Legal Education, Legal Writing & Lawyering Skills
Dưới đây là tựa đề và tóm tắt các bài viết về các chủ đề nói trên từ các tác giả khác mà Ngữ vô tình thấy được bắt đầu từ ngày hôm nay (29/5/2021) và sẽ được cập nhật dần theo thời gian. Nhiều bài Ngữ cũng chỉ đọc qua tóm tắt và đưa lên đây chứ chưa kịp đọc hết. Click vào tựa đề để tải trọn bài từ nguồn chính chủ. Nhưng trước hết là giới thiệu về một số blog & website có liên quan.
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[Search over 800 carefully curated and vetted scholarship opportunities and writing competitions — totaling more than $3 million in aid.]
Legal Research Strategy (Harvard)
Writing Resources (AALS)
A Negotiation Exercise for Your Legal Skills (or Contracts) Course [Institute for Law Teaching and Learning]
Statistics and Empirical Legal Studies Research Guide (Georgetown Law Library)
The Research and Writing Template (Profs Kitenge & Trautman)
Information for Submitting Articles to Law Reviews & Journals (Professors Allen Rostron and Nancy Levit, updated regularly)
SJD Research Guide [Emory Law]
Grammar Girl (Quick and Dirty Tips)
Law Practice Technology (Free ebook)
Vietnam Studies Group [Top Ten Vietnam Book List]
Dinh Tran Ngoc Huy (Publish Services)
There’s a better cause right around the corner. It might not work. You’ll never be able to keep all the promises. It can’t last forever. We’re all going to die. It’s not perfect. Someone might steal your idea. There will be critics. You’re not ready. Someone else is going to do it. It’s not that important. It might not work.
On the other hand…
Now is better than later, and perfect is an illusion.
Act as if. Simply begin. Make things better by making better things. You can always improve it later.
There are currently 24,011 students from Viet Nam at all levels, mostly in higher education. Viet Nam ranks 6th among places of origin.
Tug boats don’t usually tug. They push.
That’s because pushing is more mechanically efficient than pulling. When we pull, there’s tension and slack in the ropes, and the attachment between the puller and the pushed keeps changing.
But the metaphor gets far more interesting when we think about leading instead.
One bird at the head of the flock can lead 100 others if they’re enrolled in the journey. That bird would never be able to pull (or push) even one bird, never mind all of them.
A Long Way from Hanoi (2015) [by chị Mai Zymaris]
It is difficult to practice as a lawyer in Vietnam. Many have been beaten, slandered, and arrested for defending clients whose interests run contrary to those of the powerful people running the country. Thriving as a female lawyer, however, is significantly more challenging. The only way to overcome the social prejudice against me as a female attorney was to deliver excellent legal services. I managed to become a corporate lawyer at a top-tier international law firm in Vietnam while also being the first in my generation in Vietnam to gain admission to Harvard Law School’s LLM program. Fortunately, I did not have to face the abuse that my parents so feared. I also joined a small handful of female lawyers who advised the government on important laws designed to foster both direct foreign investment and the private sector in Vietnam, the two major pillars of Vietnam’s economy.
After several years of legal practice in Vietnam, I experienced significant constraints in the practice of law in my country. With rampant corruption and no impartial judicial system, there is always an illegal way for people to escape justice. I will never forget, for example, the time when the court denied our right to defend our client because the hostile judges publicly sided with the other party, a powerful state-owned company with strong government connections.
My emigration to the United States gave me the opportunity to develop my career in the most sophisticated legal market in the world. Noting the large gap in terms of professional knowledge, skills, and connections between foreign attorneys and the American JD-trained attorneys, however, I decided to acquire the same educational attainments as American lawyers.
The only way to achieve this type of consistency is to commit to leading yourself. Making such a commitment requires a plan, goals, intentional effort, discipline, and the ability to show yourself grace as you grow. It requires facing your shortcomings with brutal honesty instead of living blissfully ignorant. Self-leadership is painful, but it is vital. Without it, our integrity and our leadership will be no different than any number of disgraced leaders we can each name. Left unaltered, we can also expect our leadership careers to end similarly.
In law, the process of analogical reasoning appears to work in five simple steps. (1) Some fact pattern A—the “source” case—has certain characteristics; call them x, y, and z. (2) Fact pattern B—the “target” case—has characteristics x, y, and q, or characteristics x, y, z, and q. (3) A is treated a certain way in law. (4) Some principle or rule, announced, created, or discovered in the process of thinking through A, B, and their interrelations, explains why A is treated the way that it is. (5) Because of what it shares in common with A, B should be treated the same way. It is covered by the same principle. It should be clear that the crucial step, and the most difficult, is (4). Often analogical reasoning works through the use of incompletely theorized agreements, making (4) tractable. Some of the disputes about analogical reasoning reflect contests between Burkean and Benthamite conceptions of law.
