- Online Edition
- Print Edition
- Donahue Lecture Series
If you are a law student anxious and uncertain about your career post-graduation, and still trying to sort your preferred professional role, this Article is for you. It is designed to help you do research on both yourself and the legal profession so that you can enhance your opportunity to find the right professional role for you.
This Article is based on a simple premise: You should prepare for a career in law in the same way you would prepare for oral argument in court by writing a meticulously-researched and comprehensive legal brief.
Like many young lawyers, you may be planning to look for a job at a firm after graduation to try it out. The legal market, however, has become more challenging than ever, and it is often difficult to find entry-level positions in law firms. Furthermore, despite the time and effort spent in the placement process, many lawyers find themselves dissatisfied with their careers. Do you really want to leave your future to chance? Finally, what if you want to use your legal training for a purpose outside conventional law practice? Where would you begin to look?
There ought to be a better way. For the last twenty-five years, the author has offered a course at Suffolk University Law School in which students examine themselves and opportunities within the profession to find legal careers that fit them. This class also provides students the ability to strategize to make these professional opportunities a reality. This Article is based on that course.
There I stood in the well of the packed courtroom. Cameras focused on me, the culmination of a career in court, weeks of preparation, editing, and practice—it was the moment that an oral advocate trains for. I knew the substance of my argument, and I had detailed facts to offer, but how would I deliver it with impact? In the face of such density and pressure, how does one convince a diverse group of people, who know that you are trying to persuade them, to move together in one direction? It might have been easier if I had more information about each of them, about their biases, their tendencies, their lives, their feelings. But I had very little. At this moment, when I had an audience and observers waiting expectantly, how would I tell a persuasive story that would save the life of the trial?
So I began my Donahue Lecture at Suffolk University Law School. I aimed to emphasize the importance of advocacy at trial. I told its story. I showed it with multimedia. I interacted and got audience feedback. I pulled heartstrings and imparted knowledge. I did not try to be exhaustive, but I had a point: to make the case that we need to update trial advocacy. I argued why it is critical that lawyers, students, and professors—as well as judges, legislators, and corporate clients—each celebrate the importance of the trial. It is not a zero-sum game. The craft deserves excellence, and those who excel command a premium. I further argued that trial advocacy has fundamentally changed because of developments in science, technology, and the changes in the practice of law itself. What we know about how people process information and how to connect with them has evolved. Trial advocacy must evolve in light of these developments. Finally, I shared some thoughts on what actually works to change minds in a courtroom, an appreciation that each piece of information can generate belief in a fact or a feeling, a prominent role of emotional intelligence, and framing information in ways that are consistent with our themes. Through adaptation, the advocates of this century should thrive and not just survive.
Terrorism poses many kinds of challenges. One of the most wrenching is the question of how far we are willing to go in our quest for security. Will we sacrifice our ideals? What should we accept as the moral, constitutional, and international limitations on practices like detention, interrogation, and mass surveillance?
An equally compelling question under our constitutional structure is who will make these society-defining decisions. What should be the relative involvement of Congress, the President, and the courts?
In a series of historic cases, the Supreme Court undertook providing a check against antiterrorism detention policies designed by the executive branch to avoid judicial oversight. Many of these cases involved non-U.S. citizens held at the Guantánamo Bay detention camp.
These opinions are an embarrassment to the legal profession. Incalculable judicial resources are invested in providing elaborate, often arcane, explanations for why the court in question should not consider the merits of each case. Some courts offer multiple procedural defenses in multi-section opinions; others dispose of a case on one procedural ground while noting that other possible excuses remain in reserve. These excruciating exercises in procedure follow excruciating recitations of the plaintiff’s allegations: terrible accounts of the U.S. government’s involvement in kidnapping, torture, unconstitutional surveillance, targeted killings beyond any battlefield, and other secret operations.
The bottom line in case after case is that the courts have managed to absent themselves from even considering whether many highly questionable governmental policies and practices are illegal or unconstitutional.
Applying the per se illegality doctrine for years has proven to be a mistake. The challenge now is to avoid committing the same error by applying per se legality for practices related to the New Economy—notably predatory innovation. Also known as the “knowledge economy,” or the “information economy,” the New Economy refers to the progressive market created by contemporary channels of high-speed technologies and communications. Avoiding applying per se legality in the New Economy context is especially important considering the cost of litigation, time, and the difficulty of applying the doctrine to antitrust law. This Article advocates for eliminating per se legality as it relates to innovation issues that stem from ideologies rather than particular facts. Generalizing the rule of reason will allow for faster antitrust law sophistication than other developments, such as Resale Price Maintenance (RPM). As high-tech markets evolve, antitrust law should be afforded the full opportunity to improve itself as quickly as possible. To achieve this, a newly structured rule of reason, tailored for innovation issues, would considerably improve antitrust law and economic analysis in the long run, while also avoiding false positives.
