A writer who wants to avoid gender bias can adopt "gender-neutral language" (sometimes called "gender-inclusive language" or "nonsexist language").  Some people object to gender-neutral language on the ground that it leads to awkward phrasing.  But that need not happen, as the following examples illustrate.

 

            Suppose the writer's first draft includes this gender-biased statement: "A lawyer should frame his argument in persuasive language."  "His" is jarring, especially now that many lawyers are women.  But there are numerous graceful ways to revise the sentence for inclusiveness:

 

            1.  Make the noun plural so a plural pronoun fits.  "Lawyers should frame their arguments in persuasive language."

 

            Comment: Note that in formal writing, it is not correct to use a plural pronoun to refer to a singular noun.  So both the noun and the pronoun must be changed here.

 

            2.  Use paired pronouns.  "A lawyer should frame his or her arguments in persuasive language."

 

            3.  Reframe the sentence to eliminate the pronoun.  "A lawyer's argument should be framed in persuasive language.

 

            Comment:  This version changes the sentence to the passive voice, which makes it more wordy and less direct.  Many stylists urge writers to use the active voice for most sentences.

 

            4.  Alternate pronouns.  "A lawyer should frame his argument in persuasive language.  This may convince the judge to write her decision in his favor." 

 

            In choosing among the above options, a writer should consider the context.  A primary goal should be to avoid irritating the reader.  Alternatives 2 - 4 can become annoying if they are repeated too often in close proximity, so they should be used carefully. 

 

            These are common suggestions for eliminating biased pronouns.  Next week I'll discuss some less common tactics.

In my last post I mentioned Edward T. Cremmins' excellent book on abstracting which suggests a  three-stage analytical reading process when writing abstracts.  The first step, retrieval reading, has the writer read quickly through the text looking for possible information to include in the abstract.  Cremmins uses an easy and effective system to mark various parts of the paper for possible future use in an abstract.  Cremmins assigns geometric symbols (square, circle, arrow) to various components of the text which need to be included in an abstract (purpose, methodology, results, implications).  For example, in the margins he places a circle by material discussing purpose, scope and methods and a square for results.  

 

I use a similar method with my Basic Legal Skills students when I teach them the formula for organizing legal analysis (CREAC).  I tell them to use highlighters to mark various parts of their memos so they can make sure they are following an analytical structure that legal readers know and expect.  For example, they should use a green highlighter to mark rule sentences and a yellow highlighter to flag sentences which apply the law to the client's facts.  Mary Beth Beazley from Ohio State first introduced me to this method which helps many students keep their work organized by helping them in a very visual way to avoid the common error of discussing client facts before explaining the law. Abstract writers could modify this process and during their retrieval reading use different colored highlighters to mark key terms, phrases and sentences for the various elements of the abstract.  Having the material already classified by elements will make the actual drafting process much simpler for the writer. 

 

Others suggest reverse outlining which involves trying to write one main idea from each paragraph of the paper and then grouping these main ideas for each of the paper's sections into one sentence. See The Writing Center University of North Carolina Chapel Hill, Abstracts http://www.unc.edu/depts/wcweb/handouts/abstracts.html.   This might be particularly useful in law since we are trained to begin paragraphs with straightforward thesis sentences.  A similar strategy is to cut and paste sentences of key passages into a document which can later be edited into an abstract.  Id.

 

Spending a little bit of time on this retrieval reading process will ultimately save time for the writer and produce better and more informative abstracts.  When writers locate key terms, phrases and sentences before writing the various components of an abstract, they consciously and systematically identify the most important parts of the paper.  Skipping this step and failing to organize the material at the beginning of the abstract writing process will only make your efforts at condensing the text for the abstract unmanageable and frustrating.

 

A law professor helping out in a law office?  Can that work?  

Well, from the law professor’s perspective, at least, the answer is yes.

Two years ago Jeff Been, Executive Director of the Legal Aid Society of Louisville proposed the Brandeis Partners for Justice Fellowship, a partnership between the University of Louisville’s School of Law and Legal Aid.  A faculty member from the law school spends a block of time at Legal Aid during the academic year or summer term. The arrangement lets the faculty member get familiar with some of the issues facing our graduates and others at Legal Aid, and also provides a reminder of what the daily practice of law is like.  In turn, the faculty member has the opportunity to contribute a bit to the mission at Legal Aid. 

