These guys? Oh, right...I remember.

How 'bout these? Nope. (Not yet, at least).

No, these are the champions!

Coaches Mary Jo Gleason, Michelle Grant Rudovich, competitors, David Scott and Scott Powell.

UofL News: UofL law students win national negotiation competition

March 3rd, 2008

A team of University of Louisville law students recently won the American Bar Association Law Student Division’s Negotiation Competition.

Scott Powell and David Scott, third-year students at the Brandeis School of Law, are the first UofL students to win the national competition. They will represent the United States in the International Negotiation Competition in London in July.

Acting as lawyers, Powell and Scott had to negotiate a series of legal problems in a simulated family law case. They defeated 20 other teams from such law schools as the University of California, Berkeley; Northwestern University; Boston College; the University of Tulsa; and the John Marshall Law School in Chicago.

Michelle Grant Rudovich, assistant commonwealth attorney and adjunct professor of law, and Mary Jo Gleason, staff attorney for Judge Denise Clayton with the Kentucky Court of Appeals, serve as team co-coaches. Rudovich was a student on the UofL team that came in third in the 2004 national competition.

“It is very exciting to work with a team that is so exceptional in every way — work ethic, negotiating skill, legal prowess and collaborative style,” Gleason said. “It reflects well on our law school to have students with this level of skill and ability.”

 

 

 

Are we making any progress towards land use that is more ecologically sustainable?  Is future progress possible?  These questions don’t have easy answers.  After all, terms like “sustainable development,” “sustainable communities,” and “smart growth” are broad enough to mean a lot of different things to different people and groups.  Their breadth can mask policies that might not be all that environmentally responsible or that might have unintended consequences.  They can result in merely symbolic policies without much substantive effect.  Efforts to achieve effective reforms encounter strong and persistent political, economic, socio-cultural, and psychological barriers.

 

Nonetheless, realism about the prospects of environmentally responsible land use policies cuts both ways.  There are areas of common ground between protecting natural environments and promoting good human quality of life.  There are achievable reforms that are being adopted or considered.  The land use planning and regulatory system has the capacity to promote and demand land use practices that are more environmentally sustainable than current practices.

 

Two different articles make realistic and balanced assessments of progress-to-date on sustainable land use in the United States, focusing primarily on progress among states and localities.  These articles also offer a variety of useful ideas about potential future progress and reform that will carry efforts towards sustainability forward.

 

The first article, written by land use scholar Patty Salkin, is “Squaring the Circle on Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use in the States,” and was published in the Widener Law Journal in 2007.  It can be downloaded in PDF for free from the Social Science Research Network (SSRN) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1025873.  Professor Salkin’s abstract states:

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and adopt politically palatable policies, programs, and regulations to best fit their unique jurisdictional sustainability needs. However, with the realization that a lot of innovation is taking place at the state level in furtherance of smart growth initiatives also comes the reality that if states fail to continue to promote and refine these programs, the United States will lose the fight for sustainability. This paper examines the recent efforts by states to provide localities with the tools necessary to curb sprawl and to promote sustainable communities.  

 

The second article, written by sustainability expert John Dernbach and neighborhood planner Scott Bernstein, is “Pursuing Sustainable Communities: Looking Back, Looking Forward,” and was published in the Urban Lawyer in 2003.  It can be downloaded in PDF for free from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=983502.  The abstract for this article states:

This article explains what sustainable development would mean for cities and other communities in the United States, describes U.S. efforts toward sustainable communities between 1992 and 2002, and recommends actions for the next decade. While the connections between environment and development are often abstractions at the national and international levels, they are perhaps nowhere more clear than the places where people live, work, and play. Municipalities should work with each other and with other levels of government to integrate their decision making processes for environment and development, using a strategic planning process and setting goals. Between 1992 and 2002, a small number of local governments addressed sustainable development in some comprehensive way. Sustainable community efforts were most visible on specific issues such as brownfield redevelopment; public access to information, participation, and justice; land use; transportation; housing; public health services; and education. In the coming decade, local governments should adopt and implement sustainable development strategies in coordination with nearby municipalities, and that states and the national government support such efforts. Sustainable development can and should be the organizing principle for improving quality of life and opportunity in our communities. The article also includes recommendations on specific issues.