In times of economic downturn, educational prestige is directly correlated to financial resiliency. Indoctrinated with the belief that virtually all highly-coveted jobs require postsecondary education, many ambitious yet financially disadvantaged young people in the twenty-first century face no alternative than to rely on student loans to fund educational pursuits. While traditional federal and private loans may offer students the opportunity to enter the middle class, the debt incurred from these loans will likely follow them throughout the better part of their lives.
This Note argues that human capital contracts (HCC) investees’ financial obligations to their investors should be dischargeable in bankruptcy similar to student loan debt dischargeability; however, HCC bankruptcy treatment should also protect investors by subjecting dischargeability to an undue hardship threshold.
One of the most important aspects of the U.S. Constitution is the establishment of three separate but equal branches of government, and the division of the power to manage foreign relations among the branches. As a result of the Obama Administration’s successful passage of the 2015 Iran Nuclear Agreement (Agreement), the executive branch has potentially assumed some of the Senate’s constitutional power. This Agreement lifts economic sanctions against Iran, with the expectation of curtailing the Iranian nuclear program. The magnitude of this Agreement on the international stage cannot be understated: With the passage of the Agreement, more than $100 billion will become available to Iran.
This Note examines the executive branch’s role in enacting agreements with foreign nations, and considers how the Agreement alters the delicate balance of power between the executive and legislative branches.
Defendants use laches, an ancient equitable doctrine, as an affirmative defense in patent infringement suits. Laches applies when a patent owner, referred to as the patentee, unreasonably delays in filing suit against the alleged infringing defendant. Defendants in patent infringement suits invoke laches by showing not only that the patentee unreasonably and inexcusably delayed filing, but that the delay caused “material prejudice” to the defendant. While the laches defense is infrequently raised, it is helpful when eliminating damages awarded to the patentee. Laches remains a powerful tool for defendants by completely barring recovery for infringement before suit.
This Note examines the laches defense in recent Federal Circuit and Supreme Court copyright and patent infringement cases, and evaluates whether the Supreme Court should uphold the use of laches in patent infringement cases.
The First Amendment to the U.S. Constitution protects citizens from government encroachment on speech. The First Amendment also protects the right to form political parties. States are permitted, however, to regulate elections by enacting “reasonable regulations of parties, elections, and ballots.” Depending on the nature of the restriction, courts will either apply strict or intermediate scrutiny to determine the constitutionality of a state statute attempting to regulate elections.
This Note explores the history of vote buying and voter coercion as it relates to the First Amendment protection of the right to free speech. This Note also analyzes and addresses the main arguments against ballot selfies, and proffers that states should harness the power of social media in political campaigns in an effort to inform the electorate.
In 2015, the Office of Personnel Management’s (OPM) computer systems suffered a series of devastating cyber attacks that uncovered roughly 21.5 million federal employees’ personal information. The breaches—attributed to Chinese hackers—resulted in the exposure of federal employees’ extremely sensitive information, including Social Security numbers. Over the past decade, similar cyber attacks on consumers’ personal information have occurred within the private sector with alarming frequency. The OPM breaches highlight a disturbing trend concerning the federal government’s ill-preparedness in dealing with cybersecurity incidents in the public sector.
This Note will confront the question of whether the Cybersecurity Act of 2015 (Cybersecurity Act)—stemming from the proposed Cybersecurity Information Sharing Act (CISA) and Federal Cybersecurity Enhancement Act of 2015 (FCEA) (collectively referred to as S.754)—can adequately address the security and civil liability inadequacies that exist under the current legislative framework. Part II.A will explore the existing patchwork of statutes, executive orders, and administrative entities that currently control state protection of personal information and state responses to cyber attacks. Part II.B will examine civil liability issues in both the private and public sectors under the current legislative framework. Part II.C will detail the provisions of S.754 and the Cybersecurity Act. Following an analysis of the Cybersecurity Act’s strengths and weaknesses, Part III of this Note will provide proposed changes particularly in the areas of cyber attack protection and liability concerns. Ultimately this Note argues that the Cybersecurity Act is inadequate to address the issues of protection and redress that currently exist.
The interpretation and application of the Alien Tort Statute (ATS) has challenged federal courts for the last two decades in the twentieth century. The ATS, a single sentence within the Judiciary Act of 1789, provides United States federal courts with original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Following a lengthy dormant period, federal courts resurrected the ATS in the 1980s to grant federal jurisdiction over international human rights claims where both the plaintiff and defendant are of foreign origin. In the late twentieth and early twenty-first centuries, however, courts have struggled to find a consistent approach to adjudicating claims brought against multinational corporate defendants. As ATS jurisprudence has evolved, courts have largely narrowed its application, reducing foreign plaintiffs’ abilities to have their claims adjudicated in American federal courts.
This Note will trace the history of the modern use of the ATS with a focus towards the development of its use against multinational corporations. It will discuss the difficulty courts have faced in limiting the ATS to specific torts, as well as the difficulties courts have faced in applying the ATS in response to the restrictive territorial test outlined in Kiobel. This Note will also argue that a broad and inclusive “touch-and-concern” test to displace the presumption against extraterritoriality creates more problems than it solves. Instead, this Note suggests that such boundaries are best determined by new legislation aimed specifically at the modern day, multinational corporations.