A Trial Attorney's Dilemma: How Storytelling as a Trial Strategy Can Impact a Criminal Defendant's Successful Appellate Review
Over the past thirty years, a canon of scholarship has emerged on the use of narrative in the law. Most of the work produced in this area endorses the use of narrative, either by arguing its importance or by focusing on how best to employ narrative as a form of advocacy. The scholarship to date has not focused on how the criminal defendant's use of storytelling at trial can adversely impact appellate review when sufficiency-of-the-evidence and weight-of-the-evidence claims are raised on appeal. This Article posits that in addition to advising a criminal defendant on the potential merits of testifying at trial, the trial attorney should also inform his client of the potential adverse impact certain types of narratives will have on appeal. By demonstrating how the criminal defendant's storytelling at trial can negatively impact the defendant's appeal, this Article provides a counter-point to the ever-growing focus on the use of storytelling as an essential component of criminal-trial practice.
We the People: The Consent of the Governed in the Twenty-First Century: The People's Unalienable Right to Make Law
The People of America love democracy. Americans do not love democracy because it is efficient; in some ways, other forms of government may respond more quickly. Americans do not love democracy because it is without problems; while a strong democracy will prevent the tyranny of the few over the many, it requires constant vigilance to protect individual rights from the tyranny of the many over the few. Americans do not love democracy because it is perfect—it is not; it is only as good as we make it. Americans love democracy because doing so is simply part of our culture; our shared love of democracy creates a bond that binds together our diverse people and our vast continent. Americans love democracy because it and it alone has the potential to provide a moral, fair, and just government. This is so because our democracy recognizes that the only legitimate source of governmental power comes from those subject to the government's exercise of power—the consent of the governed. Under our Constitution, neither the federal government nor the state governments are sovereign; nor do these governments somehow share sovereignty. In America, the People alone are sovereign; all governments (federal, state, and local) are mere agents of the People, subject always and in every case to their ultimate au-thority. As a result, democracy (popular sovereignty-majority rule) makes possible the creation of a society that fully embraces mutual respect for individual rights while allowing and encouraging just and fair collective action that benefits the overall society.
Law Review Scholarship in the Eyes of the Twenty-First-Century Supreme Court Justices: An Empirical Analysis*
Chief Justice John Roberts recently threw fuel on the fire of the perennial debate about the practical value of American law review articles when he stated that, as a general matter, law reviews are not "particularly helpful for practitioners and judges." The Chief Justice is the most prominent among an increasing number of critics who have declared that, during recent decades, there has been a growing disconnect between law review articles written by law professors and the needs of the bench and bar in legal scholarship. Furthermore, there is convincing evidence that a substantial amount of law review scholarship today is not considered useful even by other law professors.
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What Is "Good Legal Writing" and Why Does It Matter?
Law schools face increasing pressure to improve instruction in practice-oriented skills. One of the most important of these skills is legal writing. The existing literature on legal writing contains various rules and suggestions as to how legal writers can improve their writing skills. Yet it lacks an adequate theoretical account of the fundamental nature of good legal writing. As a result, legal writers are left without a solid conceptual framework to ground the individual rules and suggestions. This Article attempts to fill the theoretical void in the literature by offering a systematic analysis of what it is for a legal document to be well written. It starts by examining a foundational conceptual issue, which is what legal writers mean when they say that a legal document is well written.