January 23, 2010
The AALS Poster Project: Keith Blair's Teaching "Losing" to Clinic Student-Attorneys
My poster examines the issue of "losing" and how clinics deal with losing cases. Throughout law school we teach students the law so that they can be successful attorneys and win cases. However, lawyers, and their clients, will not always be successful--someone will lose. And we do not address what losing means to clients and attorneys. We also do not address what losing actually is and the lessons that students can learn from losing.
I became interested in this topic during my first year of full-time teaching. I direct a Tax Clinic and we had a trial during that year. My students performed tremendously in conducting the trial. However, it was clear when the trial was done that we would probably not be successful and my students were despondent. At that point I had to walk the line of praising the work that the students had done without diminishing the effect that losing the trial would have on our clients.This poster is the first step in attempting to produce a piece of scholarship on losing.
January 22, 2010
The AALS Poster Project: Elizabeth Chamblee Burch's Litigating Together: Social, Moral, and Legal Obligations
Professor Burch is a professor at the Florida State University College of Law, where she has taught since 2008. She teaches Civil Procedure, Evidence, and Complex Litigation. Before coming to Florida State, she taught at the Cumberland School of Law, where she received the Harvey S. Jackson Excellence in Teaching Award and the Lightfoot, Franklin & White Faculty Scholarship Award.
Her articles include Reassessing Damages in Securities Fraud Class Actions, 66 MARYLAND LAW REVIEW 348 (2007), Securities Class Actions as Pragmatic Ex Post Regulation, 43 GEORGIA LAW REVIEW 63 (2008), and Litigating Groups, 61 ALABAMA LAW REVIEW 1 (2009).
According to Professor Burch:
The poster presents an article that I'm working on with the same title. I haven't yet posted the article on SSRN, but here's the working abstract:
Current scholarship on mass-tort litigation tends to focus on either securing individual justice and autonomy for litigants or using large-scale litigation to maximize social welfare. The social-welfare approach has captured the minds of Congress members, the Federal Rules advisory committee, and judges alike. In part, it has led to the creation of a central-planning model, which aggregates as many nominally related plaintiffs as possible into one forum, before one judge. In the wake of Amchem, Ortiz, and the Class Action Fairness Act, these claims frequently proceed en masse, as "nonclass aggregation," but lack both the judicial protections of a certified class action and the client monitoring protections of individual actions. The result is that few safeguards exist to protect plaintiffs from standard collective-action problems, such as agency problems, free riders, and holdouts. These circumstances threaten procedural legitimacy and necessitate change. This Article thus offers an alternative vision for the role of federal courts in large-scale litigation: to enable plaintiffs to litigate together by communicating and associating with one another.
Specifically, the Article argues for a procedural system that maintains fidelity to the tort system's philosophy of individually held rights while recognizing the obligatory constraints that regularly arise in collective litigation. These obligations flow from voluntary promises and assurances, the complex psychological and social dynamics of groups, and the transformative nature of social relationships-if not in a metaphysical sense, in a pragmatic, obligation sense. Encouraging plaintiffs to discuss and specify their litigation ends together allows them to associate with others who share their claims, injuries, and goals, which ultimately increases cooperation. Once plaintiffs sort into more cohesive groups and commit to band together, they might reinforce those commitments through social norms and social sanctioning or contractually enforceable governance agreements that embrace the ideals of a deliberative democracy-arguing, bargaining, and voting. Finally, if plaintiffs opt to remain autonomous and abstain from partaking in the benefits and burdens of group membership, then the system should honor that choice. As outliers, these plaintiffs may serve an important error-correction function, much as bona fide objectors do in class-action settlements.
In this way, litigating together preserves the fundamental tenet of self-determination in liberal theory, but recognizes that this power now rests with the collective in a way that furthers the group's communal interests. Moreover, by returning voice and control to plaintiffs, this alternative vision reinstates core procedural justice components-voice and participation opportunities, adversarial process, and error-correction mechanisms. It also challenges the assumption that plaintiffs' attorneys can act as unconstrained entrepreneurs over whom plaintiffs exercise little control.
January 21, 2010
The AALS Poster Project: Christine E. Rollins' Turning the Light Bulbs On - Effective Ways To Teach CREAC To All Types Of Student Lawyers
implemented a unique teaching program that assists professors in their teaching based on their students’ learning style. It was because of this program that Professor Rollins and SLU LAW was sited by The National Jurist as being named one of the “Most Innovative Law Schools.”
