Legal Writing and Research Commons^™

Predetermined? The Prospect Of Social Determinant-Based Section 1115 Waivers After Stewart V. Azar, Griffin Schoenbaum

Dickinson Law Review (2017-Present)

Section 1115 of the Social Security Act allows the Secretary of Health and Human Services (the “Secretary”) to waive some of Medicaid’s requirements so states can enact “demonstration projects.” A demonstration project is an experiment a state can conduct by modifying aspects of its Medicaid program. To waive Medicaid’s requirements for this purpose, the Secretary must determine that the proposed demonstration project will likely assist in promoting Medicaid’s objectives.

Using this standard, President Trump’s Secretary has approved waiver requests to enact demonstration projects that contain “community engagement” requirements. The U.S. District Court for the District of Columbia has heard each …

Table Of Contents

Touro Law Review

No abstract provided.

Stepping Up Access To The Indiana Code: Partnering For Increased Access And Preservation, Susan David Demaine, Benjamin J. Keele, Hannah Alcasid

Articles by Maurer Faculty

No abstract provided.

Live And Learn: Live Critiquing And Student Learning, Patricia G. Montana

Faculty Publications

(Excerpt)

After nearly fifteen years of teaching first-year and upper-level legal writing courses and commenting on thousands of student papers, I decided to experiment with a new way of giving feedback. In a break from the traditional written feedback I had become accustomed to in the form of margin comments and a combination of line edits and end notes, I opted to live a little and learn a new practice: live critiquing. Live critiquing is essentially the process of giving students feedback on their work “live” or in-person, rather than in writing. In the most liberal approach to live critiquing, …

The Legal Imagination: Studies In The Nature Of Legal Thought And Expression, Rachel H. Smith

Faculty Publications

(Excerpt)

This book, now available in a 45th-anniversary edition, is a marvel for its breadth and creativity. It remains a must-read for lawyers, law students, and law professors, even those who are not familiar with the Law as Literature movement for which the book was a founding contribution. Those who read it decades ago would be well served by a revisit because the book’s care and attention to legal language remain uniquely powerful.

Finding Balance: Using Employment Law Problems To Achieve Multiple Learning Goals In Persuasive Legal Writing, Rosa Castello

Faculty Publications

(Excerpt)

Legal Writing professors, like myself, face the same challenge each new semester: how can I effectively and efficiently help students learn one of the most important skills for a practicing lawyer? And one large hurdle in this quest to make our students good legal writers is creating a trial motion or appellate brief problem that helps them develop the particular skills required for persuasive legal writing. The act of creating the problem is sometimes like tightrope walking̶ finding just the right balance of facts and law to challenge students and help develop and enhance vital research, analytical, organizational, writing, …

One Legal Argument, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

A governing rule may be composed of a single legal argument, or multiple legal arguments, particularly if the client’s question requires analysis of multiple elements or factors. Each legal argument that an attorney builds will have the same components. Those components are

• A statement identifying the legal issue to be addressed.

• The rule governing the legal issue and, where needed, an explanation of the relevant authorities or cases supporting that rule.

• An application of the law to the facts of your client’s case.

• A final conclusion or prediction about how a court might rule on …

The Unparalleled Benefits Of Teaching Parallelism, Rachel H. Smith

Faculty Publications

(Excerpt)

As a student, I never learned how to use parallel structure, or “parallelism,” as a writing technique. I didn’t even know the official term until I started teaching legal writing. But even if I couldn’t name it, I always knew I liked it. As a high-school history student, I felt its force in speeches like Abraham Lincoln’s Gettysburg Address, William Jennings Bryan’s Cross of Gold, and Martin Luther King Jr.’s I Have a Dream. Parallelism always felt to me like the place where poetry meets prose—where even the most mundane writing can start to sing.

Measuring Selection Bias In Publicly Available Judicial Opinions, Alexander A. Reinert

Articles

To have an informed discussion about judicial performance and efficiency, we will sometimes want to explore what judges actually do on an everyday level. But in many ways, courts have not always been paragons of transparency. Often the parties are the only people who are aware of what action a court has taken in a case.

This paper explores that dynamic, in the context of decisions made by federal trial courts at one particular procedural stage--decisions made on motions to dismiss for failure to state a claim--Rule 12(b)(6) motions. There is growing interest in the work of federal trial courts, …

Exemplary Legal Writing 2018: Seven Recommendations, G. Edward White, Sarah Seo

Faculty Scholarship

Richard Fallon likely did not plan the publication of this book to coincide with the aftermath of the Kavanaugh hearings or the phrase “Obama judges or Trump judges, Bush judges or Clinton judges.” After all, the author has been writing about legitimacy and the law for over a decade, and this book brings together many of his ideas in previously published law review articles. But the timing could not be better, all the more so for young scholars or those otherwise new to Fallon’s writings who will appreciate an accessible account for why and when Supreme Court decisions merit legitimacy …

The Deconstructed Issue-Spotting Exam, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This article proposes a teaching technique for use in large, Socratic-style law school classes to embed exam preparation, formative assessment, and lawyering simulations in the course without overburdening the professor or students. This technique is sustainable, yet highly efficacious for students.

