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Critical Interviewing
Get PDFCritical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into account historical and structural biases, privileges, and the role they play in the attorney-client relationship.
This Article urges law professors and legal professionals to operationalize critical legal theories into practice, and ultimately to develop experiential pedagogies to teach these critical lawyering skills. This call to developing new pedagogies is particularly urgent in the wake of nationwide uprisings in response to the killing of George Floyd and others, as well as corresponding law schools’ commitments to identify and dismantle institutional racism. In this Article, we first set forth the contours of the canonical client interviewing pedagogy. Second, we outline the tenets of critical lawyering—a lawyering practice animated by critical legal theories. Next, we advance the pedagogy of critical interviewing, building upon client-centered lawyering texts. We describe one methodology of teaching critical interviewing: the Legal Interviewing and Language Access films. Ideally positioned to use with virtual, hybrid, or in person learning, these videos raise a multitude of issues, including addressing bias and collaborating with clinic partners, interpreters, and clients. Finally, the Article considers areas ripe for further exploration within critical interviewing, concluding with a call for engagement with new pedagogical tools to teach critical interviewing, along with other aspects of critical lawyering
Changing Consultation
Get PDFExamples abound of both historic and modern situations where the federal government and tribes failed to engage in effective consultation. Yet, numerous reasons exist—such as effective management of natural resources and the negative impacts of climate change—for tribes and the federal government to engage in effective consultation. Effective consultation can be met through strong government-to-government relationships between Indian tribes and federal agencies and should be based on respect, mutual understanding, and common goals. This can be accomplished through interactions that will enhance consultation and provide other pathways to achieving a strong government-to-government relationship. To date, however, many within Indian country would argue that effective consultation is not occurring. This may be due in part to a lack of effective guidance on what federal-tribal consultation should look like. Given the existing lack of effective guidance as to what tribal-federal consultation should normatively look like, this article looks to models of cooperative management and collaboration that may serve as useful mechanisms for improving consultation between tribes and the federal government. The article concludes with several discrete recommendations on what should be included in tribal-federal consultations to ensure that legal, moral, and ethical requirements are met
The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study
Get PDFThe erosion of constitutional norms in the United States is at the center of an urgent national debate. Among the most crucial of these issues is the fragile and deteriorating relationship between the press and the government. While scholars have responded with sophisticated examinations of legislators’ and the President’s characterizations of the news media, one branch of government has received little scrutiny—the U.S. Supreme Court. This gap in the scholarship is remarkable in light of the Court’s role as the very institution entrusted with safeguarding the rights of the press. This paper presents the findings of the first comprehensive empirical examination of the Court’s depictions of the press. We tracked every reference to the press by a U.S. Supreme Court Justice in the Court’s opinions since 1784. We coded these references to the press (broadly defined by the Justices themselves) for the presence of common frames and for whether the frame was conveyed with a positive, negative, or neutral tone. The results of our study reveal troubling trends at the Court, with widespread implications for any discussion of contemporary press freedom. We find that there has been a stark deterioration in both the quantity and quality of the Court’s depictions of the press across a variety of measures. Our data show that the Justices are now less likely to talk about the press than they were in the past, and that, when they do, it is more often in a negative light. At this crucial moment, when we have seen the risks of executive and legislative branch attacks on the press, our study finds that the U.S. Supreme Court is not pushing back. The study also reveals a substantial correlation between ideology and the Justices’ attitudes toward the press. It likewise illuminates the press-characterizing behaviors of the most and least press-friendly Justices of all time and of the currently sitting Justices, providing insights into patterns that might be expected in the years to come
Adopting DOI in Legal Citation: A Roadmap for the Legal Academy
