LINK to article on SSRN
ABSTRACT:
This contribution introduces a novel approach to study legal interactions, legal professions, and legal institutions, by combining argumentation, game theory and evolution. We consider a population of lawyers, having different postures, who engage in adversarial argumentation with other lawyers, obtaining outcomes according to the existing context and their chosen strategies. We examine the resulting games and analyse the evolution of the population.
European University Institute Working Paper Series
This new framework has enabled us to show that given certain hypotheses concerning the costs of proceeding, the most successful posture for a lawyer is to be non-honest and nonaggressive, followed by being honest and aggressive, then by being honest and non-aggressive, and finally by being non-honest and aggressive. In other words, given that framework, being non-honest pays only when one is non-aggressive, while aggressiveness only pays when coupled with honesty. We have also shown that by changing the external variable (in particular by reducing the costs of adversarial contest), dishonesty may lose its edge. Our dynamical analysis, while being still very preliminary, also leads to interesting results, such as the emergence (given a certain cost structure) of an environment where non-honest lawyers tend to prevail, followed by non-honest and aggressive ones, while the frequency of the honest and non-aggressive tends to decrease. More important, we the ideas presented in the present paper pave the way for future developments where AI and law can be combined not only with argumentation theory but also with legal sociology and (behavioural) economics.
Jeff Klenner Downloadable .pdf, Law Review Journal Article European University Institute, Game Theory, SSRN
”Balance is the key to quality judicial writing . . . because pride unrestrained can stiffen resistance, or even close the mind entirely, to helpful suggestions from others.”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555959
Professor Abrams (University of Missouri School of Law) authors a column, Writing it Right, in Precedent, The Missouri Bar’s quarterly magazine. In a variety of contexts, the column stresses the fundamentals of quality legal writing – precision, conciseness, simplicity, and clarity
NOTE:
This article is adapted from Professor Abrams’ address to the international meeting of the Association of Reporters of Judicial Decisions in Halifax, Nova Scotia on August 7, 2009.
Jeff Klenner Downloadable .pdf, Magazine Article Legal Writing
“The Lawyer’s Dilemma: To Be or Not to Be a Problem-Solving Negotiator” 
Clinical Law Review, Vol. 14, p. 253, 2007
NYLS Clinical Research Institute Paper No. 08/09 #10
ALEX J. HURDER, Vanderbilt University – School of Law
Email: Alex.Hurder@law.vanderbilt.edu
The problem-solving approach to legal negotiation requires that lawyers both compete and cooperate with their adversaries. This article urges legal education, and clinical legal education in particular, to endorse and teach the problem-solving approach to legal negotiation as the preferred approach for both litigation and transactional practices. Trial lawyers have been reluctant to embrace the cooperative aspects of negotiation, and ethical rules of the legal profession often seem to discourage cooperation with adversaries. As a result, lawyers often fail to reach beneficial solutions and deals that create value for their clients. The act of making a voluntary settlement in litigation or an agreement in transactional practice transforms each party’s subjective evaluation of a potential deal into objective and measurable value. All parties to a voluntary settlement or agreement walk away better off than they would have been without the deal. Thus, problem-solving negotiation allows lawyers to create value for their clients. It should be the standard for legal negotiation.
Jeff Klenner Downloadable .pdf ADR
“Intent to Contract”
Virginia Law Review, Vol. 95, 2009
Georgetown Law and Economics Research Paper No. 09-07
Georgetown Public Law and Legal Theory Research Paper No. 09-07
GREGORY KLASS, Georgetown University – Law Center
Email: gmk9@law.georgetown.edu
There is a remarkable difference between black-letter contract laws of the United States and England. In England, the existence of a contract is supposedly conditioned on the parties’ intent to be legally bound, while section 21 of the Second Restatement of Contracts states that “[n]either real nor apparent intention that a promise be legally binding is essential to the formation of a contract.” There are also differences within U.S. law on the issue. While section 21 describes courts’ approach to most contracts, the parties’ intent to contact can be a condition of validity of preliminary agreements, domestic agreements and social arrangements, reporters’ promises of confidentiality to sources, and gratuitous promises.
