March 19, 2010
It's a brave new world when it comes to undoing your legal writing. Here's a helpful new article on how redact text successfully.
hat tip: Nolan Wright
Shakespeare for lawyers
The ABA had published this book, Shakespeare for Lawyers, so you can find the perfect quote for your next appellate brief or legislative committee hearing. If you're an ABA member, you get a discount on the price. And just for the record, Shakespeare is popularly misunderstood on his "first kill all the lawyers" line. The full line explains that if we want anarchy to reign, the first thing to do is to kill all the lawyers. Shakespeare frequently expressed appreciation for the rule of law (quite understandable given the religious strife of his time) and many of his quotable lines to that effect are in this book.
March 17, 2010
Essay alert: "Where Have All The (Legal) Stories Gone?"
Here's an essay by UNLV Law School Prof Nancy Rapoport available in the Fall 2009 edition of a publication called M/E Insights (Litigation Issues in the Entertain Industry) (but also available on SSRN here) that should be of interest to many readers.
From the abstract:
This essay examines whether law schools are doing a good job of teaching the art of storytelling to law students.
Hat tip to the TaxProf Blog.
I am the scholarship dude.
Stats on college student use of Wikipedia for research projects
A recent study shows that approximately half of all college students turn to Wikipedia for course-related research projects. Most of those students use it at either the beginning, or towards the end, of their research trail. The Law Librarian Blog has a nice pie-chart illustrating the different ways students make use of Wikipedia in connection with their research projects.
As we've previously reported, courts are beginning to grapple with whether Wikipedia entries are admissible in court. In this case, a Texas court refused to take judicial notice of a Wikipedia entry reasoning that the online resource is "inherently too unreliable" because anyone can create or revise a post.
I am the scholarship dude.
Scholarship alert: "Toward a theory of persuasive authority'
This article is by Professor Chad Flanders of St. Louis University School of Law and can be found at 62. Okla L. Rev. 55 (2009). From the abstract:
As a court attaches some weight to any of the matters herein described as of imperative authority or of persuasive authority or of quasi-authority, and as a court has it in its power to disregard even imperative authority, the question naturally arises whether the attempted distinctions between the kinds of authority are not wholly imaginary, or at least unimportant.
In the ongoing-and by now increasingly tired-debate over foreign authority, little attention, if any at all, has been paid to the idea of persuasive authority. This is puzzling because so much in that debate seems, if only implicitly, to rely on assumptions about what persuasive authority is. Those who favor citing to decisions in foreign courts will often defend the practice by pointing to the established practice of citing authorities that are "merely persuasive." The idea that some authority is "persuasive" is then contrasted with authorities that are mandatory or binding and which have their authority by virtue of something else besides their persuasiveness-for example, because they are the rulings of a higher court or are decisions made by the same court in the past. Foreign authorities, the argument goes, are merely "persuasive" and are not binding and as such can be cited insofar as they are helpful and illuminating to the issue. Because they do not bind, they do not raise the specter of being ruled by a foreign country, as some fear.
But very little has been said to explicate the very idea of persuasive authority itself, in its own right: Why indeed should there be any such thing? Why shouldn't there simply be the authority of higher courts and the court's past opinions, plus the court's own reasoning and interpretation? Further, what entitles a source-whether it be a decision of a foreign court, a blog entry, a law review article, or a treatise-to count as a persuasive authority? Are some sources, either by virtue of their merit or their status as a kind of source, generally more persuasive than others? The obviousness of these questions, coupled with the lack of any clear answers to them-still less any theory that might generate answers to them-shows the extent to which we are still in the dark as to the nature of persuasive authority.
I am the scholarship dude.
March 16, 2010
Scholarship alert: "Burying the living? The citation of legal writings in English courts"
This article is authored by Alexandra Braun, a Teaching Fellow of Law at Oxford, and can be found at 58 Am. J. Comp. L. 27 (2010). From the abstract:
Until recently English judgments were characterized by a dearth of references to academic legal writing. This is often ascribed to the existence of a professional convention preventing judges and counsel from citing living authors. While there is generally no doubt that such a convention did exist, it is not certain whether and to what extent it actually involved and affected legal academics and their role within the English legal system. This Article examines the claims that have been made about the genesis and the nature of the convention and attempts to shed light on the true reasons for its emergence, as well as its impact on the status of legal writing in England and the relationship between judges and legal academics.
