EvidenceProf Blog

The AALS Poster Project: Keith Blair's Teaching "Losing" to Clinic Student-Attorneys

Keith Blair presented the poster, Teaching "Losing" to Clinic Student-Attorneys (Download Losing_Poster):

 

Professor Blair is a professor at the University of Baltimore School of Law, where he has taught since 2005. In addition to teaching Constitutional Law, Tax Practice & Procedure, and Tax Clinic, he is the Director of the school's Low-Income Tax Clinic. Before becoming a professor at Baltimore, he was an adjunct professor at the American University Washington College of Law and a Trial Attorney at the U.S. Department of Justice in its Tax and Antitrust Divisions. He has published articles such as Praying for a Tax Break: Churches, Political Speech and the Loss of Section 501(C)(3) Tax Exempt Status, 86 Den. U. L. Rev. 405 (2009).

According to Professor Blair,

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.

-CM

The AALS Poster Project: Elizabeth Chamblee Burch's Litigating Together: Social, Moral, and Legal Obligations

Elizabeth Chamblee Burch presented the poster, Litigating Together: Social, Moral, and Legal Obligations (Download Litigating_Together):

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. 

-CM 

The AALS Poster Project: Christine E. Rollins' Turning the Light Bulbs On - Effective Ways To Teach CREAC To All Types Of Student Lawyers

Christine E. Rollins presented the poster, Turning the Light Bulbs On - Effective Ways To Teach CREAC To All Types Of Student Lawyers:

Professor Rollins is the Director of Legal Research and Writing at the St. Louis University School of Law, a position that she has held since 2007.  According to the St. Louis University School of Law website, she 

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. 

-CM

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?:

Professor Davidson is a professor at the Charlotte School of Law, where she has taught since 2007. She teaches Health Law, Wills, Trusts and Estates, Civil Procedure, Pretrial Litigation, and Lawyering Process. Before becoming a professor, she was Of Counsel with Fuller & Barnes, LLP, taught Introduction to American Politics at Davidson College, worked as a consultant for Mecklenburg County on children's health and long term care issues, and worked as Assistant Counsel in the Office of the Legislative Counsel, United States House of Representatives, where she drafted legislation in the areas of health law, small business, and ERISA. 

 

You can download a copy of the introduction of her work-in-progress paper connected to the poster by clicking here (Download Octomom Introduction). And you can access the House and Senate Bills referenced in her paper by clicking here (Download HR_697) and here (Download S_1258).

 

-CM

The AALS Poster Project: Bridget Crawford's Sticky Copyrights: Discriminatory Tax Restraints on Transfers of Intellectual Property

Bridget J. Crawford presented the poster,  Sticky Copyrights: Discriminatory Tax Restraints on Transfers of Intellectual Property (Download StickyCopyrightsPoster[1]):

  

Professor Crawford is a professor at Pace Law School, where she has taught since 2003. She teaches Federal Income Taxation, Estate and Gift Taxation, Wills, Trusts and Estates, and Feminist Legal Theory. The graduating classes of 2005, 2006, and 2007 selected her as Barbara C. Salken Outstanding Professor of the Year. She is a regular blogger on Feminist Law Professors, and some of her recent articles are Taxation, Pregnancy, and Privacy, William and Mary Journal of Women and the Law (forthcoming 2010), Tax Avatars, 2008 Utah Law Review 793 (2008), and Toward a Third-Wave Feminist Legal Theory: Young Women, Pornography, and the Praxis of Pleasure, 14 Michigan Journal of Gender & Law 99 (2007) (winner of the 2007 Goettel Prize for Faculty Scholarship).

Professor Crawford's poster is connected to her forthcoming article in the Washington and Lee Law Review (written with Mitchell Gans), Sticky Copyrights, Discriminatory Tax Restraints on the Transfer of Intellectual Property.

Here is Professor Crawford's brief explanation of the poster:

The poster illustrates the estate and gift tax treatment of transfers of copyrights.  "Sticky Copyrights, Discriminatory Tax Restraints on the Transfer of Intellectual Property" is the title of an article forthcoming in the Washington & Lee Law Review written by Mitchell Gans (Hofstra) and me.