In addition to her academic duties, Rollins has successfully argued before the Missouri Court of Appeals-Eastern District and the Supreme Court of Missouri, successfully prosecuting ten appellate cases. Some of her articles include, Statutory Assistance for Attorneys Providing Pro Bono Services, 60 Journal of the Missouri Bar 112 (May/June 2004), and Using the VARK: A Writing Department's Commitment to "Turning the Light Bulbs On," 22 The Second Draft 13 (Spring 2008).
Her poster is related to this latter article, and here is her description of the poster:
In the spring of 2009 the Legal Research and Writing Department at Saint Louis University School of was sited by The National Jurist as being named one of the “Most Innovative Law Schools”. The attached poster presentation captures the concepts of this approach.
In the fall of 2007, the Legal Research and Writing Department made a commitment to adapt our classroom teaching styles to more fully engage our students through their personal learning style preferences. Students learning style preferences were assessed by a computer software program. The results given are: visual, audio, reader/writer, kinesthetic, or multimodal. The faculty then created and adapted teaching tools and techniques which allow them to present skills and objectives within the classroom tailored to the needs of the students based upon their individual learning styles. The poster presentation provides an example for each learning style.
January 20, 2010
The AALS Poster Project: Camille Davidson's Octomom and Multi-Fetal Pregnancies: Is the Insurance Industry a Co-Conspirator?
Camille Davidson presented the poster, Octomom and Multi-Fetal Pregnancies: Is the Insurance Industry a Co-Conspirator?:
January 19, 2010
The AALS Poster Project: Bridget Crawford's Sticky Copyrights: Discriminatory Tax Restraints on Transfers of Intellectual Property
January 18, 2010
The AALS Poster Project: Ernesto Hernández-López's "Is race implicit in US authority over the base at Guantánamo Bay, Cuba?"
This poster illustrates the race-based and cultural assumptions implicit in American jurisdiction over the Naval Station at Guantánamo Bay, Cuba, from 1898 to the present. Using historical images of political cartoons, maps, and pictures, it illuminates how the law’s cultural and race-based assumptions influenced U.S. participation in: the War of 1898, the Platt Amendment (1902-1934), Cold War, detention of Haitian asylum-seekers in the 1990s, and War on Terror detention since 2002. Guantánamo was conceived from Platt Amendment assumptions that Cuban independence required U.S. supervision of its foreign and economic relations, with a base and right of intervention. Notions of American superiority and Cuban inferiority characterized bilateral relations during occupation, protectorate status, and after the 1959 revolution, making the base an “anomalous legal zone.” Current detention capitalizes on this anomaly, limiting rights protections for detainees. The poster poses the working hypothesis that the law of detention relies on two cultural assumptions. First, the denial of rights in international law for “unlawful enemy combatants” mimics historic exclusions for “savages” during colonial expansion. Second, detainees overwhelmingly represent Arab, Middle-Eastern, and Central and South Asian nationalities. Coupled with anti-Muslim rhetoric, base detentions capitalize on legal assumptions regarding Cubans, GTMO, and belligerents. In sum, the poster uses visual images to suggest how race-based and cultural assumptions make sovereignty and rights protections in international and constitutional law malleable under extraterritorial authority.
This poster is part of a larger project examining ‘Guantánamo, law, and empire (past and present)’ in terms of space, culture, and markets. Providing images of current and historic legal issues, the poster medium visually articulates cultural, spatial, and trends over time, perhaps more easily than text or engaging discussions. Posters like blogs or webpages provide a fixed but easily produced medium to present ideas. I submitted the poster to the AALS meeting, after prior successes with prior powerpoint and poster presentations at other conferences. Because posters facilitate spatial, visual, comparative, and “big-picture” analyses and the ability for the audience to study at their leisure, I eagerly try to work with them.