I’m in my third week as the Brandeis Fellow at the Louisville Legal Aid Society and, thanks to the great staff at Legal Aid, thus far there has been plenty for me to do.  Several tasks have come my way because of my teaching specialty, which is legal writing.  Thus I’m busy revising the office manual for case handlers and working to reorganize a tenants’ rights manual for the housing unit.  I’ve also had the opportunity to look at some documents drafted by staff members, which provides a reminder to me of the volume of writing that lawyers produce in the practice of law.  

I’ve done some quick research projects, which I always enjoy, and am working on a more substantial issue that will take some time.  And yes, I’m already thinking, “Wow, this would be a good topic for an article.”  I may be doing some community outreach – contacting organizations that provide services to low-income individuals to explain some of the services available at Legal Aid.  Plus, just this week one of the lawyers let me tag along to district court, where the lawyer had two cases scheduled.  Both were quick and noncontroversial, but it was fun to be in the courtroom and watch the proceedings.

I am the second UofL Law School professor to participate in the Brandeis Partners for Justice Fellowship program – the first was Grosscurth Professor of Law John Cross.  John worked with the Legal Aid Society's consumer law unit to organize and conduct workshops on bankruptcy for over 100 clients.  I’m sure John will agree that the Partners for Justice Fellowship is a great opportunity.  I am confident I am gaining a fresh perspective that I can take into the classroom when I next teach.

I’ll try to provide an occasional update! 

 

Mental illness affects 1 in 5 Americans, yet those who suffer from it are the most stigmatized group in the nation. NAMI—the National Alliance on Mental Illness—works in a number of ways to help those with mental illness. In particular, NAMI Louisville advocates for those with mental illness in the Kentucky capital city in Frankfort, provides support groups for both mental health consumers and their families, trains Louisville Metropolitan Police Department officers to deal with consumers in crisis through its Crisis Intervention Team, and puts on important programs. This year, NAMI Louisville is bringing Professor Elyn R. Saks of the University of Southern California Law School, author of the acclaimed memoir The Center Cannot Hold: My Journey Through Madness which relates her incredibly successful career despite having schizophrenia, to speak at the Brandeis School of Law at noon on October 27. You can support NAMI Louisville, for which I am the consumer Board member, by taking part in the annual NAMI Walk on September 13, with registration starting at 9 AM and the Walk at 11 AM at the Harbor Lawn at Waterfront Park. The more walkers the better, and Walk participants can also raise money to support NAMI Louisville’s important work by having friends and family pledge to support their Walk efforts. To register for the Walk, go to http://xrl.us/jimsteam and sign up for the Jim’s A Successful Consumer team. If you do not want to walk but want to contribute towards NAMI Louisville's good work, gifts may be made at http://xrl.us/jimwalks.

 

 

As summer ends and we look toward rainy days of indoor activities, consider renting a movie about labor.  Tom Zaniello's "Working Stiffs, Union Maids, Reds, and Riffraff:  An Organized Guide to Films About Labor" describes a broad selection of movies.  There are the old standards, like Norma Rae, which I watched with my labor law class a couple of weeks ago.  But there are also less well-known Hollywood films and countless documentaries.  The movies span the range of perspectives on organized labor.  The movies also include many that are not about organized labor at all but instead focus on topics such as the depression, farmworkers, slavery, or women in the workforce.

I'm certainly making a list of those I would like to watch.  Let me know your favorites!

 

Carol Brown, a law professor at the University of North Carolina Law School, is a young scholar of emerging importance in property law and the environment.  One of the themes of this blog is the reconceptualization of property rights and interests to address ecological sustainability and the environment’s carrying capacity.  Professor Brown has written several valuable articles in this area.  I have provided links and abstracts for two of these articles, below:

 

1) Carol Necole Brown, A Time to Preserve: A Call for Formal Private-Party Rights in Perpetual Conservation Easements. U of Alabama Public Law Research Paper No. 08-07, Available at SSRN: http://ssrn.com/abstract=881868 

Abstract:     

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs.  My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated. More specifically, private parties should have standing to defend perpetual conservation easements. A common law property interest would be analogous to the third-party right of enforcement created by the Uniform Conservation Easement Act ("UCEA") and codified by many states in their state statutes.