And here is the abstract of the article:

The article focuses on the federal estate and gift tax treatment of copyright termination rights.  The ability of a creative individual to terminate prior copyright transfers serves to protect against economic exploitation.  Once a copyright’s value has been established in the marketplace, the author (or the author’s heirs) enjoy a “second look” at the gift, sale, license or other transfer of a copyright.  But copyright termination rights – intended to enhance the economic well-being of authors and artists – undermine estate-planning strategies available to owners of other types of property.  There is no policy justification for such discrimination, and so this article proposes legislative changes that would level the playing field for wealth transfer tax purposes. make effective estate planning nearly impossible. Intellectual property law causes wealth transfer tax rules to apply more harshly to copyrights than to other property.  This article argues that there is no policy justification for the negative tax treatment of copyrights.  This article proposes legislative changes that would allow authors and artists to transfer their intellectual property as freely as they can transfer other assets. 

-CM

The AALS Poster Project: Ernesto Hernández-López's "Is race implicit in US authority over the base at Guantánamo Bay, Cuba?"

Ernesto Hernández-López presented the poster, Is race implicit in US authority over the base at Guantánamo Bay, Cuba?:

Professor Hernández-López is a professor at the Chapman University School of Law, where he has taught since 2005. He teaches Contracts I & II, Corporations, and Immigration and Refugee Law. Before attending law school, he served as an International Relations Research Professor at the Universidad del Rosario and as a Political Science Professor at the Universidad Javeriana, both in Santafé de Bogóta, Colombia. Some of his recent articles are Boumediene v. Bush and Guantanamo, Cuba: Does the 'Empire Strike Back'?, 61 SMU LAW REV. 117 (2009), Law Food, and Culture: Mexican Corn's National Identity Cooked in 'Tortilla Discourses' Post-TLC NAFTA, 18 ST. THOMAS LAW REV. 573 (2008) (LatCritXII symposium), and Law and Popular Culture: Examples from Colombian Slang and Spanish=Language Radio in U.S., 19 BERKELEY LA RAZA LAW JOURNAL 101 (2008).

Here is the abstract of his poster:

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.

Here is his explanation of the poster:

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.

Here are sources referenced by the poster:

·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)

And here are databases classifying detainees according to nationality/citizenship, status, charges, and other factors:

·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

-CM

The AALS Poster Project: An Introduction

In its call for proposals last year, the Legal Writing Institute noted that "[p]oster presentations are an increasingly popular way to present scholarly and pedagogical ideas" but that "poster presentations are a relatively new format for the legal writing community." The same applies to the legal academy as a whole. "At the 2005 [AALS] Annual meeting in San Francisco, the AALS Section on Professional Responsibility sponsored posters on empirical research." Thereafter, "[t]he AALS Committee on Sections and the Annual Meeting was delighted by this innovation and decided that all AALS Sections should have the opportunity to sponsor posters at the 2006 AALS Annual Meeting."

The way I see things, though, not enough professors have availed themselves of this innovation. There are probably a variety of reasons for this insouciance, probably not the least of which is that the poster presentations are scheduled for the same time as AALS panels, meaning that attendees either have to leave panels early or attend panels late to be able to interact with poster presenters during their designated hours. The AALS later posts PDFs of these posters to its Annual Meeting sites (see here, here, and here), but I'm guessing that not many people visit these sites after these conferences are over, making them sort of like the Ark of the Covenant at the end of "Raiders of the Lost Ark." Besides, if you download one of these posters, all you have is the poster, not the presenter's reason for creating it or explanation of it.

Thus, this year, I decided to start the AALS Poster project. Pursuant to this project, I studied each of the posters at the conference and interacted with each of the presenters during their designated hours. I asked the presenters about why they created their posters, the thesis of their posters, how the posters fit into their scholarship, etc. Over the next few weeks, I will spotlight each of these posters and their presenters on this blog, and I hope that these posts draw some of the attention that these posters and presenters deserve. Of course, nothing substitutes perfectly for the real thing, and I would recommend that attendees at successive AALS conferences stop by during the designated hours and discuss the posters with their presenters. I found such discussions to be very rewarding.

-CM 

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.

(I'm not sure why the court didn't simply find the duplicate admissible under Federal Rule of Evidence 1003, which does not require fulfillment of any of the Rule 1004 factors)

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.

-CM