Category: Legal Writing

November 2018 Law Faculty Publications & News

Throughout the month of November, the Law Library received alerts for full-time TTU Law Faculty publications and news. Below is a compilation of those daily alerts for November 1 to November 30, 2018.

Book Chapters

1. Alyson M. Drake, Foreign Law in SEXUAL ORIENTATION, GENDER IDENTITIES, AND THE LAW: A RESEARCH BIBLIOGRAPHY 2006-2016 (AALL 2018).

2. Alyson M. Drake, Comparative Law in SEXUAL ORIENTATION, GENDER IDENTITIES, AND THE LAW: A RESEARCH BIBLIOGRAPHY 2006-2016 (AALL 2018).

3. Alyson M. Drake, International Law in in SEXUAL ORIENTATION, GENDER IDENTITIES, AND THE LAW: A RESEARCH BIBLIOGRAPHY 2006-2016 (AALL 2018).

Articles

1. Gerry W. Beyer, Wills & Trusts, 4 SMU ANN. SURV. 451 (2018).

2. Gerry W. Beyer, Keeping Current—Probate, 32 PROB. & PROP. 25 (2018).

3. Gerry W. Beyer, The Will Execution Ceremony: Should it be in Pictures?, 45 EST. PLAN. 25 (2018).

4. Gerry W. Beyer & Katherine Peters, Sign on the [Electronic] Dotted Line: The Rise of the Electronic Will, WILLS, TRUSTS, & EST. L. EJOURNAL (2018).

Op-Ed

1. Arnold Loewy & Charles Moster, It’s Debatable: Did misguided allegiance to president spur attempted bomber to act?, LUBBOCK AVALANCHE-J. (Nov. 4, 2018 12:19 a.m.), http://www.lubbockonline.com/news/20181104/its-debatable-did-misguided-allegiance-to-president-spur-attempted-bomber-to-act.

2. Arnold Loewy & Charles Moster, It’s Debatable: Did misguided allegiance to president spur attempted bomber to act?, LUBBOCK AVALANCHE-J. (Nov. 17, 2018 10:08 p.m.), https://www.lubbockonline.com/news/20181117/its-debatable-how-has-trump-done-so-far-as-president.

Citations

1. Prof. Murphy’s article Chenery Unmasked: Reasonable Limits on the Duty to Give Reasons is cited in the following article: Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 ADMIN. L. REV. 515 (2018).

2. Prof. Murphy’s article Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the “Hard Look” is cited in the following article: Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 ADMIN. L. REV. 515 (2018).

3. Prof. Murphy’s article Enhancing the Role of Public Interest Organizations in Rulemaking via Pre-Notice Transparency is cited in the following article: Kathryn E. Kovacs, Rules About Rulemaking and the Rise of the Unitary Executive, 70 ADMIN. L. REV. 515 (2018).

4. Prof. Casto’s book FOREIGN AFFAIRS AND THE CONSTITUTION IN THE AGE OF FIGHTING SAIL is cited in the following article: David Golove, The American Founding and Global Justice: Hamiltonian and Jeffersonian Approaches, 57 VA. J. INT’L L. 621, 623 (2018).

5. Prof. Metze’s article Speaking Truth to Power: The Obligation of the Courts to Enforce the Right to Counsel at Trial is cited in the following article: Chad G. Marzen, Inclusivity with Reciprocity: Permitting Law Teachers Outside of ABA-Accredited Law Schools Bar Admission Through Admission on Motion Rules, 43 U. DAYTON L. REV. 347 (2018).

6. Prof. Casto’s article Advising Presidents: Robert Jackson and the Destroyers-for-Bases Deal is cited in the following article: Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 YALE L.J. F. 432 (2018).

7. Professor Robert Sherwin’s article Clones, Thugs, ‘n (Eventual?) Harmony: Using the Federal Rules of Civil Procedure to Simulate a Statutory Defamation Defense and Make the World Safe from Copyright Bullies is cited in the following article: Lauren Gorab, A Fair Use to Remember: Restoring Application of the Fair Use Doctrine to Strengthen Copyright Law and Disarm Abusive Copyright Litigation, 87 FORDHAM L. REV. 703 (2018).

