Legal Writing and Research Commons^™

Educative Friendship - A Personal Note, Jeanne Gaakeer

Michigan Law Review

In 1992, when I started my doctorate research in the interdisciplinary field of Law and Literature, The Legal Imagination was one of the first books I read. To European eyes, it was a most unusual book since in continental legal theory in those days, the Anglo-analytical tradition was predominant, and French deconstruction had for some time been the up-and coming stream. Fascinated as I became with Professor White's works, I decided to try to get in contact with him in order to ask him about the genesis of his ideas. So much for the dangers of the intentional fallacy Whimsatt …

Speech, Silence, And Ethical Lives In The Law, Robin West

Michigan Law Review

As his many appreciative readers know, James Boyd White brought his learning to bear on the relation between ethical living and ethical speaking, and particularly as it pertains to how we live and speak in law. His prodigious writing, teaching, and speaking career, as far as I can tell, was motivated by a singular, passionate belief: that the human capacity for language can and should serve as a bridge from mind to mind and spirit to spirit, so that we might cohabit the earth not only peaceably, but with the pleasures and grace of each other's company. Language, White taught, …

A Reality Check On An Empirical Study: Comments On "Inside The Administrative State", Sally Katzen

Michigan Law Review

Presidential control is the term used for the process (or some would say, the model) by which agency decision-making (more particularly, rulemaking) is brought under the direction of the president to "render such decision- making accountable and effective." Until now scholars, who have generally endorsed both the theory and the practice of the process, have written from the perspective of those who exercise presidential control - those at the White House or the Office of Information and Regulatory Affairs ("OIRA"). In a recent article in the Michigan Law Review, Lisa Schultz Bressman and Michael Vandenbergh ("the authors") decided to …

Should Patent Infringement Require Proof Of Copying?, Mark A. Lemley

Michigan Law Review

Patent infringement is a strict liability offense. Patent law gives patent owners not just the right to prevent others from copying their ideas, but the power to control the use of their idea--even by those who independently develop a technology with no knowledge of the patent or the patentee. This is a power that exists nowhere else in intellectual property (IP) or real property law, but it is a one that patentees have had, with rare exceptions, since the inception of the Republic. In an important paper in the Michigan Law Review, Samson Vermont seeks to change this, arguing …

God Vs. The Gavel: A Brief Rejoinder, Douglas Laycock

Michigan Law Review

I recently reviewed God vs. the Gavel by Professor Marci Hamilton, and she published a brief response. My review briefly summarized the book and then made three principal points, addressing Hamilton's institutional competence thesis, her "no-harm" principle, and the remarkable number of legal and factual errors in the book. In this reply, I will review each of these points in turn.

Legal Information Management In A Global And Digital Age: Revolution And Tradition, Claire M. Germain

Cornell Law Faculty Publications

This article presents an overview of the public policy issues surrounding digital libraries, and describes some current trends, such as Web 2.0, the social network. It discusses the impact of globalization and the Internet on international and foreign law information, the free access to law movement and open access scholarship, and mass digitization projects, then turns to some concerns, focusing on preservation and long term access to born digital legal information and authentication of official digital legal information It finally discusses new roles for librarians, called upon to evaluate the quality of information; teach legal research methodology; and be advocates …

From The Reference Desk To River City: A Bibliography Of The Writings Of Robert C. Berring, Frank G. Houdek

Publications

Professor Houdek documents the prolific and eclectic body of work of Robert C. Berring, including the books, chapters, articles, and assorted other materials he has written to date on subjects ranging from law libraries and legal information to legal research instruction and Chinese law and history.

Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf

UF Law Faculty Publications

In "How Progressives Rewrote the Constitution," Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence.

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 …

Neutral Citation, Court Web Sites, And Access To Authoritative Case Law, Peter W. Martin

Cornell Law Faculty Publications

In 1994, the Wisconsin Bar and the Wisconsin Judicial Council together urged the state’s supreme court to take two dramatic steps with the combined aim of improving access to state case law: adopt a new system of neutral format citation and establish a digital archive of decisions directly available to all publishers and the public. The recommendations set off a firestorm, and the court deferred decision on the package. In the dozen or so years since those events, the background conditions have shifted dramatically. Neutral format citation has been endorsed by AALL and the ABA and formally adopted in a …

Classic Revisited: Penal Theory In Paradise Lost, Jillisa Brittan, Richard A. Posner

Michigan Law Review

Milton's great poem can be enjoyed as a supernatural adventure story in the epic tradition-indeed almost as a science-fiction fantasy. An incredibly powerful supernatural figure-call him Father-lives on planet Heaven somewhere in outer space, surrounded by lesser supernatural beings, called Angels. Father begets Son asexually, and declares his intent to give him vice regal authority. Infuriated at Son's being promoted over him, the foremost Angel, L leads a third of the Angels in violent rebellion against Father and Son. At first it seems the rebels will best the loyal Angels. But Father sends in Son to defeat the rebels all …