When a court adds the fiduciary aspect to regular informed consent, it generally does not require proof by expert testimony.  The financial conflict that a doctor should disclose will be understood by the jury without an expert witness. The "regular" informed consent will still have to be proved in the usual manner.

During the presidential debate last Tuesday, NBC’s Tim Russert made a big deal out of the candidates’ ability to say the name of Dmitry Medvedev, the pliant functionary who Clinton correctly called “Putin’s handpicked successor" but stumbled over the correct pronunciation of his name. (Obama, perhaps wisely, didn't even try). Russert’s smugness was no doubt due to his access to pronunciation guides and his ability to practice a difficult name before employing it in the trivial gotcha game that passes for modern political journalism. Now, unless you run for president, you will likely not be subject to juvenile mind games by snarky gasbags like Russert. But you may want to correctly pronounce the names of foreign leaders and distant lands and, thanks to the Voice of America, you will be able to access the same kind high-quality tools that TV anchors use.

Broadcasters have long relied on reliable pronunciation guides but these tools were usually not available to the public. The guide privately maintained by the BBC’s Pronunciation Unit is the granddaddy of these tools and a current version was recently offered for sale in an affordable book form. (Something especially useful for those of us who like to opine on world affairs in an Oxbridge accent). In the states, the AP has a regularly updated guide available only to subscribers, but bootlegged older versions regularly pop up on websites. Unfortunately, newer names are still circulated privately and generally it’s the newer presidents, tyrants and rebels that beg for pronunciation assistance.

However, the publicly funded Voice of America has an excellent, regularly updated and completely free guide at http://names.voa.gov. It uses a simplified notation system that does not use diacriticals or symbols, but also provides MP3s of the names pronounced. Textual pages explain its methodology, its sources, and give more details on its pronunciation rules.

The BBC, AP and VOA guides give assistance on the names in the news, but occasionally a question arises over older names, obscure geographic locations, and characters in literature and mythology. In this case, I usually turn to some well-worn tools. For personal names, I refer to the first edition of Webster's Biographical Dictionary (1951) and its latest incarnation Merriam-Webster's Biographical Dictionary. The new version dropped hundreds of names but added almost as many; together used together they are fairly complete. Merriam-Webster's Geographical Dictionary is a solid source for place names. Webster’s Second International Dictionary (1934 and other printings) is a great source for help pronouncing the characters of mythic, biblical, and English literary history. The Online Merriam-Webster Dictionary also has pronunciation data (and audio cues) for many geographic and literary names.

 

This week, the students in my class edited each others' briefs.  As discussed in Editing Tips for the Busy Attorney, having a colleague edit one's work can help an attorney "avoid small errors, and eliminate the potential for a big negative impact."

Tactic One: Ask a colleague, friend, or

relative to swap editing

 

Often attorneys are hesitant to ask a

colleague to edit because it "wastes" the

colleague's time. Yet an agreement with

a colleague to edit each others' work is a

valuable trade for both people. It is difficult

for a reader to catch her own errors

because she understands the ideas she

hopes to convey and is familiar with the

document. Someone else is likely to

catch errors that the author will not

notice. The author, thus, benefits

immensely from a colleague's edits. The

editor too benefits, as each opportunity is

one to hone her own editing skills.

Interested in other tactics?  The article discusses three others.

The "Law and Order" and "CSI" of the 18th and 19th century were the half-penny broadsides which broadcasted the lurid details of sensational crimes, trials and hangings. The Harvard Law Library has announced the launch of a new digital collection "highlighting its extensive holdings of crime broadsides." It can be viewed at http://broadsides.law.harvard.edu.