8. Prof. Beyer’s book FAT CATS & LUCKY DOGS: HOW TO LEAVE (SOME OF) YOUR ESTATE TO YOUR PET is cited in the following article: Thomas E. Simmons, A Will for Willa Cather, 83 MO. L. REV. 641, 642 (2018).

9. Prof. Loewy’s article Why Roe v. Wade Should Be Overruled is cited in the following article: Clarke D. Forsythe & Bradley N. Kehr, A Road Map Through the Supreme Court’s Back Alley, 33 ISSUES L. & MED. 175 (2018).

10. Prof. Rosen’s article The “Especially Heinous” Aggravating Circumstance in Capital Cases–The Standardless Standard is cited in the following article: Emily V. Shaw et. al., Intellectual Disability, the Death Penalty, and Jurors, 58 JURIMETRICS J. 437 (2018).

11. Prof. Chiappinelli’s article How Delaware’s Corporate Law Monopoly Was Nearly Destroyed is cited in the following article: Brandon Mordue, The Revlon Divergence: Evolution of Judicial Review of Merger Litigation, 12 VA. L. & BUS. REV. 531 (2018).

12. Prof. Casto’s book FOREIGN AFFAIRS AND THE CONSTITUTION IN THE AGE OF THE FIGHTING SAIL is cited in the following article: John Harrison, The Constitution and the Law of Nations, 106 GEO. L.J. 1659 (2018).

Quotes

1. Prof. Camp is quoted in the following article: Alan K. Ota, Democrats ponder IRS whistleblowers on Trump tax returns, 18 MLEX US TAX WATCH 5 (2018).

News

1. Dean Victoria Sutton’s short documentary Apache Kid, U.S. Army Scout, was selected for the First Nations Film and Video Festival that has a focus on Native American women directors. The festival ran from November 1st to November 9th in Chicago, IL. A complete list of the film’s many festival selections and awards is located here.

2. Professor Tracy Pearl is the recipient of the 2019 Chancellor’s Council Distinguished Research Award for Texas Tech University. Established in 2001, the Chancellor’s Council Distinguished Teaching and Research Awards are presented to individuals who exemplify teaching or research excellence throughout the year. These are the highest honors given by the Texas Tech University System to faculty members at its component institutions. Winners of these awards have significantly advanced teaching or research efforts and are noted as leaders among colleagues and in their respective fields.

3. On November 2nd, Professor Gerry W. Beyer’s blog posting, Prince’s Estate Wants to Trademark the Color Purple, made Texas Bar Today’s list of top 10 blog posts for the week.

4. On November 2nd, Dean Victoria Sutton spoke at the first Health Law & Policy in Space Symposium at the University of Houston Law Center. Her talk centered upon biocontamination, human health, and planetary protection policy.

5. Also on November 2nd, Professor Brie Sherwin participated in a panel at Duke Law Environmental Law & Policy Forum’s Fall 2018 Symposium. The panel discussed the interactions between human health and climate change, policy tools needed to promote sustainable communities, and human resilience to pollution and climate change.

6. Professor Gerry W. Beyer’s blog, the Wills, Trusts, and Estates Prof Blog, is ranked #18 in all-time popularity, surpassing the SCOTUSblog for the first time ever. The ranking is out of the 4,479 blawgs monitored by Justia. His blog remains the #1 estate planning blog out of 245.

7. On November 14th, Professor Gerry W. Beyer was a speaker at the 39th Annual Inland Empire Estate Planning Seminar at the University of Redlands in Redlands, California. To a multi-disciplinary audience of over 110 attorneys, CPAs, trust officers, financial planners, and life insurance specialists, Prof. Beyer spoke about the interface between estate planning and weapon ownership and marijuana legalization in his presentation entitled Aiming High and Getting High: Estate Planning for Guns and Marijuana.

8. On November 16th, Professor DeLeith Gossett moderated a panel entitled “The Opioid Crisis: What Can Be Done for the Children” at the 2018 Silent Victims Conference at Duke University. The panel discussed the explosion in the number of children needing foster care due to the opioid crisis, as well as what the 1980’s drug epidemic can teach us about how best to help these children and their families.

