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By Dave Hoffman

Some Rather Good Advice

From the 6th edition of the Summers/White/Hillman Treatise on the UCC, section 2:20.

“Under the present state of the law we believe that there is no language that a lawyer can put on a form that will always assure the client of forming a contract on the client’s own terms . . . If a seller must have a term to reduce its liability but cannot strike a bargain for it, the only answer may be to raise the price, buy insurance, or, as a last resort, have an extra martini every evening and not capitalize the corporation too heavily.”

This is exactly correct, though I can’t recommend martinis.

 

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Welcome Corey Yung

Please welcome back Corey Yung (of Kansas).  Corey has blogged for us previously, and we’re so pleased to have him back.

Corey is an Associate Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

Recent Articles:

How to Lie with Rape Statistics: America’s Hidden Rape Crisis, 99 Iowa Law Review (Forthcoming, 2014)

A Typology of Judging Styles, 107 Northwestern University Law Review 1757 (2013)

The Incredible Ordinariness of Federal Penalties for Inactivity, 2012 Wisconsin Law Review 841 (2012)

Beyond Ideology: An Empirical Study of Partisanship and Independence in the Federal Courts, 80 George Washington Law Review 2 (2012)

Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Northwestern University Law Review 1 (2011)

 

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Law and Hard Fantasy Interview Series: Mark Lawrence

I’ve sporadically run an interview series with fantasy authors who generally write in the burgeoning genre of gritty / hard / dark epic fantasy.  (I’m, obviously, a fan.)  The series began with this book review post, continued with interviews of George R. R. Martin and Patrick Rothfuss.  The series continues today as I interview Mark Lawrence.  Mark is the author of the Broken Empire trilogy, and the forthcoming Red Queen’s War.  His work has been lauded on both sides of the Atlantic (Mark was raised in the U.K., where he works as a research scientist).  He was gracious enough to respond to my email queries, which follow:

DH: Briefly for non-readers, can you introduce us to Jorg & the Broken Empire Series? What makes it different from other series on the shelves? ML:  The Broken Empire trilogy is related by Jorg Ancrath, seen through his eyes. Over the course of the books we see him at various points between age six and twenty watching him grow from a violent, charming and amoral child into a violent, charming and amoral young man. The primary element that makes the books unusual is that Jorg isn’t any kind of hero and in most fiction he would be the villain. DH:   You’ve said in another interview that you ”didn’t outline anything. I don’t plan. I just let the story flow as I write and generally have no idea where we’ll be at the bottom of the page.” Did that extend to the rules that governed the world (magic / commerce / time period)? ML: Yes, everything was a revelation. It’s fun to write that way – I lack motivation when I know what’s coming. DH: What do you think the movement toward gritty & researched realism in fantasy world building?  To rephrase: does it add to the value of a book that the author has worked out the distribution network for grain in each major city?  ML: I didn’t know people put those things together. I’ve heard people say books are getting more ‘gritty’, meaning more violent and less stylised in general. The realism there might be in terms of warrior not shrugging off their wounds and being fine the next day etc.  Researched realism and detailed city/country mechanics are not something I was aware of a movement toward. To me nothing is added by, for example, the author working out a grain distribution network. I’m interested in story and character, not mechanics. DH:  Many recent fantasy series, including yours, contrast a current age of violence with a ancient era of peace and civilizing empire. But some parts of civilization appear to survive in your books, particularly the method of selecting the emperor.  What kind of laws and traditions do you think survive the collapse of empire? Which would survive the collapse of ours? ML: I’m not sure I make that contrast. Nobody accuses the Builders (the ancient civilisation in my work) of being peaceful – simply more advanced… until they wrought their own ruin with weapons of...

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Sally can’t argue that (on law school exams)

At most law schools, first year students get back their fall semester grades this week.  This can be a difficult time for students who – often for the first time – are on the bottom half of steep curves.  If you are in that situation, I thought I’d offer one tip that might help you diagnosis a correctable problem with exam-taking technique.  When you get back your exam, and before you look at the model answer, I’d urge you to scan your exam for the following phrases:

A could argue that; or A might argue that; or A has an argument…

Every time you see this phrase, highlight it in red ink.  It’s almost certainly leading you down a dark path.