Contagious commerce (Seth Godin)
Early adopters change the world.
While one person choosing not to eat meat will have a small impact on our climate, it will have a much bigger impact on the restaurants, groceries and food suppliers who notice what you’re doing.
They’ll change what they offer, and that will lead to a multiplier effect of other people changing their habits.
Buying an electric car or installing solar before they’re the obvious economic choice has the same impact. Because once marketers and investors discover that there’s a significant group that likes to go first, they’re far more likely to invest the time and energy to improve what’s already there.
The same goes for philanthropy. When some people eagerly fund a non-profit with a solution that’s still in beta, it makes it easier (and more likely) that someone else will start one as well.
It also happens in the other direction. If we buy from a spamming telemarketer, abandon a trusted brand to save a buck or succumb to the hustle, the market notices.
Very few people have the leverage to change the world. But all of us have the chance to change the people around us, and those actions change what gets built, funded and launched.
Zero percent market share (Seth Godin)
If you have a million Twitter followers, that means that 99.9% of the people on Twitter are ignoring you, which, with a little rounding, means you have 0%.
If you write a book and it sells a million copies, it will be one of the bestselling books of the year. It will also reach far fewer than 1% of the country’s population, never mind the world.
There are very few things that ever rise to 1% of the market. Not only don’t you need everyone, the act of chasing everyone is probably keeping you from reaching anyone.
Zero (rounded) is enough.
Cultivate and embrace academic culture [Drawing credited to barblog.hypotheses.org] and an update on Nov 21 of what I just saw: “The art of teaching is the art of assisting discovery. -Mark Van Doren”
When did you decide?
to never miss a deadline
to be the last to speak up or offer help
to learn something new every day
to be helpless in the face of a technology
to give others the benefit of the doubt
to ask for help when you get stuck
to persist in the face of disappointment
to not bother to look it up
to react instead of respond?
If it’s a habit, then it’s a decision, made consciously or not.
And if we decided, we could decide to make a new decision about how we’ll act going forward.
The chance you’ve been waiting for (Seth Godin)
It’s here, right now, today.
The open-source project that needs a contributor.
The community charity that needs a volunteer fundraiser.
The co-worker who needs coaching on a new presentation.
The startup idea that needs someone to go out on a limb and talk about it in public.
The local elected board that needs to be covered now that newspapers don’t do that any more.
The free-to-use courses online that teach everything from language to technology.
The friend who would love to hear from you by phone.
The Wikipedia article that needs editing.
The codebase that needs bugs fixed.
The story that needs to be told…
Opportunity is another word for a problem to be solved. And opportunity is often there, but it rarely knocks.
On doing the reading (Seth Godin)
Domain knowledge is a gift. It’s how we advance in our field and in society. The insights and false steps of those that came before us, laid out clearly, there to be learned.
And it’s sort of a trap.
Because you used to be able to do ALL the reading. You could read all the essential science fiction books before you wrote yours. You could watch all the key movies before you directed yours. You could understand all the current thinking in a field of medicine before you prescribed a drug…
Some people have responded to the long tail of available “reading” by deciding to do none of it, as if naive beginner’s mind is an appropriate strategy for a professional.
And some have responded by simply freezing in place, demanding perfect knowledge before making an assertion.
Clearly, the successful path lies somewhere on the curve.
There comes a moment in doing your reading where new work begins to rhyme. When you start to see the connections. When you understand who influenced the person you’re engaging with right now.
That’s the moment to begin shipping your work and making your own assertions.
A friend just got handed an unreasonable rejection. It came on a platter, delivered with very little in the way of kindness and no hints at all about what to do next.
It is not personal.
Not about her.
She did nothing wrong. It might not even be about her idea.
No one wants exactly what you want, sees what you see, believes what you believe. That’s normal.
Oh, that happened. Now what?
Go plan another picnic.
We talk about risk like it’s a bad thing.
But all forward motion involves risk. You can’t find a risk-free way to accomplish much of anything.
Appropriate risk has two elements:
The odds of it working out are commensurate with the benefits.
The consequences of being wrong don’t eliminate your chance to try a different path next time.