9. Also on November 16th, Professor Brian Shannon moderated a panel entitled S.B. 1326, Competency Restoration Alternatives, Local Implementation, & a Look Ahead at the 2018 Texas Tech Mental Health Law Symposium.

9. The ABA Journal recently reaffirmed Professor Gerry W. Beyer’s blawg, The Wills, Trusts, & Estates Prof Blog, as a member of its Blawg 100 Hall of Fame.

10. Professor Gerry W. Beyer was the speaker at the November 27, 2018, meeting of the Probate, Trust, and Estates Section of the Houston Bar Association. His presentation and accompanying paper were entitled State Law Pitfalls: Don’t Step In It When Your Client Steps Across State Lines.

11. The State Bar of Texas recently informed Professor Gerry W. Beyer that his continuing legal education activities qualified him (for the thirty-second consecutive year) for membership in the State Bar College. The Texas Bar College is an honorary society of lawyers, chartered by the Supreme Court of Texas in 1981, to recognize and encourage lawyers who maintain and enhance their professional skills and the quality of their service to the public by completing at least double the required hours of continuing legal education each year.

Library Write-In: Saturday, October 27, 2018

write-in2
Every fall, Professors Baker and Drake host a write-in in the law library’s Collaborative Commons to help students with their scholarly research and writing endeavors.  This fall, the write-in is being held on Saturday, October 27th from 9:00am to 2:00pm, and Dean Nowlin is scheduled to attend.

At the write-in, we’ll provide breakfast and lunch.  Dean Nowlin, Professor Baker, and Professor Drake will be on hand to help with any part of the research and writing process from paper organization and research help to editing and Bluebooking.  We’re there all day to help with whatever you need, and the collective energy in the room will help you make progress on your papers and/or comments.  Previous years’ attendees have reported that having a day dedicated to writing really helped them focus on their paper and make major strides on their drafts.

To attend, RSVP to Professor Drake at alyson.drake@ttu.edu and tell her you’d like to attend.  (As an added bonus, this will help us know how much food to order!)  We hope to see you there.

Please note: you do not have to stay for the entire event.  Pop in and out as you need to, or stay for the whole time.

The Art of Selecting Cases to Cite

A question that comes up pretty often from law students in legal writing classes is, “how do I know which cases to cite?”

This is a good question and one that really depends on the cases that are found during the research process. An article by Douglas K. Norman titled “The Art of Selecting Cases to Cite” in 63 Tex. B. J. 340 (Apr. 2000) does a wonderful job of discussing how to select cases to cite.

From the article:
“Most legal writers seem to have developed an instinct for which cases to pick and which to discard. Moreover, the considerations that the writer consciously or subconsciously brings to bear on which cases to include in legal citation are more complicated than merely citing to the most recent case from the highest court. These considerations probably begin with an informal categorization of all the cases found in the process of researching a given issue.”

The article goes on to discuss categorizing cases. “The cases supporting a given proposition of law might roughly be categorized as follows:

Seminal Case–This is generally the first case from the highest court to have decided the issue and stated the proposition of law in question. If the proposition was itself a reversal or revision of earlier authority, the seminal case is the reversing or revising case. As the first case to have stated the proposition in question, the seminal case has generally gone into some depth in analyzing the issue and the court’s rationale in a manner that might not be repeated in later cases.

Parroting Cases–With a common proposition of law, numerous cases will have simply parroted the language of the seminal case, adding little or nothing to the analysis.

Bolstering Cases–In addition to parroting seminal authority, the bolstering case adds new reasoning and analysis to support the underlying proposition of law.

Reformulation Cases–These cases take the proposition of the seminal case and either restate it in different terms or refine the analysis in some way that may be more or less helpful to the reader. When, for example, the seminal case was written in the legalistic jargon of the past, the reformulation case may delete the jargon and restate the proposition in plain English.