From Harvard: "Just as programs are sold at sporting events today, broadsides--styled at the time as "Last Dying Speeches" or "Bloody Murders"--were sold to the udiences that gathered to witness public executions in eighteenth- and ineteenth-century Britain. The Library's collection of more than 500 of hese broadsides is one of the largest recorded and, to our knowledge, the first to be digitized in its entirety. The examples digitized span the ears 1707 to 1891 and include accounts of executions for such crimes as rson, assault, counterfeiting, horse theft, murder, rape, robbery, and reason. Many of the broadsides vividly describe the results of sentences anded down at London's central criminal court, the Old Bailey, the proceedings of which are now available online at http://www.oldbaileyonline.org."

 

A new blog launches to provide readers with resources on land use and the environment.  "Mapping the Landscape" will feature abstracts of and links to recent publications that address the intersection of land use and environmental issues.  Each blog entry will begin with a short explanatory statement about the importance or usefulness of the featured resource, followed by an abstract and a link to the publication.  The blog will appear weekly (or more frequently at times) and will initially feature articles freely downloadable from the Social Science Research Network.  Many of the posting will relate to themes of environmental responsibility in land use.  Watch for the posting on the first resource in the next few days.

Tony Arnold

Boehl Chair in Property and Land Use

Professor of Law & Affiliated Professor of Urban Planning

Chair of the Center for Land Use and Environmental Responsibility

University of Louisville

I enjoyed this post on our very active Blackboard discussion group.  I think it is worth sharing (with Kevin's permission) because it shows a core law course shedding light on an extra-legal pleasure:

 

Property, Lawyering Skills and Emily D   Author: Kevin Monsour

Has anyone else noticed that things read differently after a semester of Property (not to mention after 1.5 years of law school).  I stumbled across this this morning. It's Emily Dickinson talking about a garden being overtaken by winter.  For context:  her father was an attorney, they lost their farm when she was a child, and "Shaw" was Chief Justice of state SC.  (yes, I googled it).  Shaw was also, apparantly, a laborer who worked on the family land.  So beyond the metaphor for Emily's struggle with nature over her garden, is an actual property dispute.  (So in essence, to deconstruct it, it is sort of an un-metaphor)

Anyway, a little light property poetry:

#116

 

I had some things that I called mine –

And God, that he called his,

Till, recently a rival Claim

Disturbed these amities.

 

The property, my garden,

Which having sown with care,

He claims the pretty acre,

And sends a Bailiff there.

 

The station of the parties

Forbids publicity,

But Justice is sublimer

Than arms, or pedigree.

 

I’ll institute an “Action” –

I’ll vindicate the law –

Jove! Choose your counsel –

I retain “Shaw”!

 

 

 

I just now had the chance to read Preston v. Ferrer, No. 06-1463 (U.S. Feb. 20, 2008).   In Preston, the Court held "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA."  The Court mentions that when a contract incorporates the rules of a private arbitration service, such as the American Arbitration Association, those rules "trump" a choice-of-law clause.  This discussion is a nice reminder that you should be familiar with the rules of any designated private arbitration service when representing a party drafting or entering into an arbitration agreement.  (For discussion of some rules you might consider adopting based on lawyering skills, see my forthcoming article on the subject.)

 

This week my class looked at a sample set of Statements of Facts in opposing briefs.  We identified some fact persuasion techniques that were used well.  They are all good techniques to consider using if you are writing a Statement of Facts.

     1. Writing the statement of facts from the client's viewpoint.

     2. Juxtaposing material adverse facts with material favorable facts in order to deemphasize the adverse facts.

     3. Using name and title to humanize the client.

     4. Using a descriptive term rather than names to dehumanize certain people or entities related to the opposing party.

     5. Using detailed description to emphasize favorable facts.

     6. Using concrete nouns and verbs to emphasize favorable facts.

     7. Using the passive voice to intentionally hide the actor.

     8. Using a brief quotation for emphasis.

Generally, repetition can also be used as a fact persuasion technique.  We noticed, however, that one brief had repeatedly used a specific adjective to describe the opposing party.  We felt the adjective was overused.  This serves as a reminder that fact persuasion techniques should be used judiciously to be effective; if the technique is apparent to the reader, it may fail to persuade.

I would like to thank all of my students for identifying these techniques in use!