This Article develops an analytic framework for evaluating these rules and examines their relationship to the broader principles that animate contract law. Rules that condition contractual liability on proof of contractual intent must include rules for interpreting that intent. Those interpretive rules will include both interpretive defaults and rules for what it takes to opt-out of the default. By adjusting these default and opt-out rules, the law can achieve different balances between the duty-imposing and power-conferring functions of contract law, or among the various reasons for enforcement. This is demonstrated by an analysis of the rules for gratuitous promises, preliminary agreements, spousal agreements and reporters’ confidentiality promises. The results of that analysis include a new argument for the Model Written Obligations Act; a critique of Alan Schwartz and Robert Scott’s proposal preliminary agreements and a recommended alternative to it; and recommended changes to the rules for agreements between spouses. Attention to intent to contract requirements also indicates an overlooked aspect of how the enforcement of contracts affects extralegal norms and relationships of trust. Interpretive rules that require parties who want, or who do not want, legal liability expressly to say so are particularly likely to interfere with or erode extralegal forms trust that otherwise create value in transactions.
Jeff Klenner Downloadable .pdf Contract Law
Opinion Writing and Opinion Reading — download
The authors-a federal appellate judge and his law clerks-bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert’s classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, 2d Edition, an updated, comprehensive guide intended to be of wide practical use to members of the judiciary, judicial staff attorneys and law clerks, state and federal administrative judges, hearing officers, commissioners and private arbitrators, law librarians, scholars and students. This Article draws from and complements topics addressed in Opinion Writing, 2d Edition, while specifically highlighting the relationship between opinion writing and opinion readers.
Keywords: opinion writing, judicial process, legal writing, appellate, judiciary, clerking
Jeff Klenner Downloadable .pdf Add new tag, Jurisprudence
While this isn’t a traditional law school, there are components of this new law journal article that might be of interest to some of the instructors at SPU:
Karl S. Okamoto
Drexel University – Earle Mack School of Law
January 17, 2009
Abstract:
Law schools are giving more and more attention to transactional lawyering. Once relegated to a single course on “business planning,” law school curriculums at every level of law school are being pushed to include a new focus on teaching future practitioners how to do deals. In doing so, law schools are discovering that the skills required to be a proficient transactional lawyer are often different from those needed by litigators or judges. Therefore the curriculum that teaches students how to “think like a lawyer” falls short when the goal becomes to teach them to “think like a deal lawyer.” This article describes a novel transactional lawyering course designed to serve as the “keystone” course in a transactional lawyering curriculum.
Keywords: Lawyering, Pedagogy, Skills Training, Law School Curriculum
Jeff Klenner Downloadable .pdf Add new tag, Legal Education
101/201 Practice Series resources at the ABA’s Young Lawyers Division site represent a wide array of documents available as FREE .pdf downloads in such topic areas as:
The practice series is an online resource for new lawyers covering basic training in both substantive and practical aspects of law practice. With over 170 quick tips and tools, this series is an essential resource for lawyers in their first three years of practice and is exclusively available to ABA members.
Building on the basics of the 101 Practice Series, the 201 Practice Series goes a step beyond; relating to more “advanced” topics for young lawyers who already have a baseline of knowledge in the relevant field. This resource is exclusively available to ABA members.
Jeff Klenner Downloadable .pdf Law Practice Management
“Which States Have the Best (and Worst) High Courts?”
Stephen J. Choi
New York University – School of Law
G. Mitu Gulati
Duke University – School of Law
Eric A. Posner
University of Chicago – Law School
May 1, 2008
U of Chicago Law & Economics, Olin Working Paper No. 405
U of Chicago, Public Law Working Paper No. 217
Abstract:
This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with those of other scholars and the U.S. Chamber of Commerce, whose influential rankings are based on surveys of lawyers at big corporations.
Keywords: state courts, high courts, court performance
Working Paper Series
Date posted: March 10, 2009 ; Last revised: March 10, 2009
Jeff Klenner Downloadable .pdf Add new tag, State Courts
Reform Principles to Improve U.S. Civil Justice Released
The Final Report on the Joint Project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS) is the culmination of an 18-month collaboration between the two organizations. This report includes a set of 29 proposed Principles that may one day underpin reform of the civil rules of procedure in both federal and state systems.
One of the major Principles examines the traditional “one size fits all” application of rules to all cases and concludes that this approach no longer works. Instead, flexibility in applying specialized procedures to some cases should be permitted to promote efficient and affordable outcomes. The Final Report represents phase two of the initiative, which began with a national survey of ACTL members, undertaken to identify the sources of spiraling cost and delay in our civil justice system.
The release of the Principles will provide the platform for an important nationwide conversation about these crucial issues. Please click here to download a copy of this report.
Jeff Klenner Downloadable .pdf Add new tag, Discovery