Capital Defense Lawyers: The Good, The Bad, And The Ugly, Sean D. O'Brien

Michigan Law Review

Professor Welsh S. White's book Litigating in the Shadow of Death: Defense Attorneys in Capital Cases collects the compelling stories of "a new band of dedicated lawyers" that has "vigorously represented capital defendants, seeking to prevent their executions" (p.3). Sadly, Professor White passed away on New Year's Eve, 2005, days before the release of his final work. To the well-deserved accolades of Professor White that were recently published in the Ohio State Journal of Criminal Law, I can only add a poignant comment in a student blog that captures his excellence as a scholar and educator: "I wanted to …

Young Associates In Trouble, William D. Henderson, David Zaring

Michigan Law Review

Large law firms have reputations as being tough places to work, and the larger the firm, the tougher the firm. Yet, notwithstanding the grueling hours and the shrinking prospects of partnership, these firms perennially attract a large proportion of the nation's top law school graduates. These young lawyers could go anywhere but choose to work at large firms. Why do they do so if law firms are as inhospitable as their reputations suggest? Two recent novels about the lives of young associates in large, prestigious law firms suggest that such a rational calculation misapprehends the costs. Law professor Kermit Roosevelt's …

A Syllabus Of Errors, Douglas Laycock

Michigan Law Review

Modern American society is pervasively regulated. It is also religiously diverse to a degree that is probably unprecedented in the history of the world. It is inevitable that some of these diverse religious practices will violate some of these pervasive regulations, and equally inevitable that if we ask whether all these regulations are really necessary, sometimes the answer will be no. If we take free exercise of religion seriously, sometimes it will make sense to exempt sincere religious practices from generally applicable laws - but only some laws, and only some applications. Hardly anyone thinks that human sacrifice should be …

A Response To Professor Laycock, Marci A. Hamilton

Michigan Law Review

Almost a hundred years ago, the American Association of University Professors established guidelines for civility among scholars, saying that academic exchanges "should be set forth with dignity, courtesy, and temperateness of language." I agree wholeheartedly with these principles, and I will not succumb to the temptation to respond in kind to Professor Laycock's review. Tone is much less important than having a frank exchange of views. It is well known that Professor Laycock and I have very different perspectives on the proper interpretation of the Free Exercise Clause. His review and my response should be an opportunity for us to …

Antitrust Modesty, Daniel A. Crane

Michigan Law Review

Given Hovenkamp's influence and intellect, the publication of The Antitrust Enterprise is a major event, particularly since he sets out, according to the book's jacket, to provide "the first authoritative and compact exposition of antitrust law since Robert Bork's classic The Antitrust Paradox was published more than thirty years ago." Nevertheless, one could quibble with the jacket's claim. Richard Posner substantially updated his own authoritative and compact exposition of antitrust law in 2001. In a 2003 book review, Hovenkamp called Posner's second edition a "marvelous and important book." So, before beginning a review of Hovenkamp's new work, it seems necessary …

The Rhetoric Of Symmetry, Karen Petroski

All Faculty Scholarship

References to the concept of symmetry have appeared in judicial opinions, advocacy efforts, and scholarly commentary throughout American legal history. But for every legal writer who invokes the concept as a logical or moral ideal, there is another who dismisses it as a formalistic distraction or an arid illusion. What is more, although legal writers virtually always use the term “symmetry” as if its meaning were self-evident, in fact they have used the same term to refer to a variety of distinct concepts, each with its own ambiguities.

Best Brief, 2007 Intrastate Moot Court Competition, Tully T. Blalock, Cameron D. Hawkins, David L. Pilson

Competition Materials

ATHENS, Ga. - The University of Georgia School of Law recently captured the 2007 Intrastate Moot Court Championship when it bested a team from Georgia State University for the win. Every year, each law school in the state fields two teams in the competition.

Second-year students Tully T. Blalock, Cameron D. Hawkins and David L. Pilson comprised the winning team, while another Georgia Law team of second-year students James E. Butler, Rachel D. Horton and Catherine D. Runion advanced to the semifinal round. Both groups were coached by third-year students Lauren L. Mock and Glenn T. Singleton.

The winning team …

E-Etiquette: Thoughtful E-Mail Correspondence, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Dear Readers: This is an example of a traditional business letter. The salutation above is formal; it starts with "Dear" and ends with a colon. The body uses edited prose that follows standard capitalization and punctuation rules. A complimentary closing, "Sincerely," serves as the conclusion.

