Lawyering in Context

Helping students go beyond the expected ...

At the UNLV William S. Boyd School of Law, the three-semester lawyering process curriculum challenges students to exceed their own expectations. From the start, students are immersed in theory and practice as we help them learn lawyering skills as well as critical problem solving and rhetorical theory and application.

Lawyering Process Curriculum Faculty

How did our faculty spend their summers?

Rebecca Scharf
Associate Professor of Law

What are you working on?
I am currently working on a series of projects focused on the potential invasion of privacy issues presented by Unmanned Aerial Systems (UAS), popularly known as drones.  In addition to my scholarly writing on this topic, I am part of a task force of stakeholders created by President Obama "to take steps to ensure that the integration [of UAS into the National Air Space], takes into account not only our economic competitiveness and public safety, but also the privacy, civil rights, and civil liberties concerns these systems may raise." Without a doubt, UAS technology presents very real benefits in such realms as search and rescue and infrastructure inspection (not to mention Google and Amazon leaving packages on your doorstep at the drop of your hat), but we need to be forward-thinking in identifying privacy and accountability issues related to UAS.

Which of your recent publications should I read?
In addition to writing on Privacy and Technology, I write in the area of Family Law and Children’s Rights. My recent article, Separated at Adoption:  Addressing the Challenges of Maintaining Sibling-of-Origin Bonds in Post-adoption Families, 19 U.C. Davis J. Juv. L. & Pol'y 84 (2015), emphasizes the importance of sibling bonds, especially when the children are in disrupted families that result in the children being placed in foster care. The psychological research about the intensity of sibling bonds in traumatized families is rarely seen in legal scholarship; moreover, the legal connections and sibling rights generally is virtually an unexplored area of the law which made it particularly rewarding.

Do you have a recommendation for reading?
I read Sonia Sotomayor’s memoir, My Beloved World, followed by Joan Biskupic’s biography, Breaking In:  The Rise of Sonia Sotomayor and the Politics of Justice, and was captivated by Justice Sotomayor’s life story, especially since I spent the formative years of my legal career working as a legal services attorney in the South Bronx. I was impressed by Justice Sotomayor’s unabashed sharing of her personal narrative throughout her public life.  As someone who has been largely private about the effects of growing up with food insecurity and poverty, I have been inspired by Justice Sotomayor to share with my students my personal narrative and how that firsthand experience enhanced my ability to advocate persuasively on behalf of my clients.

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Terry Pollman
Professor of Law

What are you working on? In these last weeks of summer, I'm working with other editors of the Journal of Legal Writing to launch our second online volume and the brochure that accompanies it. It's my last volume for the Journal; after eight years and spearheading the change to an electronic format, I'm leaving the Journal's Board. Working for the Journal is so rewarding and I feel lucky to have done it. My editorial position for this volume was Assistant Editor-In-Chief for Essays. Our essays this time present three judges' viewpoints on the impact of new technologies on the justice system —and they are fascinating.

Which of your recent publications should I read?  I'm proud of the new approach to teaching legal research that UNLV Professors Jeanne Price and Linda Berger and I have developed in Examples and Explanations: Legal Research. The book changes the focus from the finding process to teaching students to understand three concepts that are critical to good legal research: that research changes with changing context, that relationships or connections among sources are complex and changing, and that understanding how lawyers actually use sources to build an argument is important to knowing what you are seeing as you research.

How does your scholarship affect your teaching?  I tend to choose topics to write about because there is something I don't understand and want to learn more about it. That was true with the new research book too. Legal research has changed so much in the last few years that I felt guilty relying on old pathways to teach it. Working on this book has transformed how I think about research myself, and it has completely changed how I teach students.

Do you have a recommendation for reading or listening?  I loved H is for Hawk by Helen Macdonald. It's non-fiction-- the story of a woman healing her grief on her father's death through training a goshawk. I'm not always a fan of this kind of subject matter, but won't forget Macdonald's journey soon. Her writing is both gorgeous and insightful.

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Lori Johnson
Associate Professor of Law

What's the most important thing you are working on right now?
I'm working on an article exploring the interaction between narrative theory and the work of transactional practitioners. I proposed in a previous article (The Ethics of Non-Traditional Contract Drafting, 84 U. Cin. L. Rev. 595 (2016)) that the work of modern transactional attorneys involves significantly more advocacy than currently recognized in scholarship or professional regulation. As part of this advocacy, transactional lawyers use narrative, including techniques for coming to terms with time, strategy, and change, to satisfy client demands and deal with opposing counsel. The use of strategies has practical as well as ethical implications.