We don’t try something simply because there’s no downside. Instead, we intelligently choose projects where the downside is understood and the work is worth doing.
Unlike most of the sciences, astronomy is always done at a distance. You can see the stars, but you can’t do anything about them.
Sometimes the media would like us to believe that we’re all astronomers, simply passive witnesses in a world out of our control.
But the world is never out of our influence.
Remembrance, connection, possibility, invention, empathy, insight, correction, care and justice are all up to us.
We not only observe, but we make changes happen. Our participation (or apathy) leads to a different future.
The ocean is made of drops. And the drops are up to us. Who else is going to care enough to make an impact?
Then improve it.
Then write something else.
Repeat this process until you have a post.
Then post it.
Then repeat this process.
There’s no such thing as writer’s block. There’s simply a fear of bad writing. Do enough bad writing and some good writing is bound to show up.
And along the way, you will clarify your thinking and strengthen your point of view.
But it begins by simply writing something.
Somewhere, perhaps nearby, it went well.
A family gathering happened and all the details were right.
A project launched on Kickstarter and it succeeded.
A person was hired and they were a good choice.
The terms and conditions were updated, and no mistakes were made…
It’s easy to use our indispensability as fuel. Fuel to speak up and contribute. That’s important. But it’s also possible for that same instinct to backfire, and for it us to believe that if we don’t do it, it won’t get done right.
Law students may be accustomed to receiving feedback, but as lawyers, they will also be called on to give feedback. They may review a colleague’s brief or contract, adapt samples, help moot a case or supervise a summer or new associate, etc. Learning how to give feedback effectively can also help them develop their critical eye to assess and revise their own work. Giving feedback effectively is thus another skill worth teaching….
We’re either going or we’re not going. We get to make that decision every day. Perhaps you’ve decided:
That detour we hit, the pothole we narrowly avoided, the interruption that was unexpected–we experienced them, and we decided that we’re still going.
Speed bumps are real. They’re a warning, or they’re unavoidable, and they hurt. Speed bumps cannot be denied.
A speed bump that stops us from going is an obstacle.
Often, the only difference between a speed bump and an obstacle is our decision about which one it is.
People often say that dispute resolution processes aren’t “one size fits all.” When practitioners are asked to opine about hypothetical problems, they often say “it depends” and they make “case by case” decisions.
They are telling the truth. Lawyers make complex decisions as negotiators, litigation advocates, and mediators based on a lot of factors, so it is hard to generalize. Practitioners learn from experience, growing their own theories over time, tailored to their particular set of clients, cases, roles, organizational contexts, etc.
Law school teaches students that law is a seamless web of rules emanating from authorities like statutes and cases which they must memorize and finely parse in hypothetical cases.
In real life, practitioners generally think of law in terms of Oliver Wendell Holmes’s famous definition: “prophecies of what the courts will do in fact.”
Of course, legal rules affect these prophecies, but they are only one factor, sometimes overshadowed by other factors. Lawyers know that court decisions may be affected by many factors such as the personalities of parties, lawyers, and witnesses; availability of persuasive evidence; and attitudes of judges and juries.
I recently wrote this short article analyzing how practitioners and parties can use the law in various dispute resolution processes, including:
Critical standard in assessing possible agreements
One standard of fairness
Society’s default standard of fairness
Presumptive standard for decision
The post suggests how lawyers and mediators can use the law to help their clients in real life, which could be an eye-opener for your students. Take a look.
If you’re at the station, sitting on a train about to leave, you might notice that the train next to you is moving.
But, perhaps, that train is sitting still and you’re moving. It’s hard to tell. Without the lurch of sudden acceleration, the only clue we have is that our relative position is changing.
For most of us, it’s disconcerting–we know something is moving, but we’re not sure exactly what’s happening.
Do we stay where we are… does anyone?
Whether or not we commit to movement, the world never stays precisely as it was. Insisting that it does is simply a waste of time and a source of frustration.
The public arrival of COVID-19 (the novel coronavirus 2019) in the United States in early 2020 brought with it many social, political, and economic dislocations and pressures. These changes and stresses included and fostered adjustments in business law and the work of business lawyers. This article draws attention to these COVID-19 transformations as a socio-legal reflection on business lawyering, the provision of legal services in business settings, and professional responsibility in business law practice. While business law practitioners, like other lawyers, may have been ill-prepared for pandemic lawyering, we have seen them rise to the occasion to provide valuable services, gain and refresh knowledge and skills, and evolve their business operations. These changes have brought with them various professional responsibility and ethical challenges, all of which are ongoing at the time this is being written.
