Wednesday, November 25, 2009

more scholarship updates

Here are some more intriguing abstracts from LSN.  To access on of these articles free, just click on the title, then click on the download sign you'll see.  

"Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation" 

The Journal of Legal Analysis, Forthcoming
U of Chicago, Public Law Working Paper No. 280
Boston Univ. School of Law Working Paper No. 09-50

WARD FARNSWORTH, Boston University School of Law
DUSTIN F. GUZIOR, Boston University School of Law
ANUP MALANI, University of Chicago
Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

Boyle, Robin "How to Critique & Grade Contract Drafting Assignments"
The Tennessee Journal of Business Law, Vol. 297, 2009
ROBIN BOYLE, St. John's University School of Law
This article represents the transcribed proceedings of Professor Robin Boyle’s speech given in May 2008, for the Center for Transactional Law and Practice at Emory University School of Law, at a conference entitled “Teaching Drafting and Transactional Skills - the Basics and Beyond.” Prof. Boyle’s presentation at the conference described course content for her upper-level seminar on contract drafting. She also suggests ways to critique students’ contracts submitted for coursework.

"Learning and Unlearning in the Legal Academy" 
MAKSYMILIAN T. DEL MAR, Faculty of Social and Political Sciences, University of Lausanne
This paper argues that education, at its best, is based on a combination of learning and unlearning. Learning involves the development of sensory intelligence, a dynamic form of knowledge that is anticipatory and orientating. This sensory intelligence is always stylised, i.e., it consists in relations formed, over a certain period of time, by the senses with specific features of the environment. Unlearning, on the other hand, is the process of challenging this stylised sensory intelligence. These styles of seeing (and experiencing) are challenged by encouraging and facilitating different kinds of relations with these specific (or other) features of the environment. The paper is structured into three parts. The first part illustrates the principal themes of the paper by working through a number of examples of seeing (and experiencing). The second part elaborates and organises these themes into the above two concepts of learning and unlearning. The third part then applies the model of education (i.e., the combination of learning and unlearning) to the legal academy by focusing on two commonly engaged in activities: first, reading legal texts; and second, providing (hypothetical) legal advice.

Vorenberg, Amy "The Moral of the Story: The Power of Narrative to Inspire and Sustain Scholarship"
AMY VORENBERG, Franklin Pierce Law Center
This article describes how I discovered the power of story as a tool to inspire scholarship. We think of stories as a means to bring life to legal cases in a way that grounds them and makes them visceral and comprehensible. We use storytelling to teach our students - showing how the emotive power of a story can persuade. However, stories can also serve a different function. In my search for a way to inspire and sustain my own writing, I found out that a good story can be the source of a writer’s motivation to both create and sustain scholarship. Basing scholarship on a story essentially mimics the process that has been occurring all along in the formation of law. The common law develops and changes as new stories push the limits of existing rules. Thus, stories are natural and logical fodder for scholarship about current trends and doctrines.


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