This essay continues the controversial conversation about what forms of scholarship count as legal scholarship. At a time when tenure itself is under scrutiny, the question of what scholarship counts toward status improvement or job security in legal academia is as important as ever. In our experience, resistance to legal writing scholarship persists at many law schools. At these schools, the result is that some legal writing faculty must publish in a second area of interest, imposing on them a double burden they might not otherwise assume and depriving them of the opportunity to be students and scholars of the subject they teach. We argue that legal writing scholarship—scholarship that is often inter- or cross-disciplinary in nature, communication-centered, connected to law, and related to the creation of legal texts—meets well-established criteria for legal scholarship and should count towards promotion and all kinds of tenure. As we also demonstrate, legal writing scholarship is both descriptive and normative—the bellwethers of legal scholarship. It is descriptive in the sense that it defines and explores the theory and practice of effective legal communication and normative in the sense that it explores what legal communication can and should be in the form of oral and written advocacy. To understand the legal advocate’s role in achieving just legal outcomes, we need scholarship that is unabashedly descriptive, normative, and interdisciplinary; that restores legal communication to its rhetorical roots, and that aims both for more fair and effective legal solutions and a better understanding of how to achieve them.
Amy Soled’s Unending Conversations essay, The Legal Writing Community’s Bonds Enable It to Flourish, responds to Kevin Bennardo’s controversial essay, Legal Writing’s Harmful Psyche, arguing that Bennardo’s analysis of why legal writing scholarship is not rigorous is flawed and that his proposed solutions are unwarranted. Bennardo’s thesis is that legal writing scholars are “protectionist” and unwilling to engage in rigorous critique of each other’s work, preventing the growth of legal writing as a discipline. Soled’s analysis provides an excellent critique but doesn’t focus on what I see as a key problem with Bennardo’s essay—the failure to address the effect of marginalization on the growth of Legal Writing as a scholarly discipline. In this essay, I address the problem with critiquing the discipline without addressing the marginalization of legal writing scholars within the legal academy. I then provide an alternate critique that begins with an understanding that the cohesiveness of the legal writing community is a strength rather than a weakness but acknowledges that there is room for the discipline to continue growing.
In 2018, the American Museum of Natural History in New York City visually addressed the inaccuracies in a diorama that purported to depict a meeting between the colonial Dutch and the indigenous Lenape in the seventeenth century. The museum added a layer of commentary to the glass in front of the diorama that identifies and contextualizes the diorama’s inaccuracies and biases. The layer is labeled “Reconsidering this scene,” and ten text boxes point out some of the specific ways the diorama reflects cultural stereotypes at the expense of historical accuracy, including a quote from a contemporary Lenape elder.
Museums are a useful analog to law schools in discussions of how to teach and engage students. And in The Writing’s on the Wall: Using Multimedia Presentation Techniques from the Museum World to Improve Law School Pedagogy, 126 Dick. L. Rev. 475 (2022), Professor Cecilia A. Silver demonstrates how traditional law school teaching would benefit from embracing museum techniques. But museum presentation principles can be more than a corrective to old-fashioned law teaching. The decolonization movement in museums provides a model for teaching students how to critically read cases and learn legal doctrine and how to confront the biases, hierarchies, and injustices of the past and present. In particular, the techniques that museums use to layer, contextualize, and critique information and ideas, including metatextual commentary on their own displays, provide a model for law teaching that empowers law students and challenges the biases and injustices that are endemic to the legal foundations of the law school curriculum.