No doubt both the changes to business lawyering and the lessons learned from the many substantive, practical, and ethical challenges that have arisen in the wake of COVID-19 will survive the pandemic in some form. This offers some comfort. While the thought of another systemic global crisis is unappealing at best, what we have experienced and learned will no doubt be useful in maneuvering and surviving through whatever the future may bring.
Stressful situations are an unavoidable part of life, Laurent said, but we can restore a measure of wellbeing in the face of stress by focusing on what is happening in the moment. "Successful approaches often begin with dropping the story of what should be and noticing what is actually here, particularly the ways we may be holding or resisting in the mind and body. Is your heart rate elevated? Are your muscles clenched or relaxed? You can start to shift out of this resistance mode toward acceptance with intention, starting with opening in the body through the breath and posture, and ultimately allowing the mind to open."
Acceptance of the situation is important and often misunderstood, Laurent said. "It doesn't require pretending that the situation is just or right. But fighting the situation diverts energy from being able to step back and decide 'what can I do here that will best take care of me and others in this situation?"
For a corporate M&A (mergers & acquisitions) lawyer, a typical day includes some combination of working with documents and speaking to clients or colleagues. The day varies largely depending upon the stage of the particular deals being worked on, since a corporate lawyer is often staffed on more than one transaction at a time. Early in an acquisition transaction, buyer’s counsel is immersed in conducting due diligence and preparing initial drafts of the necessary documents. Between various calls and meetings, documents will then be revised and negotiated to address issues discovered in due diligence and reflect the evolving business deal among the parties. As the closing of a deal approaches, attorneys will spend time finalizing agreements, ensuring that closing conditions are satisfied, and obtaining signatures to documents.
So, you want to do research in international law? Good choice. But it can be difficult, especially in the very beginning. In this brief guide for students taking their first steps in legal research in international law, I will try to lay down the basics—just enough to nudge you towards the rabbit-hole of research. This guide is about how to think of and frame research questions, primary sources, and secondary sources in the research of international law. Or, to be precise, it is about how I think about these things. It is not about how to write in the technical sense, how to structure your paper, or about research methods (beyond some basic comments). This guide also focuses mostly on questions that are especially pertinent when researching international law. For this reason, it does not address general questions such as how and when to cite authorities, what are relevant academic resources, and so forth.
U.S. corporations, especially those in the mining and oil and gas industries, face many challenges in operating in difficult locations around the world. With the imperative to go where the natural resources occur, these challenges can be geographical, operational, legal, and ethical depending on remoteness, terrain, political stability, governing regime, and cultural differences. Absent a developed concept of “rule of law,” there is often no assurance of impartial courts, predictable enforcement of contracts, or due process in the treatment of employees or assets. Changes in regimes or economic conditions can result in an environment that has deteriorated significantly from the time a company made its initial country entry decision. Creeping expropriation through tax, royalty, or regulatory changes or total expropriation of assets is a potential risk. Expatriate employees are often asked to take local assignments, and local employees may be hired. Their safety and security is a central concern. Reputational risk is also a key consideration.
One of my favorite personal sayings is “everyone knows something that I don’t know.” Notice I didn’t say professors, judges, corporate CEOs, or the like. I said everyone knows something that I don’t know. That includes the person who cleans your office floors, the person who bags your groceries, the administrative assistants at your law firm – everyone. We all come from different backgrounds and have had very different life experiences. Our careers, education, family histories, homes, religions, ethnicities, our triumphs and tragedies, and so much more, all play a part in the story of who we are.
The simplest piece of advice Hemingway gave to writers may also be the most difficult one to implement. Hemingway, known for his succinct, direct, unadorned prose, encouraged other writers to emulate his style. In his story fragment On Writing, Hemingway described disliking writers who, in his words, “never learned how to say no to a typewriter”29 Hemingway often opted for one-syllable words and short sentences, leaving out adverb adjectives, and conclusions, and using positive language to make a point.30 Other writers at the time used flowery, descriptive language and complicated syntax. Hemingway did the opposite, and he was rewarded for it. He wrote to his editor in 1945 that “[i]t wasn’t by accident that the Gettysburg address was so short. The laws of prose writing are as immutable as those of flight, of mathematics, of physics.”31 His goal in writing was to write what he saw and felt in the best and simplest way.32 Hemingway allowed his readers to think for themselves instead of telling them in complex and fancy language what to make of his writing, saying that “the first and most important thing of all, at least for writers today, is to strip language clean, to lay it bare down to the bone.”