Law schools nationwide are implementing new reforms pushing law schools toward stronger assessment techniques and client-based simulations better preparing students for the practice of law. Many law schools have implemented these reforms around the margins or outside of the traditional doctrinal course. Law schools have generally added new classes with experiential learning components or with simulations integrated into the …

Take Inventory Each Year, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

We Carry Each Other, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Social Freedom, Democracy And The Political: Three Reflections On Axel Honneth's Idea Of Socialism, Stephen W. Sawyer, William J. Novak, James T. Sparrow

Articles

Axel Honneth’s Idea of Socialism is an important clarion call for an urgent rethinking of the possibilities of a socialism for the twenty-first century. One of the most surprising and satisfying aspects of Axel Honneth’s timely new book is its recovery of the continued vitality of John Dewey’s pragmatic democratic philosophy. These reflections on Honneth’s use of John Dewey for democratizing social freedom, take stock of and explore the political limits of Honneth’s social reconstruction.

The Most Revealing Word In The United States Reports, Richard Primus

Articles

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such …

Words, Wolves, And Show Dogs, Zachary Schmook

Publications

No abstract provided.

The Architecture Of Drama: How Lawyers Can Use Screenwriting Techniques To Tell More Compelling Stories, Teresa M. Bruce

Publications

Hollywood writers have a secret. They know how to tell a compelling story—so compelling that the top-grossing motion pictures rake in millions, and sometimes billions, of dollars. How do they do it? They use a simple formula involving three acts that propel the story forward, three "plot points" that focus on the protagonist, and two "pinch points" that focus on the adversary. The attached Article argues that lawyers should build their stories in the same way Hollywood writers do. It deconstructs the storytelling formula used in movies and translates it into an IRAC-like acronym, SCOR. Attorneys who use SCOR will …

A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary

Publications

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …

We Carry Each Other, Heidi K. Brown

Articles & Chapters

No abstract provided.

Bringing The Court Into The Classroom: Suggestions For How To Craft Exercises For Upper-Level Courses Using Real Practitioners' Briefs, Benjamin Halasz

Articles

When I came to teach after practicing for over a decade, I wanted my students to learn to write by using materials from real clients and cases. I quickly found that’s easier said than done. But through experimentation and discussions with experienced colleagues, I found several successful ways to put students into the role of writing parts of a “real” brief—one that uses a real case and real facts—for short, in-class exercises in upper-level courses.

Several articles tout the benefits of using briefs as examples, an enthusiasm I join. But this article focuses on using cases, and especially briefs, as …

Review Of Rights And Demands: A Foundational Inquiry, Nicholas B. Cornell

Reviews

No abstract provided.

Justice Kennedy's Prose – Style And Substance, Eric Segall, Eric Berger, Michael C. Dorf, Jamal Greene

Faculty Scholarship

Supreme Court Justice Anthony Kennedy's retirement in June 2018 sent shockwaves throughout America. After Justice Sandra Day O'Connor left the Court in 2005, Justice Kennedy became the Court's all-important swing vote in virtually every important area of constitutional law. His views on affirmative action, abortion, campaign finance reform, free speech, and the separation of church and state (among many other constitutional issues) were the ones that mattered the most among the Justices. Lawyers prepared arguments and filed briefs in the Supreme Court for the main purpose of persuading Justice Kennedy to rule for their clients. He was, quite simply, the …

Exemplary Legal Writing 2018: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

In an age of mass incarceration, it is not so easy to find good in the U.S. criminal justice system. But The Secret Barrister makes you appreciate the better aspects of our system by showing just how dysfunctional the corresponding English system has become. The book — written by an anonymous junior barrister — is a devastating, sometimes hilarious, and frequently heart-breaking account of how the criminal justice system in England and Wales is not only broke financially but broken in its ability to deliver justice, whether to prosecutors, defendants, victims, or the public.

Strengthening The International Clinical Scholarly Community: Opportunities For The Clinical Law Review And Beyond, Leah Wortham

Scholarly Articles

In its first 25 years, the Clinical Law Review (CLR) provided a ground-breaking foundation to build a scholarly field inspired and informed by clinical work and to legitimate that scholarship within the academy. The CLR broadened the window for clinicians to put their work in a wider context of other clinicians' experience, and with that context and comparison, to build theory from this common body of endeavor.

As Part I describes, 12 of the CLR's 404 works in its 25-year history include voices from outside the United States. While some countries' clinical education history is as old, or older, than …

Justice Kennedy And The First Amendment, David L. Hudson Jr.

Law Faculty Scholarship

This essay reviews some of Justice Anthony Kennedy’s most significant contributions to First Amendment jurisprudence. These include his calls for absolute protection for pure political speech, his strong protection for commercial speech, his distaste for campaign finance reform laws that censored speech, his general concern for the silencing of sexual expression, his coercion test in Establishment Clause cases, and his significant failure in the public-employee free-speech decision Garcetti v. Ceballos.

The Content-Discrimination Principle And The Impact Of Reed V. Town Of Gilbert, David L. Hudson Jr.

Law Faculty Scholarship

The content-discrimination principle remains the chief analytical tool used in First Amendment jurisprudence. Under this doctrine, laws are categorized as content-based or content-neutral. Content-based laws are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny.

The U.S. Supreme Court ratcheted up the content-discrimination principle in Reed v. Town of Gilbert. Previously, lower courts were divided on whether a law was content-based if the underlying purpose was not to engage in censorship or content-discrimination. In Reed, however, the Court declared that the law’s purpose is not the central inquiry. It concluded that if a law draws facial distinctions …

Masthead

Touro Law Review

No abstract provided.

Table Of Contents

Touro Law Review

No abstract provided.

Fake News, Alternative Facts, And Disinformation: The Importance Of Teaching Media Literacy To Law Students, Marin Dell

Touro Law Review

No abstract provided.

Masthead

Touro Law Review

No abstract provided.