Get PDFA Digital Object Identifier (DOI) is a unique string of numbers, letters, and symbols used to identify web-based information assets such as articles, multimedia items, and datasets. A digital object minted with a DOI will be persistently discoverable through this identifier, as long as it lives on the Web. DOIs are already ubiquitous in citations in the medical and scientific literature, primarily because the discovery of, access to, and linkages between the scholarship in these disciplines happens almost exclusively online. As is true with most content on the web, scholarly content in the sciences is published on multiple platforms and may be archived in multiple locations. In light of the fact that one may be hard-pressed to create a reliable static URL that other researchers can refer to under these circumstances, those who publish in the sciences have arrived at a consensus that DOIs are the gold standard for making research outputs easier to find, use, and share.Why, then, has the legal academy largely eschewed DOIs for legal citation? Discussions are certainly taking place, but currently there are no practical guidelines for implementing DOIs in legal citations. The Bluebook takes no position on them and authors and law review editors either ignore them or are largely unaware of their benefits.This paper argues that the implementation and development of a standard for DOI in legal citation is long past due. It will lay out a roadmap for legal scholars, institutions, and vendors for implementing DOI, with helpful tips for authors, librarians, and law journals on minting DOIs; and will provide examples for the Bluebook on what a rule for integrating DOI in legal citation might look like
Sexual Assault Enablers, Institutional Complicity, and the Crime of Omission
Get PDFSex abuse, particularly of children, is a crime which any rational person would wish to prevent. However, when an individual’s loyalties and responsibilities to an institution put them at odds with preventing sex abuse, it is far too often the institution which takes precedence. This is the grim phenomenon of institutional complicity. It is a plague which, sadly, permeates institutions of all types, be it a school, hospital, sports team, church, military, or government agency. It also permeates countries as a global issue.I have interviewed dozens of survivors who suffered under an abuser who was protected by an institution. The survivor’s expectation of the institution is simple: to be protected. Yet, time after time, these survivors found that it was the good name and reputation of the institution which was protected rather than themselves. Many survivors express that their anger towards those who enabled the abuse is greater than their anger towards the abuser.In this submission I propose that the answer is to criminalize the enabler. By enabler, I mean an individual who knows that sex abuse is occurring and yet fails to inform the appropriate law enforcement agency. I have come to the conclusion that the harm caused by sexual assault enablers does rise to the level of criminality. The harm inflicted by the enabler’s deliberate choice to abandon those in their power to protect is a plague which should be addressed by every government
Expert Malpractice
Get PDFThe provision of expert testimony in litigation has become a big business. The paradigmatic testifying expert is no longer the “amateur”expert who maintains a separate professional identity and testifies only once, or at most sporadically, in litigation to which their expertise is uniquely pertinent. Rather, they are a professional provider of litigation support services who spends a substantial part of their time, and derives a substantial part of their income from, consulting on pending or contemplated lawsuits. Legal rules concerning the provision of expert testimony continue to apply the former, obsolete paradigm of the testifying expert.
This conflict of paradigms becomes especially acute when a former client accuses a testifying expert of professional malpractice. In other contexts, professional service providers are liable for injuries caused to their client by the service provider’s failure to act with professional competence. In the case of testifying experts, however, some courts and scholars maintain that the absolute immunity extended to participants in judicial proceedings preempts the law of professional malpractice that would otherwise apply.
This Article makes two contributions to the discussion of expert malpractice liability. It is the first Article to construct a typology of expert malpractice claims and to evaluate systematically the rationales offered for absolute immunity of testifying experts as applied to each type of claim.The Article concludes that absolute immunity against expert malpractice claims is in all cases either unwarranted, insofar as it does not serve the purposes of witness immunity, or unnecessary, insofar as existing tort and contract law serve adequately to prevent the undesirable outcomes that proponents of immunity identify while permitting injured plaintiffs to recover for experts’ professional misconduct. Second, the Article offers guidance as to how expert malpractice liability should be implemented, proposing reforms to substantive state law as well as the Federal Rules ofEvidence intended to accommodate the concerns raised by advocates of absolute immunity
Pore Space Property
Get PDFThrough modern technology we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up with advancing technology in this area. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture an oil well on her property if the fractures extend beneath B’s land? May C store anthropogenic carbon dioxide for climate change mitigation in a common reservoir that extends beneath the land of D, E, F, and G if they do not consent? If so, what, if any, compensation does C owe to the others? These and similar scenarios pose urgent questions for a wide range of landowners, industries, environmental interests, courts, and policymakers across the nation.
This Article searches for answers to these pressing questions in the doctrinal histories of similar common pool natural resources. The Article reviews the development of common law rights in water and oil and gas to synthesize lessons for shaping the content and limits of rights in pore space. Then, applying these lessons to the current state of pore space rights, the Article explains that rights in pore space are established by a default rule of prior use and are absolute, subject to little, if any, limitation. As demand for the resource continues to grow, however, owners, and, ultimately, courts will likely search for ways to limit the absolute extent of pore space rights to avoid a tragedy of the pore space commons.