Generations of lawyers have been taught that thinking like a lawyer requires putting emotion aside. They are warned, for example, that anger will blind them to the facts as they really are. Yet cognitive science rejects the notion that emotion and reason are autonomous, warring spheres. Recently there has been increasing recognition of the harmful consequences of the narrow conception of “thinking like a lawyer” to lawyers’ well-being, but these consequences are generally portrayed as a necessary trade-off between the well-being of lawyers and the preservation of analytical rigor. This Essay will argue that the harm the narrow conception of “thinking like a lawyer” poses to lawyers’ well-being is not simply an ancillary issue or an unfortunate but necessary collateral consequence of engaging in rigorous, logical thinking. A conception of law that attempts to cordon off emotion is poorly suited to the complexities of legal practice and is inconsistent with modern knowledge about how legal, ethical, and moral reasoning—and indeed, legal change and reform—actually occur. This Essay will focus in particular on the emotion of anger and the consequences of attempting to banish it from the realm of legal reasoning.
Law school moot court competitions are everywhere. That is a bit of an exaggeration, to be sure, but not by much. At last count, students with an interest in litigation had more than 60 interschool appellate advocacy competitions to choose from, ranging in topics from admiralty to space law to veterans law. Toss in trial advocacy competitions, and the number of opportunities to hone litigation skills increases significantly. And seemingly every law school has its own intraschool litigation competitions, ranging from part of a 1L legal writing program to school-wide appellate advocacy competitions whose final rounds attract prominent judges or litigators and which are a résumé highlight for the winning students.
All that is helpful for students with a litigation bent. But what about transactionally minded students who do not anticipate making a living in a courtroom after graduation? Students with an eye toward developing their transactional skills and testing them out against other students have far fewer opportunities to do so.4 For whatever reason, transactional skills competitions have never been as prevalent as litigation focused events.
[There are numerous lists of resources in this document. Check them out if you’re interested in European law literature.]
What does it mean to be a wholehearted lawyer? Brené Brown defines wholehearted living as cultivating tools that allow us to experience a sense of love, worthiness, and belonging through daily practices of courage, compassion, and connection.
I’ve discussed wholeheartedness in connection with Relational Lawyering, which I’ve defined as habits of mind and practices that center relationships, including the relationship with ourselves (personal), with each other (interpersonal), and the broader structures and institutions in which we live and work (systemic). A relational approach is grounded in the interconnectedness and mutuality of all beings. All law teachers can bring wholeheartedness into the classroom if we adhere to the following core principles:
Teach from a place of kindness and curiosity with humility and transparency.
Recognize that everyone matters and that everyone wants to be seen and heard. ‘Mattering’ correlates with academic success and improved wellbeing
Appreciate our own contexts, including our values, multiple and intersectional cultural influences, identities, and histories, AND appreciate the contexts of others with whom we work and interact, and those who are impacted by our work.
Adopt a strengths-oriented, optimistic, growth mindset teaching and learning orientation.
Apply a relational ethic of care by ensuring everyone is given a voice, is listened to deeply and heard, and is responded to with dignity, respect, openness, and a generosity of spirit. This ethic of care applies with respect to our own self-compassion, as well as at an interpersonal level with students and others, and also represents a positive vision of lawyers’ professional roles and their potential impact on society.
In the context of clinical legal education, we have unique opportunities to apply these principles and foster them in our students through fully embracing our roles as teachers and supervisors. By encouraging wholeheartedness in our students, we can help them become more effective in their immediate work with clients and others they encounter in student practice and support their positive professional identity formation. At the same time, we can increase our own effectiveness and gain more enjoyment and fulfillment in our work.
The shift to remote legal education caused by the COVID-19 pandemic has presented many obstacles for students and law teachers, but there are opportunities as well. For example, legal educators are re-evaluating how they teach en masse and thinking deeply about what they want their students to learn from their courses.
Separately, for years critics have alleged traditional legal education fails to effectively prepare students for transactional practice. Other scholars and American Bar Association (ABA) studies have concluded that law schools should be more deliberate in training students to be transactional lawyers. Recommendations include adding problem sets, exercises, and exposure to practice in both doctrinal courses, such as the fundamental Business Organizations class, and developing in-depth deal simulation or writing-intensive courses for small cohorts of third-year law students.
Now is the perfect time to revisit those calls for change. This article illustrates ways in which remote learning presents opportunities to teach doctrinal business law in innovative, pedagogically sound ways.