Author: Jessica Erickson


Legal Writing After the First Year

It has been great to guest blog over the past month.  Thanks again to the Concurring Opinions folks for inviting me!

For my final post, I want to hit on one last curricular issue—legal writing.  At my law school, we are in the midst of a curriculum review, which has caused me to spend many hours investigating other schools’ legal writing programs.  The first thing that jumped out at me as I did this research was that the first-year writing programs at most schools look remarkably similar.  Most schools do predictive writing (i.e., memos) in the first semester and persuasive writing (i.e. briefs) in the second semester.  There are obviously some differences, but the core parameters are fairly standard.

Beyond the first year, however, there is tremendous variability.  Some schools require almost no writing whatsoever (other than a seminar paper, as discussed in my last post).  Other schools have a more sophisticated upper-level writing program.  For the schools that do require an upper-level writing course other than a seminar, these courses seem to fall into one of two categories.  The first category focuses on legal analysis.  These schools come back to the writing and analytical skills acquired in the first year and take them one step further, requiring students to analyze more complex legal problems.  The second category focuses on drafting.  These schools require students to choose from a menu of upper-level drafting options—litigation drafting, contract drafting, family law drafting, etc.

Assuming that a school is committed to legal writing, which model should it choose?  Read More


Does the Traditional Seminar Paper Make Sense?

Returning to my curricular musings, I want to discuss a mainstay of the law school curriculum: the seminar paper.  The American Bar Association requires law students to complete a “rigorous writing experience after the first year.”   Most law schools satisfy this requirement by mandating that students write a research paper before they graduate.  Students typically write these papers as part of a seminar or independent research project, and many schools require these papers to be of “publishable quality,” similar to a student note in a law review.

I will start by confessing that I have not taught a traditional seminar, although I have supervised many independent studies.  I will also confess that I have often been disappointed with the results of these independent studies.  Maybe I just lack the crucial skills necessary to help my students blossom in this area, but I have talked to other professors at a variety of schools who have had similar experiences.  These discussions raise two questions in my mind.

First, are we setting students up for failure by requiring them to write a traditional seminar paper?  These requirements are premised on the belief that students can identify a cutting-edge legal issue, research it, and write an insightful analysis of thirty or so pages, all in approximately fourteen weeks.  And of course, students have to juggle all of their other coursework at the same time, often receiving only two or three credits in the seminar.  One of my colleagues commented that he wasn’t sure he could meet this requirement—indeed, professors often take a year or more to write an article, and we are well-versed with the underlying law and the writing process.  Our articles are longer and more involved, but it still may be no surprise that we are so often disappointed with the ultimate results. Read More


Needle in the Haystack Litigation

I am primarily a corporate law person, but I dabble in civil procedure. During my research, I have been intrigued by what I will colloquially call “needle in the haystack” litigation. Needle in the haystack litigation is litigation where we fear that many of the cases are frivolous, but within this haystack of frivolous suits are meritorious suits that we value. Examples of this type of litigation include securities class actions, prisoner litigation, and perhaps some types of employee claims. The challenge for the legal system is finding these needles in the haystack, or more specifically, setting up procedural rules that encourage plaintiffs to file more meritorious suits and fewer frivolous ones.

Leaving aside the question whether the majority of these claims actually are frivolous, it is curious to me that different areas of the law use such different tools to sort the needles from the haystack. In securities class actions, for example, Congress raised the pleading standards to require plaintiffs to plead facts that create a “strong inference” that the defendants intended to deceive investors. It also mandated a Rule 11 inquiry at the end of the litigation. In prisoner litigation, judges have the authority to dismiss prisoner claims if the court is satisfied that the claims are frivolous, malicious, or filed against a defendant who has immunity. Congress also eliminated damages for emotional or mental injuries without a prior showing of physical injury. In medical malpractice suits, plaintiffs in many states have to submit their claims to review by a medical review panel. In Virginia, for example, either party can request that the court appoint a review panel composed of doctors and lawyers to assess the validity of the claim—the panel’s decision is non-binding but admissible in later litigation.

Then I started thinking more broadly about all of the different procedural tools available to combat litigation perceived to be frivolous. Obviously most procedural rules are transsubstantive, but there are plenty of procedural rules that are only used in specific contexts, including special standing limitations, heightened pleading standards, administrative review of claims, heightened Rule 11 inquiries, judicial approval of settlements, limitations on attorneys’ fees, stays of discovery, and verification of complaints. Read More


Tips for Empirical Newbies

When I started teaching four years ago, the advice for junior scholars on empirical research was pretty clear: Don’t do it unless you have graduate training in statistics or a related field. Since I shied away from math until becoming a professor, this advice should have led me far away from empirical projects. But a few years ago, I decided to take on a fairly simple empirical project, and I have spent the last few years trying to get up the courage to take on a more complicated project. There has been plenty of trial and error, and there are certainly things about my original project that I would change now. I have nonetheless learned a few things that might be helpful to other empirical newbies:

Start Small. I respect the people who do fancy modeling and cutting-edge statistical tests, but not all empirical scholarship needs to look like that. Some of my favorite empirical work (like those here and here) takes a more descriptive approach, uncovering an interesting corner of the legal world and describing it. There certainly can be pitfalls to this type of work, but if you do it right, you can make a real contribution to legal scholarship while staying within your comfort zone.