What is the most significant issue facing your field and how should it be addressed?
Transactional law is facing a lack of concrete ethical oversight, which has long been recognized in practice, but often overlooked in both scholarship and rulemaking. I am pleased that the Association of American Law Schools Section on Transactional Law and Skills will be exploring the topic of Ethics in Business Transactions at our upcoming Annual Meeting from both a practical and scholarly perspective.  I look forward to being a part of that conversation.

How does your scholarship influence your teaching and service and vice versa?
My scholarship on transactional skills and ethics truly enriches my teaching of Professional Responsibility, Lawyering Process, and Transactional Drafting. An awareness of the difficult judgments that arise in practice is invaluable not only in teaching ethics, but also in designing topics for my writing students. I have found that legal writing problems focused on malpractice issues serve double duty: first, providing interesting topics for first year writers; and second, providing them with an early introduction to ethical considerations.

What have you read, listened to, or watched recently that has influenced you or your work?
The Netflix series Making a Murderer has significantly impacted my work. The unethical behavior of prosecution in that series has generated very lively and productive discussions in my Professional Responsibility classes. Additionally, I've used it to inspire my Lawyering Process students by pointing out that students at my alma mater Northwestern Pritzker School of Law's Center on Wrongful Convictions of Youth assisted with the work to secure a writ of habeas corpus for Brendan Dassey, a minor defendant in the case profiled by the series.

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Linda Berger
Associate Dean for Faculty Development & Research and Family Foundation Professor of Law

What are you working on right now?
Kathy Stanchi and I are completing a book tentatively entitled Legal Persuasion: A Rhetorical Approach to the Science of Legal Persuasion. The book blends rhetorical theory and analysis with persuasion science and illustrates its findings with legal arguments from briefs and opinions. In our co-authorship, as well as in legal persuasion generally, we have found that making connections is critical to effective communication. Sometimes we agree, sometimes we disagree, sometimes we have to go back to zero or count to one hundred, but I always learn from the exchange, and the product becomes better. And when the book is completed, I will have someone to celebrate with who is at least as dedicated and committed to the project as I am.

Which of your recent publications should I read?
Speaking of collaborative projects, I’ve been fortunate enough to work with Jeanne Price and Terry Pollman on Examples & Explanations: Legal Research (forthcoming from Wolters Kluwer). And Kathy Stanchi, Bridget Crawford, and I are still celebrating the publication of Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge 2016).

What is it about being a law professor that inspires or motivates you?
Two things: working with students and being able to research whatever I am interested in. Working with students motivates me because they are so curious and committed and hard-working that I always feel lucky to share in their energy and enthusiasm. Their work pushes me to do more and to be more receptive to new ideas and ways to do things. As for the second motivator, in what other profession can you research a discipline or school of thought just because you think it’s fascinating? In the last few years, I’ve explored invitational rhetoric, narrative transportation, ideological rhetorical criticism, and practical wisdom – and applied what I’ve found to radically different settings.

Do you have a recommendation for reading or listening?
I saw Macbeth this summer (for the fourth or fifth time) – this version appeared to be set around the time of World War I and the opening scene took place in a military hospital. The language of a Shakespeare play is always worth close listening. But what impressed me most about this production was that you could see and feel the layers of history and playwriting and theater one on top of the other. Macbeth was performed first in the early 1600s, the play is based on a history published in the 1577, and the version I saw was set in the 1900s. So the themes and the events and even the characters are recognizably from the “Scottish play,” but this production’s shift in perspective changed my understanding of the sort of ambition that destroys character.

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Peter Bayer
Associate Professor of Law

What are you working on?
I have two articles in progress. First, the U.S. Supreme Court has recognized corporations as "legal persons" who enjoy almost every constitutional right, including due process of law and speech and religious rights under the First Amendment.  Despite much popular and scholarly sentiment against the Court’s position on this issue, I believe that the Court is correct, and in fact is even more correct than it realizes. This is so because although they are human creations, corporations are imbued with the actual dignity of their human constituents. Second, in perhaps the most important ruling since Marbury v. Madison, the recent Obergefell decision applied "dignity" concepts under due process to hold that states must permit otherwise eligible homosexual couples to marry.  For several decades, the Supreme Court has made vague allusions to "dignity" but perhaps understandably has refused to define that term in any detail.  I will argue that the Court’s anti-animus theory provides the correct and eminently workable definition of "dignity."

Which of your recent articles should I read?
Sacrifice and Sacred Honor: Why the Constitution Is a Suicide Pact, 20 Wm. & Mary Bill of Rts. J. 287 (2011). This article is the culmination of roughly forty years of thought and research on the meaning of due process, dignity, morality and constitutional supremacy over even societal survival.  I think my article proves what many believe is not provable: that death is morally preferable to violating the principles of due process of law, and that the Framers would agree if they were aware of modern moral philosophy.