I am the scholarship dude.
Legal writing prof tells online ABA Journal judges shouldn't withhold unpublished opinions from Wexis
Nova Southeastern's legal writing prof David Cleveland was quoted extensively in last week's online ABA Journal in an article entitled "A Judge's Unusual Request: Don't Print This in Westlaw or Lexis" discussing one federal judge's practice of restrictively endorsing his unpublished opinions so Wexis won't include them in their databases.
Unpublished opinions are withheld from the official reports and traditionally treated as not having any precedential effect. But [Los Angeles federal district court Judge Howard] Matz's request referencing databases is out of the ordinary, according to David Cleveland, a law professor at Nova Southeastern University’s Shepard Broad Law Center.
Cleveland says the trend is toward greater openness, publication and citation of unpublished opinions.
He points out that the Federal Rules of Appellate Procedure were recently amended to bar courts from prohibiting or restricting citation to newly issued unpublished opinions. He also notes the E-Government Act of 2002 requiring courts to make available all written opinions on their websites.
Since others can still disseminate Matz’s orders, the request is impractical, Cleveland says. It’s also inappropriate to try to create a secret body of law, he says.
Cleveland argues that litigants ought to be able to point out a court’s prior decisions even if they aren’t binding precedent. He sees a potential due process or equal protection violation if litigants aren’t allowed to ask a court to act today as it did in the past or to explain the distinction.
Cleveland doubts that Westlaw or Lexis will comply with the judge’s request. He appears to be right. The ABA Journal turned up 15 cases in which Westlaw apparently ignored Matz and published his unpublished orders in its electronic database. In each case, Matz’s unfulfilled request was printed at the bottom of the document.
You can read the rest here.
Hat tip to Robb Gregg.
I am the scholarship dude.
Travel Information for the LWI Summer Conference
The Legal Writing Institute Conference will be held this summer at Marco Island, Florida from June 27-30, 2010. Although most attendees will likely be flying into Ft. Meyers, there are a number of other airports you can use. Click here to read our post on travel options (and when you are at that post, check out the helpful comments posted there).
March 14, 2010
UT Dean responds to student editorial about lack of legal writing training
In a story we covered extensively last week precipitated by a student editorial decrying the lack of a mandatory brief-writing course in the 1L curriculum at U. of Texas School of Law, the UT Dean responded on Thursday with this column in the Daily Texan: "The Firing Line: UT School of Law's dean speaks out on a practical legal education."
I am writing in response to the opinion piece written by three students which appeared in The Daily Texan on March 4 under the title, “Law students need a practical education.”
A little more than halfway through their first year of law school, the authors of this call for practicality have not yet confronted the law school’s extraordinary array of courses, ranging from Admiralty Law to Wind Power Law.
In between are dozens upon dozens of courses of undeniable practicality in topics such as complex litigation, intellectual property, family law, innovation and entrepreneurship, tax, trusts and estates.
Nor have the authors encountered our legal clinics (educational programs in which students deal with the real problems of real clients), our Advocacy Program or our clerkship and fellowship programs. We have 17 clinics ranging in areas including criminal law, environmental law, transnational worker rights, children’s rights, national security, community development, legislative lawyering, domestic violence, immigration law and Supreme Court litigation.
Our Capital Punishment Clinic had four cases pending in the Supreme Court in a single recent term and won all four. More than half of UT Law’s students take at least one clinic, and their experiences are remarkably intense, rewarding and exquisitely practical.
Terry Tottenham, the president-elect of the State Bar of Texas, took umbrage at The Daily Texan piece; he has taught all phases of litigation to our students for the last 20 years and is only one of 41 adjuncts presently teaching in the Advocacy Program. Hundreds of students participate in the program each year, and many more participate in various interscholastic advocacy competitions.
Scholarship Alert - "Information for Submitting Articles to Law Reviews and Journals"
The wildly popular "how-to" guide for successfully placing scholarly publications written by UMKC School of Law Professors Nancy Levit and Alan Rostron has been recently updated and is available here on SSRN. From the abstract:
This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 195 law reviews. The document was fully updated in March of 2010.
An earlier version had more than 5,600 abstract views and 2,300 downloads, so you know they're doing something right.I am the scholarship dude.
Mel Weresh wins alumni service award
hat tip: Ruth Anne Robbins