It is not my contention that either grantors, holders, or society in general should be bound by a perpetual conservation easement restriction forever. Some degree of flexibility to reflect changing societal needs is prudent. When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions, the interests of the larger society should be represented in the calculus. Conferring private-party standing would allow these interests to be represented.

My Article provides an efficiency and social justice critique. First, in Part II, I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements. I also discuss the close relationship between preservation and a strong private property regime. Second, in Part III, I discuss challenges to perpetual conservation easements, the doctrine of changed conditions, as well as the importance of private-party enforcement rights to the defense of conservation easements. Next, in Part IV, I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions, concluding that private parties should have a recognized, common law property interest in the conservation easement. Then, in Part V, I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system. Finally, in Part VI, I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions. I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership.

 

2) Carol Necole Brown,Drinking from a Deep Well: The Public Trust Doctrine and Western Water Law. U of Alabama Public Law Research Paper No. 894088, Available at SSRN: http://ssrn.com/abstract=894088

Abstract:     

American water law reflects the diverse geography and population patterns of our country. The arid western states provide fertile ground to consider the burdens of a rapidly growing region on scarce water resources. This Article's thesis is that the public trust doctrine is being underutilized by those western states to address their water scarcity dilemma. I recommend extending the geographical scope of the public trust doctrine to encompass all bodies of water that serve the public welfare, even minimally.

In the Article, I compare an expanded public trust doctrine against a more aggressive application of the prior appropriation doctrine. I discuss why the prior appropriation doctrine and its commodification of water rights is a lesser alternative to rethinking the public trust doctrine. Additionally, I discuss the problem of vested rights and takings challenges that may arise in the wake of an expanded public trust concept. I use the recent United States Supreme Court case Kelo v. Town of New London to illustrate the similarities between the Court's "traditionally broad understanding of public purpose" in the context of takings jurisprudence and the historically dynamic nature of the public trust doctrine. My Article explores the proper role of the public trust doctrine in responding to historic mistakes in this country's approach to water use and conservation in the arid west.

 

In his excellent book, The Art Of Abstracting, Edward T. Cummins offers simple, straightforward advice for writing abstracts.  Cummins suggests writing excellent abstracts requires a mastery of the three "Rs."  The three "Rs' refers to a three-stage analytical reading method that mirrors the task of thinking, writing and editing.  Each step of the process requires the writer to engage in different types of reading including retrieval reading, creative reading and critical reading.

 

Cummins breaks the process of abstract writing into four identifiable and discrete steps:

"1. focusing on the basic features of the materials to be abstracted;

2. identifying relevant information;

3. extracting, organizing, and reducing the relevant information into a coherent unit, usually one paragraph long; and

4.  refining the completed abstract through editing." (page 15)

 

Future posts will examine each of these stages. 

It was five years ago that Gil Grantmore put individual gun rights in the crosshairs.  His article, The Phages of American Law, offered readers a tough and sensible critique of the "causal" interpretation of the Second Amendment.  The causal reading, endorsed by the Fifth Circuit in United States v. Emerson, holds that the individual right to keep and bear arms exists insomuch as it is a necessary means to realize the collective right to a well-regulated militia.  This interpretation is grounded in the framers' belief that militias, intermittent and decentralized by nature, would be ineffectual if the people could not arm themselves for at least some non-militia purposes.  The Fifth Circuit in Emerson observed:   

Absent a citizenry generally keeping and bearing their own private arms, a militia as it was then thought of could not meaningfully exist.  As pointed out by Thomas Cooley, the right of individual Americans to keep, carry, and acquaint themselves with firearms does indeed promote a well-regulated militia by fostering the development of a pool of firearms-familiar citizens that could be called upon to serve in the militia. 

Phages, in my opinion, methodically dismantled Emerson and the causal theory of individual gun rights.  Grantmore's cardinal point was that, because the term "militia" appears in various parts of the Constitution, its broad interpretation in the Second Amendment context would necessarily lead to large and unconscionable expansions of legislative and executive powers.  Grantmore also demonstrated the absurdity of incorporating the Emerson right against the states.