Pseudo-Seminal Case–When the seminal case has been forgotten or lost in the chain of citation, a more recent case will often emerge as the one most courts presently cite as the oldest or most reliable case to support the given proposition. This case effectively takes the place of the lost seminal case.

Companion Cases–As I use the term here, companion cases (not to be confused with the more technical use of this term) are parroting cases that have over time been so consistently cited together with the seminal (or pseudo-seminal) authority that they achieve a certain perceived legitimacy and it would now seem awkward to break the habit of citing the companion case together with the seminal authority.

Parallel Cases–Occasionally, separate lines of authority for the same proposition develop without any common source; or, perhaps more likely, the original source or seminal case is buried so far back in the chain of citation that it has been all but forgotten. This then leads to two or more lines of cases standing for the same proposition, with different courts typically preferring one or the other of the parallel lines of authority.

Storehouse Cases–It sometimes happens that, when there are multiple parallel cases with no clear seminal or pseudo-seminal case to which they all refer, somewhere down the road a particular case will attempt to collect or “storehouse” all of the parallel lines. If this storehouse case is reliable, it is a prime candidate to be cited from then on as pseudo-seminal authority.

Application Cases–Some cases that have only marginal value as support for an abstract proposition of law, have great value in their application of the proposition to facts similar or analogous to the facts of your own case.”

After categorizing cases, it is time to select the cases to cite. The article offers guidelines for selection:

  • Provide Both Seminal and Recent Authority
  • Generally Omit Parrots
  • Use Vertical Strings To Show Continuity Within a Court
  • Use Horizontal Strings To Show Continuity among Courts
  • Reconcile Parallel Lines of Authority
  • Use Bolstering and Reformulation Cases to Strengthen and Better Explain
  • Use Application Cases For Similarity and Analogy

Selecting the proper cases is part of the underlying analysis required of the legal research process. As the author notes, improper case selection may cause the reader to reject the underlying legal proposition, which could be the death knell for a case.

Guidelines for Excellence in Law Reviews

400x400_fitbox-journal1In 2011, The Scrivener released the Scribes Guidelines for Excellence in Law Reviews written by Bryan A. Garner and Richard C. Wydick.

According to Garner & Wydick, every member of a law review should be required to buy and learn the current editions of these books:

Each edit suggested by a new member of the review should be supported by citation to one of those texts.

A law review office should have in its library current editions of the following books:

The guidelines mention that anyone wishing to become an editor of the law review should be able to certify that he or she has read at least three of the books listed above.

It is also advised to do the following:

  • Fret about the opener of each piece: an interesting lead that immediately predisposes readers to continue (be wary of stultifying “roadmaps”).
  • Insist on good, idiomatic English of the kind to be found in such publications as The New Yorker or The Economist and other first-rate nonfiction publications.
  • Delete every unnecessary paragraph, sentence, and word.
  • Footnote sensibly, not rabidly. Use your head — and repeal any “rule” that requires a footnote after every sentence.
  • As a tonic to your style, as a caution to your members, have everyone affiliated with your law review read Fred Rodell’s Goodbye to Law Reviews — Revisited, 48 Va. L. Rev. 279 (1962). While you’re at it, you should also read George Orwell’s “Politics and the English Language,” 4 The Collected Essays, Journalism and Letters of George Orwell 127 (1968) (and widely reprinted).

These are great guidelines for law review editors to become excellent editors. In addition to the above list of recommended reading, I would add William Zinsser’s On Writing Well and Strunk & White’s The Elements of Style.

October 2017 Law Faculty Publications & News

Throughout October 2017, the Law Library received alerts for full-time TTU Law Faculty publications and news. Below is a compilation of daily alerts for October 1 to October 31, 2017.

Books:

  1. Gerry W. Beyer, BEYER’S TEXAS PROPERTY CODE ANNOTATED WITH RELATED TEXAS LAW (2017 ed.).
  2. Vaughn E. James, TEXAS ELDER LAW (2018 ed.).

