Volume 4 Number 2 - Spring 2012 Articles

A Trial Attorney's Dilemma: How Storytelling as a Trial Strategy Can Impact a Criminal Defendant's Successful Appellate Review

by: Todd A. Berger | download this article (pdf)

Over the past thirty years, a canon of scholarship has emerged on the use of narrative in the law. Most of the work produced in this area endorses the use of narrative, either by arguing its importance or by focusing on how best to employ narrative as a form of advocacy. The scholarship to date has not focused on how the criminal defendant's use of storytelling at trial can adversely impact appellate review when sufficiency-of-the-evidence and weight-of-the-evidence claims are raised on appeal. This Article posits that in addition to advising a criminal defendant on the potential merits of testifying at trial, the trial attorney should also inform his client of the potential adverse impact certain types of narratives will have on appeal. By demonstrating how the criminal defendant's storytelling at trial can negatively impact the defendant's appeal, this Article provides a counter-point to the ever-growing focus on the use of storytelling as an essential component of criminal-trial practice.

We the People: The Consent of the Governed in the Twenty-First Century: The People's Unalienable Right to Make Law

by: George A. Nation III | download this article (pdf)

The People of America love democracy. Americans do not love democracy because it is efficient; in some ways, other forms of government may respond more quickly. Americans do not love democracy because it is without problems; while a strong democracy will prevent the tyranny of the few over the many, it requires constant vigilance to protect individual rights from the tyranny of the many over the few. Americans do not love democracy because it is perfect—it is not; it is only as good as we make it. Americans love democracy because doing so is simply part of our culture; our shared love of democracy creates a bond that binds together our diverse people and our vast continent. Americans love democracy because it and it alone has the potential to provide a moral, fair, and just government. This is so because our democracy recognizes that the only legitimate source of governmental power comes from those subject to the government's exercise of power—the consent of the governed. Under our Constitution, neither the federal government nor the state governments are sovereign; nor do these governments somehow share sovereignty. In America, the People alone are sovereign; all governments (federal, state, and local) are mere agents of the People, subject always and in every case to their ultimate au-thority. As a result, democracy (popular sovereignty-majority rule) makes possible the creation of a society that fully embraces mutual respect for individual rights while allowing and encouraging just and fair collective action that benefits the overall society.

Law Review Scholarship in the Eyes of the Twenty-First-Century Supreme Court Justices: An Empirical Analysis*

by: Brent E. Newton | download this article (pdf)

Chief Justice John Roberts recently threw fuel on the fire of the perennial debate about the practical value of American law review articles when he stated that, as a general matter, law reviews are not "particularly helpful for practitioners and judges." The Chief Justice is the most prominent among an increasing number of critics who have declared that, during recent decades, there has been a growing disconnect between law review articles written by law professors and the needs of the bench and bar in legal scholarship. Furthermore, there is convincing evidence that a substantial amount of law review scholarship today is not considered useful even by other law professors.

* download Appendix (pdf)

What Is "Good Legal Writing" and Why Does It Matter?

by: Mark K. Osbeck | download this article (pdf)

Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a solid conceptual framework to ground the individual rules and suggestions. This Article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well written. It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well written.

Essay

Stealth Constitutional Change and the Geography of Law

by: Jill M. Fraley | download this article (pdf)

Bruce Ackerman's recent book, The Decline and Fall of the American Republic, is a sudden shift from his previous scholarship on constitutional moments and the ability of social movements to generate minor revolutions. By acknowledging how constitutional change did not fit into his model of deliberate, deeply debated movements, Ackerman has shifted the scholarly lens to unintentional and unanticipated structural variations. Ackerman focuses his book on the political processes and events that have fostered potentially illegitimate constitutional remodeling. He acknowledges that certain features of legal scholarship have contributed to a lack of awareness of slow, structural drift, but he does not address the question in earnest, as I do in this Essay.

Notes

Privacy in the Cloud Frontier: Abandoning the "Take It or Leave It" Approach

by: Scott Bender | download this article (pdf)

Imagine that you have just finished composing an e-mail, check-ing your favorite social networking website, and watching a streaming video online. This scenario should not stretch the imagination considering that, on average, 294 billion e-mails are sent each day, Facebook maintains an active user base of over 800 million members, and over 3 billion videos are watched each day on YouTube.

You Can Pick Your Friends, but You Cannot Pick Off the Named Plaintiff of a Class Action: Mootness and Offers of Judgment Before Class Certification

by: M. Andrew Campanelli | download this article (pdf)

Among all of the complexities of class actions, courts have consistently struggled with applying traditional principals of mootness to the named plaintiff of a proposed class action complaint and determining its corresponding effect class-wide. Courts have reached differing—and often irreconcilable—positions where (1) a named plaintiff's claim has been rendered moot before filing a motion for class certification, or (2) before the motion for certification has been decided. This ambiguity has generated a tactical mechanism for defendants, dubbed by the Court as "picking off" or "buying off" the named plaintiffs. "Picking off" is accomplished by submitting an offer of judgment to the named plaintiff under Federal Rule of Civil Procedure 68, thereby satisfying the plaintiff's claim in its entirety. This Note argues that in a proposed class action suit, a defendant's offer for complete satisfaction of a named plaintiff's claim—a Rule 68 offer—prior to certification should not render the entire claim moot if that offer was made with the intent to avoid class litigation of the issue by intentionally "picking off" the named plaintiff before the named plaintiff could reasonably file for class certification.

Hacking Through the Thicket: A Proposed Patent Pooling Solution to the Nanotechnology "Building Block" Patent Thicket Problem

by: Amber Rose Stiles | download this article (pdf)

Over-patenting and the issuance of overly-broad nanotechnology "building block" patents by the United States Patent and Trademark Office have generated a densely enmeshed patent thicket that seems impossible to navigate. The nanotechnology "building block" patent thicket is preventing the commercialization of useful innovations. Collaborative effort to construct patent pools composed of the specific "building block" nanotechnology patents provides a feasible, promising, and practical means of untangling the complicated nanotechnology patent thicket.