This past term, the Supreme Court, in the watershed decision of District of Columbia v. Heller, recognized an individual right to keep and bear arms.  But instead of taking the causal approach, and straining "militia" to encompass an individual right, the Heller majority simply unhinged the individual right from the militia right.  (Justice Scalia, writing for five justices, concluded that "[t]he prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right [to bear arms].")  The majority then went on to hold that the Amendment codified an implied individual right to keep and bear arms for defensive purposes.  By working around--rather than through--the "militia" language, Heller seems to have sidestepped the constitutional concerns raised by Grantmore. 

On this coming Constitution Day, September 17, Gil Grantmore and I will host a video discussion of the Heller decision.  Subjects of analysis will include originalism, the demise of the causal reading of the Second Amendment, and Heller's impact on law and public policy. 

Since my last blog posting, I have given a number of talks on my life with mental illness.  More specifically, on April 15 I spoke about "Severe Mental Illness in the Academy:  A Law Professor's Story" to the Psychiatry, Mental Health and the Law class at the Brandeis School of Law;  on June 4 I spoke about "Severe Mental Illness, Stigma, and the Value of Treatment" to the Psychopathology class at the Kent School of Social Work at the University of Louisville;  on July 2 I spoke about that topic with a group of the Kentucky Governor's Scholars (the top high school students in Kentucky);  on July 17 I spoke on that topic with the clinical staff at Wellspring, a mental health care agency;  and on August 26 I spoke about how those with severe mental illness can be successful professionals to the training class for the Crisis Intervention Team of the Louisville Metropolitan Police Department.  Future scheduled talks will be to the Kent School of Social Work at the University of Louisville Psychopathology class, the Grand Rounds of the Department of Psychiatry at the University of Louisville School of Medicine, the annual meeting of the Indiana Conference of Rehabilitative Psychiatric Services, NAMI Louisville, and the Association of American Law Schools.

 

In addition to my own talks, I, in conjunction with NAMI Louisville and the Brandeis School of Law, have arranged to have Professor Elyn R. Saks of the Gould School of Law at the University of Southern California and author of the acclaimed memoir The Center Cannot Hold:  My Journey Through Madness (Hyperion 2007) speak at the University of Louisville on October 26 and 27 about her career as a highly successful legal academic who has schizophrenia.

You may have seen that we're going to be starting a live client clinic, with the first students to be enrolled in January. I am the acting director for the moment, but we're searching for a full time person to run the clinic for us. The following is our ad. If interested, please feel free to send your resume to me:

 

Clinical Teaching Position at the University of Louisville School of Law

The University of Louisville School of Law seeks applications for a tenure-track clinical position. The successful candidate will work in the school's newly established clinic located in downtown Louisville, Kentucky. Because the clinic is new, its precise focus has not yet been defined. The faculty has agreed that as a general matter, the clinic will eventually have two branches: a transactional branch and a branch involving representation in civil cases. We anticipate that the particular skills, interest, and experience of the new faculty member will help define the particular focus of the clinic. Thus, this position affords a unique opportunity to help shape the mission of the new clinic. We will consider candidates specializing in transactional work, civil dispute resolution, or a combination. Candidates who can contribute to the diversity of the faculty are especially encouraged to apply.

Qualified applicants would ordinarily have at least 4 years of experience, either in practice or in combination with clinical teaching. Other relevant experience will be considered. Applicants must be a member of the Kentucky Bar or must attain membership by examination or reciprocity within one year of joining the faculty.

The University of Louisville School of Law is a relatively small institution located in the dynamic city of Louisville, Kentucky. It is the fifth oldest American law school in continuous operation, and was one of the first to adopt a mandatory public service requirement for all students. The law school is part of a major research institution, providing opportunities for cross-disciplinary work.

Interested candidates may submit an application to Professor Lars Smith, chair of the clinic committee, at the School of Law (502.852.7273). All applications should include a proposed "mission statement" for the clinic, discussing the particular area(s) on which the applicant would focus the clinic's activities.

Send resume to: 

Lars S. Smith
Professor and Samuel J. Stallings Chair in Law
University of Louisville
Louis D. Brandeis School of Law
2301 S. Third Street
Louisville, KY 40208
Tel: 502-852-7273
Fax: 502-852-0862