How does your research and writing affect your teaching?
I am amazed that even seemingly unrelated research and writing has honed my understanding of courses I teach and the interrelationship among genres of law.  My writing as well has made me more sensitive to encouraging students’ abilities to be precise, thorough, critical, and creative.

What recent reading, listening, or viewing would you recommend?
It may seem trite to cite the remarkable film Judgment at Nuremberg, but I recently re-watched that intense yet often subtle film focusing on the "lesser" Nuremberg trials not of the Nazi leadership, but of four judges who enforced Third Reich statutes.  The lead defendant Ernst Janning, played by Burt Lancaster, is an Immanuel Kant-like philosopher who, as judge, betrayed his moral philosophy under the argument that his judicial and patriotic duty was to apply the laws of his nation.  Shaken by the trial evidence of cumulative judicial atrocities and accepting the justness of the court’s guilty verdict, Janning tells the tribunal’s chief judge, played by that most stalwart actor Spencer Tracy, "Those people … those millions of people.  I never knew it would come to that."  The Chief Judge replies with the line that closes the film, "Herr Janning, it came ‘to that’ the first time you sentenced a man to death you know was innocent."  Judgment at Nuremberg reminds us that morality admits no compromises.

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Linda Edwards
E.L. Cord Foundation Professor of Law

What are you working on?
The decisions of the Supreme Court function as law, but the Court is an intentionally undemocratic branch of government. Justices are appointed, not elected, and serve an unlimited term. Participation in argument is traditionally limited to only a few parties or entities. Despite the good reasons for the Court’s undemocratic role, its distance from citizens can be a very real problem. That’s why I’m exploring the recent dramatic rise in participation by non-parties and the use of novel forms of argument before the Court. Some have criticized these trends, but I argue that they are both theoretically legitimate and pragmatically helpful to the Court and its work. The article, "Telling Stories in the Supreme Court," will be published at 29 Yale J.L. & Feminism in 2016.

Which of your recent articles should I read?
Speaking of Stories and Law, 13 J. Leg. Communication & Rhetoric: J. A.L.W.D. 157 (2016). The relationship between law and storytelling is fundamentally important, both theoretically and in practice. Traditionally, that relationship was underdeveloped, but in recent years, scholarship about narrative has exploded onto the academic scene. Several distinct strands of inquiry have emerged, but those strands have not always been in conversation with each other. Because each would be enriched by a broader conversation, this article attempts to introduce them to each other. It offers a conceptual map of the field of narrative and law, and it explores the insights of three important strands of narrative scholarship about how law and story work together in both theory and practice. 

How does your work carry over to class?
In non-clinical courses, persuasion is usually taught at a beginner's level. I've been focusing on analyzing persuasion at a more advanced level, and that work has resulted in a new course, Briefs that Changed the World. I hope that the course will help future lawyers understand not only how they can persuade others but also what kind of person they might become in the process. It's a grand goal, I know, but maybe it's at least partly attainable.  I was so happy to read this anonymous student comment from last semester: "I would not be the same lawyer—or even the same person—without the experience of this class." A comment like that makes all the work worthwhile.  

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Sara Gordon
Associate Professor of Law

Which of your recent articles should I read?
I would recommend my article, The Use and Abuse of Mutual Support Groups in Drug Courts, which is forthcoming in the Illinois Law Review. There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court. Instead of receiving evidence-based treatment, most drug court participants are referred to mutual support groups and programs based largely or entirely on 12-step principles. In this paper, I argue that if individuals are to be compelled by drug courts to seek treatment for addiction, that treatment should be evidence-based and provided by trained and qualified medical and mental health professionals. Mutual support groups, while well-intentioned and helpful as a supplement to evidence-based addiction treatment, are not a substitute for scientifically valid addiction treatment and should not constitute the primary form of medical assistance received by drug court participants.

What is the most significant issue facing your field and how should it be addressed?
Right now, most of my research explores the experiences of individuals with addiction who enter the criminal justice system. I think a significant challenge facing these people, as well as the system more generally, is a lack of understanding that addiction is a brain disease, one with a biological basis similar to cancer or diabetes. Also missing is widespread recognition of the benefit of many available pharmacological treatments for the disease of addiction. Many drug courts, for instance, will not accept participants who are undergoing medication-assisted treatment for addiction and substance abuse, treatments which have been shown to be safe and highly effective for many people. I think we've gotten closer to overcoming the perception of substance abuse as a "moral failing," but our refusal to appropriately treat individuals with these conditions is a sign of how much further we have to go.

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