The COVID-19 pandemic has raised serious questions about disputants’ access to justice. Early on in the pandemic, in March 2020, U.S. courts shut down jury trials, judges conducted almost all appearances and arguments on videoconference, and many civil cases were placed on hold. Similarly, alternative dispute resolution forums shut down their in-person services, pivoting like the rest of the business world to videoconference technology to replace in-person meetings such as mediation sessions and arbitration hearings. This pivot led to rapid innovations and creativity almost overnight in the provision of dispute resolution services without any face-to-face interactions. Praise and critique alike followed. Empirical studies of arbitration experiences and outcomes during the first year of the pandemic yielded mixed results. Focusing on arbitration of securities industry disputes, this Article contributes to the literature exploring the impact of the pandemic on arbitration and explores whether parties arbitrating their disputes at FINRA Dispute Resolution Services during the pandemic have had access to justice equivalent to the justice that was available pre-pandemic. In particular, the Article analyzes data about FINRA customer arbitrations over the course of the pandemic, from onset in March 2020 through mid-2022, when most municipalities had lifted COVID-19 restrictions. The Article relates empirical data on the outcome of FINRA customer arbitration during the pandemic, and then analyzes that data to explore whether Zoom arbitration at FINRA impedes access to justice.
Is Remote Justice Still Justice? This Article approaches the question posed in this symposium edition by looking to the future, beyond the pandemic emergency use of remote arbitration proceedings. It zooms in on one mandatory arbitration forum–the Financial Industry Regulatory (“FINRA”) securities arbitration forum–describing the steps that FINRA took to evaluate remote arbitration; outlining the resulting changes to its policies, resources, and rules; and illuminating features of the FINRA forum that may position it as a model for evaluating post-pandemic remote arbitration in other mandatory arbitration forums. The Article makes several contributions to the literature on mandatory consumer arbitration. First, it provides transparency and accountability by bringing to public light steps taken within the forum that might otherwise be unavailable except to insiders by describing the post-pandemic work of FINRA’s National Arbitration and Mediation Committee and newly formed Zoom Task Force. This descriptive, historic account includes the publication, with FINRA’s permission, of the results of a survey to participants in FINRA remote hearings during the pandemic’s emergency phase. Second, it builds upon scholarship positing that FINRA is an arbitration archetype with justice-enhancing features. In this regard, the Article identifies three features unique to FINRA indicating that aspects of its work evaluating post-pandemic remote arbitration could positively supplement evaluative frameworks for other mandatory consumer arbitration forums. These features include: (1) disciplinary action to enforce forum rules and norms; (2) government oversight and stakeholder engagement; and (3) high levels of transparency and disclosure. Finally, the Article proposes a path forward, recommending that other forums create strong technological infrastructure to hedge against future disruption risk, adopt transparency as a foundational forum attribute to facilitate trust-building and legitimacy, cultivate relationships with and seek the feedback from wide-ranging stakeholders about their experiences in the forum, involve public participation in the early stages of rulemaking, and provide resources and guidance accessible to one- shot forum participants. While this Article does not directly answer the symposium’s framing question, the contributions it makes assist in designing a framework that may help answer that question in the future.
The COVID-19 pandemic compelled courthouses to close their doors and prompted mediators to facilitate resolution of disputes in a virtual space. As a result, the use of online processes accelerated exponentially. Virtual mediation, with a human mediator, parties and lawyers participating on a zoom or other platform, became an appealing alternative to traditional methods of dispute resolution. Despite the necessity of virtual replacements to in-person dispute resolution processes, many practitioners were skeptical about their ability to shift to virtual mediation practice. Technological barriers were only one concern. Mediators feared that the absence of in-person interactions would negatively impact mediation processes and outcomes. Fortunately, however, virtual mediation proved to be an efficient and effective alternative to in-person mediation.
As the pandemic subsides, surveys demonstrate that mediators believe virtual mediation should continue as a common, or even presumptive, dispute resolution alternative. Practitioners value the effectiveness and flexibility that virtual mediation offers. Indeed, mediators and disputants discovered that virtual mediation tends to be less expensive, more accessible, and as equitable in process and results as traditional, in-person, mediation. As we emerge from the worldwide COVID-19 pandemic, it is time to add a new door to the multi-door courthouse and declare that the presumptive dispute resolution process is virtual mediation.