Go to the Workshops on Conducting Empirical Legal Scholarship put on by Lee Epstein and Andrew Martin. I have been to both the introductory and advanced conferences, and I found them both to be excellent. I think the advanced workshop is essential if you want to do your own research. Both conferences could also be helpful if you have no intention of doing your own empirical scholarship, but simply want to be a more informed reader of other people’s scholarship. I know other schools are starting to offer similar programs, so it may be even easier to attend these programs in the future.

Take statistics courses at your own institution. People often say that they couldn’t possibly find the time to take a statistics course, especially if they are a junior professor and are still prepping their own courses and getting their publishing legs under them. But I am not sure it is actually that hard. One of the great things about already having a teaching job is that we don’t have to impress anyone in these courses. If you audit the course, you can do only the work that complements your own goals, which may mean skipping the tests, group projects, etc. I started taking statistic courses at our business school two years ago. I took two introductory courses and then started taking more advanced Ph.D level courses last year at a nearby university. I probably spend 4-5 hours per week on these courses, which is a significant chunk of time but definitely doable. I do think it is key to take courses that start in the early morning or late afternoon so that they don’t cut into your day too much. Read More


Corporate Control in the Courtroom

Corporate litigation has long followed a predictable pattern. When a corporation announces a restatement or similar bad news, shareholders race to the courtroom, filing nearly identical complaints in multiple courts. Congress sought to halt this practice in federal securities cases through the Private Securities Litigation Reform Act, but the practice continues unabated in state law cases. The Delaware Court of Chancery has been the clear loser of this filing strategy. Empirical evidence suggests that shareholder lawsuits are leaving Delaware in droves. Defense lawyers even claim that plaintiffs now use an “Anywhere but Chancery” approach when filing state law class actions and derivative suits.

The Delaware Court of Chancery recently suggested one way for corporations to protect themselves from these practices. Last summer, Vice Chancellor Laster stated in dicta that “if boards of directors and stockholders believe that a particular forum would provide an efficient and value-promoting locus for dispute resolution,” these corporations should adopt a charter provision selecting this forum as the exclusive venue for shareholder lawsuits.  This idea was not unprecedented—a small number of companies had already included such provisions in their governing documents—but it was the first time (to my knowledge) that the concept received judicial approval.  The defense bar quickly picked up the charge, with Wachtell, Lipton, Rosen & Katz recommending to its corporate clients that they adopt a charter amendment requiring that the Delaware Court of Chancery be the “sole and exclusive forum” for any breach of fiduciary duty suit filed against the company or its officers, directors, or shareholders. A recent memorandum by Latham & Watkins reports that more than 70 companies have included these provisions in their bylaws or charters.

This development raises intriguing questions about how much control corporations should have when it comes to lawsuits filed by their shareholders. Read More


Teaching Materials for Practicum Courses

You would have to live under a rock not to know that law schools increasingly feel the pressure to teach practical skills. Law schools can no longer teach doctrine and count on law firms to teach new lawyers the skills they need.  As a result, many schools are starting to incorporate practicum-style courses into the curriculum. These courses allow students to learn litigation or transactional skills in the classroom by working on simulated cases or transactions.

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of practical skills, including how to untangle financial statements, read complex statutes, and draft various case materials. It looked so good in my head. Then I actually tried to put together the course. There was no textbook. There were no model exercises. There was no anything… I spent a crazy amount of time putting together a course packet, coming up with weekly drafting assignments, and thinking about how to teach the skills I thought my students would need. I hesitate to say exactly how much time out of fear of scaring away others, but I still have flashbacks of sitting at my kitchen table for days on end trying to come up with creative fact patterns and drafting exercises.

At the end of the day, I was able to put together the materials for a course called Corporate Fraud & Litigation. I have taught the course twice now, and I really love it. But the preparation continues. I still develop new graded exercises every year out of fear that last year’s students will pass on their answers to this year’s students. The end result is that I spend significantly more time preparing for this course than for my other two courses combined.  I am currently contemplating a complete overhaul of my course, but I have to admit that the massive work involved gives me pause.

I wonder whether the reality of having to prepare these materials—and then prepare many of the exercises anew every year—is holding back the development of these courses.  Read More


Business Basics for Law Students

Thanks to Dave and the other folks at Concurring Opinions for inviting me to blog this month. I plan to write about two topics close to my heart: corporate law and the law school curriculum.

I want to start with a topic that combines both of my passions. Over the last four years, I have taught many students who develop an interest in corporate law after spending their undergraduate years studying philosophy, political science, or other non-business subjects. These students all worry that they do not have the business knowledge to succeed as corporate lawyers. It is easy to tell them that they will learn on the job, and certainly that is true to some extent, but I wonder if law schools should be doing more to introduce students to basic business and finance concepts.

I have often struggled with how to teach my students these concepts. On one hand, our job is to teach law. Teaching students about venture capital funding or accounting rules is arguably beyond this purview, at least unless a case deals directly with these concepts. On the other hand, I want to prepare my students to be lawyers, a task that requires teaching more than just the black letter law. I would hate to send my students out into the world with a strong understanding of Revlon and Unocal, but with no understanding of the business issues underlying basic M&A transactions.

The conventional approaches to teaching these skills have always seemed unsatisfying to me. Read More