Articles:

  1. M. Alexander Pearl & Kyle Velte, Indigenizing Equality, 35 Yale L. & Pol’y Rev. 461 (2017).
  2. William R. Casto, Advising Presidents: Private Advice vs. Public Advocacy, 43 Ohio N.U.L. Rev. 405 (2017).
  3. Gerry W. Beyer, Wills & Trusts, 3 SMU Ann. Tex. Surv. 465 (2017).
  4. Rishi Batra, Improving the Uniform Partition of Heirs Property Act, 24 Geo. Mason L. Rev. 743 (2017).
  5. Gerry W. Beyer, The Texas Revised Uniform Fiduciary Access to Digital Assets Act: A Primer for Estate Planners, Est. Plan. Dev. Tex. Prof., Oct. 2017, at 1, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3038052.
  6. Stephen T. Black, The Copyright Box Model, 41 Seattle U. L. Rev. 179 (2017).

Op-Ed:

  1. Arnold Loewy & Charles Moster, It’s Debatable: Was it appropriate for Trump to criticize players?, LUBBOCK AVALANCHE-J. (Oct. 13, 2017 08:56 pm).
  2. Arnold Loewy & Charles Moster, It’s Debatable: Commerce Clause: Worst court decision ever?, LUBBOCK AVALANCHE-J. (Oct. 27, 2017 08:57 pm).

Cited:

  1. Prof. Murphy’s work with Charles H. Koch, Jr. on ADMINISTRATIVE LAW & PRACTICE § 5:61 (3d ed. 2010) is cited in the following article: Rebecca Kunkel, Law Libraries and the Future of Public Access to Born-Digital Government Information, 109 Law Libr. J. 67 (2017).
  2. Prof. Camp’s article ‘Loving’ Return Preparation Regulation, 140 TXN 457 is cited in the following article: Dennis B. Drapkin, Some Recommendations for Revising Circular 230, 2017 TXN 41-39.
  3. Prof. Baker’s Ginger (Law) Librarian blog is cited in Best of the Legal Blogs, 22 No. 10 Internet L. Researcher NL 3 (October 2017).
  4. Prof. Murphy and Sidney A. Shapiro’s article Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the “Hard Look” is cited in the following article: Robert L. Glicksman & Emily Hammond, Agency Behavior and Discretion on Remand, 32 J. Land Use & Envtl. L. 483 (2017).
  5. Prof. Rosen’s article Funding “Non-Traditional” Military Operations: The Alluring Myth of a Presidential Power of the Purse is cited in the following article: William R. Casto, Advising Presidents: Private Advice vs. Public Advocacy, 43 Ohio N.U.L. Rev. 405 (2017).
  6. Prof. Murphy’s article Richard Pragmatic Administrative Law and Tax Exceptionalism is cited in the following article: Stephanie Hunter McMahon, Pre-enforcement Litigation Needed for Taxing Procedures, 92 Wash. L. Rev. 1317 (2017).
  7. Prof. Camp’s article A History of Tax Regulation Prior to the Administrative Procedure Act is cited in the following article: Stephanie Hunter McMahon, Pre-enforcement Litigation Needed for Taxing Procedures, 92 Wash. L. Rev. 1317 (2017).
  8. Prof. Sutton’s article Is There a Doctor (and a Lawyer) in the House? Why our Good Samaritan, Laws are Doing More Harm Than Good for a National Public Health Security Strategy: A Fifty-State Survey is cited in the following article: Corey S. Davis & Derek H. Carr, The Law and Policy of Opioids for Pain Management, Addiction Treatment, and Overdose Reversal, 14 Ind. Health L. Rev. 1 (2017).
  9. Prof. Camp’s article “Loving” Return Preparer Regulation (Doc 2013-14799) is cited in the following article: Dennis B. Drapkin, Some Recommendations for Revising Circular 230, 2017 TPR 42-1.
  10. Prof. Batra’s article Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective is cited in the following article: Russell M. Gold, “Clientless” Prosecutors, 51 Ga. L. Rev. 693 (2017).
  11. Prof. Batra’s article Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective is cited in the following article: Russell M. Gold, Carlissa Byrne Hessick, and F. Andrew Hessick, Civilizing Criminal Settlements, 97 B.U.L. Rev. 1607 (2017).
  12. Prof. Camp’s article The Retroactivity of Treasury Regulations: Paths to Finding Abuse of Discretion is cited in the following note: Leonard I. Greenberg, Phantom of the 50(d) Income, 97 B.U.L. Rev. 1843 (2017).