Why is this phrase pernicious?  Because, very often, it signals that you are about to fail to actually evaluate the noted argument. Rather, you will simply list the possibility (in contracts, for example, “A could argue that the correspondence of May 1 was an offer”) and not tell the reader whether or not that claim is a plausible or winning one in court.  Though sometimes professors truly want to see a kitchen sink of every possible issue , most, instead, are testing judgment. Judgment requires one to actually evaluate legal claims, not to list them.  The problem with “argue that” is that it leads you to think that you are actually saying something — implicitly, that the argument raised is plausible? — without articulating the predicate rationale and limiting conditions. I can’t tell you how many times I’ve sat with students in exam reviews, pointed out this phrase, only to have the student tell me that they knew that the argument was a good or bad one, but they failed to articulate it on the page.  ”Argue that” blinds you to your own failure to exercise your situation sense.

The great thing about this tic is that it’s a useful, concrete, red flag for conclusory exam writing, which typically distinguishes average exams from great ones.  If you are working on your computer, you can simply use the find function before handing in the exam to make sure that you haven’t fallen into the trap.  Other tics, like “obviously,” “clearly,” and “certainly,” are similar but aren’t as prevalent on law school exam answers. Eliminating “could argue that” also helps to omit needless words: instead of introducing issues before disposing of them, you can simply fold the analysis into the introductory sentence. Thus: “While the May 1 letter has some of the markings of an offer (it identifies price & amount), it fails to state the timing of delivery and most courts will follow Nebraska Seed in denying formation.”

Now, you could argue that this is all needlessly pedantic mutterings over style points, when the real skills that ought to separate good from bad exams concern doctrine.  But, if you did make that argument, you’d be wrong. Being conclusory – that is, assuming the conclusion in question and failing to analyze why the answer follows from the...

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First Day of Civil Procedure

Today’s the first day of  Civil Procedure I at Temple. I like teaching the course: the material is complicated enough to make class time worthwhile; student expectations are very low and exceeding them is  a cinch; some deep problems of institutional design arise which offer rich material for good discussion.  Plus, it’s now on the Multistate Bar!  That said, I’ve some concerns about the course — you might call them existential, or (if you are disposed to be less charitable) “unduly repetitive.”

First, almost every civil procedure course taught to 1Ls in this country focuses on federal procedure.  I’ve argued before (using the image to the  right of this post when it expands) that this is an odd choice. Why do the FRCP dominate over state rules? The best argument is that they prepare student for multi-jurisdictional practice. The second best argument is that many state procedural regimes ape federal law – a story of the latent triumph of the Swift regime that I might write about someday soon. But, honestly, I’ve a sneaking suspicion that most law professors teach federal procedure because they simply don’t know the current  state procedural practice at the school where they teach.  Note: practice, not rules – that is, it’s difficult to keep up with changes in the on-the-ground practice of procedural change in state court when you have another full-time job and aren’t regularly jousting in court. For example, in Philadelphia, there’s a Discovery Court.  That Court has some rules.  But those rules’ application varies so widely between judges, and changes yearly as judges rotate, that teaching the rules themselves would be insanity.  By contrast, the federal system is relatively uniform, transparent and stable.  A full-time law professor can teach the federal rules & federal cases and provide students a fair approximation of the lay of the land.  Thus, for all of the plausible reasons in the world, we teach procedural rules which are often irrelevant to the work of most graduates.

Second, most Civ Pro courses allocate time based on available case law. Hence: more days on personal jurisdiction, and fewer on discovery.  Again, this decision makes some pedagogical sense. If the first year is about learning how to read cases, jurisdiction cases certainly provide illustrative examples of doctrinal evolution. That’s true especially since the hard questions of internet jurisdiction are likely to remain largely unsettled. But how about the time spent on Erie? Though that case is iconic, I doubt that Erie issues come up very often in real cases.  It’s sort of like the Contract course’s focus on consideration and promissory estoppel instead of interpretation.

At the same time, the real billable output of procedural questions is often document review & consequent deposition practice.  Though many professors teach some variant of deposition practice as a part of a procedure course, none that I’m aware of require students to engage in the “skill” of document review of a large set of irrelevant results.  This may be changing: some schools are teaching students how to use technological solutions to review...

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