In searching for doctrinal mechanisms to make pore space rights limited, or correlative, the Article predicts that courts will be tempted to choose between establishing limits by strict, formalist rules of proportionality (which favor certainty), on the one hand, and instrumentalist, utilitarian standards of reasonable use (which favor development of the resource), on the other. This Article identifies an underexplored doctrine from oil and gas law that would define the limits of pore space rights without resort to purely instrumentalist or formalist doctrines. The “fair-opportunity doctrine” articulated here would permit an owner to use any quantity of pore space anywhere in a common reservoir, so long as it does not interfere with the lawful existing operations of other owners or deprive other owners of a fair opportunity to either participate in the proposed operations or conduct like operations from their respective land
The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021
Get PDFFourth Amendment law is in flux. The Supreme Court recently established, in the landmark case Carpenter v. United States, that individuals can retain Fourth Amendment rights in information they disclose to a third party. In the internet era, this ruling has the potential to extend privacy protections to a huge variety of sensitive digital information. But Carpenter is also notoriously vague. Scholars and lower courts have tried to guess at what the law of Fourth Amendment searches will be going forward—and have reached different, contradictory conclusions.
This Article reports the results of a large-scale empirical study of the impact of a transformative Supreme Court decision in federal and state courts. It analyzes all 857 federal and state judgments applying Carpenter from its publication in June 2018 through March 2021. Relying on this unique, hand-coded database, the Article illuminates both the present and future of Fourth Amendment law.
In doing so, it identifies the factors that drive modern Fourth Amendment search decisions—and those that fail to drive them. It examines disagreements among lower courts about the scope and breadth of Carpenter, as some courts apply its concepts expansively while others attempt to narrow it from below. It assesses how state courts apply federal constitutional law, blending federal and state interests in unique ways. And it analyzes the enormous practical impact of the “good faith exception” to the exclusionary rule, which permits the government to use unconstitutionally obtained evidence to convict defendants if such evidence was collected in reliance on prior law. Based on these findings, the Article explores alternative directions that courts may take as they continue to refine Fourth Amendment law and address novel surveillance technologies. In addition to its many contributions to the Fourth Amendment literature, the Article is the most comprehensive empirical study to date of the jurisprudential impact of a Supreme Court case in the years following its publication
Public-Private Litigation for Health
Get PDFPublic health litigation can be a powerful mechanism for addressing public health harms where alternative interventions have failed. It can draw public attention to corporate misconduct and create a public record of the actions taken and the harms done. In an ideal world, it could achieve compensation for past harms and incentivize deterrence of future misconduct. But the full public health potential of these lawsuits is rarely achieved, even when the suits are brought on behalf of federal, state, and local governments with the ostensible goal of protecting the health of the citizens. The increasing involvement of private attorneys in public litigation only adds to the challenges of using litigation to achieve public health goals.
While there are continuing debates over the desirability of litigation partnerships between state attorneys general (AGs) and private counsel, as a practical matter, the involvement of private law firms in public litigation is unlikely to disappear any time soon. This Article fills a critical gap in the literature on the privatization of public litigation by showing why, despite their shortcomings, arrangements between state and private lawyers have the potential to satisfy public health goals that might otherwise remain out of reach. It provides a theory of legal research and development to show why these arrangements are not only likely to persist but are also most likely to occur in high-impact public health litigation. This Article then examines how the incentives of both state AGs and private law firms influence choices along the litigation pathway in ways that may undermine the potential to achieve public health value. It concludes by proposing a novel impact-based approach to public-private litigation, providing a decision-making framework that AGs can adopt to increase the role of public health objectives in the litigation process
Yellen v. Confederated Tribes of the Chehalis Reservation: Brief of Professors and Historians as Amici Curiae Supporting Respondents
Get PDFAmici curiae are law professors who teach and write in the area of federal Indian law and Native American legal history. They file this brief to explain the history of the federal government’s practice of “recognizing” Indian tribes generally, as well as the specific history of recognition of Alaska Native tribes