Quoted:

  1. Prof. Metze is quoted in the following newspaper article: Michael Cantu, Accused killer faces federal charges, LUBBOCK AVALANCHE-J. (Oct. 12, 2017), http://www.dailytoreador.com/news/accused-killer-now-faces-federal-charges/article_c271c444-af16-11e7-9ee9-2b38e55ad2c0.html.
  2. Prof. Huffman is quoted in the following newspaper article: John Sowell, Army Sgt. Bowe Bergdahl admits to desertion, doubted he could get a fair trial, Idaho Statesman (Oct. 16, 2017 08:37 am), http://www.idahostatesman.com/news/local/military/bowe-bergdahl/article179081226.html.
  3. Prof. Huffman is quoted in the following newspaper article: Jenny Jarvie, Sentencing to begin in Bowe Bergdahl’s court-martial, L.A. Times (Oct. 25, 2017 03:00 am), http://www.latimes.com/nation/la-na-bergdahl-sentencing-20171025-story.html.

News:

  1. On October 3, Professor Tracy Pearl participated in a public discussion on climate change and clean-energy solutions hosted by faculty members from the College of Media & Communication, the College of Arts & Sciences, the College of Agricultural Sciences & Natural Resources and the Honors College as part of a campus-wide dialogue series entitled “Civil Counterpoints.” Other participants included Katharine Hayhoe, professor in the Texas Tech Department of Political Science at and director of the Tech Climate Science Center; Michael Giberson, associate professor of practice in the Jerry S. Rawls College of Business Administration; and Tom Smith, director of special projects in the Texas Public Citizen’s office.
  2. On October 4, 2017, Professor Gerry W. Beyer spoke to a group non-attorneys in Honolulu about digital asset planning. His presentation, Have You Made Preparations to Protect Your Valuable “Digital Assets” in Case of Disability or Death was sponsored by 3D Wealth Advisors.
  3. On October 5, 2017, Professor Gerry W. Beyer was the speaker for the “Professional Advisor Continuing Education Series” presented by The University of Hawaii Foundation Office of Estate and Gift Planning in Honolulu, Hawaii.  His presentations and accompanying articles were entitled Cyber Estate Planning and Administration and Avoiding the Estate Planning “Blue Screen of Death” with Competent and Ethical Practices.
  4. Professor Gerry W. Beyer was recently notified by the Texas Bar College that for the thirty-second consecutive year he has qualified for membership in the Texas Bar College in recognition of his speaking and attendance at continuing legal education programs.
  5. On October 16, 2017, Professor Gerry W. Beyer was a guest speaker for the Osher Lifelong Learning Institute in Fredericksburg, Texas. His presentation was entitled Do You Have Annoying Neighbors?, a lighthearted and informational look at property annoyances.
  6. On October 17, 2017, Professor Gerry W. Beyer was the featured speaker at a meeting of the San Antonio Estate Planners Council in San Antonio. To an audience of over 160 estate planning attorneys, CPAs, and financial planners, Prof. Beyer explained the Estate Planning Highlights of the 2017 Texas Legislature. Prof. Beyer authored a detailed article which accompanied his presentation.
  7. On October 19, 2017, Prof. Gerry W. Beyer served on a panel along with Ken Barczak (Fox, O’Neill & Shannon, S.C., Milwaukee, Wisconsin) and Prof. Sally Brown Richardson (Tulane Law School) to discuss the interface between digital property and community property at the Fall meeting of the American College of Probate Counsel’s Digital Property Committee in Nashville, Tennessee.
  8. On October 26, 2017, Prof. Gerry W. Beyer was a speaker at the Forty-Third Annual Notre Dame Tax and Estate Planning Institute in South Bend, Indiana. His presentation and accompanying paper were entitled Practical Planning for Digital Assets and Administration of Digital Assets by Fiduciaries.