The Center for Disease Control’s eviction moratorium for nonpayment of rent during the COVID-19 pandemic alleviated immediate costs for affected tenants who were financially burdened during periods of economic shutdown—but at what cost? While this moratorium was invalidated by the United States Supreme Court in Alabama Association of Realtors v. Department of Health and Human Services for exceeding the power of an executive agency, the Court allowed for the possibility of this moratorium being lawful if it were passed by Congress. Within the dicta of the brief opinion is language praising the hallowed property right to exclude followed by a footnote to Loretto v. Teleprompter Manhattan CATV Corp.—the leading case on physical invasion regulatory takings. What seems to be harmless dicta at first glance could potentially lead to explosive legal question: if a future moratorium on evictions for nonpayment of rent was enacted by Congress, could a regulatory taking result?
This Article explores the eviction moratorium and its resulting litigation, breaks down the meaning and jurisprudence of federal regulatory takings, and analyzes the eviction moratorium under the different theories of regulatory takings. Based on the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, this Article finds that a future eviction moratorium similar to the CDC’s would be found unconstitutional for violating the Fifth Amendment under a physical invasion theory of regulatory takings—a per se rule requiring no balancing test by a court. Finally, this Article concludes by suggesting alternative crisis rental housing programs that balance the equities of relevant parties without amounting to a regulatory taking.
“Cause I’m livin’ on things that excite me, be they pastries or lobsters or love.” Like Jimmy Buffet, many people around the world get excited when they see lobster on the menu. Recently, however, the crustaceans have gone from coveted to controversial because of a legal battle between the American commercial lobster fishing industry and marine mammal activists. In response to this dispute, United States government agencies announced new commercial lobster fishing regulations in an effort to reduce the threat of entanglement that commercial fishing gear poses to the critically endangered North Atlantic right whale.
This Article argues that these new regulations, while well-intended, nevertheless improperly target and damage the Maine lobster industry; an industry that has not been credited with a right whale entanglement in nearly two decades. In doing so, this Article explores the histories of both the Maine lobster industry and the North Atlantic right whale, analyzes the ongoing legal battle between embroiling the two, surveys the new regulations and their impacts, and finally argues that the new regulations are flawed to a point that warrants judicial intervention. This Article then concludes with a short afterword discussing somewhat unexpected political and legal developments that occurred after the Article was submitted for publication.
As we celebrated our second anniversary, my wife Caroline, suffered her first panic attack. Caroline spent the next week praying and speaking to every loved one in her life, but she could not find any reprieve from her anxiety; she felt helpless when her anxiety spiraled out of control. With nowhere else to turn, Caroline confided in our pastor, who recommended that she see a mental health counselor. The counselor discovered some root causes of Caroline’s anxiety, uncovered by the COVID-19 pandemic, but ultimately found that Caroline was suffering from biological depression and would need to go see a psychiatrist—more time and money. This was a tough pill to swallow for Caroline, who was already overwhelmed (and having spent hundreds of dollars on treatment). As she soon learned, psychiatry is a process of trial and error, so she would spend the next ten months trying various medications that did not work; all of this was expensive and largely not covered by insurance.
Nearly a year later, Caroline has finally found a promising medication, but the whole experience has taught her that the past year would have been much easier if she received preventative mental health treatment before her anxiety and depression spiraled out of control.
March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all the key players in decision-making. This Article suggests that the criminal courts would have been better able to manage the decision-making process if they had been using Dispute System Design (DSD). DSD is a collaborative, inclusive process that would have given the courts an established process for decision making which could have assisted criminal courts to better adapt to new and changing circumstances and to keep a focus on justice in the decision-making process.
This Article argues that the use of Continuity of Operation Plans (“COOP”), as a planning tool, may have reinforced the lack of collaboration in federal and state courts, and reinforced the failure to consider the impact that operational changes may have had on justice. This Article gives examples of a variety of changes that the criminal courts adopted to conduct necessary court processes and questions whether the process for decision-making negatively impacted the system’s ability to adapt to the changes COVID-19 demanded. Finally, this Article offers lessons that courts can use from this unparalleled time. This Article proposes that criminal courts adopt Dispute System Design processes as a regular part of their planning which would facilitate inclusive justice focused decision-making in future crises that will undoubtedly also require operational changes.