Retelling The Darkest Story: Mystery, Suspense, And Detectives In A Brief Written On Behalf Of A Condemned Inmate, Philip N. Meyer

Mercer Law Review

I've never used the whodunit technique, since it is concerned altogether with mystification, which diffuses and unfocuses suspense. It is possible to build up almost unbearable tension in a play or film in which the audience knows who the murderer is all the time, and from the very start they want to scream out to all the other characters in the plot, "Watch out for So-and-So! He's a killer!" There you have the real tenseness and an irresistible desire to know what happens, instead of a group of characters deployed in a human chess problem. For that reason I believe …

Comments On The Comments, Robert S. Summers

Cornell Law Faculty Publications

The paper replies to Bix and Soper (Bix 2007; Soper 2007). Bix’s paper raises methodological questions, especially whether a form-theorist merely needs to reflect on form from the arm-chair so to speak. A variety of methods is called for, including conceptual analysis, study of usage, “education in the obvious,” general reflection on the nature of specific functional legal units, empirical research on their operation and effects, and still more. Further methodological remarks are made in response to Soper’s paper. Soper suggests the possibility of substituting “form v. substance” of a unit as the central contrast here rather than form v. …

[Insert Song Lyrics Here]: The Uses And Misuses Of Popular Music Lyrics In Legal Writing, Alex B. Long

Washington and Lee Law Review

No abstract provided.

Third Best Brief, 2007 Aba National Appellate Advocacy Competition, Shunta R. Harmon, Leslie B. Horne, Rebecca M. Thornhill

Competition Materials

The ABA Law Student Division's National Appellate Advocacy Competition (NAAC) emphasizes the development of oral advocacy skills through a realistic appellate advocacy experience. Competitors participate in a hypothetical appeal to the United States Supreme Court. The competition involves writing a 40-page brief as either respondent or petitioner and then arguing the case in front of the mock court. This year the teams argued the case McCarthy v. United States, a fictional appeal, to the Supreme Court.

Second-year students Shunta R. Harmon, Leslie B. Horne and Rebecca captured the regional championship and third best brief. Third-year student Stephen A. Shea and …

Best Brief, 17th Annual National First Amendment Moot Court Competition, Bret Hobson, Lauren Mock

Competition Materials

From First Amendment Center News Release:

NASHVILLE, Tenn. — The team from George Mason University School of Law won the 17th Annual National First Amendment Moot Court Competition today at the First Amendment Center at Vanderbilt University.

Recognized for “best brief” in the competition were Bret Hobson and Lauren Mock of the University of Georgia School of Law; and for “best oralist,” Ryan Faulconer of the University of Virginia School of Law.

The competition this year focused on a hypothetical case involving commercial speech, specifically attorney advertising. Teams of student advocates from 35 law schools argued both sides of complex …

Navigating “Social Networking” Tools: Blogs, Wikis, Rss Feeds And Beyond, Elizabeth Geesey Holmes

Presentations

What are “social networking” tools, and why should lawyers care about them? Wikipedia, itself built on social networking software, notes that social networking refers to a category of Internet applications to help connect friends, business partners, or other individuals together using a variety of tools. These applications, known as online social networks are becoming increasingly popular. This phenomenon is also known as Web 2.0. Jack Maness, a librarian at University of Colorado at Boulder, defines it as, “not a web of textual publication, but a web of multi-sensory communication … a matrix of dialogues, not a collection of monologues. It …

The Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz

ExpressO

A step into just about any state prison in the United States reveals an institution plagued by over-population, with just about every prison running at more than 100% capacity. The problem, of course, is not new but one that has received great attention. In the past decade or so the solution has been privatization of state prisons. Proponents of privatization have pushed forth the idea that private institutions are the solution to prison overcrowding. However, by looking to for-profit private institutions as a means to resolving the problems of the penal system, are legislators in fact ensuring that the problems …

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

Law And Heidegger’S Question Concerning Technology: A Prolegomenon To Future Law Librarianship, Paul D. Callister

ExpressO

Following World War II, the German philosopher Martin Heidegger offered one of the most potent criticisms of technology and modern life. His nightmare is a world whose essence has been reduced to the functional equivalent of “a giant gasoline station, an energy source for modern technology and industry. This relation of man to the world [is] in principle a technical one . . . . [It is] altogether alien to former ages and histories.” For Heidegger, the problem is not technology itself, but the technical mode of thinking that has accompanied it. Such a viewpoint of the world is a …

Review Of Lifting The Fog Of Legalese, David I.C. Thomson

Sturm College of Law: Faculty Scholarship

Lifting the Fog collects the best of Kimble's regular columns from the Michigan Bar Journal on the subject of how lawyers should simplify their drafting language and eliminate unnecessary and costly "legalese." Not only do Kimble's columns get to see the light of day again, but as a compilation, they make an even more powerfiul and compelling case in favor of more plain language in legal writing. I highly recommend Lifting the Fog to all attorneysespecially those who find themselves using words like "wherefore" and "hereunto" in their drafting. Kimble persuasively argues that this sort of obfuscation (and worse) just …

"They're Practically Learning:" Pointers On Practical Legal Research Exams, Steven R. Probst

Law Faculty Publications

No abstract provided.