4-1-1 On Lawyer Directories, Mary Whisner

Librarians' Articles

Directories listing biographical and contact information for attorneys have been a publishing mainstay for more than one hundred years. They are used for marketing, as well as historical and genealogical research. However, technology is changing the way attorneys advertise, and Ms. Whisner looks at the current state of lawyer directories and their usage.

Getting To Know Fastcase, Mary Whisner

Librarians' Articles

Librarians must learn how to use databases on a regular basis. The databases may be new, or they may be well-established ones that librarians haven’t used before. Ms. Whisner examines Fastcase, an online system that recently entered into a cooperative agreement with HeinOnline, and discovers some lessons about how she learns new databases.

The Changing Discourse Of The Supreme Court, Stephen M. Johnson

The University of New Hampshire Law Review

[Excerpt] “Academics, judges, and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most American citizens. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style.

There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing …

A Writing Revolution: Using Legal Writing's 'Hobble' To Solve Legal Education's Problem, Kristen Konrad Robbins-Tiscione

Georgetown Law Faculty Publications and Other Works

The attached article responds to a 2011 article by John Lynch, published in the Journal of Legal Education, that urged legal writing faculty to return to an outmoded and ineffective writing pedagogy, the “product approach,” on the grounds that it would make teaching legal writing easier. This article builds on the work of Carol McCrehan Parker and others interested in writing across the curriculum and argues that the only way to reduce legal writing’s “hobble” and to solve legal education’s problem is to create a six-semester writing requirement. The reason law students are graduating without adequate preparation for practice is …

Scholarly Incentives, Scholarship, Article Selection Bias, And Investment Strategies For Today's Law Schools, Dan Subotnik, Laura Ross

Touro Law Review

No abstract provided.

The Future Of Scholarship In Law Schools, Fabio Arcila Jr.

Touro Law Review

No abstract provided.

Converting Benchslaps To Backslaps: Instilling Professional Accountability In New Legal Writers By Teaching And Reinforcing Context, Heidi K. Brown

Articles & Chapters

A search in published and unpublished court decisions for derivations of phrases like "poorly written brief" or "failure to follow court rules" yields an alarming multitude of case opinions in which judges admonish lawyers of all levels of experience for shoddy briefs or for flouting non-negotiable substantive and procedural rules. Legal bloggers have affectionately dubbed these public reprimands "benchslaps."

Section I of this article provides a contextual background that professors and practitioners can share with rookie legal writers, using judicial opinions to demonstrate the eight most-common ways that attorney work product falls short of judges' expectations and, more importantly, how …