·Ernesto Hernández-López, Boumediene v. Bush and Guantánamo, Cuba: does the "Empire Strike Back"? 61 SMU Law Rev. 117-199 (2009) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1224262 (using a post-colonial framework to argue U.S. occupation of base territory since 1898 frames how recent American law resolves detention disputes)·Louis Pérez, Jr., Cuba in the American Imagination: Metaphor and the Imperial Ethos (2008) http://uncpress.unc.edu/browse/book_detail?title_id=1535 (arguing U.S.-Cuba policy is shaped by an imperial ethos from the nineteenth century to the present, viewing Cuba as female, child, racialized, and ungrateful and presenting political cartoons to that effect)·Ediberto Roman, The Other American Colonies: an International and Constitutional Law Examination of The United States Nineteenth and Twentieth Century Island Conquests (2006) http://www.cap-press.com/isbn/9780890894996 (presenting how U.S. territories in the Caribbean and Pacific contradict liberal notions in American constitutional law and international law)·Johnson, John J., Latin America in Caricature (1980) (compiling an extensive collection of political cartoons on Latin America subjects from U.S. newspapers and illustrating the racial, paternalistic, and gendered tropes of U.S. foreign policies)·Jana Lipman, Guantanamo: A Working Class History Between Empire And Revolution (2009) (providing a cultural-history analysis of how Cuban, West Indian, and American base workers negotiated Cuban, American, and global conflicts on the base during the Platt Amendment and Cold War periods) http://www.ucpress.edu/books/pages/11120.php·Gerald L. Neuman, Closing the Guantanamo Loophole, 50 Loyola Law Review 1 (2004) (presenting the legal history of the base as an “anomalous legal zone” and how this is used presently as “loophole” or exception to checks of executive power)·Frédéric Mégret, From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s Other, in International Law and its Others (Anne Orford ed., 2006) (illustrating how initial exclusions of Geneva Convention protections for base detainees resembles historic reasoning excluding “savages” and “barbarians” from similar law of war protections during colonial wars)·Guardian.co.uk ‘Guantánamo: 2002-09?’ available at http://www.guardian.co.uk/world/gallery/2008/dec/04/guantanamo-bay?lightbox=1 (displaying images and data on base detentions)
·Benjamin Wittes and Zaahira Wyne, Brookings Institute, “Introduction: The Current Detainee Population of Guantánamo: An Empirical Study” available at http://www.brookings.edu/reports/2008/1216_detainees_wittes.aspx?rssid=wittesb·Washington Post. ‘Names of the Detained in Guantanamo Bay, Cuba’ available at http://projects.washingtonpost.com/guantanamo/
·New York Times, ‘The Guantánamo Docket’ available at http://projects.nytimes.com/guantanamo
The AALS Poster Project: An Introduction
January 17, 2010
Adverse (Dis)Possession: Eastern District Of New York Order Adverse Inference Instruction In Best Evidence Ruling
Federal Rule of Evidence 1002, the Best Evidence Rule, provides that
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
That said, Federal Rule of Evidence 1004(1) provides that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.
It is very difficult for the opponent of such "other evidence" to prove "bad faith," and a showing of negligence by the proponent is generally not enough to prevent the application of Federal Rule of Evidence 1004(1). As the recent opinion of the United States District Court for he DIstrict of New York in Vagenos v. LDG Financial Services, LLC, 2009 5219021 (E.D.N.Y. 2009), makes clear, however, this does not mean that the opponent is without recourse.
In Vagenos, Chris Vagenos filed an action pursuant to the Fair Debt Collection Practices Act against LDG Financial Services, LLC, alleging that the company engaged in deceptive practices in connection with the collection of a consumer debt. His claims were based upon upon telephonic communications received from LDG, but he deleted the original, allegedly unlawful pre-recorded message that was left for him, retaining only a purported duplicate.
According to the Eastern District of New York, Vagenos was allowed to introduce his purported duplicate because his
explanation about the unavailability of the original message [wa]s sufficient to meet the threshold requirements of Fed.R.Evid. 1004(1). Plaintiff and plaintiff's counsel may very well have breached their duty to preserve critical evidence in this case, but they did not do so in bad faith.
As noted above, however, this did not leave LDG without recourse. Instead, the court concluded,
This is not to say, however, that plaintiff should face no consequences for his and his attorney's actions. The standard of bad faith under Rule 1004(1) must necessarily be high, at least where, as here, precluding the crucial secondary evidence would be tantamount to directing a verdict against the proponent of that evidence; plaintiff cannot prevail in this action if the Court excludes the duplicate recording. Although plaintiff's conduct thus does not meet the standard of "bad faith" under Rule 1004(1) and the fatal consequences that would flow from it, that conduct does violate plaintiff's obligation to retain relevant evidence. Indeed, it is the very importance of the evidence that heightened the obligation to preserve the original. Plaintiff's neglect has complicated the task of the fact finder, which now has to determine whether the message plaintiff claims he received is in fact the message he did receive. It has prejudiced defendant, which cannot inspect the original tape or subject it to forensic analysis. These issues could have been avoided entirely had plaintiff or his attorney taken any steps to merely retain the original evidence.
And, according to the court, the remedy for LDG was an adverse inference instruction
that a party in possession of material evidence has a duty to preserve it, and the jury may consider plaintiff's failure to preserve the original recording as evidence that the destroyed portion of the message contained information harmful to plaintiff's case.